Certification of Dispatchers, 35574-35630 [2023-10772]
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Federal Register / Vol. 88, No. 104 / Wednesday, May 31, 2023 / Proposed Rules
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 245
[Docket No. FRA–2022–0019, Notice No. 1]
RIN 2130–AC91
Certification of Dispatchers
Federal Railroad
Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
FRA proposes regulations for
the certification of dispatchers, pursuant
to the authority granted in section 402
of the Rail Safety Improvement Act of
2008.
SUMMARY:
Comments on the proposed rule
must be received by July 31, 2023. FRA
will consider comments received after
that date to the extent practicable.
ADDRESSES:
Comments: Comments related to
Docket No. FRA–2022–0019 may be
submitted by going to https://
www.regulations.gov and following the
online instructions for submitting
comments.
Instructions: All submissions must
include the agency name, docket
number (FRA–2022–0019), and
Regulatory Identification Number (RIN)
for this rulemaking (2130–AC91). All
comments received will be posted
without change to https://
www.regulations.gov; this includes any
personal information. 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 and follow the
online instructions for accessing the
docket.
DATES:
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FOR FURTHER INFORMATION CONTACT:
Curtis Dolan, Railroad Safety Specialist,
Dispatch Operating Practices, Federal
Railroad Administration, telephone:
(470) 522–6633, email: curtis.dolan@
dot.gov; or Michael C. Spinnicchia,
Attorney Adviser, Federal Railroad
Administration, telephone: (202) 493–
0109, email: michael.spinnicchia@
dot.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary
Information
I. Executive Summary
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II. Legal Authority
III. Background
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by
Executive Order 14094
B. Regulatory Flexibility Act and Executive
Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Executive Order 12898 (Environmental
Justice)
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Privacy Act Statement
K. Executive Order 13175 (Tribal
Consultation)
I. Executive Summary
Purpose of the Regulatory Action
FRA proposes to require railroads to
develop programs for certifying
individuals who perform dispatching
tasks on their networks. Under this
proposed rule, railroads would be
required to have formal processes for
training prospective dispatchers, as well
as verifying that each dispatcher has the
requisite knowledge, skills, safety
record, and abilities to safely perform all
of the safety-related dispatcher duties
mandated by Federal laws and
regulations, prior to certification. In
addition, railroads would be required to
have formal processes for revoking
certification (either temporarily or
permanently) for dispatchers who
violate specified minimum
requirements.
FRA is proposing this regulation in
response to the Rail Safety Improvement
Act of 2008 (RSIA), which required the
Secretary of Transportation (Secretary)
to submit a report to Congress
addressing whether certification of
‘‘certain crafts or classes’’ of railroad
employees or contractors, including
railroad dispatchers, was necessary to
‘‘reduce the number and rate of
accidents and incidents or to improve
railroad safety.’’ If the Secretary
determined it was necessary to require
the certification of certain crafts or
classes to improve railroad safety,
section 402 of the RSIA stated the
Secretary may prescribe such
regulations.
The Secretary submitted a report to
Congress on November 4, 2015, stating
that, based on FRA’s preliminary
research, dispatchers were one of the
most viable candidate railroad crafts for
certification. Given the safety critical
role of dispatchers in facilitating safe
railroad operations (which includes the
coordination of emergency services in
response to accidents and incidents),
FRA determined that railroad safety is
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expected to be improved if dispatchers
were required to satisfy certain
standards and be certified by their
employing railroads.
Summary of Major Provisions
This proposed rule would require
railroads to develop written programs
for certifying individuals who work as
dispatchers on their territories and to
submit those written certification
programs to FRA for approval prior to
implementation. FRA would issue a
letter to the railroad when it approves
a certification program, that explains the
basis for approval, and a program will
not be considered approved until the
approval letter is issued.
FRA is proposing to require Class I
railroads (including the National
Railroad Passenger Corporation), and
railroads providing commuter service,
to submit their written certification
programs to FRA no later than eight (8)
months after the final rule effective date.
Class II and Class III railroads would be
required to submit their written
certification plans sixteen (16) months
after the final rule effective date. New
railroads that begin operation after the
final rule effective date would be
required to submit their written
certification programs to FRA and
obtain FRA approval before
commencing operations. In addition,
railroads seeking to materially modify
their FRA-approved certification
programs would be required to obtain
FRA approval prior to modifying their
programs.
Railroads would be required to
evaluate certification candidates in
multiple areas, including prior safety
conduct as a motor vehicle operator,
prior safety conduct as an employee of
a different railroad, substance abuse
disorders and alcohol/drug rules
compliance, and vision and hearing
acuity.
The proposed rule also contains
minimum requirements for the training
provided to prospective dispatchers.
The proposed requirements are
intended to ensure that certified
dispatchers have received sufficient
training before they are hired to work as
dispatchers on the railroad. The
proposed requirements are also
intended to ensure that certified
dispatchers periodically receive
recurring training on railroad safety and
operating rules and practices, as well as
comprehensive training on the use of
new dispatching systems and
technology before they are introduced
on the railroads in revenue service.
With the exception of individuals
designated as certified dispatchers prior
to FRA approval of the railroad’s
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dispatcher certification program, the
proposed rule would prohibit railroads
from certifying dispatchers for intervals
longer than three (3) years. This threeyear limitation, which would be
consistent with the 36-month maximum
period for certifying locomotive
engineers in 49 CFR 240.217(c) and
conductors in 49 CFR 242.201(c), would
allow for periodic re-evaluation of
certified dispatchers to verify their
continued compliance with FRA’s
minimum safety requirements.
Subpart D of this proposed rule
addresses the process and criteria for
denying and revoking certification.
Proposed § 245.301 describes the
process a railroad would be required to
undergo before it denies an individual
certification or recertification. This
process would include providing the
certification candidate with the
information that forms the basis for the
denial decision and giving the candidate
an opportunity to rebut such evidence.
When a railroad denies an individual
certification or recertification, it must
issue its decision in writing, and the
decision must comply with certain
requirements provided in the proposed
rule.
A railroad could only revoke a
dispatcher’s certification if one of eight
events occurs. Generally, for the first
revocable event that is not related to a
dispatcher’s use of drugs or alcohol, the
person’s certification would be revoked
for 30 days. If an individual
accumulates more of these violations in
a given time period, the revocation
period (period of ineligibility) would
become increasingly longer.
If a railroad acquires reliable
information that a certified dispatcher
has violated an operating rule or
practice requiring decertification under
the proposed rule, it shall suspend the
dispatcher’s certificate immediately
while it determines whether revocation
of the certificate is warranted. In such
circumstances, dispatchers would be
entitled to a hearing. Similar to a
railroad’s decision to deny an
individual certification, a railroad’s
decision to revoke a dispatcher’s
certification would be required to satisfy
certain requirements. Finally, if an
intervening cause prevented or
materially impaired a dispatcher’s
ability to comply with a railroad
operating rule or practice, the railroad
would not revoke the dispatcher’s
certification.
Subpart E of this proposed rule
discusses the dispute resolution process
for individuals who wish to challenge a
railroad’s decision to deny certification,
deny recertification, or revoke
certification. This dispute resolution
process mirrors the process used for
locomotive engineers and conductors
under 49 CFR parts 240 and 242,
respectively.
Finally, the proposed rule contains
two appendices. Appendix A discusses
the procedures that a person seeking
certification or recertification should
follow to furnish a railroad with
information concerning their motor
vehicle driving record. Appendix B
provides guidance on the procedures
railroads should employ in
administering the vision and hearing
requirements under §§ 245.117 and
245.118.
This proposed rule does not revise 49
CFR part 241, United States Locational
Requirement for Dispatching of United
States Rail Operations. Furthermore,
this proposed rule would not apply to
dispatchers located outside of the
United States as ‘‘[i]t is a longstanding
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principle of American law ‘that
legislation of Congress, unless a
contrary intent appears, is meant to
apply only within the territorial
jurisdiction of the United States.’ ’’ 1
Costs and Benefits
FRA analyzed the economic impact of
this proposed rule. FRA estimated the
costs to be incurred by railroads and the
Government. FRA also estimated the
benefits of fewer dispatcher-caused
accidents.
FRA is proposing regulations
establishing a formal certification
process for railroad dispatchers. As part
of that process, railroads would be
required to develop a program meeting
specific requirements for training
current and prospective dispatchers,
documenting and verifying that the
holder of the certificate has achieved
certain training and proficiency, and
creating a comprehensive record,
including of safety compliance
infractions, that other railroads can
review when considering individuals
for certification.
This proposed regulation would
ensure that dispatchers are properly
trained, are qualified to perform their
duties, and meet Federal safety
standards. Additionally, this proposed
regulation is expected to improve
railroad safety by reducing the rate of
accidents/incidents.
FRA estimates the 10-year costs of the
proposed rule to be $5.3 million,
discounted at 7 percent. The estimated
annualized costs would be $0.8 million
discounted at 7 percent. The following
table shows the total costs of this
proposed rule, over the 10-year analysis
period.
TOTAL 10-YEAR DISCOUNTED COSTS (2020 DOLLARS) 2
Present value 7%
($)
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Category
Present value 3%
($)
Annualized 7%
($)
Annualized 3%
($)
Development of Certification Program .............................................
Certification Eligibility Requirements ...............................................
Recertification Eligibility Requirements ............................................
Training ............................................................................................
Knowledge Testing ..........................................................................
Vision and Hearing ..........................................................................
Monitoring Operational Performance ...............................................
Railroad Oversight Responsibilities .................................................
Certification Card .............................................................................
Petitions and Hearings ....................................................................
Government Administrative Cost .....................................................
929,395
55,360
65,831
707,334
233,988
1,586,913
256,017
267,530
26,832
8,198
1,208,191
953,949
61,963
83,877
812,820
281,581
1,909,692
305,956
326,714
32,289
9,797
1,361,239
132,325
7,882
9,373
100,708
33,315
225,941
36,451
38,090
3,820
1,167
172,019
111,832
7,264
9,833
95,287
33,010
223,874
35,867
38,301
3,785
1,149
159,579
Total ..........................................................................................
5,345,589
6,139,877
761,092
719,781
1 E.E.O.C. v. Arabian American Oil Co., 499 U.S.
244, 248 (1991) (quoting Foley Bros., Inc. v. Filardo,
336 U.S. 281, 284–85 (1949)).
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2 Numbers in this table and subsequent tables
may not sum due to rounding.
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This rule is expected to reduce the
likelihood of an accident occurring due
to dispatcher error. FRA has analyzed
accidents over the past five years to
categorize those where dispatcher
training and certification would have
impacted the accident. FRA then
estimated benefits based on that
analysis.
The following table shows the
estimated 10-year quantifiable benefits
of the proposed rule. The total 10-year
estimated benefits would be $0.8
million (PV, 7%) and annualized
benefits would be $0.1 million (PV,
7%).
TOTAL 10-YEAR DISCOUNTED BENEFITS (2020 DOLLARS)
Present value 7%
($)
Present value 3%
($)
Annualized 7%
($)
Annualized 3%
($)
785,599 ..................................................................................................................................
918,450
111,852
107,670
This proposed rule would also
provide unquantifiable benefits. FRA
has quantified the monetary impact
from accidents reported on FRA
accident forms. However, some accident
costs are not required to be reported on
FRA accident forms (e.g., environmental
impact). That impact may account for
additional benefits not quantified in this
analysis. If these costs were realized,
accidents affected by this proposed
rulemaking could have much greater
economic impact than the quantitative
benefit estimates provided here.
There is also a chance of a high
impact event due to a dispatcher error.
This could involve fatalities, injuries,
and environmental damage, as well as
impacting railroads, communities, and
the public. FRA has not estimated the
likelihood of such an accident, but this
proposed rule is expected to reduce the
risk that an accident of that magnitude.
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II. Legal Authority
Pursuant to the Rail Safety
Improvement Act of 2008, Public Law
110–432, sec. 402, 122 Stat. 4848, 4884
(Oct. 16, 2008) (hereinafter ‘‘RSIA’’), the
Secretary of Transportation (Secretary)
was required to submit a report to
Congress addressing whether
certification of certain crafts or classes
of employees, including dispatchers,
was necessary to reduce the number and
rate of accidents and incidents or to
improve railroad safety.3 If the Secretary
determined it was necessary to require
the certification of certain crafts or
classes of employees to reduce the
number and rate of accidents and
incidents or to improve railroad safety,
section 402 of the RSIA stated the
Secretary may prescribe such
regulations. The Secretary delegated this
authority to the Federal Railroad
Administrator. 49 CFR 1.89. In response
to the RSIA, the Secretary submitted a
report to Congress on November 4,
3 See also 49 U.S.C. 20103 (providing FRA’s
general authority to ‘‘prescribe regulations and
issues orders for every area of railroad safety’’).
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2015,4 stating that, based on FRA’s
preliminary research, dispatchers and
signal employees were potentially the
most viable candidate railroad crafts for
certification. Based on the analysis in
Section III below, the Federal Railroad
Administrator has determined that it is
necessary to require the certification of
railroad dispatchers to improve railroad
safety.
III. Background
1. Roles and Responsibilities of
Dispatchers
Railroad dispatchers play an integral
role in railroad safety and operations.
They are responsible for allocating and
assigning track use, ensuring that trains
are routed safely and efficiently, and
ensuring the safety of personnel
working on and around railroad track.
These are cognitively complex tasks that
require integrating multiple sources of
information (e.g., information from train
schedules, computer displays of current
track state, radio communication with
various personnel such as locomotive
engineers, and in some cases, projecting
into the future (e.g., estimating when the
train will arrive)); and balancing
multiple demands placed on track use
(e.g., balancing the need for
maintenance-of-way workers to have
time to work on the track with the need
to make sure that the track will be clear
when a train is anticipated to arrive).
Some of the main tasks 5 dispatchers
perform involve: operation monitoring
(monitoring a computerized train
dispatching model board); information
4 www.regulations.gov/document/FRA-2022-00190001.
5 As part of a contract with FRA, Foster-Miller,
Inc., conducted research to develop a tool for
assessing railroad dispatcher task load. Task load is
defined as the average time demanded of a
dispatcher in carrying out all job-related tasks at a
particular desk, over a specified period of time (e.g.,
one shift). Stephen J. Reinach, Toward the
Development of a Performance Model of Railroad
Dispatching 2042–46 (Proceedings of the Human
Factors and Ergonomics Society 50th Annual
Meeting, 2006). A copy of this report can be found
at https://railroads.dot.gov/elibrary/proceedingshuman-factors-and-ergonomics-society-50thannual-meeting-2006.
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collection and data entry (collecting
information about slow orders and any
blocking protection required by railroad
workers on the track); communication
(playing an important role in roadway
worker planning and protection);
emergency response (working to limit
the damage to human life and property
during an emergency); and knowledge
of territory (knowing the specific
characteristics of the territory assigned
to them).
Over the past 5 to 10 years, the job of
a railroad dispatcher has become more
complex and demanding. The number
of dispatchers has decreased over the
years, and dispatcher territory is
expanding due to this decrease. Also,
with the advancement of Positive Train
Control (PTC), dispatchers must
understand the interface between the
computer-aided dispatching system and
the train control system, with respect to
the safe movement of trains and other
on-track equipment. Dispatchers need to
understand the operating rules
applicable to the train control system,
including granting permission for
movement and protection of roadway
workers; unequipped trains; trains with
failed or cut-out train control onboard
systems; control system fails; and
providing for safe operations under the
alternative method of operation. The
availability of affordable computer
systems has made computer-aided
dispatching (CAD) feasible for many
railroads. The improved
communications systems led to the
acceptance of radio transmitted
directives in place of the traditional
paper train orders that had been
previously used. These changes in
communications and signal technology
have also resulted in the closing of
block towers, eliminating the job of
tower operator, a job that was often on
the career path to becoming a
dispatcher.
Today, dispatchers are likely to use
multiple computer screens and
electronic equipment, in addition to a
communications system. However, a
short line railroad may still use hand-
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written or verbal authorities to move
trains across dark (unsignalled)
territory. The industry’s adoption of
new dispatching technology, changes in
operating rules and methods of
operation, and railroad industry
restructuring all have potential safety
consequences. Additionally, excessive
workloads and increases in
occupational stress could result from
any of these factors. The role of the
dispatcher would also significantly
increase with a possible increase in oneperson crew operations, as more
vigilance and attention will be needed
to cover these operations. Additional
one-person crew operations would
introduce increased workloads as the
dispatcher will be the direct ‘‘lifeline’’
to the multiple one-person operations in
a given assigned territory.
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2. FRA History of Certification
On January 4, 1987, an Amtrak train
collided with a Conrail train in Chase,
Maryland, resulting in 16 deaths and
174 injuries. At the time, it was the
deadliest train accident in Amtrak’s
history. The subsequent investigation by
the National Transportation Safety
Board concluded that the probable
cause of the accident was the
impairment of the Conrail engineer who
was under the influence of marijuana at
the time of the collision.6
Following this accident, Congress
passed the Rail Safety Improvement Act
of 1988, Public Law 100–342, 4, 102
Stat. 624, 625 (1988), which instructed
the Secretary of Transportation
(Secretary) to ‘‘issue such rules,
regulations, orders, and standards as
may be necessary to establish a program
requiring the licensing or certification of
any operator of a locomotive, including
any locomotive engineer.’’ On June 19,
1991, FRA published a final rule
establishing a certification system for
locomotive engineers and requiring
railroads to ensure that they only certify
individuals who met minimum
qualification standards.7 In order to
minimize governmental intervention,
FRA opted for a certification system
where the railroads issue the certificates
as opposed to a government-run
licensing system. This final rule,
published in 49 CFR part 240 (part 240),
created certification requirements for
engineers that addressed various areas,
including vision and hearing acuity;
6 Railroad Accident Report: Rear-end Collision of
Amtrak Passenger Train 94, the Colonial and
Consolidated Rail Corporation Freight Train ENS–
121, on the Northeast Corridor, Chase, Maryland,
January 4, 1987 144 (Nat’l Transp. Safety Bd. 1988).
7 56 FR 28227 (June 19, 1991).
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training, knowledge, and performance
skills; and prior safety conduct.
Seventeen years later, Congress
passed the Rail Safety Improvement Act
of 2008, Public Law 110–432, 402, 122
Stat. 4848, 4884 (2008) (hereinafter
‘‘RSIA’’), which mandated the creation
of a certification system for conductors.
On November 9, 2011, FRA published a
final rule requiring railroads to have
certification programs for conductors
and to ensure that all certified
conductors satisfy minimum Federal
safety standards.8 The conductor
certification rule, published in 49 CFR
part 242 (Part 242), was largely modeled
after Part 240 with some deviations
based on the different job
classifications. Part 242 also included
some organizational improvements
which made the regulation more
streamlined than Part 240.
3. Statutory Background for Dispatcher
Certification
In addition to requiring certification
for conductors, the RSIA required the
Secretary to submit a report to Congress
addressing whether certain other
railroad crafts or classes of employees
would benefit from certification.
Specifically, section 402(b) of the RSIA
requires that the Secretary issue a report
to Congress ‘‘about whether the
certification of certain crafts or classes
of railroad carrier or railroad carrier
contractor or subcontractor employees is
necessary to reduce the number and rate
of accidents and incidents or to improve
railroad safety.’’ As part of that report,
section 402(c) specifically requires the
Secretary to consider dispatchers as one
of the railroad crafts for certification.
After identifying a railroad craft or
class for which certification is
necessary, pursuant to the report to
Congress discussed above, section
402(d) authorizes the Secretary to
‘‘prescribe regulations requiring the
certification of certain crafts or classes
of employees that the Secretary
determines . . . are necessary to reduce
the number and rate of accidents and
incidents or to improve railroad safety.’’
4. Report to Congress
On November 4, 2015, the Secretary
submitted the report to Congress
required under the RSIA. The report
stated that, based on FRA’s preliminary
research, dispatchers and signal repair
employees were the most viable
candidates for certification. In reaching
this determination with respect to
dispatchers, the Secretary cited a variety
of factors.
8 76
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The report noted that dispatchers
perform safety-sensitive work as shown
by dispatchers being covered under the
hours-of-service laws; and they are
subject to regular and pre-employment
random drug and alcohol testing. In
2012 and 2013, dispatchers had the
highest pre-employment positive drug
testing rate among all crafts. Annual
drug and alcohol testing data submitted
to FRA in 2012 and 2013 showed a 0.68percent random positive drug testing
rate and a 0.79-percent pre-employment
positive drug testing rate for dispatch
employees compared to a 0.48-percent
random positive drug testing rate and a
0.46-percent pre-employment positive
drug testing rate for signal employees;
and a 0.49-percent random positive drug
testing rate and a 0.55-percent preemployment positive drug testing rate
for train and engine service employees.9
The report noted that 49 CFR parts 240
and 242 require a five-year alcohol and
drug background check as well as
disqualification of employees for
specified alcohol and drug test
violations and for refusing such testing.
If such requirements were included in a
dispatcher certification program, it
could help prevent dispatchers with
active substance abuse disorders from
‘‘job hopping’’ from one employer to
another and reduce the safety risk of
having individuals with untreated
substance abuse disorders working as
dispatchers.
Another important factor in the report
was the complicated nature of the work
dispatchers perform to ensure the safety
and efficiency of railroad operations.
Dispatchers are responsible for
allocating and assigning main track use
to trains from their own employer as
well as trains from other railroads. They
are also responsible for the safety of
roadway workers working on or near
track. The report summarized the
demanding nature of dispatching by
stating that it entails performing
cognitively complex tasks that require
rapid decision making, projecting into
the future, and balancing numerous
demands on track use.
Additionally, the report cited a ‘‘great
amount of turnover’’ in the nationwide
train dispatching workforce, resulting in
a less experienced workforce, as further
support for requiring certification.
Finally, the report found that, with the
9 Testing results submitted to FRA in 2020 and
2021 showed a 0.94-percent random violation rate
(drug and alcohol positives and refusals) rate and
a 0.85-percent pre-employment violation rate for
dispatch employees compared to a 0.81-percent
random violation rate and a 0.79-percent preemployment violation rate for signal employees;
and a 0.49-percent random positive drug testing rate
and a 0.55-percent pre-employment positive drug
testing rate for train and engine service employees.
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exception of train and engine crews, no
function of railroad operations is more
critical to safety than dispatching. The
accumulation of these factors led to the
report’s conclusion that dispatching was
a potentially viable candidate for
certification.
5. RSAC Working Group
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. 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.
On April 21, 2017, a task statement
regarding certification of dispatchers
was presented to the RSAC by email,
but no vote was taken. On April 24,
2019, the RSAC accepted a task (No. 19–
02) entitled ‘‘Certification of Train
Dispatchers.’’ 10 The purpose of the task
was ‘‘[t]o consider whether rail safety
would be enhanced by developing
guidance, voluntary standards, and/or
draft regulatory language for the
certification of train dispatchers.’’ The
task called for the RSAC Train
Dispatcher Certification Working Group
(Working Group) to perform the
following:
—Review critical tasks performed by
dispatching employees for safe train
operations, particularly with the
introduction of PTC technology.
—Review training, duration, content,
and methodology for new hire and
continuing education.
—Review background checks
designed to prevent dispatching
employees with active substance abuse
disorders from ‘‘job-hopping’’ from one
employer to another.
The task statement also asked the
Working Group to address the following
issues, if appropriate:
—What requirements for training and
experience are appropriate?
—What classifications of dispatchers
should be recognized, if any?
—To what extent do existing
requirements and procedures for
10 At the same meeting, the RSAC also accepted
a task (No. 19–03) titled ‘‘Certification of Railroad
Signal Employees.’’ A separate RSAC Working
Group was formed to address this task, and FRA
plans to issue a related proposed rule that would
establish certification requirements for signal
employees.
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certification of locomotive engineers
and conductor certification provide a
model for dispatcher certification?
—What types of unsafe conduct
should affect a train dispatcher’s
certification status?
—Do the existing locomotive engineer
and conductor certifications provide an
adequate model for handling appeals
from decertification decisions of the
railroads?
The Working Group, which included
representatives from the Association of
American Railroads (AAR), American
Public Transportation Association,
American Short Line and Regional
Railroad Association (ASLRRA),
American Train Dispatchers
Association, Brotherhood of Railroad
Signalmen, SMART Transportation,
Commuter Rail Coalition, and National
Railroad Construction & Maintenance
Association, held its first and only
meeting on September 4, 2019 in
Washington, DC. At this meeting, the
Working Group reviewed the task
statement from the RSAC, discussed
some of the safety-critical tasks
performed by dispatchers, and debated
whether certification of dispatchers
would be beneficial to railroad safety.
At the end of the meeting, action items
were assigned and the next meeting was
tentatively scheduled for January 2020.
However, on December 16, 2019, the
presidents of the American Train
Dispatchers Association, the
Brotherhood of Railroad Signalmen, and
the International Brotherhood of
Electrical Workers (collectively the
‘‘Unions’’) sent a letter to the FRA
Administrator requesting that this RSAC
task be withdrawn from consideration at
this time. The letter stated the Unions
were currently involved in numerous
activities and were not able to give the
task proper attention. AAR and
ASLRRA advised the Unions that they
were not opposed to this request. In
response to this letter, FRA withdrew
this task from the RSAC, and the
Working Group became inactive.
6. Public Outreach
In 2021, FRA revisited the issue of
establishing certification requirements
for dispatchers. The agency assembled
subject matter experts from FRA, the
American Train Dispatchers Association
(ATDA), the International Brotherhood
of Electrical Workers (IBEW), and the
Brotherhood of Railroad Signalmen to
exchange facts and information
regarding the tasks performed by
dispatchers. Those parties met virtually
several times between May 5, 2021 and
June 30, 2021.
As part of FRA’s outreach, a list of
tasks performed by dispatchers was
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developed. These tasks generally
involved: track authorities; mandatory
directives; track worker protection;
emergency response coordination; or
incident management. FRA reviewed
each task to determine whether
correctly performing the task was
critical to railroad safety; what were the
potential consequences if errors were
made while performing the task; and
whether there were any recent examples
of issues or concerns with respect to the
task. After performing this analysis,
FRA concluded that the vast majority of
tasks performed by dispatchers (80–90%
of the listed tasks) were critical to
railroad safety with potentially
catastrophic consequences, such as
accidents, injuries, and/or deaths, if the
tasks were not performed properly. In
addition, because dispatchers provide
incident management and emergency
response coordination, FRA concluded
that by properly performing their tasks,
dispatchers can help reduce the
consequences of accidents and mitigate
injuries.
During FRA’s outreach, the benefits of
certification based on the experience of
stakeholders with engineer and
conductor certification under 49 CFR
parts 240 and 242 were also discussed.
Some of the main benefits of
certification that were identified
included:
—Creating a minimum standard for
training to ensure that the training
encompasses all skills and proficiencies
necessary to properly perform all safetyrelated dispatcher functions;
—Establishing a record of safety
compliance that will follow a dispatcher
if they wish to become certified by
another railroad and that can be used to
review a dispatcher’s performance and
potential training needs;
—Requiring certain safety checks,
such as identifying active substance
abuse disorders, that can minimize the
risks posed by job hopping; and
—Establishing a system for
individuals to dispute a railroad’s
decision to deny or revoke certification
with the aim of creating a fair and
consistent process for all parties.
Further, some parties noted that they
had witnessed industry trends to reduce
the length and level of training for
dispatchers which would make
certification even more beneficial. Based
on these meetings, FRA concluded that
requiring certification for dispatchers
would be an important tool to ensure
dispatchers are adequately trained and
qualified; have a documented record of
performance; and are not able to job hop
without a new employer having
knowledge of the dispatcher’s safety
performance record.
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Following this initial outreach, FRA
held a follow-up conversation with
ATDA and IBEW, on March 3, 2022, and
individuals from ATDA and IBEW
informed FRA of elements that they
believe would be beneficial in a
dispatcher certification program. During
this conversation, which was held in
videoconference format, FRA asked the
attendees to provide individualized
feedback on how similar or different a
dispatcher certification rule should be
to FRA’s locomotive engineer and
conductor certification rules found in 49
CFR parts 240 and 242.
FRA heard that the agency needs to
ensure that comprehensive training is
provided to dispatchers as the current
training is inadequate. FRA also heard
that railroads are not providing enough
training on new technology and in some
cases, training only consists of a
PowerPoint presentation or watching a
video. It was also noted that dispatchers
are often told to ask their managers if
they have questions, but managers are
not always knowledgeable about the
craft and often do not have sufficient
expertise to answer such questions.
On March 7, 2022, FRA had a
conversation with the railroad industry,
including the Norfolk Southern
Corporation (NS), AAR, and ASLRRA.
During this conversation, which was
conducted in a videoconference format,
FRA also asked for individualized
feedback on how FRA’s locomotive
engineer and conductor certification
regulations in 49 CFR parts 240 and 242
could be improved upon with respect to
dispatcher certification. Specifically,
FRA asked for feedback on any
regulatory provisions in 49 CFR parts
240 and 242 that, in their experience,
may have been difficult to implement,
as well as whether FRA should explore
any changes to these regulatory
provisions.
AAR expressed opposition to FRA’s
proposal to issue regulations requiring
certification of dispatchers arguing that
there was not a safety benefit to
certification. In addition, NS questioned
the need for certification regulations in
the absence of any identified gaps in
coverage by existing railroad training
programs. ASLRRA expressed concern
that FRA’s proposal to issue regulations
requiring dispatcher certification would
result in a large paperwork burden with
little benefit.
After this conversation, FRA provided
a short list of written questions to AAR
and ASLRRA. While AAR did not
provide additional feedback in response
to FRA’s list of questions, ASLRRA
responded to FRA’s list of written
questions by email on April 13, 2022, a
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copy of which has been placed in the
docket.11
On March 10, 2022, FRA staff had a
follow-up conversation with ATDA and
IBEW to receive information on the
types of errors and operating practice
violations that should result in a
railroad revoking a dispatcher’s
certification. During this conversation,
which was conducted in a video
conference format, FRA heard that a
dispatcher’s certification should not be
revoked during an operations test, and
that a person training a dispatcher
should not have their certification
revoked if a person they are training
commits a revocable offense, as long as
the trainer took appropriate action.
However, a list of prospective revocable
events was not generated during this
meeting.
7. Contractors
FRA considered whether railroad
contractors (and subcontractors) should
be authorized to certify their employees.
FRA did not, however, include that
option in this proposed rule. Instead,
consistent with FRA’s engineer and
conductor certification regulations, this
proposed rule requires railroads to
develop and submit certification
programs to FRA for approval and then
implement their FRA-approved
certification programs. FRA is proposing
to adopt this approach because railroads
are ultimately held responsible for the
actions (or failure to act) of their
employees, contractors, and
subcontractors when engaged in railroad
operations.
FRA acknowledges that dispatcher
functions are increasingly being
contracted out by railroads to
companies that specialize in this work.
However, railroads are most
knowledgeable about the unique
characteristics of their territories.
Therefore, railroads are best suited to
develop certification programs that are
needed to ensure that all employees
responsible for allocating and assigning
main track use, routing trains safely and
efficiently, and ensuring the safety of
roadway workers who are working on or
near the railroad tracks have been
properly trained and certified on: (a) the
railroad’s rules and practices for the safe
movement of trains; (b) physical
characteristics of the territory for which
the employee will be working as a
dispatcher; and (c) the dispatching
systems and technology used by that
railroad. In addition, by keeping
11 A record of public contact summarizing this
meeting has been posted in the rulemaking docket
at: https://www.regulations.gov/document/FRA2022-0019-0002.
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certification programs in-house,
railroads can implement quality control
measures to ensure that their FRAapproved certification programs are
being implemented properly.
Nonetheless, FRA is soliciting
comment on the approach adopted in
this proposed rule, which would require
railroads to develop and implement
FRA-approved dispatcher certification
programs. To ease any potential burden,
especially on Class III railroads, the
proposed rule would allow all railroads
to choose between conducting the
training or using a training program
conducted by a third-party, which
would be adopted and ratified by the
railroad. In addition, contractors that
employ dispatchers could help railroads
comply with the requirements in this
proposed rule by providing information
about their dispatchers’ compliance
with some of the proposed regulatory
requirements. For example, contractors
could provide information about their
dispatchers’ compliance with the vision
and hearing acuity requirements in the
proposed rule. Under this proposed
rule, however, railroads would
ultimately be liable for ensuring that
only certified dispatchers are permitted
to perform dispatching tasks on their
networks.
8. Interaction With Other FRA
Regulations
While developing this proposed rule,
FRA has been mindful of other
regulations that may touch upon topics
covered in this proposed rule, including
FRA’s training, qualification, and
oversight regulations in 49 CFR part 243
(part 243); railroad safety risk reduction
programs (SSP/RRP) in 49 CFR parts
270 and 271 (part 270 and part 271); and
fatigue risk management programs
(FRMP) in parts 270 and 271. However,
FRA finds that this proposed rule would
complement, rather than duplicate,
those regulations.
Dispatchers are currently included in
part 243’s requirements for training,
qualification, and oversight for safetyrelated railroad employees. However,
part 243 does not require employees to
undergo a performance skill evaluation
conducted by a qualified instructor to
verify adequate knowledge transfer.
Therefore, even though railroads (and
third-party entities that employ
dispatchers) are required to have
training programs in place for
dispatchers, railroads are not required to
have effective processes in place to
require prospective dispatchers to
exhibit the extent to which they have
developed the necessary skills to serve
as an effective dispatcher.
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Part 243 also does not require
railroads to have formal processes in
place for promptly removing
dispatchers from service if they violate
one or more basic regulatory standards
that could have a significant negative
impact on the safety of rail operations.
FRA’s proposed dispatcher certification
regulatory requirements have been
drafted to help address this void, as well
as prevent dispatchers who have been
fired for committing one or more of the
revocable events discussed in the
proposed rule from ‘‘job hopping’’ and
quickly resuming safety-sensitive
service at a different railroad that is
unaware of the dispatcher’s prior
violation(s) of FRA’s rail safety
requirements.
As codified in parts 270 and 271, FRA
requires Class I railroads, railroads with
inadequate safety performance, and
passenger rail operations to implement
railroad safety risk reduction programs.
A railroad safety risk reduction program
is a comprehensive, system-oriented
approach to safety that determines an
operation’s level of risk by identifying
and analyzing identified hazards and
developing strategies to mitigate risks
associated with those hazards. In this
background, FRA is using the term
‘‘railroad safety risk reduction
programs’’ to include both a ‘‘system
safety program’’ (SSP) that is required
for certain passenger rail operations 12
and a ‘‘risk reduction program’’ (RRP)
that is required for a limited number of
other rail operations.13
Although a railroad safety risk
reduction program might address a
railroad’s safety hazards and risks
associated with its dispatchers, the
framework established by these
programs neither directly addresses the
risks associated with dispatching nor
establishes an industry-wide approach.
First, not every railroad is required to
have a railroad safety risk reduction
program. Indeed, FRA estimates that
fewer than 100 railroads (out of
approximately 750 under FRA’s
jurisdiction) will be required to develop
a railroad safety risk reduction program
over the next 10 years.
Second, even if a railroad is required
to have a railroad safety risk reduction
program through which it identifies the
risks associated with dispatching, the
railroad may decide not to implement
mitigations to eliminate or reduce those
specific risks. Parts 270 and 271 permit
12 49
CFR 270.3 (requiring the application of the
system safety rule to certain passenger rail
operations).
13 49 CFR 271.3 (requiring the application of the
risk reduction program rule to certain rail
operations).
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railroads to prioritize risks.14 Whether a
railroad that is required to have a
program mitigates risks associated with
dispatching will depend on how the
railroad prioritizes risks for mitigation
and how effectively that mitigation
would promote continuous safety
improvement compared to mitigation of
other identified hazards and risks. Thus,
even if aspects of dispatching are
identified as a risk, a railroad may not
implement mitigations to eliminate or
reduce that risk.
Accordingly, while the SSP/RRP
requirements may complement this
proposed rule, they do not address the
need for FRA and the railroads to
consider and address the safety risks of
dispatching across the entire industry.
With respect to FRMPs,15 an FRMP is
a comprehensive, system-oriented
approach to safety in which a railroad
determines its fatigue risk by identifying
and analyzing applicable hazards, and
developing plans to mitigate, if not
eliminate, those risks. Like the SSP/RRP
rules, the FRMP rule is part of FRA’s
continual efforts to improve rail safety
and will satisfy the statutory mandate of
Section 103 of the Rail Safety
Improvement Act of 2008.16
Like the SSP/RRP requirements, there
is no guarantee that any railroad
covered by the regulation will use an
FRMP to address dispatching issues. As
with the SSP/RRP rules, a covered
railroad must identify fatigue hazards,
assess the risks associated with those
fatigue hazards, and prioritize those
risks for mitigation purposes. It is
possible that other fatigue risks, not
associated with dispatching, might rank
higher, in which case the risk associated
with dispatching might not be promptly
mitigated. Further, because the FRMP
requirements would apply only to those
railroads required to comply with the
SSP/RRP requirements, an FRMP would
not be required of every railroad that
performs dispatch tasks. Thus, like the
SSP/RRP rules, this proposed rule is
complementary to the FRMP final rule
and is not duplicative.
IV. Section-by-Section Analysis
Subpart A—General
Subpart A of the proposed rule
contains general provisions, including a
formal statement of the proposed rule’s
purpose and scope. The subpart also
provides that this proposed rule does
14 See e.g., 49 CFR 270.5 (definition of ‘‘risk-based
hazard management’’) and 271.103(b)(3).
15 On June 13, 2022, FRA published a final rule
adding a FRMP to the railroad safety risk reduction
program requirements in Parts 270 and 271. 85 FR
83484.
16 Codified at 49 U.S.C. 20156.
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not constrain the ability of a railroad to
prescribe additional or more stringent
requirements for its dispatchers that are
not inconsistent with this proposed
rule.
Section 245.1
Purpose and Scope
This section, derived from 49 CFR
240.1 and 242.1, indicates that the
purpose of the proposed rule is to
ensure that only those persons who
meet minimum Federal safety standards
serve as dispatchers, to reduce the rate
and number of accidents and incidents,
and to improve railroad safety.
Even though a person may have a job
title other than dispatcher, the
requirements of this proposed rule
would apply to that person if they meet
the definition of ‘‘dispatcher.’’ The
definition of ‘‘dispatcher,’’ and an
explanation of who is covered by the
definition, are discussed in more detail
in the section-by-section analysis for
§ 245.7, below.
Section 245.3 Application and
Responsibility for Compliance
The extent of FRA’s jurisdiction, and
the agency’s exercise of that
jurisdiction, is well-established. See 49
CFR part 209, appendix A. This
proposed application and responsibility
for compliance section is consistent
with FRA’s Statement of Agency Policy
Concerning Enforcement of the Federal
Railroad Safety Laws in appendix A to
49 CFR part 209.
This section, derived from 49 CFR
240.3 and 242.3, provides that the
proposed rule would apply to all
railroads with four exceptions.
Paragraph (a)(1) of this section notes
that this proposed rule would not apply
to railroads that do not perform any
dispatch tasks. In paragraph (a)(2), FRA
proposes to exempt operations that
occur within the confines of industrial
installations commonly referred to as
‘‘plant railroads’’ and typified by
operations such as those in steel mills
that do not go beyond the plant’s
boundaries and that do not involve the
switching of rail cars for entities other
than themselves. Further explanation of
what is meant by the term ‘‘plant
railroad’’ is provided in the section-bysection analysis for § 245.7.
Paragraph (a)(3) of this section
excludes ‘‘tourist, scenic, historic, and
excursion operations that are not part of
the general railroad system of
transportation’’ (as defined in § 245.7)
from compliance with this rule.
Excluding these types of operations
from this rule is consistent with FRA’s
jurisdictional policy that excludes these
operations from all but a limited
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number of Federal safety laws,
regulations, and orders.
The final proposed exclusion covers
rapid transit operations in an urban area
that are not connected to the general
railroad system of transportation. It
should, however, be noted that FRA
exercises jurisdiction over some rapid
transit type operations, given their links
to the general railroad system of
transportation, such as rapid transit
operations conducted on track used for
freight, intercity passenger, or commuter
passenger railroad operation, during a
block of time during which a general
system railroad is not operating
(temporal separation). Thus, this
proposed rule would apply to persons
who perform dispatch tasks for those
rapid transit type operations.
Paragraph (b) is intended to clarify
that any person, as defined in § 245.7,
(including a railroad employee,
employee of a railroad contractor, or
employee of a railroad subcontractor)
who performs a function required by
this part will be held responsible for
compliance. Therefore, this proposed
regulation would cover all dispatchers
regardless of whether they are employed
by a railroad or a contractor. Covering
employees of both railroads and
contractors is consistent with other FRA
regulations (such as FRA’s training
regulations in 49 CFR part 243) and the
general trend in the railroad industry. In
many instances, employees performing
dispatch tasks for a railroad may be
employed by a company other than the
railroad upon which the person is
working. In the interest of railroad
safety, it is vital that all dispatchers are
properly trained and qualified
regardless of whether they are employed
by a railroad or a contractor.
Section 245.5 Effect and Construction
This section is derived from 49 CFR
240.5 and 242.5. Paragraph (a) addresses
the relationship of this proposed rule to
preexisting legal relationships.
Paragraph (b) states that FRA does not
intend to alter the authority of a railroad
to initiate disciplinary sanctions against
its employees by issuance of this
proposed rule.
Paragraph (c) of this section is
intended to note that, as a general
matter, FRA does not intend to create or
prohibit the right to ‘‘flowback’’ or take
a position on whether ‘‘flowback’’ is
desirable. The term ‘‘flowback’’ has
been used in the industry to describe a
situation where an employee leaves
their current position to return to a
previously held position or craft. The
reasons for reverting back to the
previous craft may derive from personal
choice or a less voluntary nature (such
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as downsizing). Many collective
bargaining agreements address the issue
of flowback. However, paragraph (c)
must be read in conjunction with
§ 245.213, which limits flowback in
certain situations (i.e., when a certificate
is revoked due to an alcohol or drug
violation).
Paragraph (d) of this section addresses
employee rights. The proposed rule
would explicitly preserve any remedy
already available to the person and
would not create any new entitlements.
Section 245.7 Definitions
This section, derived from 49 CFR
240.7 and 242.7, defines a number of
terms that have specific meaning in this
proposed part. A few of these terms
have definitions that are similar to, but
may not exactly mirror, definitions used
elsewhere in this chapter.
Dispatch
FRA proposes to use the definition of
‘‘dispatch’’ found in 49 CFR 241.5. This
definition sets the limits of what
constitutes a dispatcher and provides
examples of the types of activities FRA
intends to cover and not cover under
this definition. Under this definition,
the function that the individual is
performing determines whether a
person is dispatching. Factors such as
an individual’s job title, location, and
whether the individual is employed by
a railroad, are irrelevant to the
determination of whether the individual
is dispatching. Furthermore, FRA does
not intend for yardmasters, as a job
category, to fall within the scope of this
definition. Yardmasters are only
covered by this part when they are
performing dispatching functions.
Paragraph (1)(i) of the definition gives
specific examples of the types of
functions that an individual would
perform in order to be considered
dispatching. In particular, FRA intends
that anyone controlling the movement
of on-track equipment requiring a power
brake test under 49 CFR parts 232 or
238, would be considered dispatching
and, therefore, would fall within the
scope of the rule. Another type of
movement that FRA intends to include
is the movement of certain other ontrack equipment, such as specialized
maintenance-of-way equipment, that is
not subject to the power brake
regulations. However, as expressed in
proposed paragraph (2)(iii), FRA intends
to exclude movements of on-track
equipment used in the process of sorting
and grouping rail cars inside a railroad
yard in order to assemble or disassemble
a train.
Paragraph (1)(i) also explicitly notes
two methods of controlling movements
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35581
that fall within the scope of the
definition. The first method that FRA
considers dispatching is controlling
movements by the issuance of a written
or verbal authority or permission that
affects a railroad operation, such as
through movement authorities and
speed restrictions, and includes the
following: Track Warrants, Track
Bulletins, Track and Time Authority,
Direct Traffic Control Authorities, and
any other methods of conveying
authority for trains and engines to
operate on a main track, controlled
siding, or other track controlled by a
dispatcher.
The second method that falls within
the scope of the definition of ‘‘dispatch’’
is to control a movement ‘‘by
establishing a route through the use of
a signal or train control system but not
merely by aligning or realigning a
switch.’’ This provision makes clear that
the act of aligning or realigning a switch
alone is not sufficient to constitute
dispatching. In order to constitute
dispatching under this part, aligning or
realigning a switch must be
accompanied by the act of setting a
signal authorizing movement over a
track segment.
Paragraph (1)(ii) of the definition of
‘‘dispatch’’ clarifies that those railroad
employees who issue an authority for
either a roadway worker or stationary
on-track equipment, or both, to occupy
a certain stretch of track while
performing repairs, inspections, etc.,
will also be covered by this rule. FRA
included this section to distinguish this
activity from that of authorizing
movement of trains or other on-track
equipment onto track, which is covered
by paragraph (1)(i) above.
Paragraph (1)(iii) of the definition of
‘‘dispatch’’ states another function of a
dispatcher, which is to issue an
authority for working limits to a
roadway worker.
Finally, paragraph (2) of the definition
of ‘‘dispatch’’ clarifies that the term
excludes several types of activities.
Paragraph (2) limits the exclusions,
however, to personnel in the field.
Paragraph (2)(i) specifically excludes
from the scope of the definition the
carrying out of a written or verbal
authority or permission or an authority
for working limits. As further
clarification, paragraph (2)(i) notes two
examples of activities that would fall
under the exclusion, provided they were
carried out by field personnel: initiating
an interlocking timing device and
authorizing a train to enter working
limits. Paragraph (2)(ii) specifically
excludes from the scope of the
definition the operation by field
personnel of a function of a signal
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Section 245.11 Penalties and
Consequences for Noncompliance
system intended to be used by those
field personnel, such as initiating an
interlocking timing device.
Drug
Consistent with parts 240 and 242,
FRA proposes to define ‘‘drug’’ as any
substance (other than alcohol) that has
known mind- or function-altering effects
on a human subject, specifically
including any psychoactive substance
and including, but not limited to,
controlled substances. This term is
intended to refer to substances that have
a significant potential for abuse and/or
dependence. Normal ingestion of
caffeine in beverages and use of nicotine
from tobacco products, even though
involving some degree of habituation or
dependence, are not intended to be
included within the definition.
Person
In this proposed part, person takes on
the same meaning as it does in FRA’s
other safety rules. The term means ‘‘an
entity of any type covered under 1
U.S.C. 1’’ and the definition goes into
detail regarding the types of people and
entities that are covered.
Plant Railroad
FRA proposes a definition of plant
railroad consistent with FRA’s
longstanding policy. See 49 CFR part
209, app. A.
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Substance Abuse Disorder
Consistent with parts 240 and 242, the
term ‘‘substance abuse disorder’’ is
defined as a psychological or physical
dependence on alcohol or a drug, or
another identifiable and treatable
mental or physical disorder involving
the abuse of alcohol or drugs as a
primary manifestation.
This proposed definition would
include drug and alcohol users who
engage in abuse patterns which result in
ongoing safety risks and violations.
A substance abuse disorder is
‘‘active’’ within the meaning of this
proposed rule if the person: (1) is
currently using alcohol or other drugs,
except under medical supervision
consistent with the restrictions
described in § 219.103 of this chapter; or
(2) has failed to successfully complete
primary treatment or successfully
participate in aftercare as directed by a
Substance Abuse Professional (SAP) or
Drug and Alcohol Counselor (DAC).
Section 245.9
Waivers
This section, derived from 49 CFR
240.9 and 242.9, provides the proposed
requirements for a person seeking a
waiver of any section of this proposed
rule.
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This section, derived from 49 CFR
240.11 and 242.11, explains that FRA
may impose civil penalties on any
person, including a railroad or an
independent contractor or subcontractor
providing goods or services to a
railroad, that violates any requirement
of this proposed rule. Any person who
violates a requirement of this proposed
rule may be subject to civil penalties
between the minimum and maximum
amounts authorized by statute and
adjusted for inflation per violation.
Individuals may be subject to penalties
for willful violations only. Where a
pattern of repeated violations, or a
grossly negligent violation creates an
imminent hazard of death or injury, or
causes death or injury, an aggravated
maximum penalty may be assessed.17 In
addition, each day a violation continues
constitutes a separate offense. Finally, a
person may be subject to criminal
penalties under 49 U.S.C. 21311 for
knowingly and willfully falsifying
reports required by these proposed
regulations.
Consistent with FRA’s final rule
regarding the removal of civil penalty
schedules from the CFR (84 FR 23730
(May 23, 2019)), FRA will not publish
a civil penalty schedule for this rule in
the CFR, but plans to publish a civil
penalty schedule on its website. Penalty
schedules are statements of agency
policy, thus notice and comment are not
required prior to their issuance, nor are
they required to be published in the
CFR. See 5 U.S.C. 553(b)(3)(A).
Nevertheless, commenters are invited to
suggest the types of actions or omissions
under each regulatory section that
would subject a person to the
assessment of a civil penalty.
Commenters are also invited to
recommend what penalty amounts may
be appropriate, based upon the relative
seriousness of each type of violation.
Subpart B—Program and Eligibility
Requirements
Section 245.101
Required
Certification Program
This section, derived from 49 CFR
240.101 and 242.101, would require
railroads to have written certification
programs comprised of at least seven
elements, each of which comports with
specific regulatory provisions in the
proposed rule related to that element.
17 Please visit FRA’s website for the current
aggravated maximum penalty amount at https://
railroads.dot.gov/.
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Section 245.103 FRA Review of
Certification Programs
This proposed section, derived from
49 CFR 240.103 and 242.103, describes
the process for the submission and
review of dispatcher certification
programs. Paragraph (a) of this section
would only apply to railroads that have
existing dispatching operations on the
effective date of the final rule and
provides the deadlines for when these
railroads would be required to submit
their certification programs to FRA. The
submission schedule would require
Class I railroads and commuter service
railroads to submit their programs
earlier than Class II railroads, Class III
railroads, and railroads not otherwise
classified. The separate deadlines would
help space out the initial influx of
programs FRA will receive after the
final rule goes into effect, to allow FRA
to issue approval and disapproval
decisions in a more timely manner. FRA
also presumes that, in general, Class I
railroads and commuter service
railroads will have more resources to
devote to creating these programs and
will be better positioned to create and
draft them more quickly.
Paragraph (b) of this section would
only apply to railroads that do not have
existing dispatching operations on the
effective date of the final rule. If such
railroads wish to begin dispatching
operations, they would be required to
submit their program to FRA, and FRA
must approve their program, before they
begin dispatching operations.
Paragraph (c) of this section provides
that railroads would submit their
programs and their requests for approval
(which are described in greater detail in
§ 245.107(a)) by uploading them to a
secure document submission site. This
will allow for more efficient processing
and will significantly reduce the risk of
a program submission getting lost. FRA
will need basic information from each
railroad before setting up the user’s
account. In order to provide secure
access, information regarding the points
of contact is required. It is anticipated
that FRA will be able to approve or
disapprove all or part of a program and
generate automated notifications by
email to a railroad’s points of contact.
FRA does not intend to develop a
secure document submission site so that
confidential materials are identified and
not shared with the general public. This
is because FRA does not expect the
information in a program to be of such
a confidential or proprietary nature,
particularly since each railroad would
be required to share the program
submission, resubmission, or material
modification all of its dispatchers as
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well as with the president of each labor
organization that represents the
railroad’s certified dispatchers, and the
programs will be available on FRA’s
website. See § 245.103(d) and (j).
Accordingly, FRA does not at this time
believe it is necessary to develop a
document submission system which
addresses confidential materials.
When a railroad submits its
certification program to FRA, paragraph
(d) of this section requires the railroad
to also submit a copy of the program
and the request for approval to the
president of each labor organization that
represents the railroad’s dispatchers and
to all of the railroad’s dispatchers that
are subject to this part. The railroad’s
submission to FRA must include a
statement affirming that it has provided
a copy of the program and the request
for approval to the president of each
labor organization that represents the
railroad’s dispatchers and to all of the
railroad’s dispatchers that are subject to
this part. In addition, the submission
must include a list of the names and
email addresses of each labor
organization president who received a
copy of the program. Paragraph (e) of
this section provides instruction on who
is allowed to comment on these
programs. For dispatchers who are
members of a labor union, any
comments must be submitted by a
designated representative. For
dispatchers who are not members of a
labor union, they can personally submit
a comment on their railroad’s
certification program. FRA anticipates
that comments submitted under this
process will assist the agency in
determining whether a program
conforms to the requirements set forth
in this rule, and thus, FRA will not
make a decision on a program until after
the 45-day comment period in
paragraph (e)(1) has passed.
Paragraph (f) of this section states
FRA’s aspirational goal to decide on
whether to approve a program within 90
days of the date that the program is
submitted. However, this is only a goal
and not a deadline for the agency.
Paragraph (f)(3) makes clear that if FRA
is unable to issue a decision on the
program within 90 days, the program is
not considered approved on the 91st
day. A certification program will not be
approved until FRA issues a letter
notifying the railroad that its program
has been approved. While FRA will
make every effort to issue approval and
disapproval letters within 90 days, FRA
recognizes that this will not always be
possible. It may be especially difficult
for FRA to meet this goal during the
initial implementation of this rule when
FRA expects to receive many
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certification programs within a
relatively short period of time.
Paragraph (g) of this section addresses
the process for railroads who wish to
materially modify their previously
approved programs. If a railroad wishes
to materially modify its program, it must
submit two documents to FRA: (1) a
description of how it intends to modify
its current program (this constitutes the
request for approval required under
§ 245.107(a)); and (2) a copy of the
modified program. Paragraph (g)(1)
defines a ‘‘material modification’’ as a
modification that ‘‘would affect the
program’s conformance with this part.’’
This definition is taken from 49 CFR
240.103(h)(1) and 242.103(i)(1) and is
intentionally broad to cover the
innumerable modifications to a program
that could be considered material. FRA
recognizes that there may be a desire
among some interested parties to have a
more specific definition of ‘‘material
modification’’ in the regulation. Thus,
FRA welcomes any comments on
suggested changes to the ‘‘material
modification’’ definition.
Paragraph (g)(3) notes that the process
for submission and review of material
modifications mirrors the process for
submission and review of initial
certification programs. Railroads shall
submit their material modifications to
FRA in conformance with paragraph (c)
of this section and shall send a copy of
the material modification description
and the modified program to all
required parties referenced in paragraph
(d) of this section. Certain interested
parties may comment on the
modification in conformance with
paragraph (e) of this section, and FRA
will issue a letter either approving or
disapproving the material modification
in conformance with paragraph (f) of
this section. If FRA approves the
material modification, the railroad can
begin implementing the modification
and the modified program will replace
the original program. If FRA
disapproves the material modification,
the railroad cannot implement the
modification, and the original program
must remain in effect. If a railroad’s
material modification submission
contains multiple modifications, FRA
reserves the right to approve some
modifications while disapproving other
modifications. In such an instance, the
railroad can only begin implementing
those modifications that FRA has
approved.
Paragraph (h) of this section describes
the process to resubmit a program or
material modification that was
previously disapproved by FRA.
Paragraph (h)(2) notes that the process
for submission and review of
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resubmitted programs and material
modifications mirrors the process for
submission and review of initial
certification programs. Railroads shall
resubmit their initial programs or
material modifications to FRA in
conformance with paragraph (c) of this
section and shall send a copy of the
resubmitted program or material
modification to all required parties
referenced in paragraph (d) of this
section. Certain interested parties may
comment on the resubmitted program or
material modification in conformance
with paragraph (e) of this section and
FRA will issue a letter either approving
or disapproving the resubmitted
program or material modification in
conformance with paragraph (f) of this
section.
Paragraph (h)(3) provides the
deadlines, if any, for when a railroad
must resubmit its program or material
modification to FRA. Railroads with
existing dispatching operations on the
effective date of the final rule (legacy
railroads), whose initial programs are
disapproved by FRA, must resubmit
their program within 30 days of the date
FRA notified the railroad that its
program was deficient. If a legacy
railroad fails to resubmit its program
within 30 days and continues its
dispatching operations, FRA will
determine the appropriate enforcement
approach to achieve compliance,
including civil penalties and/or an
emergency order.
FRA believes a 30-day deadline is
needed for legacy railroads because
§ 245.105(a) allows legacy railroads to
continue dispatching operations while
they await FRA approval of their
programs. Thus, without a deadline,
legacy railroads could purposely delay
coming into compliance with this
proposed rule by taking months or even
years to resubmit their programs. In
contrast, railroads that begin
dispatching operations after the
effective date of this proposed rule
cannot begin such operations until FRA
approves their program. Likewise, any
railroad (both legacy and non-legacy)
cannot implement a material
modification to its program until FRA
has approved the modification.
Therefore, in these scenarios, FRA
decided that a deadline is unnecessary
because the railroads have every
incentive to resubmit their programs or
material modifications in a timely
manner. However, while there is no
FRA-imposed deadline in these
scenarios, FRA still recommends that
railroads provide their resubmissions
within 30 days of being notified of
deficiencies.
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Paragraph (i) of this section
acknowledges that FRA reserves the
right to revisit a prior approval of a
certification program. In certain
circumstances, including an audit of a
certification program, FRA may discover
that it made an error when it previously
approved a program. This paragraph
allows FRA to rescind a prior approval
while also providing the railroads with
certain rights. Paragraph (i)(3) notes that
the process for submission and review
of programs whose prior approval has
been rescinded mirrors the process for
submission and review of initial
certification programs, and
resubmission of initially disapproved
programs. Railroads shall resubmit their
programs to FRA in conformance with
paragraph (c) of this section and they
shall send a copy of the resubmitted
program to all required parties
referenced in paragraph (d) of this
section. Certain interested parties may
comment on the resubmitted program in
conformance with paragraph (e) of this
section and FRA will issue a letter
either approving or disapproving the
resubmitted program in conformance
with paragraph (f) of this section.
Paragraphs (i)(6) and (7) allow for a
grace period where a rescinded program
may remain in effect for a certain period
of time. However, once FRA approves a
resubmitted program, the resubmitted
program must replace the rescinded
program. In addition, a rescinded
program can no longer remain in effect
if FRA has twice disapproved the
railroad’s resubmitted program. This
latter scenario is best explained through
an example: On February 10th, FRA
notifies ABC Railroad (ABC) that FRA is
rescinding its prior approval of its
dispatcher certification program. On
March 10th, ABC resubmits its program
to FRA. On June 10th, FRA disapproves
ABC’s resubmitted program. On July
10th, ABC sends FRA its second
resubmitted program. On October 10th,
FRA issues a letter once again
disapproving ABC’s program. In this
example, ABC’s rescinded program
could remain in effect between February
10th and October 10th. However, after
October 10th, the rescinded program
could no longer be in effect. If ABC
continued to perform dispatching
operations after October 10th, while it
did not have an FRA-approved
certification program, FRA could find
that the railroad failed to implement a
program. In such cases, FRA will
determine the appropriate enforcement
approach to achieve compliance,
including civil penalties and/or an
emergency order. In exercising its
enforcement discretion, FRA may
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consider such factors as the number and
extent of the remaining deficiencies in
the program and whether the railroad
made good faith efforts to address the
deficiencies in its resubmissions.
Finally, paragraph (j) of this section
notes that the following documents will
be available on FRA’s website
(railroads.dot.gov): (1) submitted
programs and material modifications
from the railroads; (2) any comments to
the submissions from the railroads; and
(3) the letters from FRA either
approving or disapproving a program or
a material modification. While parts 240
and 242 do not currently require the
posting of these documents on FRA’s
website, the current practice, with
respect to locomotive engineer and
conductor certification programs, has
been for FRA to post comments to a
railroad’s submission and FRA approval
and disapproval letters on its website.
FRA is proposing this paragraph (j) in
an effort to make the review and
approval process of dispatcher
certification programs as transparent as
possible.
Section 245.105 Implementation
Schedule for Certification Programs
This section, derived from 49 CFR
240.201 and 242.105, contains the
timetable for the implementation of this
proposed rule. Paragraph (a) of this
section acknowledges that railroads
with existing dispatching operations on
the effective date of this proposed rule
(legacy railroads) may continue their
dispatching operations while they await
FRA’s approval of their certification
programs. However, if FRA disapproves
a legacy railroad’s certification program
on two occasions (the initial submission
and the first resubmission), the railroad
will no longer be in compliance with
the rule if it continues its dispatching
operations without an FRA-approved
program. In such a scenario, FRA could
find that the railroad has failed to
implement a program and would
determine the appropriate enforcement
approach to achieve compliance,
including civil penalties and/or an
emergency order. In exercising this
enforcement discretion, FRA may
consider such factors as the number and
extent of the remaining deficiencies in
the program and whether the railroad
made good faith efforts to comply with
the requirements of the rule through its
submitted program. Paragraph (b) of this
section provides that any non-legacy
railroad (a railroad that did not have
existing dispatching operations on the
effective date of this proposed rule) may
not commence dispatching operations
until FRA has approved its dispatcher
certification program.
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Paragraphs (c) and (d) of this section
require that railroads, in writing,
designate as certified dispatchers all
persons authorized by the railroad to
perform the duties of a dispatcher as of
the effective date of the final rule, or
authorized between the effective date of
the final rule and the date FRA approves
the railroad’s certification program.
Railroads must also issue a certificate to
each person they designate. This
designation system is modeled after the
system used when parts 240 and 242
first went into effect. This system allows
such ‘‘legacy dispatchers’’ to obtain a
certificate so that once their railroad’s
program is approved, they will be
considered a ‘‘previously certified
dispatcher’’ when it comes time for
them to be recertified through the
railroad’s certification program.
Therefore, the recertifying railroad will
not have to provide legacy dispatchers
with the kind of basic training that
would be given to individuals with no
dispatching experience. In other words,
a person with 20 years of experience as
a dispatcher most likely does not need
to take a ‘‘Dispatching 101’’ course that
goes over the basics of dispatching.
Instead, this person would be better
served by undergoing continuing
education training as described in
§§ 245.107(b)(2) and 245.119(j).
Paragraph (e) of this section states that
after this rule has been in effect for eight
months, no person may serve as a
dispatcher unless that person is
certified. Paragraph (f) of this section
requires each railroad to make formal
determinations concerning those
individuals it has designated as
dispatchers within three years after
FRA’s approval of the railroad’s
certification program. Pursuant to this
paragraph, a designated dispatcher may
serve as a dispatcher for up to three
years from the date of FRA’s approval of
the program. At the end of the three
years, however, the designated
dispatcher can no longer serve as a
dispatcher unless they successfully
complete the tests and evaluations
provided in subpart B of this rule (i.e.,
the full certification process).
Thus, individuals who are designated
as dispatchers and certified under
paragraphs (c) or (d) of this section
could be certified for more than three
years before they have to complete the
railroad’s full certification process. For
example, if a person is designated (and
certified) as a dispatcher on September
1, 2024, and FRA approves the
railroad’s certification program on
September 1, 2025, this dispatcher
would not have to go through the full
certification process and get recertified
until September 1, 2028 (four years from
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the date the individual was designated
by the railroad as a certified dispatcher).
Railroads should note that they may not
test and evaluate a designated
dispatcher or dispatcher candidate
under subpart B of this rule until they
have a certification program approved
by FRA pursuant to § 245.103.
In order to test and evaluate all of its
designated dispatchers by the end of the
three-year period, a large railroad will
likely have to begin that process well in
advance of the end of the three years.
For example, paragraph (f), which is
derived from part 240 and part 242’s
designation provisions, would permit a
railroad to test and evaluate one-third of
its designated dispatchers within one
year of the approval date of the
railroad’s certification program; another
one-third within two years of the
program’s approval date; and the final
one-third within three years of the
program’s approval date.
To address the issue of designated
dispatchers who would be eligible to
retire within three years of the date FRA
approves their railroad’s certification
program, FRA is proposing paragraphs
(f)(1) through (3) in this section since it
would not be an efficient use of a
railroad’s resources to perform the full
certification process on a designated
dispatcher who is going to retire before
the end of their designation period.
Paragraph (f)(1) provides that a
designated dispatcher, who is eligible to
receive a retirement pension in
accordance with the terms of an
applicable agreement or with the terms
of the Railroad Retirement Act (45
U.S.C. 231) within three years from the
date FRA approves the railroad’s
certification program, may request, in
writing, that the railroad not perform
the full certification process on that
designated dispatcher until three years
from the date FRA approves the
railroad’s program.
Paragraph (f)(2) provides that, upon
receipt of that written request, a railroad
may wait to perform the full
certification process on the person
making the request until the end of the
dispatcher’s designation period. Thus,
paragraphs (f)(1) and (2) allow
designated dispatchers to serve as
dispatchers for the full designation
period and then retire before being
subjected to the full certification
process. While it is in the railroads’
interest not to perform the full
certification process for a person who is
going to retire once the designation
period expires, and thus, in their
interest to grant as many requests as
possible, it may not be feasible to
accommodate every request that is
made. If, for example, a significant
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number of designated dispatchers on a
railroad properly request that the
railroad wait to recertify them at the end
of the designation period, but then do
not, in fact, retire by the expiration of
the designation period, the railroad
might not be able to recertify everyone
in time and would risk violating this
rule. In recognition of that risk and the
need to give the railroads some
flexibility to comply with the rule,
paragraph (f)(2) also provides that a
railroad that grants any request must
grant the request of all eligible persons
‘‘to every extent possible.’’
In addition, paragraph (f)(3) provides
that a designated dispatcher, who is also
subject to recertification under part 240
or 242, may not make a request under
paragraph (f)(1) of this section. This
provision recognizes that railroads
would likely want to have concurrent
certification processes for certifying a
person who will be both a certified
dispatcher and a certified locomotive
engineer or conductor. Thus, it would
not be appropriate, in that instance, for
a designated dispatcher who is already
subject to recertification under part 240
or 242 to make a request to delay the
full dispatcher certification process.
Paragraph (g) of this section provides
that, after FRA approves a railroad’s
certification program, the railroad
cannot certify or recertify a person as a
dispatcher unless that person has been
tested and evaluated in accordance with
the procedures provided in subpart B of
this rule. In other words, after FRA
approves a railroad’s program, that
railroad can no longer designate
individuals as certified dispatchers
under paragraphs (c) or (d) of this
section.
Section 245.107 Requirements for
Certification Programs
This section, derived from appendix B
to part 240 and appendix B to part 242,
provides both the organizational
requirements and a narrative
description of the submission required
under §§ 245.101 and 245.103. FRA is
not requiring railroad submissions to be
made on a specific form. Instead, FRA
is prescribing only minimal constraints
on the organization and manner of
presenting information.
Paragraph (a) of this section addresses
what must be included in a railroad’s
submission to FRA. Specifically, the
railroad must include two documents in
its submission: (1) a request for
approval; and (2) the certification
program. If a railroad is submitting its
initial certification program, the request
for approval can be a brief document
that simply states that the railroad is
submitting its initial certification
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program for approval by FRA. However,
if a railroad is making a material
modification or modifications to a
program that has previously been
approved by FRA, the request for
approval must mention all of the
material modifications that the railroad
is making to its program and the copy
of the certification program will include
all of the modifications.
Paragraph (b) of this section requires
that the program be divided into six
sections, each dealing with a different
subject matter, and that the railroad
identify the appropriate person to be
contacted in the event FRA needs to
discuss some aspect of the railroad’s
program. Section 1 of a certification
program shall include basic contact
information and will address whether
the railroad accepts responsibility for
training previously uncertified
dispatchers. Section 2 of a program
addresses how the railroad will handle
training dispatchers who have been
previously certified. The main focus in
Section 2 is how the railroad will
address its requirement to provide
continuing education for its previously
certified dispatchers. Continuing
education is essential because time and
circumstances have the capacity to
diminish both abstract knowledge and
the proper application of that
knowledge to discrete events. Time and
circumstances also have the capacity to
alter the value of previously obtained
knowledge and the application of that
knowledge. Therefore, dispatchers need
to have their fundamental knowledge of
operating rules and practices refreshed
periodically. While a railroad has
latitude to select the specific subject
matters to be covered, the duration of
the training, the methods of presenting
the information, and the frequency with
which the training will be provided, the
railroad must describe in this section
how it will use that latitude to ensure
that its dispatchers remain
knowledgeable concerning the safe
discharge of their responsibilities so as
to comply with the standard set forth in
§ 245.119(j).
A matter of particular concern to FRA
is how each railroad acts to ensure that
dispatchers remain knowledgeable
about the territory over which they are
authorized to dispatch, but from which
the dispatcher has been absent.
Paragraph (b)(2)(v) requires that Section
2 of the program addresses how long a
person may be absent from dispatching
over a territory before familiarization
training is required and how the
dispatcher will acquire that
familiarization training. This time
period can be less than 12 months, but
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it cannot exceed 12 months in
accordance with § 245.120(c).
Section 3 of the program includes
requirements for the testing and
evaluation procedures for previously
certified dispatchers. Paragraph (b)(3)(i)
notes that railroads must address how
their programs will comply with the
standards found in § 245.121. Section
245.121 directs that, when seeking a
demonstration of the person’s
knowledge, a railroad must employ a
written test that contains objective
questions that cover the following
subject matters: (i) safety and operating
rules; (ii) timetable instructions; (iii)
compliance with all applicable Federal
regulations; (iv) physical characteristics
of the territory on which a person will
be serving as a dispatcher; and (v)
dispatching systems and technology.
The test must accurately measure the
person’s knowledge of all of these areas.
Paragraph (b)(3)(ii) requires the program
to detail the railroad’s procedures for
testing vision and hearing acuity and for
ensuring that its medical examiners
have sufficient knowledge to make a
determination as to whether a person
can safely work as a dispatcher.
Section 4 of the program includes the
requirements for training, testing, and
evaluating persons not previously
certified. Railroads who elect, in Section
1 of the program, to not take
responsibility for training previously
uncertified dispatchers can skip this
section. However, all other railroads
must provide details for how they will
train, test, and evaluate previously
uncertified persons to ensure that they
acquire and demonstrate sufficient
knowledge and skills to safely perform
the job of a dispatcher. Paragraph
(b)(4)(ii) requires the same level of detail
in this section that is required in
Sections 2 and 3 of the program. This
encompasses addressing both the
training requirements found in
§ 245.119 and the knowledge testing
requirements in § 245.121. If a railroad
relies on another entity to conduct its
training away from the railroad’s own
territory and dispatching systems,
paragraph (b)(4)(iii) states that the
railroad must explain in its program
how dispatching students will be given
the required training on the physical
characteristics of the railroad’s territory
and its dispatching systems and
technology.
Section 5 of the program addresses
how the railroad will monitor the
operational performance of its certified
dispatchers in accordance with
§ 245.123. In particular, the railroad
must discuss the processes and
procedures it will use for ensuring that
such monitoring and testing is
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performed. This includes a description
of the scoring system the railroad will
employ during such testing. Finally,
Section 6 of the program addresses how
the railroad will perform its routine
administration of the program. This
section must include summaries of how
the program will comply with the
various provisions listed in paragraph
(b)(6) that contain certain procedural
requirements for a railroad’s
certification program.
Section 245.109 Determinations
Required for Certification and
Recertification
This proposed section lists the
determinations that would be required
for evaluating a candidate’s eligibility to
be certified or recertified. The reference
to § 245.303 in paragraph (a)(2) of this
section is to ensure railroads determine
whether a candidate is eligible to hold
a certification by reviewing any prior
revocations addressed in subpart D of
this rule.
Despite the reference to provisions in
§§ 245.111 and 245.113 requiring a
review of safety conduct information
from the preceding five years,
§ 245.113(h)(1) would not permit a
railroad to consider information
concerning safety conduct that occurred
prior to the effective date of the final
rule issued in this rulemaking. Even
though this provision would result in a
railroad’s evaluation of less than five
years’ worth of information for some
dispatchers early on in the rule’s
effective period, it is included in Part
245 for the same reason similar
provisions were included in parts 240
and 242. Namely, that all dispatchers
should be permitted to start with a
‘‘clean slate’’ for certification purposes
as a matter of basic fairness. See 56 FR
28228, 28242 (June 19, 1991).
Paragraph (b) of this section would
provide flexibility to railroads and
dispatchers or dispatcher candidates in
obtaining the information required by
§§ 245.111 and 245.113.
Section 245.111 Prior Safety Conduct
as Motor Vehicle Operator
This section, derived from 49 CFR
240.111, 240.115, and 242.111, would
provide the requirements and
procedures that a railroad would be
required to follow when evaluating a
dispatcher or dispatcher candidate’s
prior safety conduct as a motor vehicle
operator. FRA believes that the prior
safety conduct of a motor vehicle
operator is one indicator of that person’s
drug and/or alcohol use and therefore
an important piece of information for a
railroad to consider.
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Pursuant to this section, each person
seeking certification or recertification as
a dispatcher would be required to
request in writing that the chief of each
driver licensing agency that issued them
a driver’s license within the preceding
five years provide a copy of the person’s
driving record to the railroad. Unlike
part 240, this proposed rule would not
require individuals to also request
motor vehicle operator information from
the National Driver Register (NDR).
Based on the NDR statute and regulation
(see 49 U.S.C. chapter 303 and 23 CFR
part 1327), railroads are prohibited from
running NDR checks or requesting NDR
information from individuals seeking
employment as certified dispatchers.
Paragraphs (b) and (c) of this section
would require a railroad to certify or
recertify a person for 60 days if the
person: (1) requested the required
information at least 60 days prior to the
date of the decision to certify or
recertify; and (2) otherwise meets the
eligibility requirements provided in
§ 245.109(a)(2) through (5). If a railroad
certifies or recertifies a person for 60
days pursuant to paragraphs (b) and (c)
but is unable to obtain and evaluate the
required information during those 60
days, the person would be ineligible to
perform as a dispatcher until the
information can be evaluated. However,
if a person is simply unable to obtain
the required information, that person or
the certifying or recertifying railroad
could petition for a waiver from FRA
(see 49 CFR part 211). During the
pendency of the waiver request, a
railroad would be required to certify or
recertify a person if the person
otherwise meets the eligibility
requirements of § 245.109(a)(2) through
(5).
Paragraph (k) of this section would
require certified dispatchers or persons
seeking initial certification as
dispatchers to notify the certifying
railroad (or the prospective certifying
railroad, if applicable) of motor vehicle
incidents described in paragraphs (m)(1)
and (2) of this section within 48 hours
of the conviction or completed State
action to cancel, revoke, suspend, or
deny a motor vehicle driver’s license for
such incidents. This proposed
paragraph would also prohibit railroads
from having a more restrictive company
rule requiring certified dispatchers to
report a conviction or completed State
action to cancel, revoke, or deny a motor
vehicle driver’s license in less than 48
hours.
The reasoning behind proposed
paragraph (k) involves several
intertwined objectives. As a matter of
fairness, a railroad should not revoke,
deny, or otherwise make a person
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ineligible for certification until that
person has received due process from
the State agency taking the action
against the motor vehicle license.
Further, by not requiring reporting until
48 hours after the completed State
action, the proposed rule would have
the practical effect of ensuring that a
required referral to a drug and alcohol
counselor (DAC) under paragraph (n) of
this section would not occur
prematurely. However, proposed
paragraph (k) would not prevent an
eligible person from choosing to
voluntarily self-refer. Nor would it
prevent the railroad from referring the
person for an evaluation under an
internal railroad policy, if other
information exists that identifies the
person as possibly having a substance
abuse disorder.
Paragraph (n) of this section would
provide that, if a motor vehicle incident
described in paragraph (m) is identified,
the railroad would be required to
provide the data to its DAC along with
‘‘any information concerning the
person’s railroad service record.’’
Furthermore, the person would have to
be referred for evaluation to determine
whether the person has an active
substance abuse disorder. If the person
has an active substance abuse disorder,
the person would not be eligible for
certification. However, even if it is
determined that the person is not
currently affected by an active substance
abuse disorder, the railroad would be
required, if recommended by a DAC, to
condition certification upon
participation in any needed aftercare
and/or follow-up testing for alcohol or
drugs or both. The intent of this
proposed provision is to use motor
vehicle records to identify dispatchers
or candidates for dispatcher certification
who may have active substance abuse
disorders and make sure they are
referred for evaluation and any
necessary treatment before allowing
them to perform safety sensitive service.
Any testing performed as a result of a
DAC’s recommendation under
paragraph (n) would be done under
company authority, not Federal
authority. However, the testing would
be required to comply with the
‘‘technical standards’’ of part 219,
subpart H, and part 40.
Paragraph (n)(5) is intended to clarify
that failure to cooperate in the DAC
evaluation discussed in paragraph (n)(2)
of this section would result in the
person being ineligible to perform as a
certified dispatcher until such time as
the person cooperates in the evaluation.
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Section 245.113 Prior Safety Conduct
With Other Railroads
This proposed section, which is
derived from 49 CFR 240.113, 240.205,
and 242.113, would establish a process
for certification candidates to request
information about their prior safety
conduct when employed or certified by
another railroad. Except as otherwise
provided by the retroactive time limit
contained in paragraph (g) of this
section, this section would require
railroads to review records provided by
railroads that previously employed or
certified the certification candidate
regarding the candidate’s prior
compliance with §§ 245.115 and
245.303 within the previous five years,
as well as the candidate’s prior
compliance with § 245.111 within the
previous three years.
Paragraph (b) of this section contains
an exception that if a certification
candidate has not been employed or
certified by any other railroad in the
previous five years, they do not have to
submit a request pursuant to paragraph
(c) of this section. Such candidates,
however, must notify the railroad to
which they are seeking certification of
this fact. This exception should help
minimize any burden arising from these
proposed requirements.
For certification candidates who do
not qualify for the exception provided
in paragraph (b), paragraph (c) would
require the certification candidate to
submit a written request to each railroad
that employed or certified the candidate
within the previous five years. As
indicated earlier, the written request
would direct the previous railroad
employer or certifying railroad to
provide information about the
certification candidate’s prior
compliance with §§ 245.115 and
245.303 within the previous five years,
as well as the candidate’s prior
compliance with § 245.111 within the
previous three years from the date of the
written request.
In addition, railroads would be
required by paragraph (e) of this section
to comply with written requests for
records of prior safety conduct
submitted by former employees or
certified persons pursuant to this
section within 30 days after receipt of
such requests. Railroads that are unable
to provide information about prior
safety conduct within 30 days would be
required, by paragraph (f) of this
section, to either: (1) provide a written
explanation of why the railroad cannot
provide the information within the
requested time frame, along with an
estimate of how much time will be
needed to supply the requested
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information; or (2) provide an adequate
explanation for why the railroad cannot
provide the information requested.
In the event a railroad seeking to
certify or recertify a certification
candidate receives a written statement
from another railroad pursuant to
paragraph (f) of this section, which
explains that the railroad cannot
provide the information requested, the
railroad seeking to certify or recertify
the certification candidate would be
deemed to have complied with the
eligibility determination required by
paragraph (a) of this section provided it
retains a copy of the other railroad’s
written statement in its records.
Similarly, in the event a railroad
seeking to certify or recertify a
certification candidate does not receive
any written response from other
railroads, the railroad would be deemed
to have complied with the eligibility
determination required by paragraph (a)
of this section provided it retains a copy
of the written request for this
information in its records.
Section 245.115 Substance Abuse
Disorders and Alcohol Drug Rules
Compliance
This proposed section, which is
derived from 49 CFR 240.119, 240.205,
and 242.115, addresses: (1) active
substance abuse disorders and (2)
specific alcohol/drug regulatory
violations. As noted earlier, annual drug
and alcohol testing data submitted to
FRA revealed that dispatch employees
had a random violation rate (drug and
alcohol positives and refusals) and a
pre-employment violation rate that was
considerably higher than their train and
engine service counterparts.
Therefore, this section and § 245.111
address certain situations in which
inquiry must be made into the
possibility that the individual has an
active substance abuse disorder if the
individual is to obtain or retain a
certificate. The fact that specific
instances are cited in this section would
not eliminate the general duty of the
railroad to take reasonable and
proportional action in other appropriate
cases. Declining job performance,
extreme mood swings, irregular
attendance, and other indicators may, to
the extent not immediately explicable,
indicate the need for an evaluation
under internal policies of the railroad.
The purpose of identifying conditions
is not to require (and does not require)
a railroad to order an evaluation any
time a listed condition is exhibited.
Rather, FRA is simply providing
guidance here as to conditions that may,
given the context, call for an evaluation
under internal policies of the railroad.
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Moreover, FRA remains vigilant of
harassment and intimidation and will
take appropriate action if such conduct
is discovered.
Paragraph (a) of this section would
require railroads to determine that a
person initially certifying, or a
dispatcher recertifying, meets the
eligibility requirements of this section.
In addition, each railroad would be
required by § 245.203 to retain the
documents used to make that
determination.
Paragraph (c) of this section would
prohibit a person with an active
substance abuse disorder from being
certified as a dispatcher. This means
appropriate action must be taken with
respect to a certificate (whether denial
or suspension) whenever the existence
of an active substance abuse disorder
comes to the official attention of the
railroad, with the exception discussed
below. Paragraph (c) would also provide
a mechanism for an employee to
voluntarily self-refer for substance abuse
counseling or treatment.
Paragraph (d) would address conduct
constituting a violation of § 219.101 or
§ 219.102 of FRA’s alcohol/drug
regulations. Section 219.101(a)(1)
prohibits regulated employees from
using or possessing alcohol or any
controlled substance when the
employee is on duty and subject to
performing regulated service for a
railroad. Section 219.101(a)(2) prohibits
regulated employees from reporting for
regulated service, or going on or
remaining on duty in regulated service,
while under the influence of (or
impaired by) alcohol or while having a
breath or blood alcohol concentration of
0.04 or more. A regulated employee is
also prohibited from using alcohol
either within four hours of reporting for
regulated service or after receiving
notice to report for regulated service,
whichever is less. This is conduct that
specifically and directly threatens safety
in a way that is wholly unacceptable,
regardless of its genesis and regardless
of whether it has occurred previously.
In its more extreme forms, such conduct
is punishable as a felony under the
criminal laws of the United States (18
U.S.C. 341 et seq.) and a number of
states.
Section 219.102 prohibits use of a
controlled substance by a regulated
employee at any time, whether on or off
duty, except for approved medical use.
Abuse of marijuana, cocaine,
amphetamines, and other controlled
substances poses unacceptable risks to
safety.
Under the alcohol/drug regulations,
whenever a violation of § 219.101 or
§ 219.102 is established, based on
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authorized or mandated chemical
testing, the employee must be removed
from service and may not return until
after an SAP evaluation, any needed
treatment and/or education, and a
negative return-to-duty test, and followup testing (as required by § 219.104).
These requirements constitute an
absolute minimum standard for action
when a dispatcher is determined to have
violated one of these prohibitions.
Considering the need both for general
and specific deterrence with respect to
future unsafe conduct, additional action
should be premised on the severity of
the violation and whether the same
individual has had prior violations.
This proposed rule would require
railroads to consider conduct that
occurred within the period of five
consecutive years prior to the review.
This is the same period provided in this
proposed rule as the maximum period
of ineligibility for certification following
repeated alcohol/drug violations and is
the same period used in parts 240 and
242. Use of a five-year cycle reflects
railroad industry experience indicating
that conduct committed as much as five
years before may tend to predict future
alcohol or drug abuse behavior. For
example, in analyzing data submitted to
FRA between 2017 and 2021, FRA
found that railroad employees returning
to duty from previous drug or alcohol
violations were approximately five
times more likely to test positive than
other railroad employees. Of course,
railroads would retain the flexibility to
consider prior conduct (including
conduct more than five years prior) in
determining whom they will hire as
dispatchers.
Conduct violative of the FRA
proscriptions against alcohol and drugs
need not occur while the person is
serving in the capacity of a dispatcher
in order to be considered. For instance,
a person who violated § 219.101 while
working as a locomotive engineer and
then sought dispatcher certification six
months later (under the provision
described below) would not be eligible
for certification. The same is true under
Part 240—an employee who violates
§ 219.101 while working as a brakeman
and then seeks locomotive engineer
certification six months later would not
be eligible for certification at that time.
The responsibility of the railroad would
therefore not be limited to periodic
recertification. This proposed rule
would require a review of certification
status for any conduct in violation of
§ 219.101 or § 219.102.
The proposed rule would require a
determination of ineligibility for a
period of nine months for an initial
violation of § 219.101. This would
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parallel the nine-month disqualification
in §§ 240.119(c)(4)(iii) and
242.115(e)(4)(iii).
Specifying a period of ineligibility
serves the interest of deterrence while
giving further encouragement to deal
with the problem before it is detected by
management. In order to preserve and
encourage referrals, the nine-month
period could only be waived in the case
of a qualifying referral (see § 219.1001).
FRA believes that this distinction in
treatment, which is also found in part
242, is warranted as a strong
inducement to participation because
referral programs help identify troubled
employees before those employees get
into accidents and incidents. Although
FRA does not know how many actual
referrals may be generated, the intended
result would be reached if an
atmosphere of intolerance for drug and/
or alcohol abusing behavior is
reinforced in the workplace and
violators know that they may be
reported by their colleagues or others if
they report for duty while impaired.
In the case of a second violation of
§ 219.101, the dispatcher would be
ineligible for a period of five years.
Given railroad employment practices
and commitment to alcohol/drug
compliance, it is likely that any
individual so situated may also be
permanently dismissed from
employment. However, it would be
important that the employing railroad
follow through and revoke the
certificate under this proposed rule, so
the dispatcher could not go to work for
another railroad (or railroad contractor)
within the five-year period using the
unexpired certificate issued by the first
railroad as the basis for certification.
These proposed sanctions mirror the
sanctions in §§ 240.119 and 242.115.
Under this proposed rule, one
violation of § 219.102 within the fiveyear window would require only
temporary suspension and the
minimum response described in
§ 245.115(e) (referral for evaluation,
treatment as necessary, negative returnto-duty test, and appropriate follow-up).
This parallels the approach taken in
parts 240 and 242 and reflects FRA’s
intent to not undercut the therapeutic
approach to drug abuse employed by
many railroads. This approach permits
first-time positive drug tests to be
handled in a non-punitive manner that
concentrates on remediation of any
underlying substance abuse problem
and avoids the adversarial process
associated with investigations,
grievances, and arbitrations under the
Railway Labor Act and collective
bargaining agreements. A second
violation of § 219.102 would subject the
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employee to a mandatory two-year
period of ineligibility. A third violation
within five years would lead to a fiveyear period of ineligibility.
This proposed rule also addresses
violations of §§ 219.101 and 219.102 in
combination. A person violating
§ 219.101 after a prior § 219.102
violation would be ineligible for three
years; and the same would be true for
the reverse sequence. This mirrors the
ineligibility period for locomotive
engineers and conductors who have one
§ 219.101 violation and one § 219.102
violation. See 49 CFR 240.119(e)(4)(ii)
and 242.115(e)(4)(ii).
Refusals to participate in chemical
tests would be treated as if the test were
positive. A refusal to provide a breath or
body fluid sample for testing under the
requirements of 49 CFR part 219 when
instructed to do so by a railroad
representative would be treated, for
purposes of ineligibility under this
section, in the same manner as a
violation of: (1) § 219.101, in the case of
a refusal to provide a breath sample for
alcohol testing, or a blood specimen for
mandatory post-accident toxicological
testing; or (2) § 219.102, in the case of
a refusal to provide a body fluid
specimen for drug testing. Interested
parties should, however, note that 49
CFR part 40, subpart I, discusses
medical conditions under which an
individual’s failure to provide a
sufficient sample would not be deemed
a refusal. In addition, subpart G of
FRA’s alcohol and drug regulations
excuses employees from compliance
with the requirement to participate in
random drug and alcohol testing if the
employee can substantiate a medical
emergency involving the employee or an
immediate family member. See 49 CFR
219.617.
If an employee covered by 49 CFR
part 219 refuses to provide a breath or
body fluid specimen or specimens when
required to by a railroad pursuant to a
mandatory provision of 49 CFR part
219, then the railroad (apart from any
action it takes under part 245) would be
required to remove that employee from
regulated service and disqualify the
employee from working in regulated
service for nine months. See 49 CFR
219.104 and 219.107; see also, 49 CFR
part 219, subpart H, and 49 CFR 40.191
and 40.261.
Paragraph (e) prescribes the
conditions under which employees may
be certified or recertified after a
determination that the certification
should be denied, suspended, or
revoked, due to a violation of § 219.101
or § 219.102 of FRA’s alcohol/drug
regulations. These conditions are
derived from the conditions in
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§§ 240.119(d) and 242.115(f) and closely
parallel the return-to-duty provisions of
the alcohol/drug rule. The proposed
regulation would not require
compensation of the employee for the
time spent in this testing, which is a
condition precedent to retention of the
certificate; but the issue of
compensation would ultimately be
resolved by reference to the collective
bargaining agreement or other terms and
conditions of employment under the
Railway Labor Act. Moreover, the
railroad that intends to withdraw its
conditional certification would be
required to afford the dispatcher the
hearing procedures provided by
§ 245.307 if the dispatcher does not
waive their right to the hearing.
Paragraph (f) would ensure that a
dispatcher, like any other covered
employee, can self-refer for treatment
under the alcohol/drug rule (49 CFR
219.1003) before being detected in
violation of alcohol/drug prohibitions
and would be entitled to confidential
handling of that referral and subsequent
treatment. This means that a railroad
would not normally receive notice from
the DAC of any substance abuse
disorder identified as a result of a
voluntary self-referral under 49 CFR
219.1003. However, paragraph (f) would
also require that the railroad policy
provide that confidentiality is waived if
the dispatcher at any time refuses to
cooperate in a recommended course of
counseling or treatment, to the extent
that the railroad must receive notice that
the employee has an active substance
abuse disorder so that appropriate
certificate action can be taken. The
effect of this proposed provision is that
the certification status of a dispatcher
who seeks help and cooperates in
treatment would not be affected, unless
the dispatcher fails to follow through.
Section 245.117 Vision Acuity
This proposed section, derived from
49 CFR 240.121, 240.207, and 242.117,
contains the requirements for vision
acuity testing that a railroad would have
to incorporate in its dispatcher
certification program. This section
differs from its analogous sections in 49
CFR parts 240 and 242 in that 49 CFR
parts 240 and 242 address the
requirements for vision and hearing
acuity in the same section. However,
FRA determined that for this proposed
rule, it could more clearly present these
requirements if they were in two
separate sections: one section for vision
acuity (§ 245.117) and one section for
hearing acuity (§ 245.118).
Paragraph (c) of this section contains
the general vision standards that a
person must satisfy in order to be
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certified as a dispatcher unless they are
determined to have sufficient vision
acuity under paragraph (d) of this
section. The standards in paragraph (c)
mirror the vision acuity standards for
locomotive engineers and conductors in
49 CFR parts 240 and 242. In drafting
this proposed rule, FRA discussed
whether vision acuity standards were
necessary for dispatchers and if so,
whether they needed to be as stringent
as the standards for engineers and
conductors. Ultimately, FRA concluded
that dispatchers should have to satisfy
certain vision standards with a
dispatcher’s ability to distinguish
between colors being particularly
important. FRA requests comments on
whether vision acuity standards for
dispatchers are necessary, and if so,
whether they should be as strict as the
standards for locomotive engineers and
conductors.
Although some individuals may not
be able to meet the threshold acuity
levels in paragraph (c) of this section,
they may be able to compensate in other
ways that will permit them to function
at an appropriately safe level despite
their physical limitations. Paragraph (d)
of this section permits a railroad to have
procedures whereby medical examiners
can evaluate such individuals and make
discrete determinations about each
person’s ability to compensate for their
physical limitations. If the railroad’s
medical examiner concludes that an
individual has compensated for their
limitations and could safely serve as a
dispatcher, the railroad could certify
that person under this regulation once
the railroad possesses the medical
examiner’s professional medical
opinion to that effect. If necessary,
medical examiners can condition their
opinion on certain circumstances or
restrictions, such as the use of corrective
lens for example.
Paragraph (e) of this section describes
what documents the railroad must keep
on file with respect to vision acuity
testing. Such records must be retained
for both individuals who the railroad
certifies as dispatchers and those
individuals who the railroad denies
certification. Paragraph (g) of this
section addresses the issue of vision
deterioration. Once certified dispatchers
become aware that their vision has
deteriorated, they must notify the
railroad before performing any
subsequent service as a dispatcher. FRA
presumes that certified dispatchers
would most likely become aware of
deterioration in their vision either
through their own personal observation
or through examination by a medical
professional. Should this occur, before a
certified dispatcher can return to
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service, they must be reexamined. If
upon reexamination, the railroad’s
medical examiner concludes that the
certified dispatcher still satisfies the
vision acuity standards in this part, the
dispatcher can return to service.
However, if the medical examiner
concludes that the dispatcher no longer
satisfies these requirements, the railroad
must deny the person’s certification in
accordance with § 245.301, regardless of
how much time remains before the
dispatcher’s current certificate expires.
Certified dispatchers should note that
willful noncompliance with the
notification requirement in this
paragraph could result in enforcement
action.
Section 245.118 Hearing Acuity
This proposed section, derived from
49 CFR 240.121, 240.207, and 242.117,
contains the requirements for hearing
acuity testing that a railroad would have
to incorporate in its dispatcher
certification program.
Paragraph (c) of this section contains
the general hearing standards that a
person must satisfy in order to be
certified as a dispatcher unless they are
determined to have sufficient hearing
acuity under paragraph (d) of this
section. The standards in paragraph (c)
mirror the hearing acuity standards for
locomotive engineers and conductors in
49 CFR parts 240 and 242. FRA
discussed whether hearing acuity
standards were necessary for
dispatchers and if so, whether they
needed to be as stringent as the
standards for engineers and conductors.
Ultimately, FRA concluded that
dispatchers should have to satisfy
certain hearing standards and it was
logical for these standards to be
consistent with the hearing standards
for engineers and conductors. FRA
requests comments on whether hearing
acuity standards for dispatchers are
necessary, and if so, whether they
should be as strict as the standards for
locomotive engineers and conductors.
Although some individuals may not
be able to meet the threshold acuity
levels in paragraph (c) of this section,
they may be able to compensate in other
ways that will permit them to function
at an appropriately safe level despite
their physical limitations. Paragraph (d)
of this section permits a railroad to have
procedures whereby doctors can
evaluate such individuals and make
discrete determinations about each
person’s ability to compensate for their
physical limitations. If the railroad’s
medical examiner concludes that an
individual has compensated for their
limitations and could safely serve as a
dispatcher, the railroad could certify
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that person under this regulation once
the railroad possesses the medical
examiner’s professional medical
opinion to that effect. If necessary,
medical examiners can condition their
opinion on certain circumstances or
restrictions, such as the use of a hearing
aid for example.
Paragraph (e) of this section describes
what documents the railroad must keep
on file with respect to hearing acuity
testing. Such records must be retained
for both individuals who the railroad
certifies as dispatchers and those
individuals who the railroad denies
certification. Paragraph (g) of this
section addresses the issue of hearing
deterioration. Once certified dispatchers
become aware that their hearing has
deteriorated, they must notify the
railroad before performing any
subsequent service as a dispatcher. FRA
presumes that certified dispatchers
would most likely become aware of
deterioration in their hearing either
through their own personal observation
or through examination by a medical
professional. Should this occur, they
must be reexamined before returning to
service. If upon reexamination, the
railroad’s medical examiner concludes
that the certified dispatcher still
satisfies the hearing acuity standards in
this part, the dispatcher can return to
service. However, if the medical
examiner concludes that the dispatcher
no longer satisfies these requirements,
the railroad must deny the person’s
certification in accordance with
§ 245.301, regardless of how much time
remains before the dispatcher’s current
certificate expires. Certified dispatchers
should note that willful noncompliance
with the notification requirement in this
paragraph could result in enforcement
action.
Section 245.119 Training
Requirements
This proposed section, derived from
49 CFR 240.123, 240.213, and 242.119,
would require railroads to provide
initial and periodic training to
dispatchers. Such training is necessary
to ensure that dispatchers have the
knowledge, skills, and abilities
necessary to safely perform all of the
safety-related duties mandated by
Federal laws, regulations, and orders.
Paragraph (b) of this section requires
a railroad’s certification program to
address whether the railroad will accept
responsibility for training dispatchers
and thus be able to initially certify
dispatchers or whether the railroad will
only be recertifying dispatchers who
were previously certified by other
railroads. If a railroad accepts
responsibility for training dispatchers,
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paragraph (c) of this section notes that
the railroad must state in its
certification program whether it will
conduct the training program for
dispatchers or it will have another
entity perform the training on its behalf.
Under this section, railroads have
latitude to design and develop the
training and delivery methods they will
employ; but paragraphs (d), (e), and (f)
of this section provide requirements for
railroads that elect to train a previously
untrained person to be a dispatcher.
Pursuant to paragraph (d), a railroad
that makes this election would be
required to determine how training
must be structured, developed, and
delivered, including an appropriate
combination of classroom, simulator,
computer-based, correspondence, onthe-job training, or other formal training.
Paragraph (d)(3) also requires railroads
to review and modify their training
programs whenever new safety-related
railroad laws, regulations, orders,
technologies, procedures, software, or
equipment are introduced into the
workplace.
Paragraph (f) of this section provides
the requirements a previously untrained
person must satisfy in order to become
certified. Paragraph (f)(2) states the
person must demonstrate on-the-job
proficiency by successfully completing
dispatching tasks and using the
necessary dispatching systems and
technology. These tasks may be
performed under the direct onsite
supervision of a person who has the
necessary dispatching experience and at
least one year of experience as a
dispatcher. FRA requests comments,
including any supporting data, on
whether this ‘‘one year of experience’’
requirement for persons supervising a
certification candidate is sufficient. The
final requirement, found in paragraph
(f)(3), is that the previously untrained
person shall demonstrate their
knowledge of the physical
characteristics of any assigned territory
by successfully completing a test. FRA
understands that a railroad may assign
dispatchers additional territories after
they become certified and the
dispatchers can go through the process
for becoming qualified on those
territories after they are already
certified. However, paragraph (f)(3)
establishes the basic requirement that
before a previously untrained person
can become certified, they must
demonstrate that they are qualified on at
least one territory. Paragraph (f)(3) also
requires railroads to provide the
person(s) being tested with an
opportunity to consult with a
supervisory employee, who possesses
territorial qualifications for the territory,
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to explain a test question. This
requirement is equivalent to 49 CFR
242.119(f) and is included so that
certification candidates being tested
would be able to obtain clarification of
test questions from someone who
possesses knowledge of the relevant
territory.
Paragraph (g) of this section requires
railroads to retain written
documentation of the listed
determinations. Paragraph (g)(1) only
applies to individuals who have not
been previously certified as dispatchers
whereas paragraphs (g)(2) and (3) apply
to all certified dispatchers.
Paragraph (h) of this section requires
a railroad’s certification program to
explain the methods for acquiring
familiarity with the physical
characteristics of a territory and
becoming qualified or requalified on a
territory. Paragraph (h)(3) requires
railroads to designate in their programs
the maximum amount of time that a
dispatcher can be absent from a territory
before requalification is required. To
conform with § 245.120(c), this time
period cannot exceed 12 months.
However, railroads can choose a shorter
time period if they desire. For example,
if a railroad wants to require that a
dispatcher get requalified on a territory
if they have not dispatched over that
territory in six months, the railroad is
allowed to do so, but it must include
this requirement in its certification
program.
Section 245.120 Requirements for
Territorial Qualification
This proposed section, derived from
49 CFR 240.231 and 242.301, explains
the requirements for territorial
qualifications. Paragraph (a) of this
section prohibits railroads from
permitting or requiring a person to serve
as a dispatcher on a particular territory,
unless the railroad determines that the
person is a certified dispatcher who is
either qualified on that particular
territory or assisted by a Dispatcher
Pilot who is qualified on the territory.
Paragraph (b) of this section requires a
person to immediately notify the
railroad if they are called to serve on a
territory on which the person is not
qualified. In such scenarios, the
dispatcher could only dispatch over the
territory if they were assisted by a
Dispatcher Pilot who is qualified on the
territory. Paragraph (c) of this section
establishes that the maximum amount of
time that a dispatcher can be absent
from a territory before requalification on
that territory is required is 12 months.
However, railroads have the option,
under § 245.119(h)(3), to make this time
period shorter.
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Section 245.121
Knowledge Testing
This proposed section, derived from
49 CFR 240.125, 240.209, and 242.121,
would require railroads to provide for
the initial and periodic testing of
dispatchers. Paragraph (b) of this section
outlines the general requirements for
such testing. This testing will have to
effectively examine and measure a
dispatcher’s knowledge of five subject
areas: safety and operating rules;
timetable instructions; compliance with
all applicable Federal regulations;
physical characteristics of the territory
on which a person will be or is
currently working as a dispatcher; and
dispatching systems and technology.
Under this section, railroads have
discretion to design the tests that will be
employed; for most railroads that will
entail some modification of their
existing ‘‘book of rules’’ examination to
include new subject areas. This section
does not specify the number of
questions to be asked or the passing
score to be obtained. However, it does
require that the test be conducted
without open reference books unless use
of such materials is part of a test
objective. A railroad may not give an allopen book exam. Some portion of the
test must be closed book. Since the
testing procedures and requirements
selected by the railroad would be
submitted to FRA for approval, FRA
would monitor the exercise of discretion
being afforded railroads by this section.
Paragraph (c) of this section mirrors
49 CFR 242.121(e) by requiring railroads
to provide the person(s) being tested
with an opportunity to consult with a
supervisory employee, who possesses
territorial qualifications for the territory,
to explain a test question.
Paragraph (d) of this section states
that if a person fails a test, the railroad
cannot allow that person to serve as a
dispatcher until they achieve a passing
score on reexamination. The railroad
would decide how much time, if any,
must pass after a test failure before a
certification candidate can be
reexamined. Furthermore, the railroad
would decide what additional training,
if any, a candidate would receive after
a test failure. The railroad would also
decide whether there should be a limit
on the number of times a candidate
could retake a test, and if so, the
maximum number of test retakes the
railroad will allow.
Section 245.123 Monitoring
Operational Performance
This proposed section, derived from
49 CFR 240.129 and 242.123, contains
the requirements for conducting
unannounced compliance tests.
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Paragraph (a) of this section requires
each railroad to describe in its
certification program how it will
monitor the conduct of its certified
dispatchers by performing unannounced
compliance tests on railroad and
Federal rules, as well as territorial and
dispatch systems. Paragraph (a)(3)
requires railroads to indicate the types
of actions they will take in the event
they find deficiencies with a
dispatcher’s performance during an
unannounced compliance test. FRA
believes it is up to each railroad to
decide the appropriate action to take in
light of various factors, including
collective bargaining agreements.
Further, FRA believes that the vast
majority of railroads have adequate
policies to deal with deficiencies with a
dispatcher’s performance and have
handled them appropriately for many
years.
To avoid restricting the options
available to the railroads and employee
representatives to develop processes for
handling test failures, FRA designed
this regulation to be as flexible as
possible. There are a variety of actions
and approaches that a railroad could
take such as developing and providing
formal remedial training for dispatchers
who fail tests or have deficiencies in
their performance. Each railroad could
also consider implementing a formal
procedure whereby a dispatcher is given
the opportunity to explain, in writing,
the factors that they believe caused their
test failure or performance deficiencies.
This explanation may allow a railroad to
determine what areas of training to
focus on or perhaps discover that the
reason for the failure/deficiency was
due to something other than a lack of
skills. FRA believes there are numerous
other approaches that could be
considered and evaluated by railroads
and their dispatchers, and FRA does not
want to stifle a railroad’s ability to adopt
an approach that is best for its
organization.
Paragraph (b) of this section provides
the requirements for these unannounced
compliance tests, including the
operational tests that must be performed
and who is allowed to conduct the test.
Paragraph (b)(3) specifies that each
railroad must give each of its certified
dispatchers at least one unannounced
compliance test each calendar year,
except as provided in paragraph (c) of
this section. FRA recognizes that before
these unannounced compliance tests
can be performed in conformance with
this section, a railroad’s certification
program must first be approved by FRA.
Thus, at the latest, FRA expects
railroads to perform these unannounced
compliance tests on all of their certified
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dispatchers during the calendar year
immediately following the year their
certification program is first approved
by FRA. For example, if FRA approves
one railroad’s program in January 2025
and another railroad’s program in
December 2025, both of these railroads
would have to perform unannounced
compliance tests on all of their certified
dispatchers starting in 2026. While FRA
would encourage these railroads to
commence the unannounced tests after
their programs are approved in 2025,
FRA recognizes it may not be practical
to perform unannounced tests on all of
their certified dispatchers by the end of
2025, especially for the railroad whose
program was not approved until
December 2025.
Paragraph (c) of this section
recognizes that some certified
dispatchers may not be performing a
service that requires a dispatcher
certificate, and thus, a railroad may not
be able to provide those dispatchers
with the annual, unannounced
compliance test. For example, a certified
dispatcher may be on furlough, in
military service, off with an extended
illness, or working in another service. In
situations like these where a dispatcher
is not performing service that requires
certification, the railroad does not have
to give an unannounced compliance
test. However, when the certified
dispatcher returns to dispatcher service,
they will have to be given an
unannounced compliance test within 30
days of their return. Moreover, the
railroad will have to retain a written
record that documents the date the
dispatcher stopped performing service
requiring certification, the date the
dispatcher returned to service requiring
certification, and the date the dispatcher
received their unannounced compliance
test following their return to service
requiring certification.
Section 245.125 Certification
Determinations Made by Other
Railroads
This section of the proposed rule,
derived from 49 CFR 240.225 and
242.125, contains requirements that
would apply when a certified or
previously certified dispatcher is about
to begin work for a different railroad.
This section would permit a railroad to
rely on determinations made by another
railroad concerning a person’s
certification. However, this section
would require railroads to address in
their certification programs how they
will administer training for previously
uncertified dispatchers with extensive
dispatching experience or previously
certified dispatchers who have had their
certification expire. In both scenarios,
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FRA would allow the railroad to reduce
the on-the-job training that might
otherwise be required if the person were
treated as having no dispatching
experience. However, if a railroad’s
certification program fails to specify
how the railroad will train a dispatcher
who was previously certified by another
railroad, all dispatchers and dispatcher
candidates will be required to take the
railroad’s entire training program
(regardless of the dispatcher’s prior
certification status).
Subpart C—Administration of the
Certification Program
Section 245.201 Time Limitations for
Certification
This proposed section, derived from
49 CFR 240.217 and 242.201, contains
various time constraints to preclude
railroads from relying on stale
information when evaluating candidates
for certification or recertification. For
example, when making a determination
of eligibility based on prior safety
conduct as an employee of a different
railroad pursuant to § 245.113,
paragraph (a) would prohibit a railroad
from relying on data provided more
than one year before the date of the
railroad’s certification decision.
However, paragraph (b) goes on to
explain that the time constraints listed
in paragraph (a) would not apply to
railroads who are not evaluating
candidates for certification or
recertification, but simply relying on
eligibility determinations that have
already been made by another railroad
in accordance with § 245.125.
Paragraph (c) prohibits a railroad from
certifying a person as a dispatcher for
more than three years except for those
individuals who are designated as
certified dispatchers under § 245.105(c)
or (d). When a railroad designates an
individual as a certified dispatcher
under § 245.105(c) or (d), that
certification can last for three years after
the date that FRA initially approves the
railroad’s certification program. This
could lead to situations where a
certificate could be valid for more than
three years. For example, if a railroad
designates an individual as a certified
dispatcher in January 2025, but FRA
does not approve the railroad’s
certification program until January
2026, the dispatcher’s certification
could last until January 2029 (four years
in total). However, any subsequent
recertifications for that dispatcher could
only last for three years. In other words,
if the dispatcher in the previous
example got recertified in January 2029,
that certificate would expire no later
than January 2032.
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Paragraph (d) would require railroads
to issue certificates that comply with
§ 245.207 to their certified dispatchers
within 30 days from the date of the
railroad’s decision to certify or recertify
that person.
Section 245.203 Retaining Information
Supporting Determinations
This proposed section, derived from
49 CFR 240.215 and 242.203, contains
recordkeeping requirements for
railroads that certify dispatchers.
Paragraph (b) lists the information that
railroads would be required to retain for
each of their certified dispatchers and
certification candidates, while
paragraph (e) provides that all records
required to be retained must be retained
for six years from the date of the
railroad’s certification, recertification,
denial, or revocation decision.
Paragraph (e) would also require
railroads to make these records available
to FRA representatives, upon request, in
a timely manner.
Paragraph (f) would prohibit railroads
and individuals from falsifying records
that railroads are required to retain
pursuant to this section. Paragraph (g)
contains minimum standards for
electronic recordkeeping with which
railroads would be required to comply,
in order to maintain electronic versions
of the required records. These minimum
standards for electronic recordkeeping
are virtually identical to the electronic
recordkeeping standards contained in
49 CFR 242.203.
Section 245.205 List of Certified
Dispatchers and Recordkeeping
This proposed section, derived from
49 CFR 240.221 and 242.205, would
require a railroad to maintain a list of
its certified dispatchers. Paragraph (b) of
this section would also require a
railroad to update its list of certified
dispatchers at least annually and to
make its list of certified dispatchers
available, upon request, to FRA
representatives in a timely manner.
Paragraph (c) contains minimum
standards for electronic recordkeeping
with which railroads would be required
to comply, in order to maintain an
electronic version of the list of certified
dispatchers required by this section.
These minimum standards are similar to
the electronic recordkeeping standards
contained in 49 CFR 242.205.
Paragraph (d) would prohibit
railroads and individuals from falsifying
the list of certified dispatchers that
railroads are required to maintain
pursuant to this section.
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Section 245.207 Certificate
Requirements
This proposed section contains
requirements for the certificate that each
certified dispatcher would be required
to carry. The requirements in
paragraphs (a)–(e) of this section, which
pertain to the required minimum
content for certificates and
authorization of the person designated
by the railroad to sign the certificates,
are derived from 49 CFR 240.223 and
242.207.
Paragraph (a) of this section specifies
that railroads have the option of issuing
certificates electronically or in paper
form. Paragraph (a)(1) would require
that the dispatcher certificate identify
the railroad issuing the certificate.
Therefore, a certified dispatcher who
works for more than one railroad would
be required to have a separate certificate
for each railroad with which the
dispatcher is currently certified.
Paragraph (a)(7) would require the
certificate to be signed by an individual
who has been designated by the railroad
as an authorized signatory of dispatcher
certificates, as described in paragraph
(c) of this section. Electronic signatures
are permitted under this proposed rule.
In addition, paragraph (e) of this section
would prohibit railroads and
individuals from falsifying dispatcher
certificates.
Paragraphs (f) and (i) are derived from
49 CFR 240.305 and 242.209. These
paragraphs would require dispatchers to
have their certificates in their
possession while on duty as a
dispatcher, to display their certificates
when requested to do so by FRA
representatives, State inspectors 18
authorized under 49 CFR part 212, and
certain railroad officers, and to notify a
railroad if they are called to serve as a
dispatcher in a service that would cause
them to exceed their certificate limits.
Paragraph (g), derived from 49 CFR
240.301 and 242.211(a), would require
railroads to promptly replace a
dispatcher’s certificate at no cost to the
dispatcher, if the certificate is lost,
stolen, or mutilated. However, unlike
§ 242.211(b), this section does not
contain detailed requirements for
temporary replacement certificates.
Temporary replacement certificates
generally contain most of the
information provided on official
certificates. Therefore, it does not
appear to be especially burdensome for
railroads to issue temporary certificates
18 Although State inspectors authorized under 49
CFR part 212 could be considered ‘‘FRA
representatives,’’ they are mentioned separately in
this section to ensure that there is no dispute
regarding their authority.
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to replace certificates that have been
lost, stolen, or mutilated. Nonetheless,
by refraining from proposing a formal
process for the issuance of temporary
dispatcher replacement certificates, FRA
would allow railroads to decide how
and when to issue temporary
replacement certificates to dispatchers.
FRA is soliciting comment on this
proposed approach.
Section 245.213
Certifications 19
Multiple
This proposed section, derived from
49 CFR 240.308 and 242.213, establishes
how railroads should handle certified
dispatchers who are certified with
multiple railroads, attempting to
become certified with multiple
railroads, or certified in another railroad
craft. FRA recognizes that while it is
fairly common for an individual to work
as both a locomotive engineer and a
conductor, it is less common for a
dispatcher to also work in another craft
that requires certification. However,
because situations may arise where a
dispatcher is also certified to work in
another craft, such as a locomotive
engineer or conductor, FRA wanted to
address how to handle such situations.
Paragraph (a) of this section would
allow a certified dispatcher to become
certified in one or more of the other
railroad crafts that require certification
such as locomotive engineer or
conductor. If a person is certified in
multiple crafts by the same railroad,
paragraph (b) would require the railroad
to coordinate the expiration dates of the
certificates, to the extent possible. While
railroads are not required to have all of
a person’s certificates expire at the same
time, it would be beneficial, from the
standpoint of administrating the
certification programs, if railroads
followed this practice. Thus, FRA
encourages railroads to coordinate these
expiration dates when possible.
Paragraph (c) of this section would
pertain to individuals who are certified
dispatchers for multiple railroads or
who are seeking to become certified
dispatchers for multiple railroads.
Paragraph (c)(1) would require a
dispatcher to notify all railroads with
which the dispatcher holds a current
dispatcher certificate, if another railroad
denies, suspends, or revokes the
dispatcher’s certification. Paragraph
19 To the extent possible, FRA has attempted to
match the section numbers in this proposed rule to
the analogous sections in the conductor
certification rule (49 CFR part 242). Since 49 CFR
242.213 addresses multiple certification issues,
FRA is proposing section number 245.213 for the
multiple certification section in this proposed rule
instead of the next sequential section number
which would be 245.209.
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(c)(2) would prohibit an individual from
working as a dispatcher for any railroad
while their dispatcher certification is
suspended or revoked by a railroad. For
example, if a person is a certified
dispatcher with Railroad ABC and
Railroad DEF, and ABC suspends and/
or revokes the person’s certificate, that
person would not be able to work as a
dispatcher for DEF, or any other
railroad, during the period of
suspension and/or revocation.
Furthermore, paragraph (c)(3) states that
if a person has their dispatcher
certification suspended or revoked by
one railroad, and they attempt to
become a certified dispatcher with
another railroad while their certification
is suspended or revoked, they must
notify the railroad they are seeking
certification from of their current
suspended or revoked certification
status. Therefore, if a person is seeking
dispatcher certification with Railroad
XYZ while their dispatcher certificate is
suspended or revoked by Railroad ABC,
they must notify XYZ of their current
suspended or revoked certification
status.
Paragraphs (d), (e), and (f) of this
section address how the revocation of a
dispatcher’s certification would affect
an individual’s ability to work in
another railroad craft requiring
certification, and vice versa. If a
person’s dispatcher certification was
revoked because of a drug or alcohol
violation, as described in
§ 245.303(e)(8), then that person would
be ineligible to work in any craft
requiring certification, such as a
locomotive engineer or conductor, for
any railroad during the period of
revocation. Such person would also not
be able to obtain a certificate in any of
those crafts from any railroad while
their dispatcher certificate is revoked.
Likewise, if a person’s non-dispatcher
certification(s), such as locomotive
engineer or conductor, are revoked
because of an alcohol or drug violation,
that person will be ineligible to work as
a certified dispatcher or obtain a
dispatcher certificate from any railroad
during the revocation period. In
contrast, if a dispatcher’s certification is
revoked for a violation that does not
involve alcohol or drugs, such as
§ 245.303(e)(1) through (7), that person
would still be able to work in any other
craft requiring certification, such as a
locomotive engineer or conductor,
during the period of revocation, as long
as the person is certified in that craft.
Likewise, a person could still work as a
certified dispatcher if their certificate
for another craft, such as locomotive
engineer or conductor, was revoked due
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to a violation that did not involve drugs
or alcohol.
FRA’s reasoning for this line of
delineation between revocable events
that involve alcohol and drugs and
those that do not is rooted in railroad
safety. If someone shows up to work as
a dispatcher under the influence of
alcohol or drugs, it stands to reason that
they could likely show up to work for
another certified craft, such as a
locomotive engineer or conductor,
under the influence as well. Thus, it
makes sense for an individual’s alcohol
or drug violations as a dispatcher to
impact their eligibility to work in
another craft that requires certification
and vice versa. With respect to
revocable events that do not involve
alcohol or drugs, FRA finds that the
tasks performed by a dispatcher are so
inherently different from the tasks
performed in another certified craft,
such as an operating crew member, that
it does not automatically follow that a
person’s revocable event as a dispatcher
indicates that they are more likely to
also have a revocable event while
performing in another certified craft.
Thus, FRA is taking the position that a
revocation of a dispatcher certificate
which does not involve alcohol or drugs
should not affect that person’s eligibility
to work in another railroad craft
requiring certification, and vice versa.
However, FRA requests comments on
this issue.
Paragraphs (g) and (h) of this section
would prohibit a railroad from denying
or revoking a dispatcher’s certification
just because their attempt at
certification or recertification in another
railroad craft, such as locomotive
engineer or conductor, was denied, and
vice versa. Paragraph (i) of this section
would allow a railroad to issue a single
certificate to a person who is certified in
multiple railroad crafts that require
certification. If a railroad exercises this
option, it must ensure that the single
certificate contains all of the
components required for each craft.
Alternatively, railroads are also
welcome to issue multiple certificates to
a person who is certified in multiple
crafts (one certificate for each craft).
Thus, if a person is certified as both a
dispatcher and conductor, the railroad
could issue the person a single
certificate containing both crafts or it
could issue one dispatcher certificate
and one conductor certificate.
Finally, paragraph (j) of this section
denotes that if a person is certified in
multiple crafts and they are involved in
a revocable event, that event can only
lead to the revocation of a certificate for
a single railroad craft. The railroad must
determine which certificate should be
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revoked based on the work the
individual was performing at the time of
the event. In such instances, while the
railroad may only revoke a certificate for
a single craft, that revocation could
affect a person’s eligibility to perform
other crafts. For example, if a person
who is certified as a dispatcher and a
conductor, violates 49 CFR 219.101
while on duty as a dispatcher, the
railroad should only revoke the
individual’s dispatcher certification.
The person’s conductor certificate
cannot be revoked for the incident that
occurred while the person was on duty
as a dispatcher. However, as discussed
in paragraph (d)(1) of this section, this
person would not be able to work as a
conductor while their dispatcher
certificate was revoked for this offense.
Section 245.215 Railroad Oversight
Responsibilities
This proposed section, derived from
49 CFR 240.309 and 242.215, would
require each Class I railroad (including
the National Railroad Passenger
Corporation), each railroad providing
commuter service, and each Class II
railroad to conduct an annual review
and analysis of its program for
responding to detected instances of poor
safety conduct by certified dispatchers.
FRA has formulated the information
collection requirements of this proposed
section to ensure that railroads collect
data on dispatcher safety behavior and
feed that information into their
operational monitoring efforts, thereby
enhancing safety.
This section would require each Class
I railroad (including the National
Railroad Passenger Corporation),
railroad providing commuter service,
and Class II railroad to have an internal
auditing plan to keep track of eight
distinct events that involve poor safety
conduct by dispatchers. For each event,
the railroad would be required to
indicate what response it took to that
situation. The railroad would then be
required to evaluate this information,
together with data showing the results
of annual operational testing and
causation of FRA reportable train
accidents, to determine what additional
or different efforts, if any, are needed to
improve the safety performance of that
railroad’s certified dispatchers. FRA
would not require railroads to furnish
this data or their analysis of the data to
FRA. Instead, FRA would require that
railroads be prepared to submit such
information when requested.
As set forth in paragraph (i), an
instance of poor safety conduct
involving a person who is a certified
dispatcher and is certified in another
railroad craft (such as a locomotive
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engineer or conductor) need only be
reported once under the appropriate
section of this chapter (e.g., under
§ 240.309, § 242.215, or under this
section). The determination as to where
to report the instance of poor safety
conduct should be based on the work
the person was performing at the time
the conduct occurred. This
determination is similar to the
determination made under part 225, in
which railroads determine whether an
accident was caused by poor
performance of what is traditionally
considered a conductor’s job function
(e.g., switch handling, derail handling,
etc.) or whether it was caused by poor
performance of what is traditionally
considered a locomotive engineer’s job
function (e.g., operation of the
locomotive, braking, etc.)
Denial and Revocation of Certification
This subpart parallels part 240 and
part 242’s approach to adverse decisions
concerning certification (i.e., decisions
to deny certification or recertification
and revoke certification). With respect
to denials, the approach of this rule is
predicated principally on the theory
that decisions to deny certification or
recertification will come at the
conclusion of a prescribed evaluation
process which will be conducted in
accordance with the provisions set forth
in this subpart. Thus, this proposed rule
contains specific procedures designed to
ensure that a person in jeopardy of
being denied certification or
recertification will be given a reasonable
opportunity to examine and respond to
the negative information that might
serve as the basis for being denied
certification or recertification.
When considering revocation, this
proposed rule contemplates that
decisions to revoke certification will
only occur for the reasons specified in
this subpart. Since revocation decisions
by their very nature involve a clear
potential for factual disagreement, this
subpart is structured to ensure that such
decisions will only come after a
certified dispatcher has been afforded
an opportunity for an investigatory
hearing at which the presiding officer
will determine whether there is
sufficient evidence to establish that the
dispatcher’s conduct warranted
revocation of their certification.
This subpart also provides for
certificate suspension in certain
circumstances. Certificate suspension
would be employed in instances where
there is reason to think the certificate
should be revoked or made conditional
but time is needed to resolve the
situation. Certificate suspension is
applicable in instances where a person
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is awaiting an investigatory hearing to
determine whether that person violated
certain provisions of FRA’s alcohol and
drug control rules, or committed a
violation of certain operating rules or
practices, and situations in which the
person is being evaluated or treated for
an active substance abuse disorder.
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Section 245.301 Process for Denying
Certification
This proposed section, derived from
49 CFR 240.219 and 242.401, establishes
minimum procedures that must be
offered to a certification candidate
before a railroad denies the candidate
certification or recertification. Paragraph
(a) of this section gives a certification
candidate a reasonable opportunity to
explain or rebut adverse information,
including written documents or records,
that the railroad intends to use as the
basis for its decision to deny
certification or recertification.
Paragraph (b) of this section requires
that a written explanation of an adverse
decision be ‘served’ on a certification
candidate within 10 days of the
railroad’s decision. Paragraph (b) also
requires that the basis for a railroad’s
denial decision address any explanation
or rebuttal information that the
dispatcher candidate may have
provided pursuant to paragraph (a) of
this section.
Paragraph (c) of this section prohibits
a railroad from denying certification
based on a failure to comply with a
railroad operating rule or practice which
constitutes a violation under
§ 245.303(e)(1) through (7) if sufficient
evidence exists to establish that an
intervening cause prevented or
materially impaired the dispatcher’s
ability to comply with that railroad
operating rule or practice. This
paragraph is derived from the
intervening cause exception for
revocation in § 245.307(h).
Section 245.303 Criteria for Revoking
Certification
This proposed section, derived from
49 CFR 240.117, 240.305, and 242.403,
provides the circumstances under
which a dispatcher may have their
certification revoked. In addition,
paragraph (a) of this section makes it
unlawful to fail to comply with any of
the railroad rules or practices described
in paragraph (e) of this section.
Paragraph (a) is needed so that FRA can
initiate enforcement action. For
example, FRA might want to initiate
enforcement action in the event that a
railroad fails to initiate revocation
action or a person who is not a certified
dispatcher violates a railroad rule or
practice described in paragraph (e) of
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this section. (Railroads should,
however, note that they may not revoke
a dispatcher’s certificate, including a
designated dispatcher’s certificate, until
they have obtained FRA approval of
their certification programs pursuant to
§ 245.103.)
Paragraph (b) of this section provides
that a certified dispatcher who fails to
comply with a railroad rule or practice
described in paragraph (e) would have
their dispatcher certification revoked.
Paragraph (c) provides that a certified
dispatcher who is monitoring, piloting,
or instructing another dispatcher could
have their certification revoked if the
certified dispatcher fails to take
appropriate action to prevent a violation
of a railroad rule or practice described
in paragraph (e) of this section. As
explained in paragraph (c), ‘‘appropriate
action’’ does not mean that a supervisor,
pilot, or instructor must prevent a
violation from occurring at all costs, but
rather the duty may be met by warning
the dispatcher, as appropriate, of a
potential or foreseeable violation.
Paragraph (d) provides that a certified
dispatcher who is called by a railroad to
perform a duty other than that of a
dispatcher would not have their
dispatcher certification revoked based
on actions taken or not taken while
performing that duty. In general, this
paragraph would apply regardless of
whether the individual was called to
perform a certified craft, such as
locomotive engineer or conductor, or a
non-certified craft. However, this
exemption would not apply to
violations described in paragraph (e)(8)
of this section. Therefore, certified
dispatchers working in other capacities,
that do not require certification, who
violate certain alcohol and drug rules
would have their certification revoked
for the appropriate period pursuant to
§ 245.115. However, if the certified
dispatcher was working in another
certified craft, such as a locomotive
engineer or conductor, at the time of the
alcohol or drug violation, their
certificate for the craft that they were
performing at the time of the violation
would be revoked as opposed to their
dispatcher certificate. If a certified
dispatcher who is also certified in
another craft, such as locomotive
engineer or conductor, violates
§ 219.101 while performing a craft that
does not require certification, the
railroad shall pick one, and only one,
certificate to revoke. For example, if a
person, who is a certified dispatcher
and conductor, violates § 219.101 while
working as a brakeman, the railroad
must decide to revoke either their
dispatcher certificate or their conductor
certificate, but it cannot revoke both
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certificates. Regardless of which
certificate the railroad chooses to
revoke, the person will be unable to
work as a dispatcher or conductor
during the period of revocation. See
§ 245.213(d)(1) and (3).
Paragraph (e) provides the eight types
of rule infractions that could result in
certification revocation. The infractions
listed in paragraphs (e)(1) through (8)
are derived in part from the revocable
events provided in 49 CFR 242.117(e)
but have been modified to account for
the duties and responsibilities of a
dispatcher.
Paragraph (e)(1) refers to a
dispatcher’s failure to properly protect
the public and railroad personnel after
receiving a report of highway-rail grade
crossing warning system malfunction.
Depending on the type of warning
system malfunction at issue, this
violation could involve the dispatcher’s
failure to issue a mandatory directive
that restricts speed or imposes a stop
and flag order for train crews
approaching the highway-rail grade
crossing.
Paragraph (e)(2) refers to violations
that could include a dispatcher granting
authority or permission for a train or ontrack equipment to enter an out of
service or blue flag protected track.
Paragraph (e)(3) refers to violations
that could include a dispatcher granting
authority or permission for a train or ontrack equipment to enter established
Roadway Worker In Charge (RWIC)
limits without authorization from the
RWIC who owns the limits.
Paragraph (e)(4) refers to the removal
of blocking devices or established
protection of RWIC working limits, prior
to the RWIC releasing the limits. Similar
to the previous paragraph, this entry is
directly correlated to the protection of
personnel and equipment on controlled
track. In setting up protected limits for
an RWIC, dispatchers apply blocking
devices which are used to isolate the
limits owned by the RWIC. Removing
these devices and established protection
exposes the RWIC to movements of
trains, engines, and on-track equipment.
Paragraph (e)(5) refers to violations
that could include the failure of a
dispatcher to properly apply blocking
devices or establish appropriate
protection necessary to protect working
limits or the movement of trains or ontrack equipment.
Paragraph (e)(6) references a
dispatcher’s failure to properly issue or
apply mandatory directives when
warranted. Mandatory directives are
defined in § 245.7 as any movement
authority or speed restriction that affects
a railroad operation. Therefore, any
form used to authorize the use of, or
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provide protection for, controlled track
is a mandatory directive. Mandatory
directives can be in the form of speed
restrictions/slow orders, track
authorities, track warrants, and various
other movement orders.
Paragraph (e)(7) refers to violations
that could include a dispatcher
circumventing train control systems by
granting permission or authorizing a
train or engine with inoperative or
malfunctioning PTC or cab signal
equipment onto territory requiring the
use of these systems.
Paragraph (f) proposes a three-year
period for considering certified
dispatcher conduct that failed to comply
with a railroad operating rule or practice
described in paragraphs (e)(1) through
(7) of this section. However, when
alcohol and drug violations are at issue,
the time period for evaluating prior
operating rule misconduct would be
dictated by § 245.115, which would
establish a period of 60 consecutive
months prior to the date of review for
such evaluations.
Paragraph (g) provides that if a single
incident contravenes more than one
railroad operating rule or practice listed
in paragraph (e) of this section, the
incident would be treated as a single
violation. FRA considers a single
incident to be a unique identifiable
occurrence caused by a certified
dispatcher’s violation of one or more
railroad operating rules or practices
listed in paragraph (e). However, a
certified dispatcher could be involved
in more than one incident during a
single tour of duty, if the incidents are
separated by time, distance, or
circumstance.
Paragraph (h) provides that a certified
dispatcher may have their certification
revoked for violation of a railroad
operating rule or practice listed in
paragraph (e) that occurs during a
properly conducted operational
compliance test. However, as reflected
in paragraph (i), violations of railroad
operating rules or practices that occur
during operational tests that are not
conducted in compliance with this part,
the railroad’s operating rules, or the
railroad’s program under § 217.9 will
not be considered for revocation
purposes.
Section 245.305 Periods of Ineligibility
This section of the proposed rule,
derived from 49 CFR 240.117 and
242.405, describes how a railroad would
determine the period of ineligibility
(e.g., for revocation or denial of
certification) for a dispatcher or
dispatcher candidate. Paragraph (a) of
this section provides the starting date
for a period of ineligibility. For persons
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who are not currently certified as
dispatchers, a period of ineligibility
would begin on the date of the railroad’s
written determination that the most
recent incident has occurred. For
example, if the railroad made a written
determination on March 10th that the
most recent incident occurred on March
1st, the period of ineligibility would
begin on March 10th. For persons who
are currently certified dispatchers, a
period of ineligibility would begin on
the date the railroad notifies the person
that their recertification has been denied
or their certification has been
suspended. For dispatchers who have
their certification revoked, the period of
ineligibility would begin on the date the
railroad notifies the dispatcher of the
certificate suspension as opposed to the
notification date of certificate revocation
because once a person’s certificate is
suspended, they are ineligible to work
as a dispatcher pending a determination
as to whether the certificate should be
revoked.
With respect to revocation, paragraph
(b) of this section provides that once a
railroad determines that a dispatcher
has failed to comply with its safety rule
concerning one or more events listed in
§ 245.303(e), two consequences will
occur. First, the railroad will be
required to revoke the dispatcher’s
certification for a period of time
provided in this section. Second, that
revocation will initiate a period during
which the dispatcher will be subject to
an increasingly more severe period of
revocation if additional revocable events
occur in the next 24 to 36 months. The
standard periods of revocation proposed
in this section track the revocation
periods provided in parts 240 and 242.
One revocable event would result in
revocation for 30 days. Two revocable
events within 24 months of each other
would result in revocation for six (6)
months. Three revocable events within
36 months of each other would result in
revocation of one (1) year. Four
revocable events within 36 months of
each other would result in revocation
for three (3) years.
While paragraph (c) of this section
contains a provision that parallels
§ 242.405(b) and provides that all
periods of revocation may consist of
training, paragraph (d) contains a
provision that parallels §§ 240.117(h)
and 242.405(c). Paragraph (d) provides
that a person whose dispatcher
certification is denied or revoked will be
eligible for grant or reinstatement of the
certificate prior to the expiration of the
initial period of revocation if they
satisfy all of the criteria listed in the
paragraph.
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Section 245.307 Process for Revoking
Certification
This proposed section, derived from
49 CFR 240.307 and 242.407, provides
the procedures a railroad must follow if
it acquires reliable information
regarding a dispatcher’s violation of an
operating rule or practice listed in
§§ 245.303(e) or 245.115(d). Paragraph
(b)(1) of this section provides that, upon
receipt of reliable information regarding
a violation of a railroad operating rule
or practice described in §§ 245.303(e) or
245.115(d), a railroad must suspend the
person’s certificate immediately.
Paragraph (b)(2) provides that, prior to
or upon suspending the person’s
certificate, the railroad would have to
provide either oral or written notice of
the reason for the suspension, the
pending revocation, and an opportunity
for a hearing. If the initial notice was
verbal, then the notice would have to be
promptly confirmed in writing. The
amount of time the railroad has to
confirm the notice in writing would
depend on whether or not a collective
bargaining agreement is in effect and
applicable. In the absence of such an
agreement, a railroad would have four
days to provide written notice. If a
notice of suspension is amended after a
hearing is convened and/or does not
contain citations to all railroad rules
and practices that may apply to a
potentially revocable event, the
Certification Review Board (CRB or
Board), if asked to review the revocation
decision, might subsequently find that
this constitutes procedural error
pursuant to § 245.405.
Pursuant to paragraph (b)(4) of this
section, no later than the convening of
a hearing, the railroad must provide the
dispatcher with a copy of the written
information and a list of witnesses the
railroad will present at the hearing. If
requested, a recess to the start of the
hearing shall be granted if the copy of
the written information and list of
witnesses is not provided until just
prior to the convening of the hearing. If
the information that led to the
suspension of a dispatcher’s certificate
pursuant to paragraph (b)(1) of this
section is provided through statements
of an employee of the convening
railroad, the railroad must make that
employee available for examination
during the hearing. Examination may be
telephonic or virtual when it is
impractical to provide the witness at the
hearing. These provisions in paragraph
(b)(4) of this section were added to
ensure that dispatchers are provided
with information and/or witnesses
necessary to defend themselves at their
hearing. Even if a railroad conducts a
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hearing pursuant to the procedures in
an applicable collective bargaining
agreement, the railroad will still have to
comply with the provisions of
paragraph (b)(4). It is not, however,
FRA’s intent to require railroads to call
every witness included on the railroad’s
list of witnesses to testify at the hearing.
If, for example, a railroad believes that
it has provided sufficient evidence
during a hearing to prove its case, and
that calling a witness on its list to testify
would be unduly repetitive, the railroad
would not be obligated to call that
witness to testify. Of course, the
opposing party could request that the
witness be produced to testify, but the
hearing officer would have the authority
pursuant to paragraph (d)(4) of this
section to determine whether the
witness’s testimony would be unduly
repetitive or so extensive and lacking in
relevancy that its admission would
impair the prompt, orderly, and fair
resolution of the proceeding.
Paragraph (d)(2) of this section
provides the presiding officer with the
powers necessary to regulate the
conduct of the hearing. Thus, a
presiding officer would be permitted to
deny excessive hearing request delays
by the dispatcher. Moreover, a presiding
officer could find implied consent to
postpone a hearing when a dispatcher’s
witnesses are not available within 10
days of the date the certificate is
suspended. However, the CRB may
grant a petition on review if the CRB
finds that the hearing schedule caused
the petitioner substantial harm.
Paragraph (e) of this section contains
requirements regarding the written
decision in a railroad hearing. FRA
believes these requirements will ensure
that railroads issue clear and detailed
decisions. In turn, clear and detailed
decisions will allow a dispatcher to
understand exactly why their
certification was revoked and will allow
the CRB to have a more detailed
understanding of the case if it is asked
to review the revocation decision
pursuant to subpart E of this proposed
rule.
Paragraph (f) credits the period of
certificate suspension prior to the
commencement of a hearing required
under this section towards satisfying
any applicable revocation period
imposed in accordance with the
provisions of § 245.305. For example, if
a dispatcher’s certificate is suspended
on July 1st and on July 11th, the railroad
issues a decision to revoke the
dispatcher’s certificate for 30 days, the
time between July 1st and July 11th
would count towards the 30-day
revocation period. Thus, the
dispatcher’s certificate would only be
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revoked for an additional 20 days after
the railroad issued its revocation
decision.
Paragraph (g) requires a railroad to
revoke a dispatcher’s certification if it
discovers that another railroad has
revoked that person’s dispatcher
certification. The revocation period
shall coincide with the revocation
period of the railroad that initially
revoked the dispatcher’s certification.
For example, if a dispatcher is certified
by Railroad ABC and Railroad XYZ, and
ABC revokes the dispatcher’s
certification from November 1st through
November 30th, XYZ must revoke the
dispatcher’s certification through
November 30th once it learns of ABC’s
revocation. The revocation hearing
requirement in this rule is satisfied
when any single railroad holds a
revocation hearing for a dispatcher that
arises from the same set of facts.
Paragraphs (h) and (i) provide two
specific defenses for railroad
supervisors and hearing officers to
consider when deciding whether to
suspend or revoke a person’s certificate
due to an alleged revocable event.
Pursuant to these provisions, either
defense would have to be proven by
sufficient evidence. Paragraph (h)
prohibits railroads from revoking a
dispatcher’s certificate when there is
sufficient evidence of an intervening
cause that prevented or materially
impaired the dispatcher’s ability to
comply. For example, a railroad should
consider assertions that a Dispatcher
Pilot or Dispatcher Trainer failed to take
appropriate action to prevent an
uncertified dispatcher or dispatcher
trainee from using defective equipment.
Similarly, a railroad should consider
assertions that a train crew member
relayed incorrect information to the
dispatcher who reasonably relied on it,
thus causing a revocable event.
However, FRA does not intend to imply
that all equipment failures and errors
caused by others will serve to absolve
dispatchers from certification revocation
under this proposed rule. The factual
issues presented by each incident would
need to be analyzed on a case-by-case
basis.
Paragraph (i) would allow railroads to
exercise discretion when determining
whether to revoke a dispatcher’s
certification ‘‘if sufficient evidence
exists to establish that the violation of
the railroad operating rule or practice
described in § 245.303(e) was of a
minimal nature and had no direct or
potential effect on rail safety.’’ However,
FRA acknowledges that the
determination as to whether an incident
meets this criterion could be subject to
different interpretations. For this reason,
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paragraph (j) would require railroads to
retain information about the evidence
relied upon when exercising this
discretion. Unless a railroad fails to
retain information as required in
paragraph (j) or acts in bad faith, FRA
does not anticipate taking enforcement
action against the railroad even if FRA
believes the railroad could have revoked
the dispatcher’s certification.
Paragraph (j) of this section requires
railroads to keep records of those
violations in which they must not or
elect not to revoke a dispatcher’s
certificate pursuant to paragraph (h) or
(i) of this section. Paragraph (k)
addresses concerns that problems could
arise if FRA disagrees with a railroad’s
decision not to suspend a dispatcher’s
certificate for an alleged violation of an
operating rule or practice pursuant to
§ 245.303(e). As long as a railroad makes
a good faith determination after a
reasonable inquiry, the railroad will
have immunity from civil enforcement
for making what the agency believes to
be an incorrect determination. However,
if railroads do not conduct a reasonable
inquiry or act in good faith, they could
be subject to civil penalty assessment
under this rule. In addition, even if a
railroad does not take what FRA
considers appropriate revocation action,
FRA could still take enforcement action
against an individual responsible for the
noncompliance by assessing a civil
penalty against the individual or issuing
an order prohibiting the individual from
performing safety-sensitive functions in
the rail industry for a specified period
pursuant to part 209, subpart D.
Subpart E—Dispute Resolution
Procedures
This subpart details the opportunities
and procedures for a person to challenge
a railroad’s decision to deny
certification or recertification or to
revoke a dispatcher’s certification.
While the proposed dispute resolution
process for dispatchers largely mirrors
the processes for engineers under part
240 and conductors under part 242,
FRA has made some modifications that
will be discussed below. In addition,
FRA has undertaken efforts to simplify
these regulations so that they are clear
and comprehensible to all interested
parties.
Section 245.401 Review Board
Established
This proposed section, derived from
49 CFR 240.401 and 242.501, provides
that a person who is denied certification
or recertification or has had their
dispatcher certification revoked may
petition FRA to review the railroad’s
decision. Pursuant to this section, FRA
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Section 245.403 Petition Requirements
This proposed section, derived from
49 CFR 240.403 and 242.503, provides
the requirements for obtaining FRA
review of a railroad’s decision to deny
certification, deny recertification, or
revoke certification. The requirements
contained in paragraph (b) of this
section include the need to seek review
in a timely fashion once the adverse
decision is served on the petitioner. In
the interest of consistency and
uniformity with parts 240 and 242,
petitioners under this part would have
120 days, from the date the adverse
decision was served upon them, to file
a petition for review by the CRB.
Paragraph (b)(3) provides that a
petitioner must file their petition
through https://www.regulations.gov.
Petitioners and their representatives
should save some form of proof of their
filing in case an error occurs in the
Regulations.gov system and they have to
submit proof that their petition was
timely filed. All documents associated
with a CRB petition will be posted to
the docket for that case on
Regulations.gov and all DOT dockets on
Regulations.gov are available to the
public. You may review DOT’s complete
Privacy Act Statement published in the
Federal Register on April 11, 2000
(Volume 65, Number 70, Pages 19477–
78).
Paragraph (b)(4) requires that a
petition contain certain contact
information, including an email
address, for the petitioner and their
representative, if any. The OCRB solely
communicates with parties via email.
FRA anticipates that the CRB will
operate in a similar manner, and will
only send communications to the
parties via email. If a petition only
contains an email address for the
petitioner’s representative, but not the
petitioner, the CRB will only send any
necessary communications to the
representative. Because all
communications will be performed via
email, FRA has determined that it is
unnecessary for a petition to include a
mailing address for petitioner or their
representative. Thus, unlike in parts 240
and 242, this information will not be
required.21 Lastly, if any required
contact information for petitioner or
their representative, such as a phone
number or email address, changes
during the pendency of a petition before
the CRB, it is the responsibility of the
petitioner or their representative to
provide the CRB and the railroad with
the new contact information.
Paragraph (b)(6) requires petitioners
or their representatives to state the facts
and arguments in support of their
petition. In other words, they need to
explain to the CRB why they think the
railroad was incorrect in denying or
revoking the petitioner’s certification.
Paragraph (b)(7) requires petitioners to
submit all documents related to the
railroad’s decision that are in their
possession or reasonably available to
them. This potentially includes the
transcript and exhibits from the
petitioner’s denial or revocation
hearing. In most cases, these documents
will be essential to the Board’s ability to
make an informed decision on the
petition. If neither the petitioner nor the
railroad provides these documents, the
Board may have to specifically request
these documents. Such a request is
likely to delay the Board’s adjudication
of the petition. Therefore, it is in the
petitioner’s interest to provide the Board
with these documents as part of their
petition.
Paragraph (c) of this section was
added to clarify a petitioner’s
responsibilities, if requested by the CRB,
with respect to a petition seeking review
of a railroad decision that is based on a
failure to comply with any drug or
alcohol related rules or a return-toservice agreement. It provides that, if
requested by the CRB, a petitioner must
supplement the petition with ‘‘a copy of
the information under 49 CFR 40.329
20 In a future rulemaking, FRA expects to revise
parts 240 and 242 to refer to the CRB instead of the
OCRB.
21 In a future rulemaking, FRA expects to revise
Parts 240 and 242 to conform to the electronic
communication requirements of this rulemaking.
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delegates initial responsibility for
adjudicating such disputes to the CRB.
Although creation of the CRB will
require issuance of an internal FRA
order, FRA anticipates that the CRB will
mirror the Operating Crew Review
Board (OCRB) which currently
adjudicates disputes under parts 240
and 242.20 Under this proposed rule,
this newly created Board would
adjudicate certification disputes for all
certified crafts, including locomotive
engineers, conductors, and dispatchers.
FRA is fully aware that these different
job disciplines require different
knowledge bases and skill sets. While
the specific process for selecting CRB
members would be delineated in an
FRA order or other internal document,
FRA would ensure that the CRB is
composed of employees with sufficient
backgrounds in these various
disciplines. Only those CRB members
with sufficient knowledge of
dispatching would be able to participate
as a voting member on a petition filed
under this part.
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that laboratories, medical review
officers, and other service agents are
required to release to employees.’’ This
paragraph also provides that a petitioner
must provide a written explanation in
response to a CRB request if they do not
supply the Board with the written
documents that should be reasonably
available under 49 CFR 40.329.
Paragraph (d) of this section gives the
CRB discretion to grant a request for
additional time to file a petition if
certain circumstances are met. As an
initial matter, the petitioner must put
forth good cause for granting the
extension. Thus, a petitioner will have
to demonstrate a reasonable justification
for granting the extension of time. This
justification should be as detailed as
possible to assist the Board in its
determination. In addition to showing
good cause for an extension, a petitioner
must either submit their extension
request before the deadline for filing
their petition or, if the deadline has
already passed, they must allege facts
constituting ‘‘excusable neglect’’ for
failing to meet the deadline. The mere
assertion of excusable neglect,
unsupported by facts, will be
insufficient. Excusable neglect requires
a demonstration of good faith on the
part of the party seeking an extension of
time, and some reasonable basis for
noncompliance within the time frame
specified in the rules. Absent a showing
along these lines, relief will be denied.
The Board will make determinations on
whether ‘‘good cause’’ and/or
‘‘excusable neglect’’ has been shown on
a case-by-case basis.
Paragraph (e) of this section explains
that a decision by the CRB to deny a
petition for untimeliness or lack of
compliance with the requirements of
§ 245.403 may be appealed directly to
the FRA Administrator. Normally an
appeal to the Administrator can only
occur after a case has been heard by
FRA’s hearing officer. However,
petitions that the Board finds to be
untimely or incomplete are the two
exceptions where a party can skip
petitioning the hearing officer and go
directly to filing an appeal with the
Administrator.
Section 245.405 Processing
Certification Review Petitions
This section of the proposed rule,
derived from 49 CFR 240.405 and
242.505, details how petitions for
review by the CRB will be handled.
Paragraph (a) of this section notes that
when FRA receives a CRB petition, it
will send a written notification to the
parties involved in the petition. FRA
will send these acknowledgments via
email. If a representative files a petition
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on behalf of a petitioner, the petition
must include the petitioner’s email
address, if the petitioner also wants to
receive the acknowledgment email and
any other correspondence (including the
Board’s decision) from FRA. The
acknowledgment email will include the
docket number for the petition so that
both parties can access the documents
in the case on https://
www.regulations.gov. FRA will not send
a copy of the petition to the railroad.
Paragraph (b) of this section provides
railroads with the opportunity to
respond to a petition. While it is always
optional for a railroad to respond to a
petitioner’s arguments, if the petitioner
did not include relevant documents in
their petition, such as hearing
transcripts or exhibits, the railroad is
required to provide FRA with those
documents, even if it does not otherwise
respond to the arguments in the
petition. Railroads would have 60 days,
from the date FRA sends the
acknowledgment email, to file a
response in the docket on https://
www.regulations.gov. Railroads may
submit responses after the 60-day
deadline, but the Board will only review
such late filings if it is practicable. In
other words, there is no guarantee that
the Board will review a late response
prior to issuing a decision; thus, if a
railroad wishes to respond to a petition,
it should meet the 60-day deadline. The
railroad can fulfill its requirement to
serve a copy of its response on the other
party by sending its response to
petitioner and/or petitioner’s
representative via email.
Paragraph (c) of this section specifies
when a case will be referred to the
Board, and what authority the Board has
to decide on a petition. If a railroad files
a response before the 60-day deadline in
paragraph (b) of this section, the
petition will be referred to the Board
upon receipt of the response. Otherwise,
the petition will be referred to the Board
60 days after the date the
acknowledgment email was sent. The
Board has the authority to grant a
petition (rule in favor of the petitioner),
deny a petition (rule in favor of the
railroad), or dismiss a petition. An
example of when the Board would
dismiss a petition would be if the
railroad did not deny or revoke the
petitioner’s certification, and thus, there
was no case or controversy before the
Board. If there is insufficient evidence
of record for the Board to make a
decision on the merits of a petition, the
Board may choose to remand a petition
or issue an interim order, so that
additional fact-finding can occur.
Paragraphs (d), (e), and (f) of this
section provide the standards of review
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that the Board will employ for
procedural issues, factual issues, and
legal issues, respectively. These
standards mirror the standards of review
used by the OCRB to review locomotive
engineer and conductor petitions. It is
not the Board’s intention to correct all
procedural errors committed by a
railroad. Instead, the Board will only
grant a petition if the railroad’s
procedural error caused substantial
harm to the petitioner. For factual
issues, the petitioner must show that the
railroad did not have substantial
evidence to support its decision to deny
or revoke the petitioner’s certification. If
the Board must decide a legal issue, it
will perform de novo review, meaning
that it will not give deference to any
decision or interpretation made by the
railroad.
Paragraph (g) of this section
acknowledges that the Board’s decisionmaking power is limited to granting or
denying a petition. In other words, the
Board is only empowered to make
determinations concerning
qualifications under this regulation. The
Board is not empowered to mitigate the
consequences of a railroad decision if
the decision was valid under this
regulation. The contractual
consequences, if any, of these
determinations would have to be
resolved under dispute resolution
mechanisms that do not directly involve
FRA. For example, FRA cannot order a
railroad to alter its seniority rosters or
make an award of back pay, in the event
of a finding that a railroad wrongfully
denied certification.
Paragraph (h) of this section notes that
the Board will issue a written decision
that will be served on both parties. FRA
will send the decision to the parties by
email and it will also be posted in the
case’s docket on https://
www.regulations.gov.
Section 245.407 Request for a Hearing
This proposed section, derived from
49 CFR 240.407 and 49 CFR 242.507,
provides that a party who has been
adversely affected by a CRB decision
will have the opportunity to request an
administrative proceeding as prescribed
in § 245.509. Paragraph (b) of this
section gives the instructions and the
deadline for submitting a hearing
request. Just like with CRB petitions,
parties must file hearing requests
electronically. To file a hearing request,
the adversely affected party should
upload the request to the docket on
https://www.regulations.gov that was
used while the case was before the
Board. This docket will also be used to
file documents while the case is before
the hearing officer. After the 20-day
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deadline to file a hearing request has
passed, FRA will check the docket on
https://www.regulations.gov to see if a
hearing request was filed. Paragraph (c)
of this section contains the requirements
for a hearing request, which includes
the docket number for the case while it
was before the Board. Paragraph (c) also
requires the signature of the requesting
party or their representative. FRA will
accept electronic signatures for
purposes of satisfying this requirement.
Paragraph (d) of this section notes that
FRA will arrange for the appointment of
a presiding officer, and it will be the
presiding officer’s duty to schedule a
hearing for the earliest practicable date.
Paragraph (e) of this section provides
that a party who fails to request an
administrative hearing in a timely
fashion will lose the right to further
administrative review and the CRB’s
decision will constitute final agency
action.
Section 245.409
Hearings
This section of the proposed rule,
derived from 49 CFR 240.409 and 49
CFR 242.509, describes the authority of
the presiding officer to conduct an
administrative hearing and the
procedures by which the administrative
hearing will be governed. Paragraph (b)
of this section provides that the
proceeding will afford an aggrieved
party a de novo hearing at which the
relevant facts will be adduced, and the
correct application of this part will be
determined. In instances when the
issues are purely legal, or when only
limited factual findings are necessary to
determine issues, the presiding officer
may determine the issues following an
evidentiary hearing only on the
disputed factual issues, if any. The
presiding officer can therefore grant full
or partial summary judgment.
Paragraph (d) of this section provides
that the presiding officer may authorize
discovery. It also authorizes the
presiding officer to sanction willful
noncompliance with permissible
discovery requests. Paragraph (e) of this
section requires that documents in the
nature of pleadings be signed. This
signature can be electronic and will
constitute a certification of factual and
legal good faith. Paragraph (f) of this
section provides the requirement for
service and for certificates of service.
Paragraph (g) of this section expresses
the presiding officer’s authority to
address noncompliance with a law or
directive. This provision is intended to
ensure that the presiding officer will
have the authority to control the
proceeding so that an efficient and fair
hearing is conducted.
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Paragraph (h) of this section states the
right of each party to appear and be
represented. Paragraph (i) of this section
protects witnesses by ensuring their
right of representation and their right to
have their representative question them.
Paragraph (j) of this section allows any
party to request consolidation or
separation of hearings of two or more
petitions when to do so would be
appropriate under established
jurisprudential standards. This option is
intended to allow more efficient
determination of petitions in cases
where a joint hearing would be
advantageous.
Under paragraph (k) of this section,
the presiding officer could, with certain
exceptions, extend periods for action
required in the proceedings, provided
substantial prejudice would not result to
a party. The authority to deny an
extension request submitted after a
deadline has already passed shows the
preference for use of this authority to
provide extensions of time as a tool to
alleviate unforeseen or unnecessary
burdens, and not as a remedy for
inexcusable neglect.
Paragraph (l) of this section
establishes a motion as the appropriate
method for requesting action by the
presiding officer. This paragraph also
provides the form of motions and the
response period for written motions.
Paragraph (m) of this section provides
rules for the mode of hearing and record
maintenance, including requirements
for sworn testimony, verbatim record
(including oral testimony and
argument), and inclusion of evidence or
substitutes therefor in the record.
Paragraph (n) of this section directs the
presiding officer to employ specific
rules of evidence as guidelines for the
introduction of evidence, and permits
the presiding officer to determine what
evidence may be received. Further,
paragraph (o) of this section provides
additional powers the presiding officer
may exercise during the proceedings.
Paragraph (p) of this section provides
that the petitioner before the CRB, the
railroad that took the certification action
at issue, and FRA are mandatory parties
to the administrative proceeding.
Paragraph (q) of this section states what
party will be the hearing petitioner and
what parties will be the respondents. If
the Board granted the petition, the
railroad will be the hearing petitioner
and the dispatcher or dispatcher
candidate will be a respondent. If the
Board denied the petition, the
dispatcher or dispatcher candidate will
be the hearing petitioner and the
railroad will be a respondent. The
actions of the dispatcher and the
railroad will be at issue in the hearing—
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not the actions of the CRB. Thus, it is
appropriate that the dispatcher and the
railroad fill the roles of petitioner and
respondent for the hearing.
Paragraph (q) also provides that FRA
will be a mandatory party in the
proceeding. In all proceedings, FRA will
initially be considered a co-respondent.
If, based on evidence acquired after the
filing of a hearing petition, FRA
concludes that the public interest in
safety is more closely aligned with the
position of the petitioner than the
respondent, FRA can request that the
hearing officer exercise their inherent
authority to realign parties for good
cause shown. However, FRA anticipates
that such a situation would rarely occur.
FRA represents the interests of the
government; hence, parties and their
representatives will have to be careful to
avoid ethical dilemmas that might arise
due to FRA’s ability to realign itself.
Paragraph (q) also notes that the party
requesting the hearing has the burden of
proving its case by the preponderance of
evidence.
Paragraph (r) of this section gives the
presiding officer authority to close the
record in a case. Paragraph (s) of this
section provides the presiding officer
with the authority to issue a decision
and includes requirements for that
decision.
Section 245.411 Appeals
This proposed section, derived from
49 CFR 240.411 and 49 CFR 242.511,
permits any party aggrieved by the
presiding officer’s decision to file an
appeal with the FRA Administrator.
Paragraph (a) of this section provides
that if no appeal is timely filed, the
presiding officer’s decision will
constitute final agency action. The
appeal shall be filed in the same docket
on https://www.regulations.gov used
when the case was before the Board and
the presiding officer.
Paragraph (b) of this section allows for
a party to reply to the appeal.
Paragraphs (c) and (d) of this section
describe the Administrator’s authority
to conduct the proceedings of an appeal.
Paragraph (e) of this section addresses
the Administrator’s different options for
ruling on an appeal. The phrase ‘‘except
where the terms of the Administrator’s
decision (for example, remanding a case
to the presiding officer) show that the
parties’ administrative remedies have
not been exhausted’’ is included in this
rule so that parties understand that a
remand, or other intermediate decision,
will not constitute final agency action.
The inclusion of this phrase clarifies
this potential outcome to those parties
that are not represented by an attorney
or who might otherwise be confused as
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to whether any action taken by the
Administrator should be considered
final agency action.
Paragraph (f) of this section provides
instructions for how appeals to the
Administrator that come directly from
the CRB should be handled. The only
cases that can go directly from the Board
to the Administrator are cases where the
Board denied a petition for being
untimely or incomplete. If the
Administrator vacates and remands the
Board’s decision, the case will return to
the Board. If the Administrator affirms
the Board’s decision, that will constitute
final agency action.
Appendices
FRA has included two appendices
with this proposed rule.
Appendix A, derived from appendix
C to part 240 and appendix C to part
242, provides a narrative discussion of
the procedures that a person seeking
certification or recertification should
follow to furnish a railroad with
information concerning their motor
vehicle driving record. Appendix B,
derived from appendix D to part 240
and appendix D to part 242, provides a
narrative discussion of the procedures
that a railroad is required to employ in
administering the vision and hearing
requirements of § 245.117 and
§ 245.118. The main issue addressed in
this appendix is discussing test methods
for determining whether a person has
the ability to recognize and distinguish
among the colors used as signals in the
railroad industry.
V. Regulatory Impact and Notices
A. Executive Order 12866 as Amended
by Executive Order 14094
This proposed rule is not a significant
regulatory action within the meaning of
Executive Order 12866 as amended by
Executive Order 14094, Modernizing
Regulatory Review. Details on the
estimated costs of this NPRM can be
found in the Regulatory Impact Analysis
(RIA), which FRA has prepared and
placed in the docket (FRA–2022–0019).
FRA is proposing regulations
establishing a formal certification
process for railroad dispatchers. As part
of that process, railroads would be
required to develop a program for
training current and prospective
dispatchers, documenting and verifying
that the holder of the certificate has
achieved certain training and
proficiency, and creating a record of
safety compliance infractions that other
railroads can review when considering
individuals for certification. This
proposed regulation would ensure that
dispatchers are properly trained, are
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qualified to perform their duties, and
meet Federal safety standards.
Additionally, this proposed regulation
is expected to improve railroad safety by
reducing the rate of accidents/incidents.
The RIA presents estimates of the
costs likely to occur over the first 10
years of the proposed rule. The analysis
includes estimates of costs associated
with development of certification
programs, initial and periodic training,
knowledge testing, and monitoring of
operational performance. Additionally,
costs are estimated for vision and
hearing tests, review of certification
35601
determinations made by other railroads,
and Government administrative costs.
FRA estimated 10-year costs of $5.3
million discounted at 7 percent. The
annualized cost would be $0.8 million
discounted at 7 percent. The following
table shows the estimated 10-year costs
of the proposed rule.
TOTAL 10-YEAR DISCOUNTED COSTS
[2020 dollars]
10-Year cost
($)
Category
Present
value 7%
($)
Present
value 3%
($)
Annualized 7%
($)
Annualized 3%
($)
Development of Certification Program .................................
Certification Eligibility Requirements ...................................
Recertification Eligibility Requirements ................................
Training ................................................................................
Knowledge Testing ..............................................................
Vision and Hearing ..............................................................
Monitoring Operational Performance ...................................
Railroad Oversight Responsibilities .....................................
Certification Card .................................................................
Petitions and Hearings .........................................................
Government Administrative Cost .........................................
976,996
67,860
101,515
910,415
327,028
2,217,910
353,656
383,510
37,501
11,325
1,505,376
929,395
55,360
65,831
707,334
233,988
1,586,913
256,017
267,530
26,832
8,198
1,208,191
953,949
61,963
83,877
812,820
281,581
1,909,692
305,956
326,714
32,289
9,797
1,361,239
132,325
7,882
9,373
100,708
33,315
225,941
36,451
38,090
3,820
1,167
172,019
111,832
7,264
9,833
95,287
33,010
223,874
35,867
38,301
3,785
1,149
159,579
Total ..............................................................................
6,893,092
5,345,589
6,139,877
761,092
719,781
The primary benefit of this proposed
rule is that it would ensure that
railroads properly train and monitor
dispatcher performance to reduce the
risk of accidents caused by dispatcher
error. This rule would allow railroads to
revoke certification of dispatchers who
make serious safety-related violations.
This includes failure to protect a
malfunctioning highway-rail grade
crossing or incorrectly granting
permission to proceed through a
protected track segment.
This rule is expected to reduce the
likelihood of an accident occurring due
to dispatcher error. FRA has analyzed
accidents over the past five years to
categorize those where dispatcher
training and certification would have
impacted the accident. FRA estimated
that this rule would prevent 30% of
accidents that were caused or likely
caused by the dispatcher. FRA
estimated that this rule would prevent
10% of accidents where a dispatcher
may have contributed to the accident.
The following table shows the
estimated 10-year benefits of the
proposed rule. The total 10-year
estimated benefits would be $0.8
million (PV, 7%) and annualized
benefits would be $0.1 million (PV,
7%).
TOTAL 10-YEAR DISCOUNTED BENEFITS
[2020 dollars]
Present value 7%
($)
Present value 3%
($)
Annualized 7%
($)
Annualized 3%
($)
785,599 ..................................................................................................................................
918,450
111,852
107,670
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FRA has quantified the monetary
impact from accidents reported on FRA
accident forms. However, some accident
costs are not required to be reported on
FRA accident forms (e.g., environmental
impact). For example, the cost of
property damage represents a portion of
the total cost of train accidents, such as,
the cost of direct labor and damage to
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on-track equipment, track, track
structures, and roadbed. Other direct
accident costs, such as accident clean
up, third party property damage, lost
lading, environmental damage, loss of
economic activity to the community,
and train delays are not included in
FRA’s accident/incident reportable
damages from the railroads. That impact
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may account for additional benefits not
quantified in this analysis. If these costs
not covered by FRA data were realized,
accidents affected by this proposed
rulemaking could have much greater
economic impact than the quantitative
benefit estimates provided here.
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B. Regulatory Flexibility Act and
Executive Order 13272
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) and E.O. 13272 (67
FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to
assess their impacts 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 economic impact on a
substantial number of small entities.
FRA has not determined whether this
proposed rule would have a significant
economic impact on a substantial
number of small entities. Therefore,
FRA prepared this IRFA to facilitate
public comment on the potential small
business impacts of the requirements in
this NPRM.
FRA invites all interested parties to
submit data and information regarding
the potential economic impact on small
entities that would result from adoption
of the proposals in this NPRM. FRA
particularly encourages small entities
that could potentially be impacted by
the proposed rule to participate in the
public comment process. FRA will
consider all information and comments
received in the public comment process
when making a determination of the
economic impact on small entities.
1. Reasons for Considering Agency
Action
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FRA is concerned with the potential
for accidents caused by dispatcher error.
Railroads’ dispatcher training programs
may not be covering all aspects of a
dispatcher’s job responsibility.
Additionally, railroads may not be
testing dispatchers and ensuring that
their knowledge is maintained
continuously. The risk from job-hopping
of a dispatcher with a substance abuse
problem is also addressed by the
proposed rule.
This NPRM would require railroads to
develop a dispatcher certification
program. This proposed rule would
ensure that railroads examine railroad
safety with respect to dispatchers. If
FRA did not issue the rule as proposed,
railroads would be free to hire and train
dispatchers as they see fit.
2. A Succinct Statement of the
Objectives of, and the Legal Basis for,
the Proposed Rule
This proposed rule is expected to help
reduce the rate of dispatcher-caused
accidents. The annual operational
performance monitoring would ensure
that dispatchers maintain their
knowledge after the initial certification
process.
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FRA is proposing regulations
concerning dispatcher certification
based on the general statutory authority
of the Secretary. The general authority
states, in relevant part, that the
Secretary ‘‘as necessary, shall prescribe
regulations and issue orders for every
area of railroad safety supplementing
laws and regulations in effect on
October 16, 1970.’’ 22 The Secretary
delegated this authority to the Federal
Railroad Administrator.23 In addition,
section 402 of the RSIA grants the
Secretary authority to prescribe
regulations requiring the certification of
certain crafts or classes, including
dispatchers, to improve railroad safety.
3. A Description of, and Where Feasible,
an Estimate of the Number of Small
Entities to Which the Proposed Rule
Would Apply
The Regulatory Flexibility Act of 1980
requires a review of proposed and final
rules to assess their impact on small
entities, unless the Secretary certifies
that the rule would not have a
significant economic impact on a
substantial number of small entities.
‘‘Small entity’’ is defined in 5 U.S.C.
601 as 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 ‘‘line-haul railroad’’ that has
fewer than 1,500 employees, a ‘‘short
line railroad’’ with fewer than 1,500
employees, a ‘‘commuter rail system’’
with annual receipts of less than $16.5
million dollars, or a contractor that
performs support activities for railroads
with annual receipts of less than $16.5
million.24
Federal agencies may adopt their own
size standards for small entities in
consultation with SBA and in
conjunction with public comment.
Under that authority, FRA has
published a proposed statement of
agency policy that formally establishes
‘‘small entities’’ or ‘‘small businesses’’
as 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
22 49
U.S.C. 20103.
CFR 1.89(a).
24 U.S. Small Business Administration, ‘‘Table of
Small Business Size Standards Matched to North
American Industry Classification System Codes,
August 19, 2019. https://www.sba.gov/sites/default/
files/2019-08/SBA%20Table%20of%20
Size%20Standards_Effective%20Aug%2019,%
202019.pdf.
23 49
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annual revenues,25 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). FRA is using this definition
for the proposed rule.
When developing the proposed rule,
FRA considered the impact that the
proposed rule would have on small
entities.
The proposed rule would be
applicable to all railroads who perform
dispatching operations. However, the
majority of small railroads do not have
a dispatching function as part of their
operations. The remaining small
railroads would only be minimally
impacted as most of their dispatch
operations are contracted out to third
parties. FRA estimates there are 744
Class III railroads, of which 704 operate
on the general system. These railroads
are of varying size, with some belonging
to larger holding companies.
Approximately 140 Class III railroads
would be impacted by this rulemaking
because they have dispatchers on staff
or use third parties to dispatch trains for
their operation. The remaining Class III
railroads operate on track owned by
Class I railroads or do not have a
dispatching function as part of their
operation. For those railroads operating
on Class I track, the host railroad would
be responsible for the dispatching on
those tracks; therefore, the smaller
railroad would not require a dispatcher
certification program.
4. A Description of the Projected
Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule,
Including an Estimate of the Class of
Small Entities That Would Be Subject to
the Requirements and the Type of
Professional Skill Necessary for
Preparation of the Report or Record
Railroads would be required to submit
information to FRA for approval of
dispatching certification programs. For
small railroads that choose to develop
their own certification programs, they
would likely be less complex than larger
railroads’ operations. This would ease
some of the burden on small railroads.
The training program, and annual
railroad responsibilities would be
prepared by a professional or
administrative employee. The type of
professional skills needed by an
employee responsible for submitting a
special approval request includes the
25 The Class III railroad revenue threshold is
$40.4 million or less, for 2021. (The Class II railroad
threshold is between $40.4 million and $900
million.) Surface Transportation Board (STB),
available at https://www.stb.gov/newscommunications/latest-news/pr-21-16/.
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ability to plan and organize work. Such
an employee would also need good
verbal and written communication skills
and attention to detail.
Summary of Class III Railroad Costs
Class III Railroads would have all the
same cost components as larger
railroads except they would not be
required to perform annual railroad
oversight responsibilities in accordance
with the proposed rule. Therefore, that
cost has been excluded for Class III
railroads.
The following table shows the
annualized cost for Class III railroads
over the 10-year analysis period. The
total estimated 10-year costs for Class III
railroads would be $0.8 million and the
annualized cost for all Class III railroads
would be $118,984 (PV, 7 percent).
TOTAL 10-YEAR AND ANNUALIZED COSTS, CLASS III RAILROADS
Present
value 7%
($)
Category
Annualized 7%
($)
Development of Certification Program ....................................................................................................................
Certification Eligibility Requirements .......................................................................................................................
Recertification Eligibility Requirements ...................................................................................................................
Training ....................................................................................................................................................................
Knowledge Testing ..................................................................................................................................................
Vision and Hearing ..................................................................................................................................................
Monitoring Operational Performance .......................................................................................................................
Certification Card .....................................................................................................................................................
Petitions and Hearings ............................................................................................................................................
100,579
13,840
16,458
176,834
58,497
396,728
64,004
6,708
2,050
14,320
1,971
2,343
25,177
8,329
56,485
9,113
955
292
Total ..................................................................................................................................................................
835,697
118,984
The industry trade organization
representing small railroads, ASLRRA,
reports the average freight revenue per
Class III railroad is $4.75 million.26 The
following table summarized the average
annual costs and revenue for Class III
railroads.
AVERAGE CLASS III RAILROADS’ COSTS AND REVENUE
Total cost for class III railroads, annualized 7%
($)
Number of
class III
railroads
with
dispatcher
plans
Average
annual cost
per class III
railroad
($)
Average
class III
annual
revenue
($)
Average
annual cost
as a percent
of revenue
A
B
c=a÷b
d
e=c÷d
118,984 ............................................................................................................
140
850
4,750,000
0.02
The average annual cost for a Class III
railroad impacted by this rule would be
$850. This represents a small percentage
(0.02%) of the average annual revenue
for a Class III railroad.
The estimates above show that the
burden on Class III railroads would not
be a significant economic burden. FRA
requests comments on this estimate and
will consider all comments when
making a determination for the final
rule.
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5. Identification, to the Extent
Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or
Conflict With the Proposed Rule
FRA is not aware of any relevant
Federal rule that duplicates, overlaps
with, or conflicts with this NPRM. This
26 American Short Line and Regional Railroad
Association, Short Line and Regional Railroad Facts
and Figures, p. 10 (2017 pamphlet).
27 See generally 49 CFR part 236, subpart I; and
press release in which FRA announces full
implementation of positive train control (Dec. 29,
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proposed rule is complementary to,
rather than duplicative of, other recent
regulatory initiatives FRA has issued or
is in the process of developing. These
initiatives include: the implementation
of positive train control (PTC) systems
by required railroads; 27 training,
qualification, and oversight; 28 railroad
safety risk reduction programs; 29 and
the development of fatigue risk
management programs.30
6. A Description of Significant
Alternatives to the Rule
This analysis considered two
alternatives to the rule: the baseline
approach, and an approach that would
certify just the training program. The
baseline alternative (no action) would
not ensure that dispatchers are being
2020), available at https://railroads.dot.gov/sites/
fra.dot.gov/files/2020-12/fra1920.pdf.
28 49 CFR part 243.
29 49 CFR parts 270 and 271.
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properly trained. Without this rule,
railroad operations may be less safe if
railroads are not providing adequate
training to their dispatchers.
The alternative of certifying only the
training program would require a
railroad to enhance their training of
dispatchers. Training, however, is only
a part of the certification process. The
additional requirements of this
proposed rule would ensure that
dispatchers’ hearing, vision, prior safety
conduct at other railroads, and other
aspects have been reviewed and are
consistent with railroad safety.
C. Paperwork Reduction Act
FRA is submitting the information
collection requirements in this proposed
rule to the Office of Management and
30 87 FR 35660 (Jul. 13, 2022) (final rule
amending 49 CFR parts 270 and 271 to require
certain railroads to develop and implement a
Fatigue Risk Management Program as one
component of the railroads’ larger railroad safety
risk reduction programs).
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Budget (OMB) for approval under the
Paperwork Reduction Act of 1995.31
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section
The entire table contains the new
information collection requirements and
the estimated time to fulfill each
requirement are as follows:
Total annual
responses
Average time
per response
Total
annual
burden
hours
Wage rate
Total cost
equivalent
(A)
(B)
(C) = A * B
(D) 32
(E) = C * D
.33 petitions ...............
71 plans (14.33 Class
I and commuter railroads plans + 3.33
generic program developed by
ASLRRA and holding companies
plans + 53.33 Class
II and III railroads
plans).
3 copies .....................
3 hours .......................
120 hours + 120
hours + 6 hours.
1.00
2,439.18
$77.44
115.24
$77.44
281,091.10
15 minutes .................
.75
77.44
58.08
203 railroads ..............
3 affirmative statements.
15 minutes .................
.75
77.44
58.08
203 railroads ..............
12 comments .............
4 hours .......................
48.00
77.44
3,717.12
Respondent universe
245.9—Waivers—Petitions ..............................
245.101/.103—Certification program required
and FRA review of certification program—
Development of certification program in accordance with this Part and procedures
contained under § 245.107—Railroads with
Current Dispatching Operations and New
Dispatching Railroads (Note: Each certification program includes procedure requirements under § 245.111 through § 245.121.).
203 railroads ..............
203 railroads +
ASLRRA and holding companies.
—(d)(1) Dispatcher certification submission—
Copies of the program provided to the
president of each rail labor organization
(RLO) that represents the railroad’s employees that are subject to this part.
—(d)(2) Affirmative statements that the railroad has provided a copy of the program to
RLOs.
—(e) Comment Period—Affirmed comments
on a railroad’s program by any designated
representative of employees subject to this
part or any directly affected employee who
does not have a designated representative.
203 railroads ..............
—(g) Material Modifications of FRA-approved
program—Railroad to submit a description
of how it intends to modify the program and
a copy of the modified program to FRA.
The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
—(h) Resubmission—Railroad can resubmit
its program or material modification as described in paragraph (f)(2) of this section
after addressing all of the deficiencies
noted by FRA and the resubmission must
conform with the procedures and requirements contained in § 245.107.
203 railroads +
ASLRRA and holding companies.
—(i) Rescinding Prior Approval of Program—
Railroad to resubmit its certification program and the program must conform with
the procedures and requirements contained
in § 245.107.
The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
245.105 (c)(1)–(d)(1)—Implementation schedule for certification programs—Designation
of certified dispatcher.
—(c)(2)–(d)(2) Issue a certificate that complies with § 245.207 to each person that it
designates.
203 railroads ..............
522 designated lists ...
5 minutes ...................
43.50
77.44
3,368.64
203 railroads ..............
522 issued certificate
cards.
3 minutes ...................
26.10
77.44
2,021.18
—(f) Written requests for delayed certification—Railroad may wait to recertify the
person making the request until the end of
the three-year period after FRA has approved the railroad’s certification program.
FRA anticipates zero submissions.
—(g) Testing and evaluation—Railroad shall
only certify or recertify a person as a dispatcher if that person has been tested and
evaluated in accordance with procedures
that comply with subpart B of this part.
The paperwork burden for testing and evaluation is included in the economic burden and the burden for certificates is
included under § 245.105.
245.107—Requirements for Certification Programs—Procedures for Obtaining and Evaluating Motor Vehicle Driving Record Data.
The paperwork requirements described in this appendix are accounted for throughout this table.
245.109(a)—Determinations required for certification and recertification—Eligibility requirements.
The paperwork burden for this requirement is covered under § 245.111 through § 245.121 and § 245.303.
31 44
U.S.C. 3501 et seq.
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4.67 revised plans
(3.67 revised plans
Class I and commuter railroads + 1
revised plan
ASLRRA and holding companies).
20 hours .....................
32 Throughout the tables in this document, the
dollar equivalent cost is derived from the 2020
Surface Transportation Board’s Full Year Wage A&B
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94.00
77.44
7,279.36
data series using the appropriate employee group
hourly wage rate that includes 75-percent overhead
charges.
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Respondent universe
Total annual
responses
Average time
per response
Total
annual
burden
hours
Wage rate
Total cost
equivalent
(A)
(B)
(C) = A * B
(D) 32
(E) = C * D
—(b) Person entering into an agreement that
results in a railroad obtaining the information needed for compliance with this subpart in a different manner than that prescribed in § 245.111 or § 245.113.
As a condition of employment, dispatchers will sign an agreement upon being hired. There is no paperwork burden
since this is the usual and customary procedure.
245.111(a)–(c)—Prior safety conduct as
motor vehicle operator—Eligibility requirements of this section involving prior conduct
as a motor vehicle operator.
—(e) If driver information is not obtained as
required pursuant to paragraph (g) of this
section, that person or the railroad certifying or recertifying that person may petition
for a waiver in accordance with the provisions of part 211 of this chapter.
203 railroads ..............
522 motor vehicle
records.
5 minutes ...................
43.50
77.44
3,368.64
203 railroads ..............
2 waivers ....................
2 hours .......................
4.00
77.44
309.76
—(f) Individual’s duty—Consent to make information concerning driving record available
to that railroad.
This is usual and customary procedure. The consent form is signed at the time of hiring to make driving information
available to the railroad.
—(g)–(h) Request to obtain driver’s license information from licensing agency.
203 railroads ..............
—(i) Requests for additional information from
licensing agency.
The paperwork burden for this requirement is included under § 242.111(g)–(h).
—(j) Notification to railroad by persons of
never having a license.
—(k) Report of motor vehicle incidents described in paragraphs (m)(1) and (2) of this
section to the employing railroad within 48
hours.
—(l)–(m) Evaluation of person’s driving record
by railroad.
—(n)(1) DAC referral by railroad after report
of driving drug/alcohol incident.
—(n)(2) DAC request and supply by persons
of prior counseling or treatment.
—(n)(3) Conditional certifications recommended by DAC.
203 railroads ..............
2 notices ....................
203 railroads ..............
203 railroads ..............
245.113(b)—Prior safety conduct as an employee of a different railroad—Certification
candidate has not been employed or certified by any other railroad in the previous
five years, they do not have to submit a request in accordance with paragraph (c) of
this section, but they must notify the railroad of this fact in accordance with procedures established by the railroad in its certification program.
This is usual and customary procedure and, therefore, there is no paperwork burden.
—(c) Person seeking certification or recertification under this part shall submit a written
request to each railroad that employed or
certified the person within the previous five
years.
—(e) and (g) Railroad shall provide the information requested to the railroad designated
in the written request.
203 railroads ..............
3.33 requests .............
15 minutes .................
203 railroads ..............
3.33 records ...............
—(f) An explanation shall state why the railroad cannot provide the information within
the requested time frame or cannot provide
the requested information.
FRA anticipates zero submissions.
245.115(a)—Substance abuse disorders and
alcohol drug rules compliance—Determination that person meets eligibility requirements.
—(b) Written documents from DAC that person is not affected by a disorder.
—(c)(3) Fitness requirement—Voluntarily selfreferral by dispatcher for substance abuse
counseling or treatment under the policy required by § 219.1003 of this chapter.
203 railroads ..............
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43.50
59.00
2,566.50
10 minutes .................
.33
77.44
25.56
10 self-reports ............
10 minutes .................
1.67
77.44
129.32
522 motor vehicle
record evaluations.
9 DAC referrals ..........
5 minutes ...................
43.50
71.89
3,127.22
5 minutes ...................
.75
115.24
86.43
1 request and supplied record.
3 conditional certification recommendations.
30 minutes .................
.50
115.24
57.62
4 hours .......................
12.00
115.24
1,382.88
.83
77.44
64.28
15 minutes .................
.83
77.44
64.28
459 determinations ....
2 minutes ...................
15.30
77.40
1,184.22
203 railroads ..............
20 filed documents ....
30 minutes .................
10.00
115.24
1,152.40
203 railroads ..............
1 self-referral ..............
10 minutes .................
.17
115.24
19.59
203 railroads ..............
203 railroads ..............
203 railroads ..............
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Frm 00033
522 written requests ..
Fmt 4701
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5 minutes ...................
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section
Total annual
responses
Average time
per response
Total
annual
burden
hours
Wage rate
Total cost
equivalent
(A)
(B)
(C) = A * B
(D) 32
(E) = C * D
522 certification reviews.
8 written determinations.
8 notifications .............
10 minutes .................
87.00
115.24
10,025.88
1 hour .........................
8.00
115.24
921.92
30 minutes .................
4.00
77.44
309.76
10 minutes .................
.83
77.44
64.28
203 railroads ..............
5 waived investigations.
522 records ................
2 minutes ...................
17.40
71.89
1,250.89
203 railroads ..............
5 records ....................
2 minutes ...................
.17
71.89
12.22
203 railroads ..............
522 copies .................
5 minutes ...................
43.50
71.89
3,127.22
203 railroads ..............
5 consultations + con- 30 minutes + 10 minditional certifications.
utes.
3.33
71.89
239.39
203 railroads ..............
1 notification ...............
10 minutes .................
.17
71.89
12.22
203 railroads ..............
522 medical records ..
2 minutes ...................
17.40
71.89
1,250.89
203 railroads ..............
5 records ....................
2 minutes ...................
.17
71.89
12.22
203 railroads ..............
522 copies .................
5 minutes ...................
43.50
71.89
3,127.22
203 railroads ..............
5 consultations + con- 30 minutes + 10 minditional certifications.
utes.
3.33
71.89
239.39
203 railroads ..............
1 notification ...............
.17
71.89
12.22
213.00
115.24
24,546.12
Respondent universe
—(d)(1)–(d)(2) Prior alcohol/drug conduct;
Federal rule compliance.
—(d)(3)(i) Written determination that most recent incident has occurred.
—(d)(3)(ii) Notification to person that recertification has been denied.
—(d)(4) Persons/conductors waiving investigation/de-certifications.
245.117(a)–(c)—Vision acuity—Determination
vision standards met—Medical examiner
certificate/record.
—(d)(1) Request for retest and another medical evaluation—Medical examiner certificate/record.
—(d)(2) Railroad to provide a copy of this part
to medical examiner.
—(d)(3) Consultations by medical examiners
with railroad officer and issue of conditional
certification.
—(g) Notification by certified dispatcher of deterioration of vision.
245.118—Hearing acuity—Determination
hearing standards met—Medical records.
—(d)(1) Request for retest and another medical evaluation—Medical examiner certificate/record.
—(d)(2) Railroad to provide a copy of this part
to medical examiner.
—(d)(3) Consultations by medical examiners
with railroad officer and issue of conditional
certification.
—(g) Notification by certified dispatcher of deterioration of hearing.
203 railroads ..............
245.119(b)–(c)—Training requirements—A
railroad’s election for the training of dispatchers shall be stated in its certification
program.
The paperwork burden for this requirement is covered under § 245.101/.103.
—(d) Initial training program for previously untrained person to be a dispatcher.
203 railroads ..............
—(d)(3) Modification to training program when
new safety-related railroad laws, regulations
and etc. are introduced into the workplace.
The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
—(e) Relevant information or materials on
safety or other rules made available to certification candidates.
The paperwork burden for this requirement is covered under § 245.101/.103.
—(f) and (g) Completion of initial training program by a person being certified as a dispatcher—Written documentation showing
completed training program that complies
with paragraph (d) of this section.
203 railroads ..............
—(f)(3) Employee consultation with qualified
supervisory employee if given written test to
demonstrate knowledge of physical characteristics of any assigned territory.
The paperwork burden for this requirement is covered under § 245.119.
—(h) Certification program is submitted in accordance with the procedures and requirements described in § 245.107.
The paperwork burden for this requirement is covered under § 245.101/.103.
—(i) Familiarization training for dispatcher of
acquiring railroad from selling company/railroad prior to commencement of new operation.
FRA anticipates zero submissions.
—(j) Continuing education of certified dispatchers.
203 railroads ..............
245.120—Requirements for territorial qualification—Determining eligibility and
The paperwork burden for this requirement is covered under § 245.119.
—(b) Notification by persons who do not meet
territorial qualification.
The paperwork burden for this requirement is covered under § 245.119.
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203 railroads ..............
203 railroads ..............
203 railroads ..............
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67 written documents
or records.
522 training records ...
Fmt 4701
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10 minutes .................
3 hours .......................
10 minutes .................
15 minutes .................
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130.50
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245.121(a)–(c)—Knowledge testing—Determining eligibility.
—(d) Reexamination of the failed test .............
245.123(c)—Monitoring operational performance—Unannounced compliance tests—
Retention of a written record.
245.125—Certification determinations made
by other railroads.
245.203(b)—Retaining information supporting
determination—Records.
—(g) Amended electronic records ...................
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Total annual
responses
Average time
per response
Total
annual
burden
hours
Wage rate
Total cost
equivalent
(A)
(B)
(C) = A * B
(D) 32
(E) = C * D
203 railroads ..............
522 test records .........
5 minutes ...................
43.50
77.44
3,368.64
203 railroads ..............
203 railroads ..............
2 examination records
1,822 records .............
5 minutes ...................
2 minutes ...................
.17
60.73
77.44
77.44
13.16
4,702.93
203 railroads ..............
3.33 determinations ...
30 minutes .................
1.67
77.44
129.32
203 railroads ..............
522 record retentions
15 minutes .................
130.50
77.44
10,105.92
203 railroads ..............
1 amended record .....
15 minutes .................
.25
77.44
19.36
Respondent universe
245.205—List of certified dispatchers and recordkeeping.
The paperwork requirement for this burden is covered under § 245.105(c)(1)–(d)(1).
245.207(a)–(f)—Certificate requirements ........
The paperwork requirement for this burden is covered under § 245.105(c)(2)–(d)(2).
—(b) Notification by dispatchers that railroad
request to serve exceeds certification.
—(g)–(h) Replacement of certificates ..............
203 railroads ..............
30 notifications ...........
30 seconds ................
.25
71.89
17.97
203 railroads ..............
15 replacement certificates.
3 notifications .............
5 minutes ...................
1.25 hour
77.44
96.80
10 minutes .................
.50 hour
77.44
38.72
245.213(a)–(h)—Multiple Certificates—Notification of denial of certification by individuals holding multiple certifications.
203 railroads ..............
—(i) In lieu of issuing multiple certificates, a
railroad may issue one certificate to a person who is certified in multiple crafts.
The paperwork requirement for this burden is covered under § 245.105.
245.215—Railroad oversight responsibility—
Review and analysis of administration of
certification program.
—(d) Report of findings and conclusions
reached during annual review by railroad to
FRA (if requested in writing by FRA) review
and analysis effort.
245.301(a)—Denial of certification—Notification to candidate of information that and
candidate response forms basis for denying
certification.
—(b) Denial Decision Requirements—Written
notification of denial of certification by railroad to candidate.
245.307(b)(1)–(b)(4)—Process for revoking
certification—Immediate suspension of dispatcher’s certification.
203 railroads ..............
17.33 annual reviews
and analyses.
8 hours .......................
138.64
115.24
15,976.87
203 railroads ..............
2 reports .....................
4 hours .......................
8.00
115.24
921.92
203 railroads ..............
2 notices + 1 response.
1 hour .........................
3.00
77.44
232.32
203 railroads ..............
2 notifications .............
1 hour .........................
2.00
77.44
154.88
203 railroads ..............
5 suspended certification letters and
documentations.
30 minutes .................
2.50
77.44
193.60
—(b)(5)–(b)(6) Determinations based on the
record of the hearing, whether revocation of
the certification is warranted.
The paperwork requirement for this burden is covered under § 245.307(e).
—(b)(7) Retention of record of the hearing for
three years after the date the decision is
rendered.
—(d)(9) Hearing Procedures—Written waiver
of right to hearing.
—(e) Revocation Decision Requirements—
Written decisions by railroad official.
203 railroads ..............
5 records ....................
15 minutes .................
1.25
77.44
96.80
203 railroads ..............
1 written waiver ..........
10 minutes .................
.17
59.00
10.03
203 railroads ..............
2 hours .......................
10.00
115.24
1,152.40
—(g) Revocation of certification based on information that another railroad has done so.
203 railroads ..............
5 written decisions
and service of decisions.
1 revoked certification
10 minutes .................
.17
115.24
19.59
—(j) Placing relevant information in record if
sufficient evidence meeting the criteria in
paragraph (h) or (i) of this section becomes
available.
The paperwork requirement for this burden is covered under § 245.307(b)(7).
—(k) Good faith determination ........................
203 railroads ..............
1.00 hour
77.44
77.44
Subpart E—Dispute Resolution Procedures—
§ 245.401 through § 245.411.
The requirements under these provisions are exempted from the PRA under 5 CFR 1320.4(a)(2). Since these provisions pertain to an administrative action or investigation, there is no PRA burden associated with these requirements.
Appendix A to Part 245—Procedures for Obtaining and Evaluating Motor Vehicle Driving Record Data.
The paperwork requirements described in this appendix are accounted for throughout this table.
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CFR
section
Respondent universe
Appendix B to Part 245—Medical Standards
Guidelines.
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Totals 33 ....................................................
may not add due to rounding.
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Average time
per response
Total
annual
burden
hours
Wage rate
Total cost
equivalent
(A)
(B)
(C) = A * B
(D) 32
(E) = C * D
The paperwork requirements described in this appendix are accounted for throughout this table.
203 railroads +
ASLRRA and holding companies.
All estimates include the time for
reviewing instructions; searching
existing data sources; gathering or
maintaining the needed data; and
reviewing the information. Pursuant to
44 U.S.C. 3506(c)(2)(B), FRA solicits
comments concerning: Whether these
information collection requirements are
necessary for the proper performance of
the functions of FRA, including whether
the information has practical utility; the
accuracy of FRA’s estimates of the
burden of the information collection
requirements; the quality, utility, and
clarity of the information to be
collected; and whether the burden of
collection of information on those who
are to respond, including through the
use of automated collection techniques
or other forms of information
technology, may be minimized. For
information or a copy of the paperwork
package submitted to OMB, contact Ms.
Arlette Mussington, Information
Collection Clearance Officer, at (571)
609–1285, or Ms. Joanne Swafford,
Information Collection Clearance
Officer, at (757) 897–9908.
Organizations and individuals
desiring to submit comments on the
collection of information requirements
should direct them via email to Ms.
Arlette Mussington at
arlette.mussington@dot.gov, or Ms.
Joanne Swafford at joanne.swafford@
dot.gov.
OMB is required to decide concerning
the collection of information
requirements contained in this rule
between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
to OMB is best assured of having its full
effect if OMB receives it within 30 days
of publication. FRA is not authorized to
impose a penalty on persons for
violating information collection
requirements that do not display a
current OMB control number, if
required. FRA intends to obtain current
OMB control numbers for any new
information collection requirements
resulting from this rulemaking action
prior to the effective date of the final
33 Totals
Total annual
responses
9,493 responses ........
N/A .............................
rule. The OMB control number, when
assigned, will be announced by separate
notice in the Federal Register.
D. Federalism Implications
Executive Order 13132, Federalism,34
requires FRA to develop an accountable
process to ensure ‘‘meaningful and
timely input by State and local officials
in the development of regulatory
policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ are defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects 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.’’ Under
Executive Order 13132, the agency may
not issue a regulation with federalism
implications that imposes substantial
direct compliance costs and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, the agency consults with
State and local governments, or the
agency consults with State and local
government officials early in the process
of developing the regulation. Where a
regulation has federalism implications
and preempts State law, the agency
seeks to consult with State and local
officials in the process of developing the
regulation.
FRA has analyzed this proposed rule
in accordance with the principles and
criteria contained in Executive Order
13132. FRA has determined that this
proposed rule has no federalism
implications, other than the possible
preemption of State laws under 49
U.S.C. 20106. Therefore, the
consultation and funding requirements
of Executive Order 13132 do not apply,
and preparation of a federalism
summary impact statement for the
proposed rule is not required.
34 64
PO 00000
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N/A
403,937
E. International Trade Impact
Assessment
The Trade Agreements Act of 1979 35
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. This proposed 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 proposed rule
consistent with the National
Environmental Policy Act36 (NEPA), the
Council on Environmental Quality’s
NEPA implementing regulations,37 and
FRA’s NEPA implementing
regulations 38 and determined that it is
categorically excluded from
environmental review and therefore
does not require the preparation of an
environmental assessment (EA) or
environmental impact statement (EIS).
Categorical exclusions (CEs) are actions
identified in an agency’s NEPA
implementing regulations that do not
normally have a significant impact on
the environment and therefore do not
require either an EA or EIS.39
Specifically, FRA has determined that
this proposed rule is categorically
excluded from detailed environmental
review.40
The main purpose of this rulemaking
is to establish certification requirements
35 19
U.S.C. Ch. 13.
U.S.C. 4321 et seq.
CFR parts 1500–1508.
38 23 CFR part 771.
39 40 CFR 1508.4.
40 See 23 CFR 771.116(c)(15) (categorically
excluding ‘‘[p]romulgation of rules, the issuance of
policy statements, the waiver or modification of
existing regulatory requirements, or discretionary
approvals that do not result in significantly
increased emissions of air or water pollutants or
noise’’).
36 42
37 40
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for train dispatchers. This rule would
not directly or indirectly impact any
environmental resources and would not
result in significantly increased
emissions of air or water pollutants or
noise. In analyzing the applicability of
a CE, FRA must also consider whether
unusual circumstances are present that
would warrant a more detailed
environmental review.41 FRA has
concluded that no such unusual
circumstances exist with respect to this
proposed rule and it meets the
requirements for categorical
exclusion.42
Pursuant to Section 106 of the
National Historic Preservation Act and
its implementing regulations, FRA has
determined this undertaking has no
potential to affect historic properties.43
FRA has also determined that this
rulemaking does not approve a project
resulting in a use of a resource protected
by Section 4(f).44 Further, FRA reviewed
this proposed rulemaking and found it
consistent with Executive Order 14008,
‘‘Tackling the Climate Crisis at Home
and Abroad.’’
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G. Executive Order 12898
(Environmental Justice)
Executive Order 12898, ‘‘Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations,’’ and DOT
Order 5610.2C 45 require DOT agencies
to achieve environmental justice as part
of their mission by identifying and
addressing, as appropriate,
disproportionately high and adverse
human health or environmental effects,
including interrelated social and
economic effects, of their programs,
policies, and activities on minority
populations and low-income
populations. The DOT Order instructs
DOT agencies to address compliance
with Executive Order 12898 and
requirements within the DOT Order in
rulemaking activities, as appropriate,
and also requires consideration of the
benefits of transportation programs,
policies, and other activities where
minority populations and low-income
populations benefit, at a minimum, to
the same level as the general population
as a whole when determining impacts
on minority and low-income
populations. FRA has evaluated this
proposed rule under Executive Order
41 23
CFR 771.116(b).
CFR 771.116(c)(15).
43 See 16 U.S.C. 470.
44 See Department of Transportation Act of 1966,
as amended (Pub. L. 89–670, 80 Stat. 931); 49 U.S.C.
303.
45 Available at: https://www.transportation.gov/
sites/dot.gov/files/2021-08/Final-for-OST-C-210312003-signed.pdf.
42 23
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12898 and the DOT Order and has
determined it would not cause
disproportionately high and adverse
human health and environmental effects
on minority populations or low-income
populations.
H. Unfunded Mandates Reform Act of
1995
Under section 201 of the Unfunded
Mandates Reform Act of 1995,46 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 47 further
requires that ‘‘before promulgating any
general notice of proposed rulemaking
that is likely to result in promulgation
of any rule that includes any Federal
mandate that may result in the
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 proposed rule
would not result in the expenditure, in
the aggregate, of $100,000,000 or more
(as adjusted annually for inflation) in
any one year, and thus preparation of
such a statement is not required.
I. Energy Impact
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use,’’ requires Federal
agencies to prepare a Statement of
Energy Effects for any ‘‘significant
energy action.’’48 FRA evaluated this
proposed rule under Executive Order
13211 and determined that this
regulatory action is not a ‘‘significant
energy action’’ within the meaning of
Executive Order 13211.
J. Privacy Act Statement
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, to https://www.regulations.gov, as
described in the system of records
notice, DOT/ALL–14 FDMS, accessible
through www.transportation.gov/
privacy. To facilitate comment tracking
46 Public
Law 104–4, 2 U.S.C. 1531.
U.S.C. 1532.
48 66 FR 28355 (May 22, 2001).
47 2
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35609
and response, we encourage
commenters to provide their name, or
the name of their organization; however,
submission of names is completely
optional. Whether or not commenters
identify themselves, all timely
comments will be fully considered. If
you wish to provide comments
containing proprietary or confidential
information, please contact the agency
for alternate submission instructions.
K. Executive Order 13175 (Tribal
Consultation)
FRA has evaluated this proposed rule
in accordance with the principles and
criteria contained in Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments, dated
November 6, 2000. The proposed rule
would not have a substantial direct
effect on one or more Indian Tribes,
would not impose substantial direct
compliance costs on Indian Tribal
governments, and would not preempt
Tribal laws. Therefore, the funding and
consultation requirements of Executive
Order 13175 do not apply, and a Tribal
summary impact statement is not
required.
List of Subjects in 49 CFR Part 245
Administrative practice and
procedure, Dispatcher, Penalties,
Railroad employees, Railroad operating
procedures, Railroad safety, Reporting
and recordkeeping requirements.
The Proposed Rule
For the reasons discussed in the
preamble, FRA proposes to amend
chapter II, subtitle B, of title 49 of the
Code of Federal Regulations, by adding
part 245 to read as follows:
■
PART 245—QUALIFICATION AND
CERTIFICATION OF DISPATCHERS
Sec.
Subpart A—General
245.1 Purpose and scope.
245.3 Application and responsibility for
compliance.
245.5 Effect and construction.
245.7 Definitions.
245.9 Waivers.
245.11 Penalties and consequences for
noncompliance.
Subpart B—Program and Eligibility
Requirements
245.101 Certification program required.
245.103 FRA review of certification
programs.
245.105 Implementation schedule for
certification programs.
245.107 Requirements for certification
programs.
245.109 Determinations required for
certification and recertification.
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245.111 Prior safety conduct as motor
vehicle operator.
245.113 Prior safety conduct with other
railroads.
245.115 Substance abuse disorders and
alcohol drug rules compliance.
245.117 Vision acuity.
245.118 Hearing acuity.
245.119 Training requirements.
245.120 Requirements for territorial
qualification.
245.121 Knowledge testing.
245.123 Monitoring operational
performance.
245.125 Certification determinations made
by other railroads.
Subpart C—Administration of the
Certification Program
245.201 Time limitations for certification.
245.203 Retaining information supporting
determinations.
245.205 List of certified dispatchers and
recordkeeping.
245.207 Certificate requirements.
245.213 Multiple certifications.
245.215 Railroad oversight responsibilities.
Subpart D—Denial and Revocation of
Certification
245.301 Process for denying certification.
245.303 Criteria for revoking certification.
245.305 Periods of ineligibility.
245.307 Process for revoking certification.
Subpart E—Dispute Resolution Procedures
245.401 Review board established.
245.403 Petition requirements.
245.405 Processing certification review
petitions.
245.407 Request for a hearing.
245.409 Hearings.
245.411 Appeals.
Appendix A to Part 245—Procedures for
Obtaining and Evaluating Motor Vehicle
Driving Record Data
Appendix B to Part 245—Medical Standards
Guidelines
Authority: 49 U.S.C. 20103, 20107, 20162,
21301, 21304, 21311; 28 U.S.C. 2461 note; 49
CFR 1.89; and Public Law 110–432, sec. 402,
122 Stat. 4884.
Subpart A—General
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§ 245.1
Purpose and scope.
(a) The purpose of this part is to
ensure that only those persons who
meet minimum Federal safety standards
serve as dispatchers, to reduce the rate
and number of accidents and incidents,
and to improve railroad safety.
(b) This part prescribes minimum
Federal safety standards for the
eligibility, training, testing, certification,
and monitoring of all dispatchers to
whom it applies. This part does not
restrict a railroad from adopting and
enforcing additional or more stringent
requirements consistent with this part.
(c) The dispatcher certification
requirements prescribed in this part
apply to any person who meets the
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definition of dispatcher contained in
§ 245.7, regardless of the fact that the
person may have a job classification title
other than that of dispatcher.
§ 245.3 Application and responsibility for
compliance.
(a) This part applies to all railroads
except:
(1) Railroads that do not have any
dispatch tasks, as defined in § 245.7,
performed either by dispatchers
employed by the railroad or employed
by a contractor or subcontractor;
(2) Railroads that operate only on
track inside an installation that is not
part of the general railroad system of
transportation (i.e., plant railroads, as
defined in § 245.7);
(3) Tourist, scenic, historic, or
excursion operations that are not part of
the general railroad system of
transportation as defined in § 245.7; or
(4) Rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation.
(b) Although the duties imposed by
this part are generally stated in terms of
the duty of a railroad, each person, as
defined in § 245.7, who performs any
function required by this part must
perform that function in accordance
with this part.
§ 245.5
Effect and construction.
(a) FRA does not intend, by use of the
term dispatcher in this part, to alter the
terms, conditions, or interpretation of
existing collective bargaining
agreements that employ other job
classification titles when identifying a
person who dispatches train.
(b) FRA does not intend, by issuance
of these regulations, to alter the
authority of a railroad to initiate
disciplinary sanctions against its
employees, including managers and
supervisors, in the normal and
customary manner, including those
contained in its collective bargaining
agreements.
(c) Except as provided in § 245.213,
nothing in this part shall be construed
to create or prohibit an eligibility or
entitlement to employment in other
service for the railroad as a result of
denial, suspension, or revocation of
certification under this part.
(d) Nothing in this part shall be
deemed to abridge any additional
procedural rights or remedies not
inconsistent with this part that are
available to the employee under a
collective bargaining agreement, the
Railway Labor Act, or (with respect to
employment at will) at common law
with respect to removal from service or
other adverse action taken as a
consequence of this part.
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§ 245.7
Definitions.
As used in this part:
Administrator means the
Administrator of the FRA or the
Administrator’s delegate.
Alcohol means ethyl alcohol (ethanol)
and includes use or possession of any
beverage, mixture, or preparation
containing ethyl alcohol.
Blocking device means a method of
control that either prohibits the
operation of a switch or signal or
restricts access to a section of track.
Controlled substance has the meaning
assigned by 21 U.S.C. 802 and includes
all substances listed on Schedules I
through V as they may be revised from
time to time (21 CFR parts 1301 through
1316).
Controlled track means a track upon
which movements of trains, engines,
and on-track equipment must be
authorized by a control station.
Dispatch means:
(1) To perform a function that would
be classified as a duty of a ‘‘dispatching
service employee,’’ as that term is
defined by the hours of service laws at
49 U.S.C. 21101(2), if the function were
to be performed in the United States.
The term dispatch includes, but is not
limited to, by the use of an electrical or
mechanical device:
(i) Controlling the movement of a
train or other on-track equipment by the
issuance of a written or verbal authority
or permission affecting a railroad
operation, or by establishing a route
through the use of a railroad signal or
train control system but not merely by
aligning or realigning a switch; or
(ii) Controlling the occupancy of a
track by a roadway worker or stationary
on-track equipment, or both; or
(iii) Issuing an authority for working
limits to a roadway worker.
(2) The term dispatch does not
include the action of personnel in the
field:
(i) Effecting implementation of a
written or verbal authority or
permission affecting a railroad operation
or an authority or permission affecting
a railroad operation or an authority for
working limits to a roadway worker
(e.g., initiating an interlocking timing
device, authorizing a train to enter
working limits); or
(ii) Operating a function of a signal
system designed for use by those
personnel; or
(iii) Sorting and grouping rail cars
inside a railroad yard to assemble or
disassemble a train.
Dispatcher means any individual who
dispatches.
Dispatcher Pilot means a dispatcher
qualified on assigned territory, tasked
with overseeing a non-qualified
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employee who has not successfully
completed all instruction, training and
examination programs for the physical
characteristics of the territory or
position.
Drug means any substance (other than
alcohol) that has known mind or
function-altering effects on a human
subject, specifically including any
psychoactive substance and including,
but not limited to, controlled
substances.
Drug and alcohol counselor (DAC)
means a person who meets the
credentialing and qualification
requirements of a ‘‘Substance Abuse
Professional’’ (SAP), as provided in 49
CFR part 40.
File, filed, and filing mean submission
of a document under this part on the
date when the Docket Clerk receives it,
or if sent by mail, the date mailing was
completed.
FRA means the Federal Railroad
Administration.
FRA representative means the FRA
Associate Administrator for Railroad
Safety/Chief Safety Officer and the
Associate Administrator’s delegate,
including any safety inspector
employed by the Federal Railroad
Administration and any qualified State
railroad safety inspector acting under
part 212 of this chapter.
Ineligible or ineligibility means that a
person is legally disqualified from
serving as a certified dispatcher. The
term covers a number of circumstances
in which a person may not serve as a
certified dispatcher. Revocation of
certification pursuant to § 245.307 and
denial of certification pursuant to
§ 245.301 are two examples in which a
person would be ineligible to serve as a
dispatcher. A period of ineligibility may
end when a condition or conditions are
met, such as when a person meets the
conditions to serve as a dispatcher
following an alcohol or drug violation
pursuant to § 245.115.
Knowingly means having actual
knowledge of the facts giving rise to the
violation or that a reasonable person
acting in the circumstances, exercising
due care, would have had such
knowledge.
Main track means a track upon which
the operation of trains is governed by
one or more of the following methods of
operation: Timetable; mandatory
directive; signal indication; or any form
of absolute or manual block system.
Mandatory directive means any
movement authority or speed restriction
that affects a railroad operation.
Medical examiner means a person
licensed as a doctor of medicine or
doctor of osteopathy. A medical
examiner can be a qualified full-time
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salaried employee of a railroad, a
qualified practitioner who contracts
with the railroad on a fee-for-service or
other basis, or a qualified practitioner
designated by the railroad to perform
functions in connection with medical
evaluations of employees. As used in
this rule, the medical examiner owes a
duty to make an honest and fully
informed evaluation of the condition of
an employee.
On-the-job training means job training
that occurs in the workplace, i.e., the
employee learns the job while doing the
job.
Person means an entity of any type
covered under 1 U.S.C. 1, including but
not limited to the following: a railroad;
a manager, supervisor, official, or other
employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of
railroad equipment, track, or facilities;
any independent contractor providing
goods or services to a railroad; and any
employee of such owner, manufacturer,
lessor, lessee, or independent
contractor.
Physical characteristics means the
actual track profile of and physical
location for points within a specific
yard or route that affect the movement
of a locomotive or train. Physical
characteristics includes main track
physical characteristics (see definition
of ‘‘main track’’ in this section) and
other than main track physical
characteristics.
Plant railroad means a plant or
installation that owns or leases a
locomotive, uses that locomotive to
switch cars throughout the plant or
installation, and is moving goods solely
for use in the facility’s own industrial
processes. The plant or installation
could include track immediately
adjacent to the plant or installation if
the plant railroad leases the track from
the general system railroad and the lease
provides for (and actual practice entails)
the exclusive use of that trackage by the
plant railroad and the general system
railroad for purposes of moving only
cars shipped to or from the plant. A
plant or installation that operates a
locomotive to switch or move cars for
other entities, even if solely within the
confines of the plant or installation,
rather than for its own purposes or
industrial processes, will not be
considered a plant railroad because the
performance of such activity makes the
operation part of the general railroad
system of transportation.
Qualified means a person who has
successfully completed all instruction,
training and examination programs
required by the employer, and the
applicable parts of this chapter and that
the person therefore may reasonably be
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35611
expected to be proficient on all safety
related tasks the person is assigned to
perform.
Qualified instructor means a person
who has demonstrated, pursuant to the
railroad’s written program, an adequate
knowledge of the subjects under
instruction and, where applicable, has
the necessary dispatching experience to
effectively instruct in the field, and has
the following qualifications:
(1) Has demonstrated, pursuant to the
railroad’s written program, an adequate
knowledge of the subjects under
instruction;
(2) Where applicable, has the
necessary experience to effectively
instruct in the field;
(3) Is a certified dispatcher under this
part; and
(4) If the railroad has designated
employee representation, has been
selected by a designated railroad officer,
in concurrence with the designated
employee representative, or has a
minimum of one year of service working
as a certified dispatcher.
Railroad means any form of
nonhighway ground transportation that
runs on rails or electromagnetic
guideways and any entity providing
such transportation, including:
(1) Commuter or other short-haul
railroad passenger service in a
metropolitan or suburban area and
commuter railroad service that was
operated by the Consolidated Rail
Corporation on January 1, 1979; and
(2) High speed ground transportation
systems that connect metropolitan areas,
without regard to whether those systems
use new technologies not associated
with traditional railroads; but does not
include rapid transit operations in an
urban area that are not connected to the
general railroad system of
transportation.
Railroad officer means any
supervisory employee of a railroad.
Roadway worker in charge (RWIC)
means a roadway worker who is
qualified under § 214.353 of this chapter
to establish on-track safety for roadway
work groups, and lone workers qualified
under § 214.347 of this chapter to
establish on-track safety for themselves.
Serve or service, in the context of
serving documents, has the meaning
given in Rule 5 of the Federal Rules of
Civil Procedure as amended. Similarly,
the computation of time provisions in
Rule 6 of the Federal Rules of Civil
Procedure as amended are also
applicable in this part. See also the
definition of ‘‘filing’’ in this section.
Substance abuse disorder refers to a
psychological or physical dependence
on alcohol or a drug, or another
identifiable and treatable mental or
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physical disorder involving the abuse of
alcohol or drugs as a primary
manifestation. A substance abuse
disorder is ‘‘active’’ within the meaning
of this part if the person is currently
using alcohol or other drugs, except
under medical supervision consistent
with the restrictions described in
§ 219.103 of this chapter or has failed to
complete primary treatment
successfully or participate in aftercare
successfully as directed by a DAC or
SAP.
Substance Abuse Professional (SAP)
means a person who meets the
qualifications of a substance abuse
professional, as provided in 49 CFR part
40.
Territorial qualifications means
possessing the necessary knowledge
concerning a railroad’s operating rules
and timetable special instructions
including familiarity with applicable
main track and other than main track
physical characteristics of the territory
over which the locomotive or train
movement will occur as well as the
characteristics of the position to include
and not limited to the operation and
capabilities of dispatch control systems.
Tourist, scenic, historic, or excursion
operations that are not part of the
general railroad system of
transportation means a tourist, scenic,
historic, or excursion operation
conducted only on track used
exclusively for that purpose (i.e., there
is no freight, intercity passenger, or
commuter passenger railroad operation
on the track).
§ 245.9
Waivers.
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(a) A person subject to a requirement
of this part may petition FRA for a
waiver of compliance with such
requirement. The filing of such a
petition does not affect that person’s
responsibility for compliance with that
requirement while the petition is being
considered.
(b) Each petition for a waiver under
this section must be filed in the manner
and contain the information required by
part 211 of this chapter.
(c) If FRA finds that a waiver of
compliance is in the public interest and
is consistent with railroad safety, FRA
may grant the waiver subject to any
conditions FRA deems necessary.
§ 245.11 Penalties and consequences for
noncompliance.
(a) Any person (including but not
limited to a railroad; any manager,
supervisor, official, or other employee
or agent of a railroad; any owner,
manufacturer, lessor, or lessee of
railroad equipment, track, or facilities;
any employee of such owner,
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manufacturer, lessor, or lessee; or any
independent contractor or subcontractor
of a railroad) who violates any
requirement of this part or causes the
violation of any such requirement is
subject to a civil penalty of at least the
minimum civil monetary penalty and
not more than the ordinary maximum
civil monetary penalty per violation.
However, penalties may be assessed
against individuals only for willful
violations, and a penalty not to exceed
the aggravated maximum civil monetary
penalty per violation may be assessed,
where:
(1) A grossly negligent violation, or a
pattern of repeated violations, has
created an imminent hazard of death or
injury to persons; or
(2) A death or injury has occurred.
See 49 CFR part 209, appendix A.
(b) Each day a violation continues
constitutes a separate offense.
(c) A person who violates any
requirement of this part or causes the
violation of any such requirement may
be subject to disqualification from all
safety-sensitive service in accordance
with part 209 of this chapter.
(d) A person who knowingly and
willfully falsifies a record or report
required by this part may be subject to
criminal penalties under 49 U.S.C.
21311.
(e) In addition to the enforcement
methods referred to in paragraphs (a)
through (d) of this section, FRA may
also address violations of this part by
use of the emergency order, compliance
order, and/or injunctive provisions of
the Federal rail safety laws.
(f) FRA’s website at https://
railroads.dot.gov/ contains a schedule of
civil penalty amounts used in
connection with this part.
Subpart B—Program and Eligibility
Requirements
§ 245.101
Certification program required.
(a) Each railroad that this part applies
to shall have a written dispatcher
certification program.
(b) Each certification program shall
include all of the following:
(1) A procedure for evaluating prior
safety conduct as a motor vehicle
operator that complies with the criteria
established in § 245.111.
(2) A procedure for evaluating prior
safety conduct as an employee or
certified dispatcher of a different
railroad that complies with the criteria
established in § 245.113.
(3) A procedure for evaluating
potential substance abuse disorders and
compliance with railroad alcohol and
drug rules that complies with the
criteria established in § 245.115.
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(4) A procedure for evaluating vision
and hearing acuity that complies with
the criteria established in §§ 245.117
and 245.118.
(5) A procedure for training that
complies with the criteria established in
§ 245.119.
(6) A procedure for knowledge testing
that complies with the criteria
established in § 245.121.
(7) A procedure for monitoring
operational performance that complies
with the criteria established in
§ 245.123.
§ 245.103 FRA review of certification
programs.
(a) Certification program submission
schedule for railroads with current
dispatching operations. Each railroad
with current dispatching operations, as
[EFFECTIVE DATE OF FINAL RULE]
shall submit its dispatcher certification
program to FRA, in accordance with the
procedures and requirements contained
in § 245.107, according to the following
schedule:
(1) All Class I railroads (including the
National Railroad Passenger
Corporation) and railroads providing
commuter service shall submit their
programs to FRA no later than [DATE
EIGHT MONTHS AFTER THE
EFFECTIVE DATE OF THE FINAL
RULE].
(2) All Class II railroads and Class III
railroads (including a switching and
terminal or other railroad not otherwise
classified) shall submit their programs
to FRA no later than [DATE 16
MONTHS AFTER THE EFFECTIVE
DATE OF THE FINAL RULE].
(b) Certification program submission
for new dispatching railroads. For each
railroad that commences dispatching
operations after the effective date of this
rule, the railroad shall submit and
obtain approval of its written
certification program to FRA, in
accordance with the procedures and
requirements contained in § 245.107,
prior to commencing dispatching
operations.
(c) Method for submitting certification
programs to FRA. Railroads must submit
their written certification programs and
their requests for approval (described in
§ 245.107(a)) by uploading the program
to FRA’s secure document submission
site.
(d) Notification requirements. Each
railroad that submits a program to FRA
must:
(1) Simultaneously with its
submission, provide a copy of the
program and the request for approval to
the president of each labor organization
that represents the railroad’s dispatchers
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and to all of the railroad’s dispatchers
that are subject to this part; and
(2) Include in its submission to FRA,
a statement affirming that the railroad
has provided a copy of the program and
the request for approval to the president
of each labor organization that
represents the railroad’s dispatchers and
to all of the railroad’s dispatchers that
are subject to this part, along with a list
of the names and email addresses of
each president of a labor organization
who was provided a copy of the
program.
(e) Comment period. Any designated
representative of dispatchers subject to
this part or any directly affected person
who does not have a designated
representative may comment on a
railroad’s program provided that:
(1) The comment is submitted no later
than 45 days after the date the program
was submitted to FRA;
(2) The comment includes a concise
statement of the commenter’s interest in
the matter;
(3) The commenter affirms that a copy
of the comment was provided to the
railroad; and
(4) The comment was emailed to
FRADISPATCHCERTPROG@dot.gov.
(f) FRA review period. Upon receipt of
a program, FRA will commence a
thorough review of the program to
ensure that it satisfies all of the
requirements under this part.
(1) If FRA determines that the
program satisfies all of the requirements
under this part, FRA will issue a letter
notifying the railroad that its program
has been approved. Such letter will
typically be issued within 90 days of the
date the program was submitted to FRA.
(2) If FRA determines that the
program does not satisfy all of the
requirements under this part, FRA will
issue a letter notifying the railroad that
its program has been disapproved. Such
letter will typically be issued within 90
days of the date the program was
submitted to FRA and will identify the
deficiencies found in the program that
must be corrected before the program
can be approved. After addressing these
deficiencies, railroads can resubmit
their programs in accordance with
paragraph (h) of this section.
(3) If a railroad does not receive an
approval or disapproval letter from FRA
within 90 days of the date the program
was submitted to FRA, FRA’s decision
on the program will remain pending
until such time that FRA issues a letter
either approving or disapproving the
program. A certification program is not
approved until FRA issues a letter
approving the program.
(g) Material modifications. A railroad
that intends to make one or more
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material modifications to its FRAapproved program must submit a
description of how it intends to modify
the program and a copy of the modified
program.
(1) A modification is material if it
would affect the program’s conformance
with this part.
(2) The description of the
modification and the modified program
must conform with the procedures and
requirements contained in § 245.107.
(3) The process for submission and
review of material modifications shall
conform with paragraphs (c) through (f)
of this section.
(4) A railroad cannot implement a
material modification to its program
until FRA issues its approval of the
material modification in accordance
with paragraph (f)(1) of this section.
(h) Resubmissions. If FRA
disapproves a railroad’s program or
material modification, as described in
paragraph (f)(2) of this section, the
railroad can resubmit its program or
material modification after addressing
all of the deficiencies noted by FRA.
(1) The resubmission must conform
with the procedures and requirements
contained in § 245.107.
(2) The process for submission and
review of resubmitted programs and
resubmitted material modifications shall
conform with paragraphs (c) through (f)
of this section.
(3) The following deadlines apply for
railroads that have their programs or
material modifications disapproved by
FRA:
(i) For a railroad that submitted its
program pursuant to paragraph (a) of
this section, the railroad must resubmit
its program within 30 days of the date
that FRA notified the railroad of the
deficiencies in its program. If a railroad
fails to resubmit its program within this
timeframe and it continues its
dispatching operations, FRA may
consider such actions to be a failure to
implement a program.
(ii) For a railroad that submitted its
program pursuant to paragraph (b) of
this section, there is no FRA-imposed
deadline for resubmitting its program.
However, pursuant to § 245.105(b), the
railroad cannot begin dispatching
operations until its program has been
approved by FRA.
(iii) For a railroad that submitted a
material modification to its FRAapproved program, there is no FRAimposed deadline for resubmitting the
material modification. However,
pursuant to paragraph (g)(3) of this
section, the railroad cannot implement
the material modification until it has
been approved by FRA.
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(i) Rescinding prior approval of
program. FRA reserves the right to
revisit its prior approval of a railroad’s
program at any time.
(1) If upon such review, FRA
discovers deficiencies in the program
such that the program does not comply
with subpart B of this part, FRA shall
issue the railroad a letter rescinding its
prior approval of the program and
notifying the railroad of the deficiencies
in its program that must be addressed.
(2) Within 30 days of FRA notifying
the railroad of the deficiencies in its
program, the railroad must address
these deficiencies and resubmit its
program to FRA. The resubmitted
program must conform with the
procedures and requirements contained
in § 245.107.
(3) The process for submission and
review of resubmitted programs under
this paragraph shall conform with
paragraphs (c) through (f) of this section.
(4) If a railroad fails to resubmit its
program to FRA within the timeframe
prescribed in paragraph (i)(2) of this
section and the railroad continues its
dispatching operations, FRA may
consider such actions to be a failure to
implement a program.
(5) If FRA issues a letter disapproving
the railroad’s resubmitted program, the
railroad shall continue to resubmit its
program in accordance with this
paragraph (i).
(6) A program that has its approval
rescinded under paragraph (i)(1) of this
section may remain in effect until
whichever of the following happens
first:
(i) FRA approves the railroad’s
resubmitted program; or
(ii) FRA disapproves the railroad’s
second attempt at resubmitting its
program.
(7) If FRA disapproves a railroad’s
second attempt at resubmitting its
program under this paragraph and the
railroad continues its dispatching
operations, FRA may consider such
actions to be a failure to implement a
program.
(j) Availability of certification
program documents. The following
documents will be available on FRA’s
website (railroads.dot.gov):
(1) A railroad’s originally submitted
program, a resubmission of its program,
or a material modification of its
program;
(2) Any comments, submitted in
accordance with paragraph (e) of this
section, to a railroad’s originally
submitted program, a resubmission of
its program, or a material modification
of its program; and
(3) Any approval or disapproval letter
issued by FRA in response to a
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railroad’s originally submitted program,
a resubmission of its program, or a
material modification of its program.
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§ 245.105 Implementation schedule for
certification programs.
(a) Each railroad that submits its
dispatcher certification program to FRA
in accordance with § 245.103(a), may
continue dispatching operations while it
awaits approval of its program by FRA.
However, if FRA disapproves a
railroad’s program on two occasions and
the railroad continues dispatching
operations, FRA may consider such
actions to be a failure to implement a
program.
(b) Each railroad that submits its
dispatcher certification program to FRA
in accordance with § 245.103(b), must
have its program approved by FRA prior
to commencing dispatching operations.
If such railroad commences dispatching
operations before its program is
approved by FRA, FRA may consider
such actions to be a failure to
implement a program.
(c) By [DATE 8 MONTHS AFTER
EFFECTIVE DATE OF FINAL RULE],
each railroad shall:
(1) In writing, designate as certified
dispatchers all persons authorized by
the railroad to perform the duties of a
dispatcher as of [DATE 8 MONTHS
AFTER EFFECTIVE DATE OF FINAL
RULE]; and
(2) Issue a certificate that complies
with § 245.207 to each person that it
designates.
(d) After [DATE 8 MONTHS AFTER
EFFECTIVE DATE OF FINAL RULE],
each railroad shall:
(1) In writing, designate as a certified
dispatcher any person who has been
authorized by the railroad to perform
the duties of a dispatcher between
[EFFECTIVE DATE OF FINAL RULE]
and the date FRA approves the
railroad’s certification program; and
(2) Issue a certificate that complies
with § 245.207 to each person that it
designates.
(e) After [DATE 8 MONTHS AFTER
EFFECTIVE DATE OF FINAL RULE], no
railroad shall permit or require a person
to perform service as a dispatcher unless
that person is a certified dispatcher.
(f) No railroad shall permit or require
a person, designated as a certified
dispatcher under the provisions of
paragraph (c) or (d) of this section, to
perform service as a certified dispatcher
for more than three years after the date
FRA approves the railroad’s certification
program unless that person has been
tested and evaluated in accordance with
procedures that comply with subpart B
of this part.
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(1) Except as provided in paragraph
(f)(3) of this section, a person who has
been designated as a certified dispatcher
under the provisions of paragraph (c) or
(d) of this section and who is eligible to
receive a retirement pension in
accordance with the terms of an
applicable agreement or in accordance
with the terms of the Railroad
Retirement Act (45 U.S.C. 231) within
three years from the date the certifying
railroad’s program is approved by FRA,
may request in writing, that a railroad
not recertify that person, pursuant to
subpart B of this part, until three years
from the date the certifying railroad’s
program is approved.
(2) Upon receipt of a written request
pursuant to paragraph (f)(1) of this
section, a railroad may wait to recertify
the person making the request until the
end of the three-year period after FRA
has approved the railroad’s certification
program. If a railroad grants any request,
it must grant the request of all eligible
persons to every extent possible.
(3) A person who is subject to
recertification under part 240 or 242 of
this chapter may not make a request
pursuant to paragraph (f)(1) of this
section.
(g) After a railroad’s certification
program has been approved by FRA, the
railroad shall only certify or recertify a
person as a dispatcher if that person has
been tested and evaluated in accordance
with procedures that comply with
subpart B of this part.
§ 245.107 Requirements for certification
programs.
(a) Railroad’s certification program
submission. (1) A railroad’s certification
program submission must include a
copy of the certification program and a
request for approval.
(2) The request for approval can be in
letter or narrative format.
(3) A railroad will receive approval or
disapproval notices from FRA by email.
(4) FRA may electronically store any
materials required by this part.
(b) Organization of the certification
program. Each program must be
organized to present the required
information in paragraphs (b)(1) through
(6) of this section. Each section must
begin by giving the name, title,
telephone number, and email address of
the person to be contacted concerning
the matters addressed by that section. If
a person is identified in a prior section,
it is sufficient to merely repeat the
person’s name in a subsequent section.
(1) Section 1 of the program: general
information and elections. (i) The first
section of the submission must contain
the name of the railroad, the person to
be contacted concerning the request
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(including the person’s name, title,
telephone number, and email address)
and a statement electing either to accept
responsibility for educating previously
uncertified persons to be dispatchers or
to not accept this responsibility.
(ii) If a railroad elects not to provide
initial dispatcher training, the railroad
will be limited to recertifying persons
initially certified by another railroad. A
railroad can change its election by
obtaining FRA approval of a material
modification to its program in
accordance with § 245.103(g).
(iii) If a railroad elects to accept
responsibility for training persons not
previously certified as dispatchers, the
railroad must submit information on
how such persons will be trained, but is
not required to actually perform such
training. A railroad that elects to accept
the responsibility for the training of
such persons may authorize another
railroad or a non-railroad entity to
perform the actual training effort. The
electing railroad remains responsible for
ensuring that such other training
providers adhere to the training program
the railroad submits.
(2) Section 2 of the program: training
persons previously certified. The second
section of the submission must contain
information concerning the railroad’s
program for training previously certified
dispatchers, including all of the
following information:
(i) As provided for in § 245.119(j),
each railroad must have a program for
the ongoing education of its dispatchers
to ensure that they maintain the
necessary knowledge concerning
relevant Federal safety regulations,
operating rules and practices, familiarity
with physical characteristics of the
territory, and the dispatching systems
and technology. The railroad must
describe in this section how it will
ensure that its dispatchers remain
knowledgeable concerning the safe
discharge of their responsibilities so as
to comply with the standard set forth in
§ 245.119(j);
(ii) In accordance with the
requirements in § 245.119(h), this
section must contain sufficient detail to
permit effective evaluation of the
railroad’s training program in terms of
the subject matters covered, the
frequency and duration of the training
sessions (including the interval between
attendance at such trainings), the
training environment employed (for
example, use of classroom, use of
computer-based training, use of film or
slide presentations, and use of on-thejob training), and which aspects of the
program are voluntary or mandatory;
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(iii) How the training will address a
certified dispatcher’s loss of retention of
knowledge over time;
(iv) How the training will address
changed circumstances over time such
as the introduction of new or modified
technology, including software
modifications to dispatch systems and
related signal and train control systems,
new operating rule books, or significant
changes in operations including
alteration in the territory dispatchers are
authorized to work over; and
(v) A plan for familiarization training
that addresses how long a person can be
absent from dispatching on a territory
before needing to be requalified on that
territory (a time period that cannot
exceed 12 months), and once that
threshold is reached, how the person
will acquire the needed familiarization
training.
(3) Section 3 of the program: testing
and evaluating persons previously
certified. The third section of the
submission must contain information
concerning the railroad’s program for
testing and evaluating previously
certified dispatchers including all of the
following information:
(i) The railroad must describe in this
section how it will ensure that its
dispatchers demonstrate their
knowledge concerning the safe
discharge of their responsibilities so as
to comply with the standards set forth
in § 245.121; and
(ii) The railroad must describe in this
section how it will have ongoing testing
and evaluation to ensure that its
dispatchers have the necessary vision
and hearing acuity as provided for in
§§ 245.117 and 245.118. This section
must also address how a railroad will
ensure that its medical examiners have
sufficient information concerning the
railroad’s operations, as well as the
dispatcher’s safety related tasks, to
effectively form appropriate conclusions
about the ability of a particular
individual to safely perform as a
dispatcher.
(4) Section 4 of the program: training,
testing, and evaluating persons not
previously certified. Unless a railroad
has made an election not to accept
responsibility for conducting the initial
training of persons to be dispatchers, the
fourth section of the submission must
contain information concerning the
railroad’s program for educating, testing,
and evaluating persons not previously
certified as dispatchers including all of
the following information:
(i) As provided for in § 245.119(d), a
railroad that is issuing an initial
dispatcher certification to a person must
have a program for the training, testing,
and evaluation of its dispatchers to
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ensure that they acquire the necessary
knowledge and skills. A railroad must
describe in this section how it will
ensure that its dispatchers will acquire
sufficient knowledge and skills and
demonstrate their knowledge and skills
concerning the safe discharge of their
responsibilities.
(ii) This section must contain the
same level of detail concerning initial
training programs and the testing and
evaluation of previously uncertified
dispatchers as is required for previously
certified dispatchers in § 245.107(b)(2)
and (3) (Sections 2 and 3 of the
program).
(iii) Railroads that elect to rely on
other entities to conduct training away
from the railroad’s own territory and
dispatching systems and technology,
must indicate how the student will be
provided with the required training on
the physical characteristics for the
railroad’s territory and dispatching
systems and technology.
(5) Section 5 of the program:
monitoring operational performance by
certified dispatchers. The fifth section of
the submission must contain
information concerning the railroad’s
program for monitoring the operation of
its certified dispatchers including all of
the following information:
(i) Section 245.123 requires that a
railroad perform ongoing monitoring of
its dispatchers and that each dispatcher
has an annual unannounced compliance
test. A railroad must describe in this
section how it will ensure that the
railroad is monitoring that its
dispatchers demonstrate their skills
concerning the safe discharge of their
responsibilities.
(ii) A railroad must describe the
scoring system used by the railroad
during an operational monitoring
observation or unannounced
compliance test administered in
accordance with the procedures
required under § 245.123.
(6) Section 6 of the program:
procedures for routine administration of
the dispatcher certification program.
The final section of the submission must
contain a summary of how the railroad’s
program and procedures will implement
the various aspects of the regulatory
provisions that relate to routine
administration of its certification
program for dispatchers. Specifically,
this section must address the procedural
aspects of the following provisions and
must describe the manner in which the
railroad will implement its program so
as to comply with each of the following
provisions:
(i) Section 245.301 which provides
that each railroad must have procedures
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for review and comment on adverse
information;
(ii) Sections 245.111, 245.113,
245.115, and 245.303 which require a
railroad to have procedures for
evaluating data concerning prior safety
conduct as a motor vehicle operator and
as railroad workers;
(iii) Sections 245.109, 245.201, and
245.301 which place a duty on the
railroad to make a series of
determinations. When describing how it
will implement its program to comply
with those sections, a railroad must
describe: the procedures it will utilize to
ensure that all of the necessary
determinations have been made in a
timely fashion; who will be authorized
to conclude that a person will or will be
not certified; and how the railroad will
communicate adverse decisions;
(iv) Sections 245.109, 245.117,
245.118, 245.119, and 245.121, which
place a duty on the railroad to make a
series of determinations. When
describing how it will implement its
program to comply with those sections,
a railroad must describe how it will
document the factual basis the railroad
relied on in making determinations
under those sections;
(v) Section 245.125 which permits
reliance on certification determinations
made by other railroads; and
(vi) Sections 245.207 and 245.307
which contain the requirements for
replacing lost certificates and the
conduct of certification revocation
proceedings.
§ 245.109 Determinations required for
certification and recertification.
(a) After FRA has approved a
railroad’s dispatcher certification
program, the railroad, prior to initially
certifying or recertifying any person as
a dispatcher, shall, in accordance with
its FRA-approved program, determine in
writing that:
(1) The individual meets the prior
safety conduct eligibility requirements
of §§ 245.111 and 245.113;
(2) The individual meets the
eligibility requirements of §§ 245.115
and 245.303;
(3) The individual meets the vision
and hearing acuity standards of
§§ 245.117 and 245.118;
(4) The individual has the necessary
knowledge, as demonstrated by
successfully completing a test that
meets the requirements of § 245.121;
and
(5) If applicable, the individual has
completed a training program that meets
the requirements of § 245.119.
(b) Nothing in this section, § 245.111,
or § 245.113 shall be construed to
prevent persons subject to this part from
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entering into an agreement that results
in a railroad obtaining the information
needed for compliance with this subpart
in a different manner than that
prescribed in § 245.111 or § 245.113.
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§ 245.111 Prior safety conduct as motor
vehicle operator.
(a) Except as provided in paragraphs
(b) through (e) of this section, after FRA
has approved a railroad’s dispatcher
certification program, the railroad, prior
to initially certifying or recertifying any
person as a dispatcher, shall determine
that the person meets the eligibility
requirements of this section involving
prior conduct as a motor vehicle
operator.
(b) A railroad shall initially certify a
person as a dispatcher for 60 days if the
person:
(1) Requested the information
required by paragraph (g) of this section
at least 60 days prior to the date of the
decision to certify that person; and
(2) Otherwise meets the eligibility
requirements provided in
§ 245.109(a)(1) through (5).
(c) A railroad shall recertify a person
as a dispatcher for 60 days from the
expiration date of that person’s
certification if the person:
(1) Requested the information
required by paragraph (g) of this section
at least 60 days prior to the date of the
decision to recertify that person; and
(2) Otherwise meets the eligibility
requirements provided in
§ 245.109(a)(1) through (5).
(d) Except as provided in paragraph
(e) of this section, if a railroad who
certified or recertified a person for 60
days pursuant to paragraph (b) or (c) of
this section does not obtain and
evaluate the information requested
pursuant to paragraph (g) of this section
within 60 days, that person will be
ineligible to perform as a dispatcher
until the information can be evaluated
by the railroad.
(e) If a person requests the
information required pursuant to
paragraph (g) of this section but is
unable to obtain it, that person or the
railroad certifying or recertifying that
person may petition for a waiver of the
requirements of paragraph (a) of this
section in accordance with the
provisions of part 211 of this chapter. A
railroad shall certify or recertify a
person during the pendency of the
waiver request if the person otherwise
meets the eligibility requirements
provided in § 245.109(a)(1) through (5).
(f) Except for persons designated as
dispatchers under § 245.105(c) or (d) or
for persons covered by paragraph (j) of
this section, each person seeking
certification or recertification under this
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part shall, within one year prior to the
date of the railroad’s decision on
certification or recertification:
(1) Take the actions required by
paragraphs (g) through (i) of this section
to make information concerning their
driving record available to the railroad
that is considering such certification or
recertification; and
(2) Take any additional actions,
including providing any necessary
consent required by State, Federal, or
foreign law to make information
concerning their driving record
available to that railroad.
(g) Each person seeking certification
or recertification under this part shall
request, in writing, that the chief of each
driver licensing agency identified in
paragraph (h) of this section provide a
copy of that agency’s available
information concerning their driving
record to the railroad that is considering
such certification or recertification.
(h) Each person shall request the
information required under paragraph
(g) of this section from:
(1) The chief of the driver licensing
agency of any jurisdiction, including a
State or foreign country, which last
issued that person a driver’s license;
and
(2) The chief of the driver licensing
agency of any other jurisdiction,
including states or foreign countries,
that issued or reissued the person a
driver’s license within the preceding
five years.
(i) If advised by the railroad that a
driver licensing agency has informed
the railroad that additional information
concerning that person’s driving history
may exist in the files of a State agency
or foreign country not previously
contacted in accordance with this
section, such person shall:
(1) Request in writing that the chief of
the driver licensing agency which
compiled the information provide a
copy of the available information to the
prospective certifying railroad; and
(2) Take any additional action
required by State, Federal, or foreign
law to obtain that additional
information.
(j) Any person who has never
obtained a motor vehicle driving license
is not required to comply with the
provisions of paragraph (g) of this
section but shall notify the railroad of
that fact in accordance with procedures
established by the railroad in its
certification program.
(k) Each certified dispatcher or person
seeking initial certification shall report
motor vehicle incidents described in
paragraphs (m)(1) and (2) of this section
to the employing railroad within 48
hours of being convicted for, or
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completed State action to cancel,
revoke, suspend, or deny a motor
vehicle driver’s license for, such
violations. For purposes of this
paragraph and paragraph (m) of this
section, ‘‘State action’’ means action of
the jurisdiction that has issued the
motor vehicle driver’s license, including
a foreign country. For purposes of
dispatcher certification, no railroad
shall require reporting earlier than 48
hours after the conviction, or completed
State action to cancel, revoke, suspend,
or deny a motor vehicle driver’s license.
(l) When evaluating a person’s motor
vehicle driving record, a railroad shall
not consider information concerning
motor vehicle driving incidents that
occurred:
(1) Prior to the effective date of this
rule;
(2) More than three years before the
date of the railroad’s certification
decision; or
(3) At a time other than that
specifically provided for in § 245.111,
§ 245.113, § 245.115, or § 245.303.
(m) A railroad shall only consider
information concerning the following
types of motor vehicle incidents:
(1) A conviction for, or completed
State action to cancel, revoke, suspend,
or deny a motor vehicle driver’s license
for operating a motor vehicle while
under the influence of, or impaired by,
alcohol or a controlled substance; or
(2) A conviction for, or completed
State action to cancel, revoke, suspend,
or deny a motor vehicle driver’s license
for refusal to undergo such testing as is
required by State or foreign law when a
law enforcement official seeks to
determine whether a person is operating
a vehicle while under the influence of
alcohol or a controlled substance.
(n) If such an incident, described in
paragraph (m) of this section, is
identified:
(1) The railroad shall provide the data
to the railroad’s DAC, together with any
information concerning the person’s
railroad service record, and shall refer
the person for evaluation to determine
if the person has an active substance
abuse disorder.
(2) The person shall cooperate in the
evaluation and shall provide any
requested records of prior counseling or
treatment for review exclusively by the
DAC in the context of such evaluation.
(3) If the person is evaluated as not
currently affected by an active substance
abuse disorder, the subject data shall
not be considered further with respect
to certification. However, the railroad
shall, on recommendation of the DAC,
condition certification upon
participation in any needed aftercare
and/or follow-up testing for alcohol or
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drugs deemed necessary by the DAC
consistent with the technical standards
specified in 49 CFR part 219, subpart H,
as well as 49 CFR part 40.
(4) If the person is evaluated as
currently affected by an active substance
abuse disorder, the provisions of
§ 245.115(c) will apply.
(5) If the person fails to comply with
the requirements of paragraph (n)(2) of
this section, the person shall be
ineligible to perform as a certified
dispatcher until such time as the person
complies with the requirements.
(o) Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
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§ 245.113 Prior safety conduct with other
railroads.
(a) After FRA has approved a
railroad’s dispatcher certification
program, the railroad shall determine,
prior to issuing any person a dispatcher
certificate, that the certification
candidate meets the eligibility
requirements of this section.
(b) If the certification candidate has
not been employed or certified by any
other railroad in the previous five years,
they do not have to submit a request in
accordance with paragraph (c) of this
section, but they must notify the
railroad of this fact in accordance with
procedures established by the railroad
in its certification program.
(c) Except as provided for in
paragraph (b) of this section, each
person seeking certification or
recertification under this part shall
submit a written request to each railroad
that employed or certified the person
within the previous five years to
provide the following information to the
railroad that is considering whether to
certify or recertify that person as a
dispatcher:
(1) Information about that person’s
compliance with § 245.111 within the
three years preceding the date of the
request;
(2) Information about that person’s
compliance with § 245.115 within the
five years preceding the date of the
request; and
(3) Information about that person’s
compliance with § 245.303 within the
five years preceding the date of the
request.
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(d) Each person submitting a written
request required by paragraph (c) of this
section shall:
(1) Submit the request no more than
one year before the date of the railroad’s
decision on certification or
recertification; and
(2) Take any additional actions,
including providing any necessary
consent required by State or Federal law
to make information concerning their
service record available to that railroad.
(e) Within 30 days after receipt of a
written request that complies with
paragraph (c) of this section, a railroad
shall provide the information requested
to the railroad designated in the written
request.
(f) If a railroad is unable to provide
the information requested within 30
days after receipt of a written request
that complies with paragraph (c) of this
section, the railroad shall provide an
explanation, in writing, of why it cannot
provide the information within the
requested time frame. If the railroad will
ultimately be able to provide the
requested information, the explanation
shall state approximately how much
more time the railroad needs to supply
the requested information. If the
railroad will not be able to provide the
requested information, the explanation
shall provide an adequate explanation
for why it cannot provide this
information. Copies of this explanation
shall be provided to the railroad
designated in the written request and to
the person who submitted the written
request for information.
(g) When evaluating a person’s prior
safety conduct with a different railroad,
a railroad shall not consider information
concerning prior safety conduct that
occurred:
(1) Prior to [EFFECTIVE DATE OF
FINAL RULE]; or
(2) At a time other than that
specifically provided for in § 245.111,
§ 245.113, § 245.115, or § 245.303.
(h) Each railroad shall adopt and
comply with a program that complies
with the requirements of this section.
When any person (including but not
limited to a railroad; any manager,
supervisor, official, or agent of a
railroad; any owner, manufacturer,
lessor, or lessee of railroad equipment,
track, or facilities; any employee of such
owner, manufacturer, lessor, lessee, or
independent contractor or
subcontractor) violates any requirement
of a program that complies with the
requirements of this subject, that person
shall be considered to have violated the
requirements of this section.
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§ 245.115 Substance abuse disorders and
alcohol drug rules compliance.
(a) Eligibility determination. After
FRA has approved a railroad’s
dispatcher certification program, the
railroad shall determine, prior to issuing
any person a dispatcher certificate, that
the person meets the eligibility
requirements of this section.
(b) Documentation. In order to make
the determination required under
paragraph (c) of this section, a railroad
shall have on file documents pertinent
to that determination, including a
written document from its DAC which
states their professional opinion that the
person has been evaluated as not
currently affected by a substance abuse
disorder or that the person has been
evaluated as affected by an active
substance abuse disorder.
(c) Fitness requirement. (1) A person
who has an active substance abuse
disorder shall be denied certification or
recertification as a dispatcher.
(2) Except as provided for in
paragraph (f) of this section, a certified
dispatcher who is determined to have
an active substance abuse disorder shall
be ineligible to hold certification.
Consistent with other provisions of this
part, certification may be reinstated as
provided in paragraph (e) of this
section.
(3) In the case of a current employee
of a railroad evaluated as having an
active substance abuse disorder
(including a person identified under the
procedures of § 245.111), the employee
may, if otherwise eligible, voluntarily
self-refer for substance abuse counseling
or treatment under the policy required
by § 219.1001(b)(1) of this chapter; and
the railroad shall then treat the
substance abuse evaluation as
confidential except with respect to
ineligibility for certification.
(d) Prior alcohol/drug conduct;
Federal rule compliance. (1) In
determining whether a person may be or
remain certified as a dispatcher, a
railroad shall consider conduct
described in paragraph (d)(2) of this
section that occurred within a period of
five consecutive years prior to the
review. A review of certification shall be
initiated promptly upon the occurrence
and documentation of any incident of
conduct described in this paragraph (d).
(2) A railroad shall consider any
violation of § 219.101 or § 219.102 of
this chapter and any refusal to provide
a breath or body fluid sample for testing
under the requirements of part 219 of
this chapter when instructed to do so by
a railroad representative.
(3) A period of ineligibility described
in this section shall begin:
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(i) For a person not currently certified,
on the date of the railroad’s written
determination that the most recent
incident has occurred; or
(ii) For a person currently certified, on
the date of the railroad’s notification to
the person that recertification has been
denied or certification has been
suspended.
(4) The period of ineligibility
described in this section shall be
determined in accordance with the
following standards:
(i) In the case of one violation of
§ 219.102 of this chapter, the person
shall be ineligible to hold a certificate
during evaluation and any required
primary treatment as described in
paragraph (e) of this section. In the case
of two violations of § 219.102 of this
chapter, the person shall be ineligible to
hold a certificate for a period of two
years. In the case of more than two such
violations, the person shall be ineligible
to hold a certificate for a period of five
years.
(ii) In the case of one violation of
§ 219.102 of this chapter and one
violation of § 219.101 of this chapter,
the person shall be ineligible to hold a
certificate for a period of three years.
(iii) In the case of one violation of
§ 219.101 of this chapter, the person
shall be ineligible to hold a certificate
for a period of nine months (unless
identification of the violation was
through a qualifying referral program
described in § 219.1001 of this chapter
and the dispatcher waives investigation,
in which case the certificate shall be
deemed suspended during evaluation
and any required primary treatment as
described in paragraph (e) of this
section). In the case of two or more
violations of § 219.101 of this chapter,
the person shall be ineligible to hold a
certificate for a period of five years.
(iv) If a person refuses to provide a
breath or body fluid sample for testing
under the requirements of part 219 of
this chapter when instructed to do so by
a railroad representative, the person
shall be ineligible to hold a certificate
for a period of nine months.
(e) Future eligibility to hold certificate
following alcohol/drug violation. The
following requirements apply to a
person who has been denied
certification or who has had their
certification suspended or revoked as a
result of conduct described in paragraph
(d) of this section:
(1) The person shall not be eligible for
grant or reinstatement of the certificate
unless and until the person has:
(i) Been evaluated by a SAP to
determine if the person currently has an
active substance abuse disorder;
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(ii) Successfully completed any
program of counseling or treatment
determined to be necessary by the SAP
prior to return to service; and
(iii) In accordance with the testing
procedures of 49 CFR part 219, subpart
H, has had a return-to-duty alcohol test
with an alcohol concentration of less
than .02 and return-to-duty body fluid
sample that tested negative for
controlled substances.
(2) A dispatcher placed in service or
returned to service under the abovestated conditions shall continue in any
program of counseling or treatment
deemed necessary by the SAP and shall
be subject to a reasonable program of
follow-up alcohol and drug testing
without prior notice for a period of not
more than five years following return to
service. Follow-up tests shall include
not fewer than six alcohol tests and six
drug tests during the first year following
return to service.
(3) Return-to-duty and follow-up
alcohol and drug tests shall be
performed consistent with the
requirements of 49 CFR part 219,
subpart H.
(4) This paragraph (e) does not create
an entitlement to utilize the services of
a railroad SAP, to be afforded leave from
employment for counseling or
treatment, or to employment as a
dispatcher. Nor does it restrict any
discretion available to the railroad to
take disciplinary action based on
conduct described herein.
(f) Confidentiality protected. Nothing
in this part shall affect the responsibility
of the railroad under § 219.1003(f) of
this chapter to treat qualified referrals
for substance abuse counseling and
treatment as confidential; and the
certification status of a dispatcher who
is successfully assisted under the
procedures of that section shall not be
adversely affected. However, the
railroad shall include in its referral
policy, as required pursuant to
§ 219.1003(j) of this chapter, a provision
that, at least with respect to a certified
dispatcher or a candidate for
certification, the policy of
confidentiality is waived (to the extent
that the railroad shall receive from the
SAP or DAC official notice of the
substance abuse disorder and shall
suspend or revoke the certification, as
appropriate) if the person at any time
refuses to cooperate in a recommended
course of counseling or treatment.
(g) Complying with certification
program. Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
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requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
§ 245.117
Vision acuity.
(a) After FRA has approved a
railroad’s dispatcher certification
program, the railroad shall determine,
prior to issuing any person a dispatcher
certificate, that the person meets the
standards for visual acuity prescribed in
this section and Appendix B to this part.
(b) Any examination required under
this section shall be performed by or
under the supervision of a medical
examiner or a licensed physician’s
assistant.
(c) Except as provided in paragraph
(d) of this section, each dispatcher shall
have visual acuity that meets or exceeds
the following thresholds:
(1) For distant viewing, either:
(i) Distant visual acuity of at least 20/
40 (Snellen) in each eye without
corrective lenses; or
(ii) Distant visual acuity separately
corrected to at least
20/40 (Snellen) with corrective lenses
and distant binocular acuity of at least
20/40 (Snellen) in both eyes with or
without corrective lenses;
(2) A field of vision of at least 70
degrees in the horizontal meridian in
each eye; and
(3) The ability to recognize and
distinguish between the colors of
railroad signals as demonstrated by
successfully completing one of the tests
in appendix B to this part.
(d) A person not meeting the
thresholds in paragraph (c) of this
section shall, upon request of the
certification candidate, be subject to
further medical evaluation by a
railroad’s medical examiner to
determine that person’s ability to safely
perform as a dispatcher. In such cases,
the following procedures will apply:
(1) In accordance with the guidance
prescribed in appendix B to this part, a
person is entitled to:
(i) One retest without making any
showing; and
(ii) An additional retest if the person
provides evidence that circumstances
have changed since the last test to the
extent that the person may now be able
to safely perform as a dispatcher.
(2) The railroad shall provide its
medical examiner with a copy of this
part, including all appendices.
(3) If, after consultation with a
railroad officer, the medical examiner
concludes that, despite not meeting the
threshold(s) in paragraph (c) of this
section, the person has the ability to
safely perform as a dispatcher, the
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railroad may conclude that the person
satisfies the vision acuity requirements
of this section to be a certified
dispatcher. Such certification will be
conditioned on any special restrictions
the medical examiner determines in
writing to be necessary.
(e) In order to make the determination
required under paragraph (a) of this
section, a railroad shall have on file the
following for each certification
candidate:
(1) A medical examiner’s certificate
that the candidate has been medically
examined and either does or does not
meet the vision acuity standards
prescribed in paragraph (c) of this
section.
(2) If needed under paragraph (d) of
this section, a medical examiner’s
written professional opinion which
states the basis for their determination
that:
(i) The candidate can be certified,
under certain conditions if necessary,
even though the candidate does not
meet the vision acuity standards
prescribed in paragraph (c) of this
section; or
(ii) The candidate’s vision acuity
prevents the candidate from being able
to safely perform as a dispatcher.
(f) If the examination required under
this section shows that the person needs
corrective lenses to meet the standards
for vision acuity prescribed in this
section and appendix B to this part, that
person shall use corrective lenses at all
times while performing as a dispatcher
unless the railroad’s medical examiner
subsequently determines in writing that
the person can safely perform as a
dispatcher without corrective lenses.
(g) When a certified dispatcher
becomes aware that their vision has
deteriorated, they shall notify the
railroad’s medical department or other
appropriate railroad official of the
deterioration. Such notification must
occur prior to performing any
subsequent service as a dispatcher. The
individual cannot return to service as a
dispatcher until they are reexamined
and determined by the railroad’s
medical examiner to satisfy the vision
acuity standards prescribed in this
section and appendix B to this part.
(h) Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
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§ 245.118
Hearing acuity.
(a) After FRA has approved a
railroad’s dispatcher certification
program, the railroad shall determine,
prior to issuing any person a dispatcher
certificate, that the person meets the
standards for hearing acuity prescribed
in this section and Appendix B to this
part.
(b) Any examination required under
this section shall be performed by or
under the supervision of a medical
examiner or a licensed physician’s
assistant.
(c) Except as provided in paragraph
(d) of this section, each dispatcher shall
have hearing acuity that meets or
exceeds the following thresholds with
or without use of a hearing aid: The
person does not have an average hearing
loss in the better ear greater than 40
decibels at 500 Hz, 1,000 Hz, and 2,000
Hz. The hearing test or audiogram used
to show a person’s hearing acuity shall
meet the requirements of one of the
following:
(1) As required in 29 CFR 1910.95(h)
(Occupational Safety and Health
Administration);
(2) As required in § 227.111 of this
chapter; or
(3) Conducted using an audiometer
that meets the specifications of and is
maintained and used in accordance
with a formal industry standard, such as
American National Standards Institute
(ANSI) S3.6, ‘‘Specifications for
Audiometers.’’
(d) A person not meeting the
thresholds in paragraph (c) of this
section shall, upon request of the
certification candidate, be subject to
further medical evaluation by a
railroad’s medical examiner to
determine that person’s ability to safely
perform as a dispatcher. In such cases,
the following procedures will apply:
(1) In accordance with the guidance
prescribed in appendix B to this part, a
person is entitled to:
(i) One retest without making any
showing; and
(ii) An additional retest if the person
provides evidence that circumstances
have changed since the last test to the
extent that the person may now be able
to safely perform as a dispatcher.
(2) The railroad shall provide its
medical examiner with a copy of this
part, including all appendices.
(3) If, after consultation with a
railroad officer, the medical examiner
concludes that, despite not meeting the
threshold(s) in paragraph (c) of this
section, the person has the ability to
safely perform as a dispatcher, the
railroad may conclude that the person
satisfies the hearing acuity requirements
of this section to be a certified
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dispatcher. Such certification will be
conditioned on any special restrictions
the medical examiner determines in
writing to be necessary.
(e) In order to make the determination
required under paragraph (a) of this
section, a railroad shall have on file the
following for each certification
candidate:
(1) A medical examiner’s certificate
that the candidate has been medically
examined and either does or does not
meet the hearing acuity standards
prescribed in paragraph (c) of this
section.
(2) If needed under paragraph (d) of
this section, a medical examiner’s
written professional opinion which
states the basis for their determination
that:
(i) The candidate can be certified,
under certain conditions if necessary,
even though the candidate does not
meet the hearing acuity standards
prescribed in paragraph (c) of this
section; or
(ii) The candidate’s hearing acuity
prevents the candidate from being able
to safely perform as a dispatcher.
(f) If the examination required under
this section shows that the person needs
a hearing aid to meet the standards for
hearing acuity prescribed in this section
and appendix B to this part, that person
shall use a hearing aid at all times while
performing as a dispatcher unless the
railroad’s medical examiner
subsequently determines in writing that
the person can safely perform as a
dispatcher without a hearing aid.
(g) When a certified dispatcher
becomes aware that their hearing has
deteriorated, they shall notify the
railroad’s medical department or other
appropriate railroad official of the
deterioration. Such notification must
occur prior to performing any
subsequent service as a dispatcher. The
individual cannot return to service as a
dispatcher until they are reexamined
and determined by the railroad’s
medical examiner to satisfy the hearing
acuity standards prescribed in this
section and appendix B to this part.
(h) Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
§ 245.119
Training requirements.
(a) After FRA has approved a
railroad’s certification program, the
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railroad shall determine, prior to issuing
any person a dispatcher certificate, that
the person has successfully completed
the training, in accordance with the
requirements of this section.
(b) A railroad’s certification program
shall state the railroad’s election either:
(1) To accept responsibility for the
training of dispatchers and thereby
obtain authority for that railroad to
initially certify a person as a dispatcher;
or
(2) To recertify only dispatchers
previously certified by other railroads.
(c) A railroad that elects to accept
responsibility for the training of
dispatchers shall state in its certification
program whether it will conduct the
training program or employ a training
program conducted by some other entity
on its behalf but adopted and ratified by
the railroad.
(d) A railroad that elects to train
persons not previously certified as
dispatchers shall develop an initial
training program which, at a minimum,
includes the following:
(1) An explanation of how training
must be structured, developed, and
delivered, including an appropriate
combination of classroom, simulator,
computer-based, correspondence, onthe-job training, or other formal training.
The curriculum shall be designed to
impart knowledge of, and ability to
comply with, applicable Federal
railroad safety laws, regulations, and
orders, as well as any relevant railroad
rules and procedures promulgated to
implement those applicable Federal
railroad safety laws, regulations, and
orders. This training shall document a
person’s knowledge of, and ability to
comply with, Federal railroad safety
laws, regulations, and orders, as well as
railroad rules and procedures.
(2) An on-the-job training component
which shall include the following:
(i) A syllabus describing content,
required tasks, and related steps the
employee learning the job shall be able
to perform within a specified timeframe;
(ii) A statement of the conditions (e.g.,
prerequisites, dispatch and related
dispatch support systems,
documentation, briefings,
demonstrations, and practice) necessary
for learning transfer; and
(iii) A statement of the standards by
which proficiency is measured through
a combination of task/step accuracy,
completeness, and repetition.
(3) A description of the processes to
review and modify its training program
when new safety-related railroad laws,
regulations, orders, technologies,
procedures, software, or equipment are
introduced into the workplace,
including how it is determined if
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additional or refresher training is
needed.
(e) Prior to beginning the initial
dispatching related tasks associated
with on-the-job exercises discussed in
paragraph (d)(2) of this section, each
railroad shall make any relevant
information or materials, such as
operating rules, safety rules, or other
rules, available for referencing by
certification candidates.
(f) Prior to a person, not previously
certified as a dispatcher, being certified
as a dispatcher, a railroad shall require
the person to:
(1) Successfully complete the formal
initial training program developed
pursuant to paragraph (d) of this section
and any associated examinations
covering the skills and knowledge the
person will need to perform the tasks
necessary to be a dispatcher;
(2) Demonstrate on-the-job
proficiency, with input from a qualified
instructor, by successfully completing
the tasks and using the dispatching
systems and technology necessary to be
a dispatcher. A certification candidate
may perform such tasks under the direct
onsite supervision of a person who has
the necessary dispatching experience
and at least one year of experience as a
dispatcher; and
(3) Demonstrate knowledge of the
physical characteristics of any assigned
territory. If the railroad uses a written
test to fulfill this requirement, the
railroad must provide the certification
candidate with an opportunity to
consult with a supervisory employee,
who possesses territorial qualifications
for the territory, to explain a question.
(g) In making the determination
required under paragraph (a) of the
section, a railroad shall have written
documentation showing that:
(1) The person completed a training
program that complies with paragraph
(d) of this section (if the person has not
been previously certified as a
dispatcher);
(2) The person demonstrated their
knowledge by achieving a passing grade
under the testing and evaluation
procedures of the training program; and
(3) The person achieved a passing
score on the physical characteristics
exam associated with the territories, or
its pertinent segments, over which the
person will be performing dispatching
service.
(h) The certification program,
required under this part and submitted
in accordance with the procedures and
requirements described in § 245.107,
shall include:
(1) The methods that a person may
acquire familiarity with the physical
characteristics of a territory;
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(2) The procedures used to qualify
and requalify a dispatcher on a territory;
and
(3) The maximum time period in
which a dispatcher can be absent from
a territory before requalification is
required. In accordance with
§ 245.120(c), this time period cannot
exceed 12 months.
(i) If ownership of a railroad is being
transferred from one company to
another, the dispatchers of the acquiring
company may receive familiarization
training from the selling company prior
to the acquiring company commencing
operation.
(j) A railroad shall provide for the
continuing education of certified
dispatchers to ensure that each
dispatcher maintains the necessary
knowledge concerning:
(1) Railroad safety and operating
rules;
(2) Physical territory:
(3) Dispatching systems and
technology; and
(4) Compliance with all applicable
Federal regulations including, but not
limited to, hazardous materials,
passenger train emergency
preparedness, emergency response
procedures, and physical characteristics
of a territory.
(k) Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
§ 245.120 Requirements for territorial
qualification.
(a) After FRA has approved a
railroad’s certification program, a
railroad shall not permit or require a
person to serve as a dispatcher on a
particular territory unless that railroad
determines that:
(1) The person is certified as a
dispatcher; and
(2) The person either:
(i) Possesses the necessary territorial
qualifications for the applicable territory
pursuant to § 245.119; or
(ii) Is assisted by a Dispatcher Pilot
who is qualified on the territory.
(b) If a person is called to serve on a
territory that they are not qualified on,
the person must immediately notify the
railroad that they are not qualified on
the assigned territory.
(c) A person shall no longer be
considered qualified on a territory if
they have not worked on that territory
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as a dispatcher in the previous 12
months.
(d) Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 245.121
Knowledge testing.
(a) After FRA has approved a
railroad’s dispatcher certification
program, the railroad shall determine,
prior to issuing any person a dispatcher
certificate and in accordance with the
requirements of this section, that the
person has demonstrated sufficient
knowledge of the railroad’s rules and
practices for the safe movement of
trains.
(b) In order to make the knowledge
determination required by paragraph (a)
of this section, a railroad shall have
procedures for testing a person being
evaluated for certification as a
dispatcher that shall be:
(1) Designed to examine a person’s
knowledge of the railroad’s operating
rules and practices for the safe
movement of trains;
(2) Objective in nature;
(3) In written or electronic form;
(4) Covering the following subjects:
(i) Safety and operating rules;
(ii) Timetable instructions;
(iii) Compliance with all applicable
Federal regulations;
(iv) Physical characteristics of the
territory on which a person will be or
is currently working as a dispatcher;
and
(v) Dispatching systems and
technology.
(5) Sufficient to accurately measure
the person’s knowledge of the covered
subjects; and
(6) Conducted without open reference
books or other materials except to the
degree the person is being tested on
their ability to use such reference books
or materials.
(c) The railroad shall provide the
certification candidate with an
opportunity to consult with a
supervisory employee, who possesses
territorial qualifications for the territory,
to explain a test question.
(d) If a person fails the test, no
railroad shall permit or require that
person to function as a dispatcher prior
to that person’s achieving a passing
score during a reexamination of the test.
(e) Each railroad shall adopt and
comply with a program meeting the
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requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
§ 245.123 Monitoring operational
performance.
(a) Each railroad’s certification
program shall describe how it will
monitor the operational performance of
its certified dispatchers by including
procedures for:
(1) Giving each certified dispatcher at
least one unannounced railroad and
Federal rules, territorial and dispatch
systems compliance test each calendar
year, except as provided for in
paragraph (c) of this section;
(2) Giving unannounced compliance
tests to certified dispatchers who return
to dispatcher service after performing
service that does not require
certification pursuant to this part, as
described in paragraph (c) of this
section; and
(3) What actions the railroad will take
if it finds deficiencies in a dispatcher’s
performance during an unannounced
compliance test.
(b) An unannounced compliance test
shall:
(1) Test certified dispatchers for
compliance with one or more
operational tests in accordance with the
provisions of § 217.9 of this chapter;
(2) Be performed by a railroad officer
who meets the requirements of
§ 217.9(b)(1) of this chapter; and
(3) Be given to each certified
dispatcher at least once each calendar
year, except as provided for in
paragraph (c) of this section.
(c) A certified dispatcher who is not
performing service that requires
certification pursuant to this part does
not need to be given an unannounced
compliance test. However, when the
certified dispatcher returns to service
that requires certification pursuant to
this part, the railroad shall:
(1) Give the certified dispatcher an
unannounced compliance test within 30
days of their return to dispatcher
service; and
(2) Retain a written record that
includes the following information:
(i) The date the dispatcher stopped
performing service that required
certification pursuant to this part;
(ii) The date the dispatcher returned
to service that required certification
pursuant to this part; and
(iii) The date and the result of the
unannounced compliance test that was
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35621
performed following the dispatcher’s
return to service requiring certification.
(d) Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
§ 245.125 Certification determinations
made by other railroads.
(a) A railroad that is considering
certification of a person as a dispatcher
may rely on certain determinations
made by another railroad concerning
that person’s certification.
(b) A railroad’s certification program
shall address how the railroad will
administer the training of previously
uncertified dispatchers with extensive
dispatching experience or previously
certified dispatchers who have had their
certification expire. If a railroad’s
certification program fails to specify
how it will train these dispatchers, then
the railroad shall require these
dispatchers to successfully complete the
certifying railroad’s entire training
program.
(c) A railroad relying on certification
determinations made by another
railroad shall still be responsible for
determining that:
(1) The prior certification is still valid
in accordance with the provisions of
§§ 245.201 and 245.307;
(2) The person has received training
on the physical characteristics of the
new territory in accordance with
§ 245.119; and
(3) The person has demonstrated the
necessary knowledge concerning the
railroad’s operating rules, territory,
dispatch systems and technology in
accordance with § 245.121.
Subpart C—Administration of the
Certification Program
§ 245.201
Time limitations for certification.
(a) After FRA approves a railroad’s
dispatcher certification program, that
railroad shall not certify or recertify a
person as a dispatcher if the railroad is
making:
(1) A determination concerning
eligibility under §§ 245.111, 245.113,
245.115, and 245.303 and the eligibility
data being relied on was furnished more
than one year before the date of the
railroad’s certification decision;
(2) A determination concerning visual
or hearing acuity and the medical
examination being relied on was
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conducted more than 450 days before
the date of the railroad’s certification
decision;
(3) A determination concerning
demonstrated knowledge and the
knowledge examination being relied on
was conducted more than one year
before the date of the railroad’s
certification decision; or
(4) A determination concerning
demonstrated knowledge and the
knowledge examination being relied on
was conducted more than two years
before the date of the railroad’s
recertification decision if the railroad
administers a knowledge testing
program pursuant to § 245.121 at
intervals that do not exceed two years.
(b) The time limitations of paragraph
(a) of this section do not apply to a
railroad that is making a certification
decision in reliance on determinations
made by another railroad in accordance
with § 245.125.
(c) Except if a person is designated as
a certified dispatcher under § 245.105(c)
or (d), no railroad shall certify a person
as a dispatcher for an interval of more
than three years.
(d) Each railroad shall issue each
certified dispatcher a certificate that
complies with § 245.207 no later than 30
days from the date of its decision to
certify or recertify that person.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 245.203 Retaining information
supporting determinations.
(a) After FRA approves a railroad’s
dispatcher certification program, any
time the railroad issues, denies, or
revokes a certificate after making the
determinations required under
§ 245.109, it shall maintain a record for
each certified dispatcher and
certification candidate. Each record
shall contain the information, described
in paragraph (b) of this section, that the
railroad relied on in making the
determinations required under
§ 245.109.
(b) A railroad shall retain the
following information:
(1) Relevant data from the railroad’s
records concerning the person’s prior
safety conduct and eligibility;
(2) Relevant data furnished by another
railroad;
(3) Relevant data furnished by a
governmental agency concerning the
person’s motor vehicle driving record;
(4) Relevant data furnished by the
person seeking certification concerning
their eligibility;
(5) The relevant test results data
concerning vision and hearing acuity;
(6) If applicable, the relevant data
concerning the professional opinion of
the railroad’s medical examiner on the
adequacy of the person’s vision or
hearing acuity;
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(7) Relevant data from the railroad’s
records concerning the person’s success
or failure on knowledge test(s) under
§ 245.121;
(8) A sample copy of the written
knowledge test or tests administered;
and
(9) The relevant data from the
railroad’s records concerning the
person’s success or failure on
unannounced tests the railroad
performed to monitor the dispatcher’s
performance in accordance with
§ 245.123.
(c) If a railroad is relying on
successful completion of an approved
training program conducted by another
entity, the relying railroad shall
maintain a record for each certification
candidate that contains the relevant data
furnished by the training entity
concerning the person’s demonstration
of knowledge and relied on by the
railroad in making its determinations.
(d) If a railroad is relying on a
certification decision initially made by
another railroad, the relying railroad
shall maintain a record for each
certification candidate that contains the
relevant data furnished by the other
railroad which it relied on in making its
determinations.
(e) All records required under this
section shall be retained by the railroad
for a period of six years from the date
of the certification, recertification,
denial, or revocation decision and shall,
upon request, be made available to FRA
representatives in a timely manner.
(f) It shall be unlawful for any railroad
to knowingly or any individual to
willfully:
(1) Make, cause to be made, or
participate in the making of a false entry
on the record(s) required by this section;
or
(2) Otherwise falsify such records
through material misstatement,
omission, or mutilation.
(g) Nothing in this section precludes
a railroad from maintaining the
information required to be retained
under this section in an electronic
format provided that:
(1) The railroad maintains an
information technology security
program adequate to ensure the integrity
of the electronic data storage system,
including the prevention of
unauthorized access to the program
logic or individual records;
(2) The program and data storage
system must be protected by a security
system that utilizes an employee
identification number and password, or
a comparable method, to establish
appropriate levels of program access
meeting all of the following standards:
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(i) No two individuals have the same
electronic identity; and
(ii) A record cannot be deleted or
altered by any individual after the
record is certified by the employee who
created the record;
(3) Any amendment to a record is
either:
(i) Electronically stored apart from the
record that it amends; or
(ii) Electronically attached to the
record as information without changing
the original record;
(4) Each amendment to a record
uniquely identifies the person making
the amendment; and
(5) The system employed by the
railroad for data storage permits
reasonable access and retrieval of the
information which can be easily
produced in an electronic or printed
format that can be:
(i) Provided to FRA representatives in
a timely manner; and
(ii) Authenticated by a designated
representative of the railroad as a true
and accurate copy of the railroad’s
records if requested to do so by an FRA
representative.
§ 245.205 List of certified dispatchers and
recordkeeping.
(a) After a railroad’s certification
program has received its initial approval
from FRA, pursuant to § 245.103(f)(1),
the railroad must maintain a list of each
person who is currently certified as a
dispatcher by the railroad. The list must
include the date of the railroad’s
certification decision and the date the
person’s certification expires.
(b) The list shall:
(1) Be updated at least annually;
(2) Be made available, upon request,
to FRA representatives in a timely
manner; and
(3) Be available either:
(i) In electronic format pursuant to
paragraph (c) of this section; or
(ii) At the divisional or regional
headquarters of the railroad.
(c) If a railroad elects to maintain its
list in an electronic format, it must:
(1) Maintain an information
technology security program adequate to
ensure the integrity of the electronic
data storage system, including the
prevention of unauthorized access to the
program logic or the list;
(2) Have its program and data storage
system protected by a security system
that utilizes an employee identification
number and password, or a comparable
method, to establish appropriate levels
of program access meeting all of the
following standards:
(i) No two individuals have the same
electronic identity; and
(ii) An entry on the list cannot be
deleted or altered by any individual
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after the entry is certified by the
employee who created the entry;
(3) Have any amendment to the list
either:
(i) Electronically stored apart from the
entry on the list that it amends; or
(ii) Electronically attached to the
entry on the list as information without
changing the original entry;
(4) Ensure that each amendment to
the list uniquely identifies the person
making the amendment; and
(5) Ensure that the system employed
for data storage permits reasonable
access and retrieval of the information
which can be easily produced in an
electronic or printed format that can be:
(i) Provided to FRA representatives in
a timely manner; and
(ii) Authenticated by a designated
representative of the railroad as a true
and accurate copy of the railroad’s
records if requested to do so by an FRA
representative.
(d) It shall be unlawful for any
railroad to knowingly or any individual
to willfully:
(1) Make, cause to be made, or
participate in the making of a false entry
on the list required by this section; or
(2) Otherwise falsify such list through
material misstatement, omission, or
mutilation.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 245.207
Certificate requirements.
(a) Each person who becomes a
certified dispatcher in accordance with
this part shall be issued a paper or
electronic certificate that must:
(1) Identify the railroad that is issuing
the certificate;
(2) Indicate that it is a dispatcher
certificate;
(3) Provide the following information
about the certified person:
(i) Name;
(ii) Employee identification number;
(iii) Year of birth; and
(iv) Either a physical description or
photograph of the person;
(4) Identify any conditions or
limitations, including conditions to
ameliorate vision or hearing acuity
deficiencies, that restrict, limit, or alter
the person’s abilities to work as a
dispatcher;
(5) Show the effective date of the
certification;
(6) Show the expiration date of the
certification except as provided for in
paragraph (b) of this section;
(7) Be signed by an individual
designated in accordance with
paragraph (c) of this section; and
(8) Be electronic or be of sufficiently
small size to permit being carried in an
ordinary pocket wallet.
(b) A certificate does not need to
include an expiration date, as required
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under paragraph (a)(6) of this section, if
the person was designated as a certified
dispatcher under § 245.105(c) or (d).
(c) Each railroad shall designate in
writing any person it authorizes to sign
the certificates described in this section.
The designation shall identify such
persons by name or job title.
(d) Nothing in this section shall
prohibit any railroad from including
additional information on the certificate
or supplementing the certificate through
other documents.
(e) It shall be unlawful for any
railroad to knowingly or any individual
to willfully:
(1) Make, cause to be made, or
participate in the making of a false entry
on a certificate; or
(2) Otherwise falsify a certificate
through material misstatement,
omission, or mutilation.
(f) Except as provided for in
paragraph (h) of this section, each
certified dispatcher shall:
(1) Have their certificate in their
possession while on duty as a
dispatcher; and
(2) Display their certificate upon a
request from:
(i) An FRA representative;
(ii) A state inspector authorized under
part 212 of this chapter;
(iii) An officer of the issuing railroad;
or
(iv) An officer of the dispatcher’s
employer if the dispatcher is not
employed by the issuing railroad.
(g) If a dispatcher’s certificate is lost,
stolen, or mutilated, the railroad shall
promptly replace the certificate at no
cost to the dispatcher.
(h) A certified dispatcher is exempt
from the requirements of paragraph (f)
of this section if:
(1) The railroad made its certification
or recertification decision within the
last 30 days and the dispatcher has not
yet received their certificate; or
(2) The dispatcher’s certificate was
lost, stolen, or mutilated, and the
railroad has not yet issued a
replacement certificate to the
dispatcher.
(i) Any dispatcher who is notified or
called to serve as a dispatcher and such
service would cause the dispatcher to
exceed certificate limitations, set forth
in accordance with subpart B of this
part, shall immediately notify the
railroad that they are not authorized to
perform that anticipated service and it
shall be unlawful for the railroad to
require such service.
(j) Nothing in this section shall be
deemed to alter a certified dispatcher’s
duty to comply with other provisions of
this chapter concerning railroad safety.
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§ 245.213
35623
Multiple certifications.
(a) A person who holds a dispatcher
certificate may also be certified in other
crafts, such as a locomotive engineer or
conductor.
(b) A railroad that issues multiple
certificates to a person, shall, to the
extent possible, coordinate the
expiration date of those certificates.
(c)(1) A person who holds a current
dispatcher certificate from more than
one railroad shall immediately notify
the other certifying railroad(s) if they are
denied dispatcher certification or
recertification under § 245.301 by
another railroad or has their dispatcher
certification suspended or revoked
under § 245.307 by another railroad.
(2) If a person has their dispatcher
certification suspended or revoked by a
railroad under § 245.307, they may not
work as a dispatcher for any other
railroad during the period that their
certification is suspended or revoked.
(3) If a person has their dispatcher
certification suspended or revoked by a
railroad under § 245.307, they must
notify any railroad that they are seeking
certification from that their dispatcher
certification is currently suspended or
revoked by another railroad.
(d) Paragraphs (d)(1) through (4) apply
to people who are currently certified as
a dispatcher and also currently certified
in another craft, such as a locomotive
engineer or conductor:
(1) If a person’s dispatcher
certification is revoked under § 245.307
for a violation of § 245.303(e)(8), they
may not work in another certified craft,
such as a locomotive engineer or
conductor, for any railroad during the
period of revocation.
(2) If a person’s dispatcher
certification is revoked under § 245.307
for a violation of § 245.303(e)(1) through
(7), they may work in another certified
craft, such as a locomotive engineer or
conductor, during the period of
revocation.
(3) If any of a person’s non-dispatcher
certifications are revoked for failure to
comply with § 219.101 of this chapter,
they may not work as a dispatcher for
any railroad during the period of
revocation.
(4) If any of a person’s non-dispatcher
certifications are revoked for any reason
other than a failure to comply with
§ 219.101 of this chapter, they may work
as a dispatcher during the period of
revocation.
(e) A person who has had their
dispatcher certification revoked for
failure to comply with § 219.101 of this
chapter, may not obtain any other
certification pursuant to this chapter
from any railroad during the period of
revocation.
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(f) A person who has had any of their
non-dispatcher certifications revoked
for failure to comply with § 219.101 of
this chapter, may not obtain a
dispatcher certificate pursuant to this
part from any railroad during the period
of revocation.
(g) A railroad that denies a person
dispatcher certification or recertification
under § 245.301 shall not, solely on the
basis of that denial, deny or revoke that
person’s non-dispatcher certifications or
recertifications.
(h) A railroad that denies a person any
non-dispatcher certification pursuant to
this chapter shall not, solely on the
basis of that denial, deny or revoke that
person’s dispatcher certification or
recertification.
(i) In lieu of issuing multiple
certificates, a railroad may issue one
certificate to a person who is certified in
multiple crafts as long as the single
certificate complies with all of the
certificate requirements for those crafts.
(j) A person who is certified in
multiple crafts and who is involved in
a revocable event, as described in this
chapter, may only have one certificate
revoked for that event. The
determination by the railroad as to
which certificate to revoke must be
based on the work the person was
performing at the time the revocable
event occurred.
lotter on DSK11XQN23PROD with PROPOSALS2
§ 245.215 Railroad oversight
responsibilities.
(a) No later than March 31 of each
year (beginning in calendar year [DATE
THREE YEARS AFTER EFFECTIVE
DATE OF FINAL RULE], each Class I
railroad (including the National
Railroad Passenger Corporation), each
railroad providing commuter service,
and each Class II railroad shall conduct
a formal annual review and analysis
concerning the administration of its
program for responding to detected
instances of poor safety conduct by
certified dispatchers during the prior
calendar year.
(b) Each review and analysis shall
involve:
(1) The number and nature of the
instances of detected poor safety
conduct including the nature of the
remedial action taken in response
thereto;
(2) The number and nature of FRA
reported train accidents attributed to
poor safety performance by dispatchers;
and
(3) The number and type of
operational monitoring test failures
recorded by railroad officers who meet
the requirements of § 217.9(b)(1) of this
chapter.
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(c) Based on that review and analysis,
each railroad shall determine what
action(s) it will take to improve the
safety of railroad operations to reduce or
eliminate future incidents of that nature.
(d) If requested in writing by FRA, the
railroad shall provide a report of the
findings and conclusions reached
during such annual review and analysis
effort.
(e) For reporting purposes,
information about the nature of detected
poor safety conduct shall be capable of
segregation for study and evaluation
purposes into the following categories:
(1) Incidents involving failure to
provide proper protection of a reported
inoperable or malfunctioning highwayrail grade crossing.
(2) Incidents involving granting
permission for a train or on-track
equipment to enter into an out-ofservice or blue flag protected track.
(3) Incidents involving granting
permission for a train or on-track
equipment to enter into established
RWIC limits without authority or
permission from the RWIC.
(4) Incidents involving removal of
blocking devices or established
protection of RWIC working limits prior
to the RWIC releasing the limits.
(5) Incidents involving failure to
properly apply blocking devices or
failure to establish proper protection for
specified working limits or movements
of trains or on-track equipment.
(6) Incidents involving failure to
properly issue or apply mandatory
directives when warranted.
(7) Incidents involving granting
permission for a train to enter Positive
Train Control (PTC) or Cab Signal limits
with inoperative or malfunctioning PTC
or Cab Signal equipment without proper
approval.
(8) Incidents involving
noncompliance with part 219 of this
chapter.
(f) For reporting purposes, each
category of detected poor safety conduct
identified in paragraph (e) of this
section shall be capable of being
annotated to reflect the following:
(1) The total number of incidents in
that category;
(2) The number of incidents within
that total which reflect incidents
requiring an FRA accident/incident
report under part 225 of this chapter;
and
(3) The number of incidents within
that total which were detected as a
result of a scheduled operational
monitoring effort.
(g) For reporting purposes, each
instance of detected poor safety conduct
identified in paragraph (b) of this
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section shall be capable of being
annotated to reflect the following:
(1) The nature of the remedial action
taken, and the number of events
subdivided, so as to reflect which of the
following actions was selected:
(i) Imposition of informal discipline;
(ii) Imposition of formal discipline;
(iii) Provision of informal training; or
(iv) Provision of formal training; and
(2) If the nature of the remedial action
taken was formal discipline, the number
of events further subdivided so as to
reflect which of the following
punishments was imposed by the
railroad:
(i) The person was withheld from
service;
(ii) The person was dismissed from
employment; or
(iii) The person was issued demerits.
If more than one form of punishment
was imposed, only the punishment
deemed the most severe shall be shown.
(h) For reporting purposes, each
instance of detected poor safety conduct
identified in paragraph (b) of this
section which resulted in the imposition
of formal or informal discipline shall be
annotated to reflect the following:
(1) The number of instances in which
the railroad’s internal appeals process
reduced the punishment initially
imposed at the conclusion of its hearing;
and
(2) The number of instances in which
the punishment imposed by the railroad
was reduced by any of the following
entities: The National Railroad
Adjustment Board, a Public Law Board,
a Special Board of Adjustment, or other
body for the resolution of disputes duly
constituted under the provisions of the
Railway Labor Act.
(i) For reporting purposes, an instance
of poor safety conduct involving a
person who is a certified dispatcher and
is certified in another craft, such as a
locomotive engineer or conductor, need
only be reported once (e.g., either under
this section or § 240.309 or § 242.215 of
this chapter). The determination as to
where to report the instance of poor
safety conduct should be based on the
work the person was performing at the
time the conduct occurred.
Subpart D—Denial and Revocation of
Certification
§ 245.301 Process for denying
certification.
(a) A railroad shall notify a candidate
for certification or recertification of
information known to the railroad that
forms the basis for denying the person
certification and provide the person a
reasonable opportunity to explain or
rebut that adverse information in
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writing prior to denying certification. A
railroad shall provide the dispatcher
candidate with any documents or
records, including written statements,
related to failure to meet a requirement
of this part which support its pending
denial decision.
(b) If a railroad denies a person
certification or recertification, it shall
issue a decision that complies with all
of the following requirements:
(1) It must be in writing.
(2) It must explain the basis for the
railroad’s denial decision.
(3) It must address any explanation or
rebuttal information that the
certification candidate provided
pursuant to paragraph (a) of this section.
(4) It must include the date of the
railroad’s decision.
(5) It must be served on the candidate
no later than 10 days after the railroad’s
decision.
(c) A railroad shall not deny the
person’s certification for failing to
comply with a railroad operating rule or
practice which constitutes a violation
under § 245.303(e)(1) through (7) if
sufficient evidence exists to establish
that an intervening cause prevented or
materially impaired the dispatcher’s
ability to comply with that railroad
operating rule or practice.
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§ 245.303 Criteria for revoking
certification.
(a) It shall be unlawful to fail to
comply with any of the railroad rules or
practices described in paragraph (e) of
this section.
(b) A certified dispatcher who has
demonstrated a failure to comply with
a railroad rule or practice described in
paragraph (e) of this section shall have
their certification revoked.
(c) A certified dispatcher who is
monitoring, piloting, or instructing a
dispatcher and fails to take appropriate
action to prevent a violation of a
railroad rule or practice described in
paragraph (e) of this section shall have
their certification revoked. Appropriate
action does not mean that a supervisor,
pilot, or instructor must prevent a
violation from occurring at all costs; the
duty may be met by warning the
dispatcher of a potential or foreseeable
violation.
(d) A certified dispatcher who is
called by a railroad to perform a duty
other than that of a dispatcher shall not
have their dispatcher certification
revoked based on actions taken or not
taken while performing that duty except
for violations described in paragraph
(e)(8) of this section.
(e) When determining whether to
revoke a dispatcher’s certification, a
railroad shall only consider violations of
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its operating rules or practices that
involve:
(1) Failure to provide proper
protection of a reported inoperable or
malfunctioning highway-rail grade
crossing.
(2) Granting permission for a train or
on-track equipment to enter into an outof-service or blue flag protected track.
(3) Granting permission for a train or
on-track equipment to enter into
established RWIC limits without
authority or permission from the RWIC.
(4) Removal of blocking devices or
established protection of RWIC working
limits prior to the RWIC releasing the
limits.
(5) Failure to properly apply blocking
devices or establish proper protection
for specified working limits or
movements of trains or on-track
equipment.
(6) Failure to properly issue or apply
mandatory directives when warranted.
(7) Granting permission, without prior
approval, for a train to enter Positive
Train Control (PTC) or Cab Signal limits
with inoperative or malfunctioning PTC
or Cab Signal equipment.
(8) Failure to comply with § 219.101
of this chapter. However, such incidents
shall be considered as a violation only
for the purposes of § 245.305(a)(2) and
(b).
(f) In making the determination as to
whether to revoke a dispatcher’s
certification, a railroad shall only
consider conduct described in
paragraphs (e)(1) through (7) of this
section that occurred within the three
years prior to the determination.
(g) If in any single incident the
person’s conduct contravened more
than one operating rule or practice, that
event shall be treated as a single
violation for the purposes of this
section.
(h) A violation of one or more
operating rules or practices described in
paragraphs (e)(1) through (7) of this
section that occurs during a properly
conducted operational compliance test
subject to the provisions of this chapter
shall be counted in determining the
periods of ineligibility described in
§ 245.305.
(i) An operational test that is not
conducted in compliance with this part,
a railroad’s operating rules, or a
railroad’s program under § 217.9 of this
chapter, will not be considered a
legitimate test of operational skill or
knowledge, and will not be considered
for revocation purposes.
(j) Each railroad shall adopt and
comply with a program meeting the
requirements of this section. When any
person (including, but not limited to,
each railroad, railroad officer,
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supervisor, and employee) violates any
requirement of a program which
complies with the requirements of this
section, that person shall be considered
to have violated the requirements of this
section.
§ 245.305
Periods of ineligibility.
(a) The starting date for a period of
ineligibility described in this section
shall be:
(1) For a person not currently
certified, the date of the railroad’s
written determination that the most
recent incident has occurred; or
(2) For a person currently certified,
the date of the railroad’s notification to
the person that recertification has been
denied or certification has been
suspended.
(b) A period of ineligibility shall be
determined according to the following
standards:
(1) In the case of a single incident
involving a violation of one or more of
the operating rules or practices
described in § 245.303(e)(1) through (7),
the person shall have their certificate
revoked for a period of 30 calendar
days.
(2) In the case of two separate
incidents involving a violation of one or
more of the operating rules or practices
described in § 245.303(e)(1) through (7),
that occurred within 24 months of each
other, the person shall have their
certificate revoked for a period of 6
months.
(3) In the case of three separate
incidents involving violations of one or
more of the operating rules or practices,
described in § 245.303(e)(1) through (8),
that occurred within 36 months of each
other, the person shall have their
certificate revoked for a period of 1 year.
(4) In the case of four separate
incidents involving violations of one or
more of the operating rules or practices,
described in § 245.303(e)(1) through (8),
that occurred within 36 months of each
other, the person shall have their
certificate revoked for a period of 3
years.
(5) Where, based on the occurrence of
violations described in § 245.303(e)(8),
different periods of ineligibility may
result under the provisions of this
section and § 245.115, the longest
period of revocation shall control.
(c) Any or all periods of revocation
provided in paragraph (b) of this section
may consist of training.
(d) A person whose certification is
denied or revoked shall be eligible for
grant or reinstatement of the certificate
prior to the expiration of the initial
period of ineligibility only if:
(1) The denial or revocation of
certification in accordance with the
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provisions of paragraph (b) of this
section is for a period of one year or
less;
(2) Certification is denied or revoked
for reasons other than noncompliance
with § 219.101 of this chapter;
(3) The person is evaluated by a
railroad officer and determined to have
received adequate remedial training;
(4) The person successfully completes
any mandatory program of training or
retraining, if that is determined to be
necessary by the railroad prior to return
to service; and
(5) At least one half the pertinent
period of ineligibility specified in
paragraph (b) of this section has
elapsed.
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§ 245.307 Process for revoking
certification.
(a) If a railroad determines that a
dispatcher, who is currently certified by
the railroad, has violated a railroad
operating rule or practice described in
§ 245.303(e), the railroad shall revoke
the dispatcher’s certification in
accordance with the procedures and
requirements of this section.
(b) Except as providing for in
§ 245.115(f), if a railroad acquires
reliable information that a dispatcher,
who is currently certified by the
railroad, has violated a railroad
operating rule or practice described in
§§ 245.303(e) or 245.115(d), the railroad
shall undergo the following process to
determine whether revocation of the
dispatcher’s certification is warranted:
(1) The dispatcher’s certification shall
be suspended immediately.
(2) Prior to or upon suspending the
dispatcher’s certification, the railroad
shall provide the dispatcher with notice
of: the reason for the suspension; the
pending revocation; and an opportunity
for a hearing before a presiding officer
other than the investigating officer. This
notice may initially be given either
orally or in writing. If given orally, the
notice must be subsequently confirmed
in writing in a manner that conforms
with the notification provisions of the
applicable collective bargaining
agreement. If there is no applicable
collective bargaining agreement
notification provision, the written
notice must be made within four days
of the date the certification was
suspended.
(3) The railroad must convene the
hearing within the time frame required
under the applicable collective
bargaining agreement. If there is no
applicable collective bargaining
agreement or the applicable collective
bargaining agreement does not include
such a requirement, the hearing shall be
convened within 10 days of the date the
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certification is suspended unless the
dispatcher requests or consents to a
delay to the start of the hearing.
(4) No later than the start of the
hearing, the railroad shall provide the
dispatcher with a copy of the written
information and a list of witnesses the
railroad will present at the hearing. If
this information was provided just prior
to the start of the hearing and the
dispatcher requests a recess to the start
of the hearing, such request must be
granted. If this information was
provided by an employee of the
railroad, the railroad shall make that
employee available for examination
during the hearing.
(5) Following the hearing, the railroad
must determine, based on the record of
the hearing, whether revocation of the
certification is warranted. The railroad
shall have the burden of proving that
revocation of the dispatcher’s
certification is warranted under
§ 245.303.
(6) If the railroad determines that
revocation of the dispatcher’s
certification is warranted, the railroad
shall impose the proper period of
revocation provided for in § 245.305 or
§ 245.115.
(7) The railroad shall retain the record
of the hearing for three years after the
date the decision is rendered.
(c) A hearing required by this section
which is conducted in a manner that
conforms procedurally to the applicable
collective bargaining agreement shall
satisfy the procedural requirements of
this section.
(d) Except as provided for in
paragraph (c) of this section, a hearing
required under this section shall be
conducted in accordance with the
following procedures:
(1) The hearing shall be conducted by
a presiding officer who can be any
proficient person authorized by the
railroad other than the investigating
officer.
(2) The presiding officer shall
convene and preside over the hearing
and exercise the powers necessary to
regulate the conduct of the hearing for
the purpose of achieving a prompt and
fair determination of all material issues
in dispute.
(3) The presiding officer may:
(i) Adopt any needed procedures for
the submission of evidence in written
form;
(ii) Examine witnesses at the hearing;
and
(iii) Take any other action authorized
by or consistent with the provisions of
this part and permitted by law that may
assist in achieving a prompt and fair
determination of all material issues in
dispute.
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(4) All relevant and probative
evidence shall be received into the
record unless the presiding officer
determines the evidence to be unduly
repetitive or have such minimal
relevance that its admission would
impair the prompt, orderly, and fair
resolution of the proceeding.
(5) Parties may appear at the hearing
and be heard on their own behalf or
through designated representatives.
Parties may offer relevant evidence
including testimony and may conduct
such examination of witnesses as may
be required for a full disclosure of the
relevant facts.
(6) Testimony by witnesses at the
hearing shall be recorded verbatim.
Witnesses can testify in person, over the
phone, or virtually.
(7) The record in the proceeding shall
be closed at the conclusion of the
hearing unless the presiding officer
allows additional time for the
submission of evidence.
(8) A hearing required under this
section may be consolidated with any
disciplinary action or other hearing
arising from the same facts.
(9) A person may waive their right to
a hearing. That waiver shall:
(i) Be in writing;
(ii) Reflect the fact that the person has
knowledge and understanding of these
rights and voluntarily surrenders them;
and
(iii) Be signed by the person making
the waiver.
(e) Except as provided for in
paragraph (c) of this section, a decision,
required by this section, on whether to
revoke a dispatcher’s certification shall
comply with the following
requirements:
(1) No later than 10 days after the
close of the record, a railroad official,
other than the investigating officer, shall
prepare and sign a written decision as
to whether the railroad is revoking the
dispatcher’s certification.
(2) The decision shall:
(i) Contain the findings of fact on all
material issues as well as an explanation
for those findings with citations to all
applicable railroad operating rules and
practices;
(ii) State whether the railroad official
found that the dispatcher’s certification
should be revoked;
(iii) State the period of revocation
under § 245.305 (if the railroad official
concludes that the dispatcher’s
certification should be revoked); and
(iv) Be served on the employee and
the employee’s representative, if any,
with the railroad retaining proof of
service for three years after the date the
decision is rendered.
(f) The period that a dispatcher’s
certification is suspended in accordance
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with paragraph (b)(1) of this section
shall be credited towards any period of
revocation that the railroad assesses in
accordance with § 245.305.
(g) A railroad shall revoke a
dispatcher’s certification if, during the
period that certification is valid, the
railroad acquires information which
convinces it that another railroad has
revoked the person’s dispatcher
certification in accordance with the
provisions of this section. Such
revocation shall end on the same date
that the revocation period ends for the
railroad that initially revoked the
person’s certification. The requirement
to provide a hearing under this section
is satisfied when any single railroad
holds a hearing. No additional hearing
is required prior to a revocation by more
than one railroad arising from the same
facts.
(h) A railroad shall not revoke a
dispatcher’s certification if sufficient
evidence exists to establish that an
intervening cause prevented or
materially impaired the dispatcher’s
ability to comply with the railroad
operating rule or practice which
constitutes a violation under § 245.303.
(i) A railroad may decide not to
revoke a dispatcher’s certification if
sufficient evidence exists to establish
that the violation of the railroad
operating rule or practice described in
§ 245.303(e) was of a minimal nature
and had no direct or potential effect on
rail safety.
(j) If sufficient evidence meeting the
criteria in paragraph (h) or (i) of this
section becomes available, the railroad
shall place the relevant information in
the records maintained in compliance
with:
(1) Section 245.215 for Class I
railroads (including that National
Railroad Passenger Corporation),
railroads providing commuter service,
and Class II railroads; and
(2) Section 245.203 for Class III
railroads.
(k) If a railroad makes a good faith
determination, after performing a
reasonable inquiry, that the course of
conduct provided for in paragraph (h) or
(i) of this section is warranted, the
railroad will not be in violation of
paragraph (b)(1) of this section if it
decides not to suspend the dispatcher’s
certification.
Subpart E—Dispute Resolution
Procedures
§ 245.401
Review board established.
(a) Any person who has been denied
certification, denied recertification, or
has had their certification revoked and
believes that a railroad incorrectly
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determined that they failed to meet the
certification requirements of this part
when making the decision to deny or
revoke certification, may petition the
Administrator to review the railroad’s
decision.
(b) The Administrator has delegated
initial responsibility for adjudicating
such disputes to the Certification
Review Board (Board). The Board shall
be composed of FRA employees.
§ 245.403
Petition requirements.
(a) To obtain review of a railroad’s
decision to deny certification, deny
recertification, or revoke certification, a
person shall file a petition for review
that complies with this section.
(b) Each petition shall:
(1) Be in writing;
(2) Be filed no more than 120 days
after the date the railroad’s denial or
revocation decision was served on the
petitioner, except as provided for in
paragraph (d) of this section;
(3) Be filed on https://
www.regulations.gov.
(4) Include the following contact
information for the petitioner and
petitioner’s representative (if petitioner
is represented):
(i) Full name;
(ii) Daytime telephone number; and
(iii) Email address;
(5) Include the name of the railroad;
(6) Contain the facts that the
petitioner believes constitute the
improper action by the railroad and the
arguments in support of the petition;
and
(7) Include all written documents in
the petitioner’s possession or reasonably
available to the petitioner that
document the railroad’s decision.
(c) If requested by the Board, the
petitioner must provide a copy of the
information under 49 CFR 40.329 that
laboratories, medical review officers,
and other service agents are required to
release to employees. The petitioner
must provide a written explanation in
response to a Board request if written
documents, that should be reasonably
available to the petitioner, are not
supplied.
(d) The Board may extend the petition
filing period in its discretion provided
that the petitioner provides good cause
for the extension and:
(1) The request for an extension is
filed before the expiration of the period
provided for in paragraph (b)(2) of this
section; or
(2) The failure to timely file was the
result of excusable neglect.
(e) A party aggrieved by a Board
decision to deny a petition as untimely
or not in compliance with the
requirements of this section may file an
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appeal with the Administrator in
accordance with § 245.411.
§ 245.405 Processing certification review
petitions.
(a) Each petition shall be
acknowledged in writing by FRA. The
acknowledgment shall be sent to the
petitioner (if an email address is
provided), petitioner’s representative (if
any), and the railroad. The
acknowledgment shall contain the
docket number assigned to the petition
and will notify the parties where the
petition can be accessed.
(b) Within 60 days from the date of
the acknowledgment provided in
paragraph (a) of this section, the railroad
may submit to FRA any information that
the railroad considers pertinent to the
petition, and shall supplement the
record with any relevant documents in
its possession, such as hearing
transcripts and exhibits, that were not
submitted by the petitioner. Late filings
will only be considered to the extent
practicable. A railroad that submits such
information shall:
(1) Identify the petitioner by name
and the docket number for the petition;
(2) Provide the railroad’s email
address;
(3) Serve a copy of the information
being submitted to the petitioner and
petitioner’s representative, if any; and
(4) Be filed on https://
www.regulations.gov.
(c) The petition will be referred to the
Board for a decision after a railroad’s
response is received or 60 days from the
date of the acknowledgment provided in
paragraph (a) of this section, whichever
is earlier. Based on the record, the Board
shall have the authority to grant, deny,
dismiss, or remand the petition. If the
Board finds that there is insufficient
basis for granting or denying the
petition, the Board may issue an order
affording the parties an opportunity to
provide additional information or
argument consistent with its findings.
(d) When considering procedural
issues, the Board will grant the petition
if the petitioner shows:
(1) That a procedural error occurred;
and
(2) The procedural error caused
substantial harm to the petitioner.
(e) When considering factual issues,
the Board will grant the petition if the
petitioner shows that the railroad did
not provide substantial evidence to
support its decision.
(f) When considering legal issues, the
Board will determine whether the
railroad’s legal interpretations are
correct based on a de novo review.
(g) The Board will only consider
whether the denial or revocation of
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certification or recertification was
improper under this part and will grant
or deny the petition accordingly. The
Board will not otherwise consider the
propriety of a railroad’s decision. For
example,the Board will not consider
whether the railroad properly applied
its own more stringent requirements.
(h) The Board’s written decision shall
be served on the petitioner and/or
petitioner’s representative (if any), and
the railroad.
§ 245.407
Request for a hearing.
(a) If adversely affected by the Board’s
decision, either the petitioner before the
Board or the railroad involved shall
have a right to an administrative
proceeding as prescribed by § 245.409.
(b) To exercise that right, the
adversely affected party shall file a
written request for a hearing within 20
days of service of the Board’s decision
on that party. The request must be filed
in the docket on https://
www.regulations.gov that was used
when the case was before the Board.
(c) A written request for a hearing
must contain the following:
(1) The name, telephone number, and
email address of the requesting party
and the requesting party’s designated
representative (if any);
(2) The name, telephone number, and
email address of the respondent;
(3) The docket number for the case
while it was before the Board;
(4) The specific factual issues,
industry rules, regulations, or laws that
the requesting party alleges need to be
examined in connection with the
certification decision in question; and
(5) The signature of the requesting
party or the requesting party’s
representative (if any).
(d) Upon receipt of a hearing request
complying with paragraph (c) of this
section, FRA shall arrange for the
appointment of a presiding officer who
shall schedule the hearing for the
earliest practicable date.
(e) If a party fails to request a hearing
within the period provided in paragraph
(b) of this section, the Board’s decision
will constitute final agency action.
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§ 245.409
Hearings.
(a) An administrative hearing for a
dispatcher certification petition shall be
conducted by a presiding officer, who
can be any person authorized by the
Administrator.
(b) The presiding officer shall
convene and preside over the hearing.
The hearing shall be a de novo hearing
to find the relevant facts and determine
the correct application of this part to
those facts. The presiding officer may
determine that there is no genuine issue
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covering some or all material facts and
limit evidentiary proceedings to any
issues of material fact as to which there
is a genuine dispute.
(c) The presiding officer may exercise
the powers of the Administrator to
regulate the conduct of the hearing for
the purpose of achieving a prompt and
fair determination of all material issues
in controversy.
(d) The presiding officer may
authorize discovery of the types and
quantities which in the presiding
officer’s discretion will contribute to a
fair hearing without unduly burdening
the parties. The presiding officer may
impose appropriate non-monetary
sanctions, including limitations as to
the presentation of evidence and issues,
for any party’s willful failure or refusal
to comply with approved discovery
requests.
(e) Every petition, motion, response,
or other authorized or required
document shall be signed by the party
filing the same, or by a duly authorized
officer or representative of record, or by
any other person. If signed by such
other person, the reason therefor must
be stated and the power of attorney or
other authority authorizing such other
person to subscribe the document must
be filed with the document. The
signature of the person subscribing any
document constitutes a certification that
they have read the document; that to the
best of their knowledge, information,
and belief every statement contained in
the document is true and no such
statements are misleading; and that it is
not interposed for delay or to be
vexatious.
(f) After the request for a hearing is
filed, all documents filed or served
upon one party must be served upon all
parties. Each party may designate a
person upon whom service is to be
made when not specified by law,
regulation, or directive of the presiding
officer. If a party does not designate a
person upon whom service is to be
made, then service may be made upon
any person having subscribed to a
submission of the party being served,
unless otherwise specified by law,
regulation, or directive of the presiding
officer. Proof of service shall accompany
all documents when they are tendered
for filing.
(g) If any document initiating, filed in,
or served in, a proceeding is not in
substantial compliance with the
applicable law, regulation, or directive
of the presiding officer, the presiding
officer may strike or dismiss all or part
of such document, or require its
amendment.
PO 00000
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(h) Any party to a proceeding may
appear and be heard in person or by an
authorized representative.
(i) Any person testifying at a hearing
or deposition may be accompanied,
represented, and advised by an attorney
or other representative, and may be
examined by that person.
(j) Any party may request to
consolidate or separate the hearing of
two or more petitions by motion to the
presiding officer, when they arise from
the same or similar facts or when the
matters are for any reason deemed more
efficiently heard together.
(k) Except as provided in § 245.407(e)
and paragraph (s)(4) of this section,
whenever a party has the right or is
required to take action within a period
prescribed by this part, or by law,
regulation, or directive of the presiding
officer, the presiding officer may extend
such period, with or without notice, for
good cause, provided another party is
not substantially prejudiced by such
extension. A request to extend a period
which has already expired may be
denied as untimely.
(l) An application to the presiding
officer for an order or ruling not
otherwise specifically provided for in
this part shall be by motion. The motion
shall be filed with the presiding officer
and, if written, served upon all parties.
All motions, unless made during the
hearing, shall be written. Motions made
during hearings may be made orally on
the record, except that the presiding
officer may direct that any oral motion
be reduced to writing. Any motion shall
state with particularity the grounds
therefor and the relief or order sought
and shall be accompanied by any
affidavits or other evidence desired to
be relied upon which is not already part
of the record. Any matter submitted in
response to a written motion must be
filed and served within 14 days of the
motion, or within such other period as
directed by the presiding officer.
(m) Testimony by witnesses at the
hearing shall be given under oath and
the hearing shall be recorded verbatim.
The presiding officer shall give the
parties to the proceeding adequate
opportunity during the course of the
hearing for the presentation of
arguments in support of or in opposition
to motions, and objections and
exceptions to rulings of the presiding
officer. The presiding officer may permit
oral argument on any issues for which
the presiding officer deems it
appropriate and beneficial. Any
evidence or argument received or
proffered orally shall be transcribed and
made a part of the record. Any physical
evidence or written argument received
or proffered shall be made a part of the
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record, except that the presiding officer
may authorize the substitution of
copies, photographs, or descriptions,
when deemed to be appropriate.
(n) The presiding officer shall employ
the Federal Rules of Evidence for United
States Courts and Magistrates as general
guidelines for the introduction of
evidence. Notwithstanding paragraph
(m) of this section, all relevant and
probative evidence shall be received
unless the presiding officer determines
the evidence to be unduly repetitive or
so extensive and lacking in relevancy
that its admission would impair the
prompt, orderly, and fair resolution of
the proceeding.
(o) The presiding officer may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided for in
§ 209.7 of this chapter;
(3) Adopt any needed procedures for
the submission of evidence in written
form;
(4) Examine witnesses at the hearing;
(5) Convene, recess, adjourn, or
otherwise regulate the course of the
hearing; and
(6) Take any other action authorized
by or consistent with the provisions of
this part and permitted by law that may
expedite the hearing or aid in the
disposition of the proceeding.
(p) The petitioner before the Board,
the railroad involved in taking the
certification action, and FRA shall be
parties at the hearing. All parties may
participate in the hearing and may
appear and be heard on their own behalf
or through designated representatives.
All parties may offer relevant evidence,
including testimony, and may conduct
such cross-examination of witnesses as
may be required to make a record of the
relevant facts.
(q) The party requesting the
administrative hearing shall be the
‘‘hearing petitioner.’’ The party that the
Board issued its decision in favor of will
be a respondent. At the start of each
proceeding, FRA will be a respondent as
well. The hearing petitioner shall have
the burden of proving its case by a
preponderance of the evidence.
(r) The record in the proceeding shall
be closed at the conclusion of the
evidentiary hearing unless the presiding
officer allows additional time for the
submission of additional evidence. In
such instances the record shall be left
open for such time as the presiding
officer grants for that purpose.
(s) At the close of the record, the
presiding officer shall prepare a written
decision in the proceeding. The
decision:
(1) Shall contain the findings of fact
and conclusions of law, as well as the
basis for each, concerning all material
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issues of fact or law presented on the
record;
(2) Shall be served on all parties to the
proceeding;
(3) Shall not become final for 35 days
after issuance;
(4) Constitutes final agency action
unless an aggrieved party files an appeal
within 35 days after issuance; and
(5) Is not precedential.
§ 245.411
Appeals.
(a) Any party aggrieved by the
presiding officer’s decision may file an
appeal in the presiding officer’s docket.
The appeal must be filed within 35 days
of issuance of the decision. A copy of
the appeal shall be served on each party.
The appeal shall set forth objections to
the presiding officer’s decision,
supported by reference to applicable
laws and regulations and with specific
reference to the record. If no appeal is
timely filed, the presiding officer’s
decision constitutes final agency action.
(b) A party may file a reply to the
appeal within 25 days of service of the
appeal. The reply shall be supported by
reference to applicable laws and
regulations and with specific reference
to the record, if the party relies on
evidence contained in the record.
(c) The Administrator may extend the
period for filing an appeal or a response
for good cause shown, provided that the
written request for extension is served
before expiration of the applicable
period provided in this section.
(d) The Administrator has sole
discretion to permit oral argument on
the appeal. On the Administrator’s own
initiative or written motion by any
party, the Administrator may grant the
parties an opportunity for oral
argument.
(e) The Administrator may remand,
vacate, affirm, reverse, alter, or modify
the decision of the presiding officer and
the Administrator’s decision constitutes
final agency action except where the
terms of the Administrator’s decision
(for example, remanding a case to the
presiding officer) show that the parties’
administrative remedies have not been
exhausted.
(f) An appeal from a Board decision
pursuant to § 245.403(e) must be filed in
the Board’s docket within 35 days of
issuance of the decision. A copy of the
appeal shall be served on each party.
The Administrator may affirm or vacate
the Board’s decision, and may remand
the petition to the Board for further
proceedings. An Administrator’s
decision to affirm the Board’s decision
constitutes final agency action.
PO 00000
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Sfmt 4702
35629
Appendix A to Part 245—Procedures
for Obtaining and Evaluating Motor
Vehicle Driving Record Data
(1) The purpose of this appendix is to
outline the procedures available to
individuals and railroads for complying with
the proposed requirements of § 245.111 of
this chapter. This provision requires that
railroads consider the motor vehicle driving
record of each person prior to issuing him or
her certification or recertification as a
dispatcher.
(2) To fulfill that obligation, a railroad is
required to review a certification candidate’s
recent motor vehicle driving record.
Generally, that will be a single record on file
with the State agency that issued the
candidate’s current motor vehicle driver’s
license. However, a motor vehicle driving
record can include multiple documents if the
candidate has been issued a motor vehicle
driver’s license by more than one State
agency or a foreign country.
Access to State Motor Vehicle Driving Record
Data
(3) The right of railroad workers, their
employers, or prospective employers to have
access to a State motor vehicle licensing
agency’s data concerning an individual’s
driving record is controlled by state law.
Although many States have mechanisms
through which employers and prospective
employers, such as railroads, can obtain such
data, there are some states where privacy
concerns make such access very difficult or
impossible. Since individuals are generally
entitled to obtain access to their driving
record data that will be relied on by a State
motor vehicle licensing agency when that
agency is taking action concerning their
driving privileges, FRA places the
responsibility on individuals who want to
serve as dispatchers to request that their
current state motor vehicle licensing agency
(or agencies) furnish such data directly to the
railroad that is considering certification (or
recertification) of the individual as a
dispatcher. Depending on the procedures
established by the state motor vehicle
licensing agency, the individual may be
asked to send the State agency a brief letter
requesting such action or to execute a state
agency form that accomplishes the same
effect. Requests for an individual’s motor
vehicle driving record normally involve
payment of a nominal fee established by the
State agency as well. In rare instances, when
a certification (or recertification) candidate
has been issued multiple licenses, an
individual may be required to submit
multiple requests.
(4) Once the railroad has obtained the
individual’s motor vehicle driving record(s),
the railroad is required to afford the
certification (or recertification) candidate an
opportunity to review and comment on the
record(s) in writing pursuant to § 245.301.
The railroad is also required to provide this
review opportunity before the railroad
renders a decision based on information in
the record(s). The railroad is required to
evaluate the information in the certification
(or recertification) candidate’s motor vehicle
driving record(s) pursuant to the provisions
of this part.
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Appendix B to Part 245—Medical
Standards Guidelines
(1) The purpose of this appendix is to
provide greater guidance on the procedures
that should be employed in administering the
vision and hearing requirements of
§§ 245.117 and 245.118.
(2) For any examination performed to
determine whether a person meets the vision
acuity requirements in § 245.117, it is
recommended that such examination be
performed by a licensed optometrist or a
technician who reports to a licensed
optometrist. It is also recommended that any
test conducted pursuant to § 245.117 be
performed according to any directions
supplied by the test’s manufacturer and any
ANSI standards that are applicable.
(3) For any examination performed to
determine whether a person meets the
hearing acuity requirements in § 245.118, it
is recommended that such examination be
performed by a licensed or certified
audiologist or a technician who reports to a
licensed or certified audiologist. It is also
recommended that any test conducted
pursuant to § 245.118 be performed
according to any directions supplied by the
test’s manufacturer and any ANSI standards
that are applicable.
(4) In determining whether a person has
the visual acuity that meets or exceeds the
requirements of this part, the following
testing protocols are deemed acceptable
testing methods for determining whether a
person has the ability to recognize and
distinguish among the colors used as signals
in the railroad industry. The acceptable test
methods are shown in the left-hand column
and the criteria that should be employed to
determine whether a person has failed the
particular testing protocol are shown in the
right-hand column.
TABLE 1 TO APPENDIX B OF PART 245
Accepted tests
Failure criteria
Pseudoisochromatic Plate Tests
American Optical Company 1965 ............................................................
AOC—Hardy-Rand-Ritter plates—second edition ...................................
Dvorine—Second edition ..........................................................................
Ishihara (14 plate) ....................................................................................
Ishihara (16 plate) ....................................................................................
Ishihara (24 plate) ....................................................................................
Ishihara (38 plate) ....................................................................................
Richmond Plates 1983 .............................................................................
5 or more errors on plates 1–15.
Any error on plates 1–6 (plates 1–4 are for demonstration—test plate 1
is actually plate 5 in book).
3 or more errors on plates 1–15.
2 or more errors on plates 1–11.
2 or more errors on plates 1–8.
3 or more errors on plates 1–15.
4 or more errors on plates 1–21.
5 or more errors on plates 1–15.
Multifunction Vision Tester
Keystone Orthoscope ...............................................................................
OPTEC 2000 ............................................................................................
Titmus Vision Tester .................................................................................
Titmus II Vision Tester .............................................................................
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(5) In administering any of these protocols,
the person conducting the examination
should be aware that railroad signals do not
always occur in the same sequence and that
‘‘yellow signals’’ do not always appear to be
the same. It is not acceptable to use ‘‘yarn’’
or other materials to conduct a simple test to
determine whether the certification
candidate has the requisite vision. No person
shall be allowed to wear chromatic lenses
during an initial test of the person’s color
vision; the initial test is one conducted in
accordance with one of the accepted tests in
the chart and § 245.117(c)(3).
(6) An examinee who fails to meet the
criteria in the chart may be further evaluated
as determined by the railroad’s medical
examiner. Ophthalmologic referral, field
testing, or other practical color testing may be
utilized depending on the experience of the
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Any
Any
Any
Any
error.
error.
error.
error.
examinee. The railroad’s medical examiner
will review all pertinent information and,
under some circumstances, may restrict an
examinee who does not meet the criteria for
serving as a dispatcher. The intent of
§§ 245.117(d) and 245.118(d) is not to
provide an examinee with the right to make
an infinite number of requests for further
evaluation, but to provide an examinee with
at least one opportunity to prove that a
hearing or vision test failure does not mean
the examinee cannot safely perform as a
dispatcher. Appropriate further medical
evaluation could include providing another
approved scientific screening test or a field
test. All railroads should retain the discretion
to limit the number of retests that an
examinee can request, but any cap placed on
the number of retests should not limit
retesting when changed circumstances would
PO 00000
Frm 00058
Fmt 4701
Sfmt 9990
make such retesting appropriate. Changed
circumstances would most likely occur if the
examinee’s medical condition has improved
in some way or if technology has advanced
to the extent that it arguably could
compensate for a hearing or vision
deficiency.
(7) Dispatchers who wear contact lenses
should have good tolerance to the lenses and
should be instructed to have a pair of
corrective glasses available when on duty.
Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2023–10772 Filed 5–30–23; 8:45 am]
BILLING CODE 4910–06–P
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]]>Agencies
[Federal Register Volume 88, Number 104 (Wednesday, May 31, 2023)]
[Proposed Rules]
[Pages 35574-35630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10772]
[[Page 35573]]
Vol. 88
Wednesday,
No. 104
May 31, 2023
Part IV
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 245
Certification of Dispatchers; Proposed Rule
Federal Register / Vol. 88 , No. 104 / Wednesday, May 31, 2023 /
Proposed Rules
[[Page 35574]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 245
[Docket No. FRA-2022-0019, Notice No. 1]
RIN 2130-AC91
Certification of Dispatchers
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: FRA proposes regulations for the certification of dispatchers,
pursuant to the authority granted in section 402 of the Rail Safety
Improvement Act of 2008.
DATES: Comments on the proposed rule must be received by July 31, 2023.
FRA will consider comments received after that date to the extent
practicable.
ADDRESSES:
Comments: Comments related to Docket No. FRA-2022-0019 may be
submitted by going to https://www.regulations.gov and following the
online instructions for submitting comments.
Instructions: All submissions must include the agency name, docket
number (FRA-2022-0019), and Regulatory Identification Number (RIN) for
this rulemaking (2130-AC91). All comments received will be posted
without change to https://www.regulations.gov; this includes any
personal information. 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 and follow the
online instructions for accessing the docket.
FOR FURTHER INFORMATION CONTACT: Curtis Dolan, Railroad Safety
Specialist, Dispatch Operating Practices, Federal Railroad
Administration, telephone: (470) 522-6633, email: [email protected];
or Michael C. Spinnicchia, Attorney Adviser, Federal Railroad
Administration, telephone: (202) 493-0109, email:
[email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Executive Summary
II. Legal Authority
III. Background
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by Executive Order 14094
B. Regulatory Flexibility Act and Executive Order 13272
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Impact
G. Executive Order 12898 (Environmental Justice)
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Privacy Act Statement
K. Executive Order 13175 (Tribal Consultation)
I. Executive Summary
Purpose of the Regulatory Action
FRA proposes to require railroads to develop programs for
certifying individuals who perform dispatching tasks on their networks.
Under this proposed rule, railroads would be required to have formal
processes for training prospective dispatchers, as well as verifying
that each dispatcher has the requisite knowledge, skills, safety
record, and abilities to safely perform all of the safety-related
dispatcher duties mandated by Federal laws and regulations, prior to
certification. In addition, railroads would be required to have formal
processes for revoking certification (either temporarily or
permanently) for dispatchers who violate specified minimum
requirements.
FRA is proposing this regulation in response to the Rail Safety
Improvement Act of 2008 (RSIA), which required the Secretary of
Transportation (Secretary) to submit a report to Congress addressing
whether certification of ``certain crafts or classes'' of railroad
employees or contractors, including railroad dispatchers, was necessary
to ``reduce the number and rate of accidents and incidents or to
improve railroad safety.'' If the Secretary determined it was necessary
to require the certification of certain crafts or classes to improve
railroad safety, section 402 of the RSIA stated the Secretary may
prescribe such regulations.
The Secretary submitted a report to Congress on November 4, 2015,
stating that, based on FRA's preliminary research, dispatchers were one
of the most viable candidate railroad crafts for certification. Given
the safety critical role of dispatchers in facilitating safe railroad
operations (which includes the coordination of emergency services in
response to accidents and incidents), FRA determined that railroad
safety is expected to be improved if dispatchers were required to
satisfy certain standards and be certified by their employing
railroads.
Summary of Major Provisions
This proposed rule would require railroads to develop written
programs for certifying individuals who work as dispatchers on their
territories and to submit those written certification programs to FRA
for approval prior to implementation. FRA would issue a letter to the
railroad when it approves a certification program, that explains the
basis for approval, and a program will not be considered approved until
the approval letter is issued.
FRA is proposing to require Class I railroads (including the
National Railroad Passenger Corporation), and railroads providing
commuter service, to submit their written certification programs to FRA
no later than eight (8) months after the final rule effective date.
Class II and Class III railroads would be required to submit their
written certification plans sixteen (16) months after the final rule
effective date. New railroads that begin operation after the final rule
effective date would be required to submit their written certification
programs to FRA and obtain FRA approval before commencing operations.
In addition, railroads seeking to materially modify their FRA-approved
certification programs would be required to obtain FRA approval prior
to modifying their programs.
Railroads would be required to evaluate certification candidates in
multiple areas, including prior safety conduct as a motor vehicle
operator, prior safety conduct as an employee of a different railroad,
substance abuse disorders and alcohol/drug rules compliance, and vision
and hearing acuity.
The proposed rule also contains minimum requirements for the
training provided to prospective dispatchers. The proposed requirements
are intended to ensure that certified dispatchers have received
sufficient training before they are hired to work as dispatchers on the
railroad. The proposed requirements are also intended to ensure that
certified dispatchers periodically receive recurring training on
railroad safety and operating rules and practices, as well as
comprehensive training on the use of new dispatching systems and
technology before they are introduced on the railroads in revenue
service.
With the exception of individuals designated as certified
dispatchers prior to FRA approval of the railroad's
[[Page 35575]]
dispatcher certification program, the proposed rule would prohibit
railroads from certifying dispatchers for intervals longer than three
(3) years. This three-year limitation, which would be consistent with
the 36-month maximum period for certifying locomotive engineers in 49
CFR 240.217(c) and conductors in 49 CFR 242.201(c), would allow for
periodic re-evaluation of certified dispatchers to verify their
continued compliance with FRA's minimum safety requirements.
Subpart D of this proposed rule addresses the process and criteria
for denying and revoking certification. Proposed Sec. 245.301
describes the process a railroad would be required to undergo before it
denies an individual certification or recertification. This process
would include providing the certification candidate with the
information that forms the basis for the denial decision and giving the
candidate an opportunity to rebut such evidence. When a railroad denies
an individual certification or recertification, it must issue its
decision in writing, and the decision must comply with certain
requirements provided in the proposed rule.
A railroad could only revoke a dispatcher's certification if one of
eight events occurs. Generally, for the first revocable event that is
not related to a dispatcher's use of drugs or alcohol, the person's
certification would be revoked for 30 days. If an individual
accumulates more of these violations in a given time period, the
revocation period (period of ineligibility) would become increasingly
longer.
If a railroad acquires reliable information that a certified
dispatcher has violated an operating rule or practice requiring
decertification under the proposed rule, it shall suspend the
dispatcher's certificate immediately while it determines whether
revocation of the certificate is warranted. In such circumstances,
dispatchers would be entitled to a hearing. Similar to a railroad's
decision to deny an individual certification, a railroad's decision to
revoke a dispatcher's certification would be required to satisfy
certain requirements. Finally, if an intervening cause prevented or
materially impaired a dispatcher's ability to comply with a railroad
operating rule or practice, the railroad would not revoke the
dispatcher's certification.
Subpart E of this proposed rule discusses the dispute resolution
process for individuals who wish to challenge a railroad's decision to
deny certification, deny recertification, or revoke certification. This
dispute resolution process mirrors the process used for locomotive
engineers and conductors under 49 CFR parts 240 and 242, respectively.
Finally, the proposed rule contains two appendices. Appendix A
discusses the procedures that a person seeking certification or
recertification should follow to furnish a railroad with information
concerning their motor vehicle driving record. Appendix B provides
guidance on the procedures railroads should employ in administering the
vision and hearing requirements under Sec. Sec. 245.117 and 245.118.
This proposed rule does not revise 49 CFR part 241, United States
Locational Requirement for Dispatching of United States Rail
Operations. Furthermore, this proposed rule would not apply to
dispatchers located outside of the United States as ``[i]t is a
longstanding principle of American law `that legislation of Congress,
unless a contrary intent appears, is meant to apply only within the
territorial jurisdiction of the United States.' '' \1\
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\1\ E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 248
(1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284-85
(1949)).
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Costs and Benefits
FRA analyzed the economic impact of this proposed rule. FRA
estimated the costs to be incurred by railroads and the Government. FRA
also estimated the benefits of fewer dispatcher-caused accidents.
FRA is proposing regulations establishing a formal certification
process for railroad dispatchers. As part of that process, railroads
would be required to develop a program meeting specific requirements
for training current and prospective dispatchers, documenting and
verifying that the holder of the certificate has achieved certain
training and proficiency, and creating a comprehensive record,
including of safety compliance infractions, that other railroads can
review when considering individuals for certification.
This proposed regulation would ensure that dispatchers are properly
trained, are qualified to perform their duties, and meet Federal safety
standards. Additionally, this proposed regulation is expected to
improve railroad safety by reducing the rate of accidents/incidents.
FRA estimates the 10-year costs of the proposed rule to be $5.3
million, discounted at 7 percent. The estimated annualized costs would
be $0.8 million discounted at 7 percent. The following table shows the
total costs of this proposed rule, over the 10-year analysis period.
---------------------------------------------------------------------------
\2\ Numbers in this table and subsequent tables may not sum due
to rounding.
Total 10-Year Discounted Costs (2020 Dollars) \2\
----------------------------------------------------------------------------------------------------------------
Present value 7% Present value 3% Annualized 7% Annualized 3%
Category ($) ($) ($) ($)
----------------------------------------------------------------------------------------------------------------
Development of Certification Program.... 929,395 953,949 132,325 111,832
Certification Eligibility Requirements.. 55,360 61,963 7,882 7,264
Recertification Eligibility Requirements 65,831 83,877 9,373 9,833
Training................................ 707,334 812,820 100,708 95,287
Knowledge Testing....................... 233,988 281,581 33,315 33,010
Vision and Hearing...................... 1,586,913 1,909,692 225,941 223,874
Monitoring Operational Performance...... 256,017 305,956 36,451 35,867
Railroad Oversight Responsibilities..... 267,530 326,714 38,090 38,301
Certification Card...................... 26,832 32,289 3,820 3,785
Petitions and Hearings.................. 8,198 9,797 1,167 1,149
Government Administrative Cost.......... 1,208,191 1,361,239 172,019 159,579
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Total............................... 5,345,589 6,139,877 761,092 719,781
----------------------------------------------------------------------------------------------------------------
[[Page 35576]]
This rule is expected to reduce the likelihood of an accident
occurring due to dispatcher error. FRA has analyzed accidents over the
past five years to categorize those where dispatcher training and
certification would have impacted the accident. FRA then estimated
benefits based on that analysis.
The following table shows the estimated 10-year quantifiable
benefits of the proposed rule. The total 10-year estimated benefits
would be $0.8 million (PV, 7%) and annualized benefits would be $0.1
million (PV, 7%).
Total 10-Year Discounted Benefits (2020 Dollars)
----------------------------------------------------------------------------------------------------------------
Present value 3% Annualized 7% Annualized 3%
Present value 7% ($) ($) ($) ($)
----------------------------------------------------------------------------------------------------------------
785,599................................................... 918,450 111,852 107,670
----------------------------------------------------------------------------------------------------------------
This proposed rule would also provide unquantifiable benefits. FRA
has quantified the monetary impact from accidents reported on FRA
accident forms. However, some accident costs are not required to be
reported on FRA accident forms (e.g., environmental impact). That
impact may account for additional benefits not quantified in this
analysis. If these costs were realized, accidents affected by this
proposed rulemaking could have much greater economic impact than the
quantitative benefit estimates provided here.
There is also a chance of a high impact event due to a dispatcher
error. This could involve fatalities, injuries, and environmental
damage, as well as impacting railroads, communities, and the public.
FRA has not estimated the likelihood of such an accident, but this
proposed rule is expected to reduce the risk that an accident of that
magnitude.
II. Legal Authority
Pursuant to the Rail Safety Improvement Act of 2008, Public Law
110-432, sec. 402, 122 Stat. 4848, 4884 (Oct. 16, 2008) (hereinafter
``RSIA''), the Secretary of Transportation (Secretary) was required to
submit a report to Congress addressing whether certification of certain
crafts or classes of employees, including dispatchers, was necessary to
reduce the number and rate of accidents and incidents or to improve
railroad safety.\3\ If the Secretary determined it was necessary to
require the certification of certain crafts or classes of employees to
reduce the number and rate of accidents and incidents or to improve
railroad safety, section 402 of the RSIA stated the Secretary may
prescribe such regulations. The Secretary delegated this authority to
the Federal Railroad Administrator. 49 CFR 1.89. In response to the
RSIA, the Secretary submitted a report to Congress on November 4,
2015,\4\ stating that, based on FRA's preliminary research, dispatchers
and signal employees were potentially the most viable candidate
railroad crafts for certification. Based on the analysis in Section III
below, the Federal Railroad Administrator has determined that it is
necessary to require the certification of railroad dispatchers to
improve railroad safety.
---------------------------------------------------------------------------
\3\ See also 49 U.S.C. 20103 (providing FRA's general authority
to ``prescribe regulations and issues orders for every area of
railroad safety'').
\4\ www.regulations.gov/document/FRA-2022-0019-0001.
---------------------------------------------------------------------------
III. Background
1. Roles and Responsibilities of Dispatchers
Railroad dispatchers play an integral role in railroad safety and
operations. They are responsible for allocating and assigning track
use, ensuring that trains are routed safely and efficiently, and
ensuring the safety of personnel working on and around railroad track.
These are cognitively complex tasks that require integrating multiple
sources of information (e.g., information from train schedules,
computer displays of current track state, radio communication with
various personnel such as locomotive engineers, and in some cases,
projecting into the future (e.g., estimating when the train will
arrive)); and balancing multiple demands placed on track use (e.g.,
balancing the need for maintenance-of-way workers to have time to work
on the track with the need to make sure that the track will be clear
when a train is anticipated to arrive). Some of the main tasks \5\
dispatchers perform involve: operation monitoring (monitoring a
computerized train dispatching model board); information collection and
data entry (collecting information about slow orders and any blocking
protection required by railroad workers on the track); communication
(playing an important role in roadway worker planning and protection);
emergency response (working to limit the damage to human life and
property during an emergency); and knowledge of territory (knowing the
specific characteristics of the territory assigned to them).
---------------------------------------------------------------------------
\5\ As part of a contract with FRA, Foster-Miller, Inc.,
conducted research to develop a tool for assessing railroad
dispatcher task load. Task load is defined as the average time
demanded of a dispatcher in carrying out all job-related tasks at a
particular desk, over a specified period of time (e.g., one shift).
Stephen J. Reinach, Toward the Development of a Performance Model of
Railroad Dispatching 2042-46 (Proceedings of the Human Factors and
Ergonomics Society 50th Annual Meeting, 2006). A copy of this report
can be found at https://railroads.dot.gov/elibrary/proceedings-human-factors-and-ergonomics-society-50th-annual-meeting-2006.
---------------------------------------------------------------------------
Over the past 5 to 10 years, the job of a railroad dispatcher has
become more complex and demanding. The number of dispatchers has
decreased over the years, and dispatcher territory is expanding due to
this decrease. Also, with the advancement of Positive Train Control
(PTC), dispatchers must understand the interface between the computer-
aided dispatching system and the train control system, with respect to
the safe movement of trains and other on-track equipment. Dispatchers
need to understand the operating rules applicable to the train control
system, including granting permission for movement and protection of
roadway workers; unequipped trains; trains with failed or cut-out train
control onboard systems; control system fails; and providing for safe
operations under the alternative method of operation. The availability
of affordable computer systems has made computer-aided dispatching
(CAD) feasible for many railroads. The improved communications systems
led to the acceptance of radio transmitted directives in place of the
traditional paper train orders that had been previously used. These
changes in communications and signal technology have also resulted in
the closing of block towers, eliminating the job of tower operator, a
job that was often on the career path to becoming a dispatcher.
Today, dispatchers are likely to use multiple computer screens and
electronic equipment, in addition to a communications system. However,
a short line railroad may still use hand-
[[Page 35577]]
written or verbal authorities to move trains across dark (unsignalled)
territory. The industry's adoption of new dispatching technology,
changes in operating rules and methods of operation, and railroad
industry restructuring all have potential safety consequences.
Additionally, excessive workloads and increases in occupational stress
could result from any of these factors. The role of the dispatcher
would also significantly increase with a possible increase in one-
person crew operations, as more vigilance and attention will be needed
to cover these operations. Additional one-person crew operations would
introduce increased workloads as the dispatcher will be the direct
``lifeline'' to the multiple one-person operations in a given assigned
territory.
2. FRA History of Certification
On January 4, 1987, an Amtrak train collided with a Conrail train
in Chase, Maryland, resulting in 16 deaths and 174 injuries. At the
time, it was the deadliest train accident in Amtrak's history. The
subsequent investigation by the National Transportation Safety Board
concluded that the probable cause of the accident was the impairment of
the Conrail engineer who was under the influence of marijuana at the
time of the collision.\6\
---------------------------------------------------------------------------
\6\ Railroad Accident Report: Rear-end Collision of Amtrak
Passenger Train 94, the Colonial and Consolidated Rail Corporation
Freight Train ENS-121, on the Northeast Corridor, Chase, Maryland,
January 4, 1987 144 (Nat'l Transp. Safety Bd. 1988).
---------------------------------------------------------------------------
Following this accident, Congress passed the Rail Safety
Improvement Act of 1988, Public Law 100-342, 4, 102 Stat. 624, 625
(1988), which instructed the Secretary of Transportation (Secretary) to
``issue such rules, regulations, orders, and standards as may be
necessary to establish a program requiring the licensing or
certification of any operator of a locomotive, including any locomotive
engineer.'' On June 19, 1991, FRA published a final rule establishing a
certification system for locomotive engineers and requiring railroads
to ensure that they only certify individuals who met minimum
qualification standards.\7\ In order to minimize governmental
intervention, FRA opted for a certification system where the railroads
issue the certificates as opposed to a government-run licensing system.
This final rule, published in 49 CFR part 240 (part 240), created
certification requirements for engineers that addressed various areas,
including vision and hearing acuity; training, knowledge, and
performance skills; and prior safety conduct.
---------------------------------------------------------------------------
\7\ 56 FR 28227 (June 19, 1991).
---------------------------------------------------------------------------
Seventeen years later, Congress passed the Rail Safety Improvement
Act of 2008, Public Law 110-432, 402, 122 Stat. 4848, 4884 (2008)
(hereinafter ``RSIA''), which mandated the creation of a certification
system for conductors. On November 9, 2011, FRA published a final rule
requiring railroads to have certification programs for conductors and
to ensure that all certified conductors satisfy minimum Federal safety
standards.\8\ The conductor certification rule, published in 49 CFR
part 242 (Part 242), was largely modeled after Part 240 with some
deviations based on the different job classifications. Part 242 also
included some organizational improvements which made the regulation
more streamlined than Part 240.
---------------------------------------------------------------------------
\8\ 76 FR 69801 (Nov. 9, 2011).
---------------------------------------------------------------------------
3. Statutory Background for Dispatcher Certification
In addition to requiring certification for conductors, the RSIA
required the Secretary to submit a report to Congress addressing
whether certain other railroad crafts or classes of employees would
benefit from certification. Specifically, section 402(b) of the RSIA
requires that the Secretary issue a report to Congress ``about whether
the certification of certain crafts or classes of railroad carrier or
railroad carrier contractor or subcontractor employees is necessary to
reduce the number and rate of accidents and incidents or to improve
railroad safety.'' As part of that report, section 402(c) specifically
requires the Secretary to consider dispatchers as one of the railroad
crafts for certification.
After identifying a railroad craft or class for which certification
is necessary, pursuant to the report to Congress discussed above,
section 402(d) authorizes the Secretary to ``prescribe regulations
requiring the certification of certain crafts or classes of employees
that the Secretary determines . . . are necessary to reduce the number
and rate of accidents and incidents or to improve railroad safety.''
4. Report to Congress
On November 4, 2015, the Secretary submitted the report to Congress
required under the RSIA. The report stated that, based on FRA's
preliminary research, dispatchers and signal repair employees were the
most viable candidates for certification. In reaching this
determination with respect to dispatchers, the Secretary cited a
variety of factors.
The report noted that dispatchers perform safety-sensitive work as
shown by dispatchers being covered under the hours-of-service laws; and
they are subject to regular and pre-employment random drug and alcohol
testing. In 2012 and 2013, dispatchers had the highest pre-employment
positive drug testing rate among all crafts. Annual drug and alcohol
testing data submitted to FRA in 2012 and 2013 showed a 0.68-percent
random positive drug testing rate and a 0.79-percent pre-employment
positive drug testing rate for dispatch employees compared to a 0.48-
percent random positive drug testing rate and a 0.46-percent pre-
employment positive drug testing rate for signal employees; and a 0.49-
percent random positive drug testing rate and a 0.55-percent pre-
employment positive drug testing rate for train and engine service
employees.\9\ The report noted that 49 CFR parts 240 and 242 require a
five-year alcohol and drug background check as well as disqualification
of employees for specified alcohol and drug test violations and for
refusing such testing. If such requirements were included in a
dispatcher certification program, it could help prevent dispatchers
with active substance abuse disorders from ``job hopping'' from one
employer to another and reduce the safety risk of having individuals
with untreated substance abuse disorders working as dispatchers.
---------------------------------------------------------------------------
\9\ Testing results submitted to FRA in 2020 and 2021 showed a
0.94-percent random violation rate (drug and alcohol positives and
refusals) rate and a 0.85-percent pre-employment violation rate for
dispatch employees compared to a 0.81-percent random violation rate
and a 0.79-percent pre-employment violation rate for signal
employees; and a 0.49-percent random positive drug testing rate and
a 0.55-percent pre-employment positive drug testing rate for train
and engine service employees.
---------------------------------------------------------------------------
Another important factor in the report was the complicated nature
of the work dispatchers perform to ensure the safety and efficiency of
railroad operations. Dispatchers are responsible for allocating and
assigning main track use to trains from their own employer as well as
trains from other railroads. They are also responsible for the safety
of roadway workers working on or near track. The report summarized the
demanding nature of dispatching by stating that it entails performing
cognitively complex tasks that require rapid decision making,
projecting into the future, and balancing numerous demands on track
use.
Additionally, the report cited a ``great amount of turnover'' in
the nationwide train dispatching workforce, resulting in a less
experienced workforce, as further support for requiring certification.
Finally, the report found that, with the
[[Page 35578]]
exception of train and engine crews, no function of railroad operations
is more critical to safety than dispatching. The accumulation of these
factors led to the report's conclusion that dispatching was a
potentially viable candidate for certification.
5. RSAC Working Group
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. 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.
On April 21, 2017, a task statement regarding certification of
dispatchers was presented to the RSAC by email, but no vote was taken.
On April 24, 2019, the RSAC accepted a task (No. 19-02) entitled
``Certification of Train Dispatchers.'' \10\ The purpose of the task
was ``[t]o consider whether rail safety would be enhanced by developing
guidance, voluntary standards, and/or draft regulatory language for the
certification of train dispatchers.'' The task called for the RSAC
Train Dispatcher Certification Working Group (Working Group) to perform
the following:
---------------------------------------------------------------------------
\10\ At the same meeting, the RSAC also accepted a task (No. 19-
03) titled ``Certification of Railroad Signal Employees.'' A
separate RSAC Working Group was formed to address this task, and FRA
plans to issue a related proposed rule that would establish
certification requirements for signal employees.
---------------------------------------------------------------------------
--Review critical tasks performed by dispatching employees for safe
train operations, particularly with the introduction of PTC technology.
--Review training, duration, content, and methodology for new hire
and continuing education.
--Review background checks designed to prevent dispatching
employees with active substance abuse disorders from ``job-hopping''
from one employer to another.
The task statement also asked the Working Group to address the
following issues, if appropriate:
--What requirements for training and experience are appropriate?
--What classifications of dispatchers should be recognized, if any?
--To what extent do existing requirements and procedures for
certification of locomotive engineers and conductor certification
provide a model for dispatcher certification?
--What types of unsafe conduct should affect a train dispatcher's
certification status?
--Do the existing locomotive engineer and conductor certifications
provide an adequate model for handling appeals from decertification
decisions of the railroads?
The Working Group, which included representatives from the
Association of American Railroads (AAR), American Public Transportation
Association, American Short Line and Regional Railroad Association
(ASLRRA), American Train Dispatchers Association, Brotherhood of
Railroad Signalmen, SMART Transportation, Commuter Rail Coalition, and
National Railroad Construction & Maintenance Association, held its
first and only meeting on September 4, 2019 in Washington, DC. At this
meeting, the Working Group reviewed the task statement from the RSAC,
discussed some of the safety-critical tasks performed by dispatchers,
and debated whether certification of dispatchers would be beneficial to
railroad safety. At the end of the meeting, action items were assigned
and the next meeting was tentatively scheduled for January 2020.
However, on December 16, 2019, the presidents of the American Train
Dispatchers Association, the Brotherhood of Railroad Signalmen, and the
International Brotherhood of Electrical Workers (collectively the
``Unions'') sent a letter to the FRA Administrator requesting that this
RSAC task be withdrawn from consideration at this time. The letter
stated the Unions were currently involved in numerous activities and
were not able to give the task proper attention. AAR and ASLRRA advised
the Unions that they were not opposed to this request. In response to
this letter, FRA withdrew this task from the RSAC, and the Working
Group became inactive.
6. Public Outreach
In 2021, FRA revisited the issue of establishing certification
requirements for dispatchers. The agency assembled subject matter
experts from FRA, the American Train Dispatchers Association (ATDA),
the International Brotherhood of Electrical Workers (IBEW), and the
Brotherhood of Railroad Signalmen to exchange facts and information
regarding the tasks performed by dispatchers. Those parties met
virtually several times between May 5, 2021 and June 30, 2021.
As part of FRA's outreach, a list of tasks performed by dispatchers
was developed. These tasks generally involved: track authorities;
mandatory directives; track worker protection; emergency response
coordination; or incident management. FRA reviewed each task to
determine whether correctly performing the task was critical to
railroad safety; what were the potential consequences if errors were
made while performing the task; and whether there were any recent
examples of issues or concerns with respect to the task. After
performing this analysis, FRA concluded that the vast majority of tasks
performed by dispatchers (80-90% of the listed tasks) were critical to
railroad safety with potentially catastrophic consequences, such as
accidents, injuries, and/or deaths, if the tasks were not performed
properly. In addition, because dispatchers provide incident management
and emergency response coordination, FRA concluded that by properly
performing their tasks, dispatchers can help reduce the consequences of
accidents and mitigate injuries.
During FRA's outreach, the benefits of certification based on the
experience of stakeholders with engineer and conductor certification
under 49 CFR parts 240 and 242 were also discussed. Some of the main
benefits of certification that were identified included:
--Creating a minimum standard for training to ensure that the
training encompasses all skills and proficiencies necessary to properly
perform all safety-related dispatcher functions;
--Establishing a record of safety compliance that will follow a
dispatcher if they wish to become certified by another railroad and
that can be used to review a dispatcher's performance and potential
training needs;
--Requiring certain safety checks, such as identifying active
substance abuse disorders, that can minimize the risks posed by job
hopping; and
--Establishing a system for individuals to dispute a railroad's
decision to deny or revoke certification with the aim of creating a
fair and consistent process for all parties.
Further, some parties noted that they had witnessed industry trends
to reduce the length and level of training for dispatchers which would
make certification even more beneficial. Based on these meetings, FRA
concluded that requiring certification for dispatchers would be an
important tool to ensure dispatchers are adequately trained and
qualified; have a documented record of performance; and are not able to
job hop without a new employer having knowledge of the dispatcher's
safety performance record.
[[Page 35579]]
Following this initial outreach, FRA held a follow-up conversation
with ATDA and IBEW, on March 3, 2022, and individuals from ATDA and
IBEW informed FRA of elements that they believe would be beneficial in
a dispatcher certification program. During this conversation, which was
held in videoconference format, FRA asked the attendees to provide
individualized feedback on how similar or different a dispatcher
certification rule should be to FRA's locomotive engineer and conductor
certification rules found in 49 CFR parts 240 and 242.
FRA heard that the agency needs to ensure that comprehensive
training is provided to dispatchers as the current training is
inadequate. FRA also heard that railroads are not providing enough
training on new technology and in some cases, training only consists of
a PowerPoint presentation or watching a video. It was also noted that
dispatchers are often told to ask their managers if they have
questions, but managers are not always knowledgeable about the craft
and often do not have sufficient expertise to answer such questions.
On March 7, 2022, FRA had a conversation with the railroad
industry, including the Norfolk Southern Corporation (NS), AAR, and
ASLRRA. During this conversation, which was conducted in a
videoconference format, FRA also asked for individualized feedback on
how FRA's locomotive engineer and conductor certification regulations
in 49 CFR parts 240 and 242 could be improved upon with respect to
dispatcher certification. Specifically, FRA asked for feedback on any
regulatory provisions in 49 CFR parts 240 and 242 that, in their
experience, may have been difficult to implement, as well as whether
FRA should explore any changes to these regulatory provisions.
AAR expressed opposition to FRA's proposal to issue regulations
requiring certification of dispatchers arguing that there was not a
safety benefit to certification. In addition, NS questioned the need
for certification regulations in the absence of any identified gaps in
coverage by existing railroad training programs. ASLRRA expressed
concern that FRA's proposal to issue regulations requiring dispatcher
certification would result in a large paperwork burden with little
benefit.
After this conversation, FRA provided a short list of written
questions to AAR and ASLRRA. While AAR did not provide additional
feedback in response to FRA's list of questions, ASLRRA responded to
FRA's list of written questions by email on April 13, 2022, a copy of
which has been placed in the docket.\11\
---------------------------------------------------------------------------
\11\ A record of public contact summarizing this meeting has
been posted in the rulemaking docket at: https://www.regulations.gov/document/FRA-2022-0019-0002.
---------------------------------------------------------------------------
On March 10, 2022, FRA staff had a follow-up conversation with ATDA
and IBEW to receive information on the types of errors and operating
practice violations that should result in a railroad revoking a
dispatcher's certification. During this conversation, which was
conducted in a video conference format, FRA heard that a dispatcher's
certification should not be revoked during an operations test, and that
a person training a dispatcher should not have their certification
revoked if a person they are training commits a revocable offense, as
long as the trainer took appropriate action. However, a list of
prospective revocable events was not generated during this meeting.
7. Contractors
FRA considered whether railroad contractors (and subcontractors)
should be authorized to certify their employees. FRA did not, however,
include that option in this proposed rule. Instead, consistent with
FRA's engineer and conductor certification regulations, this proposed
rule requires railroads to develop and submit certification programs to
FRA for approval and then implement their FRA-approved certification
programs. FRA is proposing to adopt this approach because railroads are
ultimately held responsible for the actions (or failure to act) of
their employees, contractors, and subcontractors when engaged in
railroad operations.
FRA acknowledges that dispatcher functions are increasingly being
contracted out by railroads to companies that specialize in this work.
However, railroads are most knowledgeable about the unique
characteristics of their territories. Therefore, railroads are best
suited to develop certification programs that are needed to ensure that
all employees responsible for allocating and assigning main track use,
routing trains safely and efficiently, and ensuring the safety of
roadway workers who are working on or near the railroad tracks have
been properly trained and certified on: (a) the railroad's rules and
practices for the safe movement of trains; (b) physical characteristics
of the territory for which the employee will be working as a
dispatcher; and (c) the dispatching systems and technology used by that
railroad. In addition, by keeping certification programs in-house,
railroads can implement quality control measures to ensure that their
FRA-approved certification programs are being implemented properly.
Nonetheless, FRA is soliciting comment on the approach adopted in
this proposed rule, which would require railroads to develop and
implement FRA-approved dispatcher certification programs. To ease any
potential burden, especially on Class III railroads, the proposed rule
would allow all railroads to choose between conducting the training or
using a training program conducted by a third-party, which would be
adopted and ratified by the railroad. In addition, contractors that
employ dispatchers could help railroads comply with the requirements in
this proposed rule by providing information about their dispatchers'
compliance with some of the proposed regulatory requirements. For
example, contractors could provide information about their dispatchers'
compliance with the vision and hearing acuity requirements in the
proposed rule. Under this proposed rule, however, railroads would
ultimately be liable for ensuring that only certified dispatchers are
permitted to perform dispatching tasks on their networks.
8. Interaction With Other FRA Regulations
While developing this proposed rule, FRA has been mindful of other
regulations that may touch upon topics covered in this proposed rule,
including FRA's training, qualification, and oversight regulations in
49 CFR part 243 (part 243); railroad safety risk reduction programs
(SSP/RRP) in 49 CFR parts 270 and 271 (part 270 and part 271); and
fatigue risk management programs (FRMP) in parts 270 and 271. However,
FRA finds that this proposed rule would complement, rather than
duplicate, those regulations.
Dispatchers are currently included in part 243's requirements for
training, qualification, and oversight for safety-related railroad
employees. However, part 243 does not require employees to undergo a
performance skill evaluation conducted by a qualified instructor to
verify adequate knowledge transfer. Therefore, even though railroads
(and third-party entities that employ dispatchers) are required to have
training programs in place for dispatchers, railroads are not required
to have effective processes in place to require prospective dispatchers
to exhibit the extent to which they have developed the necessary skills
to serve as an effective dispatcher.
[[Page 35580]]
Part 243 also does not require railroads to have formal processes
in place for promptly removing dispatchers from service if they violate
one or more basic regulatory standards that could have a significant
negative impact on the safety of rail operations. FRA's proposed
dispatcher certification regulatory requirements have been drafted to
help address this void, as well as prevent dispatchers who have been
fired for committing one or more of the revocable events discussed in
the proposed rule from ``job hopping'' and quickly resuming safety-
sensitive service at a different railroad that is unaware of the
dispatcher's prior violation(s) of FRA's rail safety requirements.
As codified in parts 270 and 271, FRA requires Class I railroads,
railroads with inadequate safety performance, and passenger rail
operations to implement railroad safety risk reduction programs. A
railroad safety risk reduction program is a comprehensive, system-
oriented approach to safety that determines an operation's level of
risk by identifying and analyzing identified hazards and developing
strategies to mitigate risks associated with those hazards. In this
background, FRA is using the term ``railroad safety risk reduction
programs'' to include both a ``system safety program'' (SSP) that is
required for certain passenger rail operations \12\ and a ``risk
reduction program'' (RRP) that is required for a limited number of
other rail operations.\13\
---------------------------------------------------------------------------
\12\ 49 CFR 270.3 (requiring the application of the system
safety rule to certain passenger rail operations).
\13\ 49 CFR 271.3 (requiring the application of the risk
reduction program rule to certain rail operations).
---------------------------------------------------------------------------
Although a railroad safety risk reduction program might address a
railroad's safety hazards and risks associated with its dispatchers,
the framework established by these programs neither directly addresses
the risks associated with dispatching nor establishes an industry-wide
approach.
First, not every railroad is required to have a railroad safety
risk reduction program. Indeed, FRA estimates that fewer than 100
railroads (out of approximately 750 under FRA's jurisdiction) will be
required to develop a railroad safety risk reduction program over the
next 10 years.
Second, even if a railroad is required to have a railroad safety
risk reduction program through which it identifies the risks associated
with dispatching, the railroad may decide not to implement mitigations
to eliminate or reduce those specific risks. Parts 270 and 271 permit
railroads to prioritize risks.\14\ Whether a railroad that is required
to have a program mitigates risks associated with dispatching will
depend on how the railroad prioritizes risks for mitigation and how
effectively that mitigation would promote continuous safety improvement
compared to mitigation of other identified hazards and risks. Thus,
even if aspects of dispatching are identified as a risk, a railroad may
not implement mitigations to eliminate or reduce that risk.
---------------------------------------------------------------------------
\14\ See e.g., 49 CFR 270.5 (definition of ``risk-based hazard
management'') and 271.103(b)(3).
---------------------------------------------------------------------------
Accordingly, while the SSP/RRP requirements may complement this
proposed rule, they do not address the need for FRA and the railroads
to consider and address the safety risks of dispatching across the
entire industry.
With respect to FRMPs,\15\ an FRMP is a comprehensive, system-
oriented approach to safety in which a railroad determines its fatigue
risk by identifying and analyzing applicable hazards, and developing
plans to mitigate, if not eliminate, those risks. Like the SSP/RRP
rules, the FRMP rule is part of FRA's continual efforts to improve rail
safety and will satisfy the statutory mandate of Section 103 of the
Rail Safety Improvement Act of 2008.\16\
---------------------------------------------------------------------------
\15\ On June 13, 2022, FRA published a final rule adding a FRMP
to the railroad safety risk reduction program requirements in Parts
270 and 271. 85 FR 83484.
\16\ Codified at 49 U.S.C. 20156.
---------------------------------------------------------------------------
Like the SSP/RRP requirements, there is no guarantee that any
railroad covered by the regulation will use an FRMP to address
dispatching issues. As with the SSP/RRP rules, a covered railroad must
identify fatigue hazards, assess the risks associated with those
fatigue hazards, and prioritize those risks for mitigation purposes. It
is possible that other fatigue risks, not associated with dispatching,
might rank higher, in which case the risk associated with dispatching
might not be promptly mitigated. Further, because the FRMP requirements
would apply only to those railroads required to comply with the SSP/RRP
requirements, an FRMP would not be required of every railroad that
performs dispatch tasks. Thus, like the SSP/RRP rules, this proposed
rule is complementary to the FRMP final rule and is not duplicative.
IV. Section-by-Section Analysis
Subpart A--General
Subpart A of the proposed rule contains general provisions,
including a formal statement of the proposed rule's purpose and scope.
The subpart also provides that this proposed rule does not constrain
the ability of a railroad to prescribe additional or more stringent
requirements for its dispatchers that are not inconsistent with this
proposed rule.
Section 245.1 Purpose and Scope
This section, derived from 49 CFR 240.1 and 242.1, indicates that
the purpose of the proposed rule is to ensure that only those persons
who meet minimum Federal safety standards serve as dispatchers, to
reduce the rate and number of accidents and incidents, and to improve
railroad safety.
Even though a person may have a job title other than dispatcher,
the requirements of this proposed rule would apply to that person if
they meet the definition of ``dispatcher.'' The definition of
``dispatcher,'' and an explanation of who is covered by the definition,
are discussed in more detail in the section-by-section analysis for
Sec. 245.7, below.
Section 245.3 Application and Responsibility for Compliance
The extent of FRA's jurisdiction, and the agency's exercise of that
jurisdiction, is well-established. See 49 CFR part 209, appendix A.
This proposed application and responsibility for compliance section is
consistent with FRA's Statement of Agency Policy Concerning Enforcement
of the Federal Railroad Safety Laws in appendix A to 49 CFR part 209.
This section, derived from 49 CFR 240.3 and 242.3, provides that
the proposed rule would apply to all railroads with four exceptions.
Paragraph (a)(1) of this section notes that this proposed rule would
not apply to railroads that do not perform any dispatch tasks. In
paragraph (a)(2), FRA proposes to exempt operations that occur within
the confines of industrial installations commonly referred to as
``plant railroads'' and typified by operations such as those in steel
mills that do not go beyond the plant's boundaries and that do not
involve the switching of rail cars for entities other than themselves.
Further explanation of what is meant by the term ``plant railroad'' is
provided in the section-by-section analysis for Sec. 245.7.
Paragraph (a)(3) of this section excludes ``tourist, scenic,
historic, and excursion operations that are not part of the general
railroad system of transportation'' (as defined in Sec. 245.7) from
compliance with this rule. Excluding these types of operations from
this rule is consistent with FRA's jurisdictional policy that excludes
these operations from all but a limited
[[Page 35581]]
number of Federal safety laws, regulations, and orders.
The final proposed exclusion covers rapid transit operations in an
urban area that are not connected to the general railroad system of
transportation. It should, however, be noted that FRA exercises
jurisdiction over some rapid transit type operations, given their links
to the general railroad system of transportation, such as rapid transit
operations conducted on track used for freight, intercity passenger, or
commuter passenger railroad operation, during a block of time during
which a general system railroad is not operating (temporal separation).
Thus, this proposed rule would apply to persons who perform dispatch
tasks for those rapid transit type operations.
Paragraph (b) is intended to clarify that any person, as defined in
Sec. 245.7, (including a railroad employee, employee of a railroad
contractor, or employee of a railroad subcontractor) who performs a
function required by this part will be held responsible for compliance.
Therefore, this proposed regulation would cover all dispatchers
regardless of whether they are employed by a railroad or a contractor.
Covering employees of both railroads and contractors is consistent with
other FRA regulations (such as FRA's training regulations in 49 CFR
part 243) and the general trend in the railroad industry. In many
instances, employees performing dispatch tasks for a railroad may be
employed by a company other than the railroad upon which the person is
working. In the interest of railroad safety, it is vital that all
dispatchers are properly trained and qualified regardless of whether
they are employed by a railroad or a contractor.
Section 245.5 Effect and Construction
This section is derived from 49 CFR 240.5 and 242.5. Paragraph (a)
addresses the relationship of this proposed rule to preexisting legal
relationships. Paragraph (b) states that FRA does not intend to alter
the authority of a railroad to initiate disciplinary sanctions against
its employees by issuance of this proposed rule.
Paragraph (c) of this section is intended to note that, as a
general matter, FRA does not intend to create or prohibit the right to
``flowback'' or take a position on whether ``flowback'' is desirable.
The term ``flowback'' has been used in the industry to describe a
situation where an employee leaves their current position to return to
a previously held position or craft. The reasons for reverting back to
the previous craft may derive from personal choice or a less voluntary
nature (such as downsizing). Many collective bargaining agreements
address the issue of flowback. However, paragraph (c) must be read in
conjunction with Sec. 245.213, which limits flowback in certain
situations (i.e., when a certificate is revoked due to an alcohol or
drug violation).
Paragraph (d) of this section addresses employee rights. The
proposed rule would explicitly preserve any remedy already available to
the person and would not create any new entitlements.
Section 245.7 Definitions
This section, derived from 49 CFR 240.7 and 242.7, defines a number
of terms that have specific meaning in this proposed part. A few of
these terms have definitions that are similar to, but may not exactly
mirror, definitions used elsewhere in this chapter.
Dispatch
FRA proposes to use the definition of ``dispatch'' found in 49 CFR
241.5. This definition sets the limits of what constitutes a dispatcher
and provides examples of the types of activities FRA intends to cover
and not cover under this definition. Under this definition, the
function that the individual is performing determines whether a person
is dispatching. Factors such as an individual's job title, location,
and whether the individual is employed by a railroad, are irrelevant to
the determination of whether the individual is dispatching.
Furthermore, FRA does not intend for yardmasters, as a job category, to
fall within the scope of this definition. Yardmasters are only covered
by this part when they are performing dispatching functions.
Paragraph (1)(i) of the definition gives specific examples of the
types of functions that an individual would perform in order to be
considered dispatching. In particular, FRA intends that anyone
controlling the movement of on-track equipment requiring a power brake
test under 49 CFR parts 232 or 238, would be considered dispatching
and, therefore, would fall within the scope of the rule. Another type
of movement that FRA intends to include is the movement of certain
other on-track equipment, such as specialized maintenance-of-way
equipment, that is not subject to the power brake regulations. However,
as expressed in proposed paragraph (2)(iii), FRA intends to exclude
movements of on-track equipment used in the process of sorting and
grouping rail cars inside a railroad yard in order to assemble or
disassemble a train.
Paragraph (1)(i) also explicitly notes two methods of controlling
movements that fall within the scope of the definition. The first
method that FRA considers dispatching is controlling movements by the
issuance of a written or verbal authority or permission that affects a
railroad operation, such as through movement authorities and speed
restrictions, and includes the following: Track Warrants, Track
Bulletins, Track and Time Authority, Direct Traffic Control
Authorities, and any other methods of conveying authority for trains
and engines to operate on a main track, controlled siding, or other
track controlled by a dispatcher.
The second method that falls within the scope of the definition of
``dispatch'' is to control a movement ``by establishing a route through
the use of a signal or train control system but not merely by aligning
or realigning a switch.'' This provision makes clear that the act of
aligning or realigning a switch alone is not sufficient to constitute
dispatching. In order to constitute dispatching under this part,
aligning or realigning a switch must be accompanied by the act of
setting a signal authorizing movement over a track segment.
Paragraph (1)(ii) of the definition of ``dispatch'' clarifies that
those railroad employees who issue an authority for either a roadway
worker or stationary on-track equipment, or both, to occupy a certain
stretch of track while performing repairs, inspections, etc., will also
be covered by this rule. FRA included this section to distinguish this
activity from that of authorizing movement of trains or other on-track
equipment onto track, which is covered by paragraph (1)(i) above.
Paragraph (1)(iii) of the definition of ``dispatch'' states another
function of a dispatcher, which is to issue an authority for working
limits to a roadway worker.
Finally, paragraph (2) of the definition of ``dispatch'' clarifies
that the term excludes several types of activities. Paragraph (2)
limits the exclusions, however, to personnel in the field. Paragraph
(2)(i) specifically excludes from the scope of the definition the
carrying out of a written or verbal authority or permission or an
authority for working limits. As further clarification, paragraph
(2)(i) notes two examples of activities that would fall under the
exclusion, provided they were carried out by field personnel:
initiating an interlocking timing device and authorizing a train to
enter working limits. Paragraph (2)(ii) specifically excludes from the
scope of the definition the operation by field personnel of a function
of a signal
[[Page 35582]]
system intended to be used by those field personnel, such as initiating
an interlocking timing device.
Drug
Consistent with parts 240 and 242, FRA proposes to define ``drug''
as any substance (other than alcohol) that has known mind- or function-
altering effects on a human subject, specifically including any
psychoactive substance and including, but not limited to, controlled
substances. This term is intended to refer to substances that have a
significant potential for abuse and/or dependence. Normal ingestion of
caffeine in beverages and use of nicotine from tobacco products, even
though involving some degree of habituation or dependence, are not
intended to be included within the definition.
Person
In this proposed part, person takes on the same meaning as it does
in FRA's other safety rules. The term means ``an entity of any type
covered under 1 U.S.C. 1'' and the definition goes into detail
regarding the types of people and entities that are covered.
Plant Railroad
FRA proposes a definition of plant railroad consistent with FRA's
longstanding policy. See 49 CFR part 209, app. A.
Substance Abuse Disorder
Consistent with parts 240 and 242, the term ``substance abuse
disorder'' is defined as a psychological or physical dependence on
alcohol or a drug, or another identifiable and treatable mental or
physical disorder involving the abuse of alcohol or drugs as a primary
manifestation.
This proposed definition would include drug and alcohol users who
engage in abuse patterns which result in ongoing safety risks and
violations.
A substance abuse disorder is ``active'' within the meaning of this
proposed rule if the person: (1) is currently using alcohol or other
drugs, except under medical supervision consistent with the
restrictions described in Sec. 219.103 of this chapter; or (2) has
failed to successfully complete primary treatment or successfully
participate in aftercare as directed by a Substance Abuse Professional
(SAP) or Drug and Alcohol Counselor (DAC).
Section 245.9 Waivers
This section, derived from 49 CFR 240.9 and 242.9, provides the
proposed requirements for a person seeking a waiver of any section of
this proposed rule.
Section 245.11 Penalties and Consequences for Noncompliance
This section, derived from 49 CFR 240.11 and 242.11, explains that
FRA may impose civil penalties on any person, including a railroad or
an independent contractor or subcontractor providing goods or services
to a railroad, that violates any requirement of this proposed rule. Any
person who violates a requirement of this proposed rule may be subject
to civil penalties between the minimum and maximum amounts authorized
by statute and adjusted for inflation per violation. Individuals may be
subject to penalties for willful violations only. Where a pattern of
repeated violations, or a grossly negligent violation creates an
imminent hazard of death or injury, or causes death or injury, an
aggravated maximum penalty may be assessed.\17\ In addition, each day a
violation continues constitutes a separate offense. Finally, a person
may be subject to criminal penalties under 49 U.S.C. 21311 for
knowingly and willfully falsifying reports required by these proposed
regulations.
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\17\ Please visit FRA's website for the current aggravated
maximum penalty amount at https://railroads.dot.gov/.
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Consistent with FRA's final rule regarding the removal of civil
penalty schedules from the CFR (84 FR 23730 (May 23, 2019)), FRA will
not publish a civil penalty schedule for this rule in the CFR, but
plans to publish a civil penalty schedule on its website. Penalty
schedules are statements of agency policy, thus notice and comment are
not required prior to their issuance, nor are they required to be
published in the CFR. See 5 U.S.C. 553(b)(3)(A). Nevertheless,
commenters are invited to suggest the types of actions or omissions
under each regulatory section that would subject a person to the
assessment of a civil penalty. Commenters are also invited to recommend
what penalty amounts may be appropriate, based upon the relative
seriousness of each type of violation.
Subpart B--Program and Eligibility Requirements
Section 245.101 Certification Program Required
This section, derived from 49 CFR 240.101 and 242.101, would
require railroads to have written certification programs comprised of
at least seven elements, each of which comports with specific
regulatory provisions in the proposed rule related to that element.
Section 245.103 FRA Review of Certification Programs
This proposed section, derived from 49 CFR 240.103 and 242.103,
describes the process for the submission and review of dispatcher
certification programs. Paragraph (a) of this section would only apply
to railroads that have existing dispatching operations on the effective
date of the final rule and provides the deadlines for when these
railroads would be required to submit their certification programs to
FRA. The submission schedule would require Class I railroads and
commuter service railroads to submit their programs earlier than Class
II railroads, Class III railroads, and railroads not otherwise
classified. The separate deadlines would help space out the initial
influx of programs FRA will receive after the final rule goes into
effect, to allow FRA to issue approval and disapproval decisions in a
more timely manner. FRA also presumes that, in general, Class I
railroads and commuter service railroads will have more resources to
devote to creating these programs and will be better positioned to
create and draft them more quickly.
Paragraph (b) of this section would only apply to railroads that do
not have existing dispatching operations on the effective date of the
final rule. If such railroads wish to begin dispatching operations,
they would be required to submit their program to FRA, and FRA must
approve their program, before they begin dispatching operations.
Paragraph (c) of this section provides that railroads would submit
their programs and their requests for approval (which are described in
greater detail in Sec. 245.107(a)) by uploading them to a secure
document submission site. This will allow for more efficient processing
and will significantly reduce the risk of a program submission getting
lost. FRA will need basic information from each railroad before setting
up the user's account. In order to provide secure access, information
regarding the points of contact is required. It is anticipated that FRA
will be able to approve or disapprove all or part of a program and
generate automated notifications by email to a railroad's points of
contact.
FRA does not intend to develop a secure document submission site so
that confidential materials are identified and not shared with the
general public. This is because FRA does not expect the information in
a program to be of such a confidential or proprietary nature,
particularly since each railroad would be required to share the program
submission, resubmission, or material modification all of its
dispatchers as
[[Page 35583]]
well as with the president of each labor organization that represents
the railroad's certified dispatchers, and the programs will be
available on FRA's website. See Sec. 245.103(d) and (j). Accordingly,
FRA does not at this time believe it is necessary to develop a document
submission system which addresses confidential materials.
When a railroad submits its certification program to FRA, paragraph
(d) of this section requires the railroad to also submit a copy of the
program and the request for approval to the president of each labor
organization that represents the railroad's dispatchers and to all of
the railroad's dispatchers that are subject to this part. The
railroad's submission to FRA must include a statement affirming that it
has provided a copy of the program and the request for approval to the
president of each labor organization that represents the railroad's
dispatchers and to all of the railroad's dispatchers that are subject
to this part. In addition, the submission must include a list of the
names and email addresses of each labor organization president who
received a copy of the program. Paragraph (e) of this section provides
instruction on who is allowed to comment on these programs. For
dispatchers who are members of a labor union, any comments must be
submitted by a designated representative. For dispatchers who are not
members of a labor union, they can personally submit a comment on their
railroad's certification program. FRA anticipates that comments
submitted under this process will assist the agency in determining
whether a program conforms to the requirements set forth in this rule,
and thus, FRA will not make a decision on a program until after the 45-
day comment period in paragraph (e)(1) has passed.
Paragraph (f) of this section states FRA's aspirational goal to
decide on whether to approve a program within 90 days of the date that
the program is submitted. However, this is only a goal and not a
deadline for the agency. Paragraph (f)(3) makes clear that if FRA is
unable to issue a decision on the program within 90 days, the program
is not considered approved on the 91st day. A certification program
will not be approved until FRA issues a letter notifying the railroad
that its program has been approved. While FRA will make every effort to
issue approval and disapproval letters within 90 days, FRA recognizes
that this will not always be possible. It may be especially difficult
for FRA to meet this goal during the initial implementation of this
rule when FRA expects to receive many certification programs within a
relatively short period of time.
Paragraph (g) of this section addresses the process for railroads
who wish to materially modify their previously approved programs. If a
railroad wishes to materially modify its program, it must submit two
documents to FRA: (1) a description of how it intends to modify its
current program (this constitutes the request for approval required
under Sec. 245.107(a)); and (2) a copy of the modified program.
Paragraph (g)(1) defines a ``material modification'' as a modification
that ``would affect the program's conformance with this part.'' This
definition is taken from 49 CFR 240.103(h)(1) and 242.103(i)(1) and is
intentionally broad to cover the innumerable modifications to a program
that could be considered material. FRA recognizes that there may be a
desire among some interested parties to have a more specific definition
of ``material modification'' in the regulation. Thus, FRA welcomes any
comments on suggested changes to the ``material modification''
definition.
Paragraph (g)(3) notes that the process for submission and review
of material modifications mirrors the process for submission and review
of initial certification programs. Railroads shall submit their
material modifications to FRA in conformance with paragraph (c) of this
section and shall send a copy of the material modification description
and the modified program to all required parties referenced in
paragraph (d) of this section. Certain interested parties may comment
on the modification in conformance with paragraph (e) of this section,
and FRA will issue a letter either approving or disapproving the
material modification in conformance with paragraph (f) of this
section. If FRA approves the material modification, the railroad can
begin implementing the modification and the modified program will
replace the original program. If FRA disapproves the material
modification, the railroad cannot implement the modification, and the
original program must remain in effect. If a railroad's material
modification submission contains multiple modifications, FRA reserves
the right to approve some modifications while disapproving other
modifications. In such an instance, the railroad can only begin
implementing those modifications that FRA has approved.
Paragraph (h) of this section describes the process to resubmit a
program or material modification that was previously disapproved by
FRA. Paragraph (h)(2) notes that the process for submission and review
of resubmitted programs and material modifications mirrors the process
for submission and review of initial certification programs. Railroads
shall resubmit their initial programs or material modifications to FRA
in conformance with paragraph (c) of this section and shall send a copy
of the resubmitted program or material modification to all required
parties referenced in paragraph (d) of this section. Certain interested
parties may comment on the resubmitted program or material modification
in conformance with paragraph (e) of this section and FRA will issue a
letter either approving or disapproving the resubmitted program or
material modification in conformance with paragraph (f) of this
section.
Paragraph (h)(3) provides the deadlines, if any, for when a
railroad must resubmit its program or material modification to FRA.
Railroads with existing dispatching operations on the effective date of
the final rule (legacy railroads), whose initial programs are
disapproved by FRA, must resubmit their program within 30 days of the
date FRA notified the railroad that its program was deficient. If a
legacy railroad fails to resubmit its program within 30 days and
continues its dispatching operations, FRA will determine the
appropriate enforcement approach to achieve compliance, including civil
penalties and/or an emergency order.
FRA believes a 30-day deadline is needed for legacy railroads
because Sec. 245.105(a) allows legacy railroads to continue
dispatching operations while they await FRA approval of their programs.
Thus, without a deadline, legacy railroads could purposely delay coming
into compliance with this proposed rule by taking months or even years
to resubmit their programs. In contrast, railroads that begin
dispatching operations after the effective date of this proposed rule
cannot begin such operations until FRA approves their program.
Likewise, any railroad (both legacy and non-legacy) cannot implement a
material modification to its program until FRA has approved the
modification. Therefore, in these scenarios, FRA decided that a
deadline is unnecessary because the railroads have every incentive to
resubmit their programs or material modifications in a timely manner.
However, while there is no FRA-imposed deadline in these scenarios, FRA
still recommends that railroads provide their resubmissions within 30
days of being notified of deficiencies.
[[Page 35584]]
Paragraph (i) of this section acknowledges that FRA reserves the
right to revisit a prior approval of a certification program. In
certain circumstances, including an audit of a certification program,
FRA may discover that it made an error when it previously approved a
program. This paragraph allows FRA to rescind a prior approval while
also providing the railroads with certain rights. Paragraph (i)(3)
notes that the process for submission and review of programs whose
prior approval has been rescinded mirrors the process for submission
and review of initial certification programs, and resubmission of
initially disapproved programs. Railroads shall resubmit their programs
to FRA in conformance with paragraph (c) of this section and they shall
send a copy of the resubmitted program to all required parties
referenced in paragraph (d) of this section. Certain interested parties
may comment on the resubmitted program in conformance with paragraph
(e) of this section and FRA will issue a letter either approving or
disapproving the resubmitted program in conformance with paragraph (f)
of this section.
Paragraphs (i)(6) and (7) allow for a grace period where a
rescinded program may remain in effect for a certain period of time.
However, once FRA approves a resubmitted program, the resubmitted
program must replace the rescinded program. In addition, a rescinded
program can no longer remain in effect if FRA has twice disapproved the
railroad's resubmitted program. This latter scenario is best explained
through an example: On February 10th, FRA notifies ABC Railroad (ABC)
that FRA is rescinding its prior approval of its dispatcher
certification program. On March 10th, ABC resubmits its program to FRA.
On June 10th, FRA disapproves ABC's resubmitted program. On July 10th,
ABC sends FRA its second resubmitted program. On October 10th, FRA
issues a letter once again disapproving ABC's program. In this example,
ABC's rescinded program could remain in effect between February 10th
and October 10th. However, after October 10th, the rescinded program
could no longer be in effect. If ABC continued to perform dispatching
operations after October 10th, while it did not have an FRA-approved
certification program, FRA could find that the railroad failed to
implement a program. In such cases, FRA will determine the appropriate
enforcement approach to achieve compliance, including civil penalties
and/or an emergency order. In exercising its enforcement discretion,
FRA may consider such factors as the number and extent of the remaining
deficiencies in the program and whether the railroad made good faith
efforts to address the deficiencies in its resubmissions.
Finally, paragraph (j) of this section notes that the following
documents will be available on FRA's website (railroads.dot.gov): (1)
submitted programs and material modifications from the railroads; (2)
any comments to the submissions from the railroads; and (3) the letters
from FRA either approving or disapproving a program or a material
modification. While parts 240 and 242 do not currently require the
posting of these documents on FRA's website, the current practice, with
respect to locomotive engineer and conductor certification programs,
has been for FRA to post comments to a railroad's submission and FRA
approval and disapproval letters on its website. FRA is proposing this
paragraph (j) in an effort to make the review and approval process of
dispatcher certification programs as transparent as possible.
Section 245.105 Implementation Schedule for Certification Programs
This section, derived from 49 CFR 240.201 and 242.105, contains the
timetable for the implementation of this proposed rule. Paragraph (a)
of this section acknowledges that railroads with existing dispatching
operations on the effective date of this proposed rule (legacy
railroads) may continue their dispatching operations while they await
FRA's approval of their certification programs. However, if FRA
disapproves a legacy railroad's certification program on two occasions
(the initial submission and the first resubmission), the railroad will
no longer be in compliance with the rule if it continues its
dispatching operations without an FRA-approved program. In such a
scenario, FRA could find that the railroad has failed to implement a
program and would determine the appropriate enforcement approach to
achieve compliance, including civil penalties and/or an emergency
order. In exercising this enforcement discretion, FRA may consider such
factors as the number and extent of the remaining deficiencies in the
program and whether the railroad made good faith efforts to comply with
the requirements of the rule through its submitted program. Paragraph
(b) of this section provides that any non-legacy railroad (a railroad
that did not have existing dispatching operations on the effective date
of this proposed rule) may not commence dispatching operations until
FRA has approved its dispatcher certification program.
Paragraphs (c) and (d) of this section require that railroads, in
writing, designate as certified dispatchers all persons authorized by
the railroad to perform the duties of a dispatcher as of the effective
date of the final rule, or authorized between the effective date of the
final rule and the date FRA approves the railroad's certification
program. Railroads must also issue a certificate to each person they
designate. This designation system is modeled after the system used
when parts 240 and 242 first went into effect. This system allows such
``legacy dispatchers'' to obtain a certificate so that once their
railroad's program is approved, they will be considered a ``previously
certified dispatcher'' when it comes time for them to be recertified
through the railroad's certification program. Therefore, the
recertifying railroad will not have to provide legacy dispatchers with
the kind of basic training that would be given to individuals with no
dispatching experience. In other words, a person with 20 years of
experience as a dispatcher most likely does not need to take a
``Dispatching 101'' course that goes over the basics of dispatching.
Instead, this person would be better served by undergoing continuing
education training as described in Sec. Sec. 245.107(b)(2) and
245.119(j).
Paragraph (e) of this section states that after this rule has been
in effect for eight months, no person may serve as a dispatcher unless
that person is certified. Paragraph (f) of this section requires each
railroad to make formal determinations concerning those individuals it
has designated as dispatchers within three years after FRA's approval
of the railroad's certification program. Pursuant to this paragraph, a
designated dispatcher may serve as a dispatcher for up to three years
from the date of FRA's approval of the program. At the end of the three
years, however, the designated dispatcher can no longer serve as a
dispatcher unless they successfully complete the tests and evaluations
provided in subpart B of this rule (i.e., the full certification
process).
Thus, individuals who are designated as dispatchers and certified
under paragraphs (c) or (d) of this section could be certified for more
than three years before they have to complete the railroad's full
certification process. For example, if a person is designated (and
certified) as a dispatcher on September 1, 2024, and FRA approves the
railroad's certification program on September 1, 2025, this dispatcher
would not have to go through the full certification process and get
recertified until September 1, 2028 (four years from
[[Page 35585]]
the date the individual was designated by the railroad as a certified
dispatcher). Railroads should note that they may not test and evaluate
a designated dispatcher or dispatcher candidate under subpart B of this
rule until they have a certification program approved by FRA pursuant
to Sec. 245.103.
In order to test and evaluate all of its designated dispatchers by
the end of the three-year period, a large railroad will likely have to
begin that process well in advance of the end of the three years. For
example, paragraph (f), which is derived from part 240 and part 242's
designation provisions, would permit a railroad to test and evaluate
one-third of its designated dispatchers within one year of the approval
date of the railroad's certification program; another one-third within
two years of the program's approval date; and the final one-third
within three years of the program's approval date.
To address the issue of designated dispatchers who would be
eligible to retire within three years of the date FRA approves their
railroad's certification program, FRA is proposing paragraphs (f)(1)
through (3) in this section since it would not be an efficient use of a
railroad's resources to perform the full certification process on a
designated dispatcher who is going to retire before the end of their
designation period. Paragraph (f)(1) provides that a designated
dispatcher, who is eligible to receive a retirement pension in
accordance with the terms of an applicable agreement or with the terms
of the Railroad Retirement Act (45 U.S.C. 231) within three years from
the date FRA approves the railroad's certification program, may
request, in writing, that the railroad not perform the full
certification process on that designated dispatcher until three years
from the date FRA approves the railroad's program.
Paragraph (f)(2) provides that, upon receipt of that written
request, a railroad may wait to perform the full certification process
on the person making the request until the end of the dispatcher's
designation period. Thus, paragraphs (f)(1) and (2) allow designated
dispatchers to serve as dispatchers for the full designation period and
then retire before being subjected to the full certification process.
While it is in the railroads' interest not to perform the full
certification process for a person who is going to retire once the
designation period expires, and thus, in their interest to grant as
many requests as possible, it may not be feasible to accommodate every
request that is made. If, for example, a significant number of
designated dispatchers on a railroad properly request that the railroad
wait to recertify them at the end of the designation period, but then
do not, in fact, retire by the expiration of the designation period,
the railroad might not be able to recertify everyone in time and would
risk violating this rule. In recognition of that risk and the need to
give the railroads some flexibility to comply with the rule, paragraph
(f)(2) also provides that a railroad that grants any request must grant
the request of all eligible persons ``to every extent possible.''
In addition, paragraph (f)(3) provides that a designated
dispatcher, who is also subject to recertification under part 240 or
242, may not make a request under paragraph (f)(1) of this section.
This provision recognizes that railroads would likely want to have
concurrent certification processes for certifying a person who will be
both a certified dispatcher and a certified locomotive engineer or
conductor. Thus, it would not be appropriate, in that instance, for a
designated dispatcher who is already subject to recertification under
part 240 or 242 to make a request to delay the full dispatcher
certification process.
Paragraph (g) of this section provides that, after FRA approves a
railroad's certification program, the railroad cannot certify or
recertify a person as a dispatcher unless that person has been tested
and evaluated in accordance with the procedures provided in subpart B
of this rule. In other words, after FRA approves a railroad's program,
that railroad can no longer designate individuals as certified
dispatchers under paragraphs (c) or (d) of this section.
Section 245.107 Requirements for Certification Programs
This section, derived from appendix B to part 240 and appendix B to
part 242, provides both the organizational requirements and a narrative
description of the submission required under Sec. Sec. 245.101 and
245.103. FRA is not requiring railroad submissions to be made on a
specific form. Instead, FRA is prescribing only minimal constraints on
the organization and manner of presenting information.
Paragraph (a) of this section addresses what must be included in a
railroad's submission to FRA. Specifically, the railroad must include
two documents in its submission: (1) a request for approval; and (2)
the certification program. If a railroad is submitting its initial
certification program, the request for approval can be a brief document
that simply states that the railroad is submitting its initial
certification program for approval by FRA. However, if a railroad is
making a material modification or modifications to a program that has
previously been approved by FRA, the request for approval must mention
all of the material modifications that the railroad is making to its
program and the copy of the certification program will include all of
the modifications.
Paragraph (b) of this section requires that the program be divided
into six sections, each dealing with a different subject matter, and
that the railroad identify the appropriate person to be contacted in
the event FRA needs to discuss some aspect of the railroad's program.
Section 1 of a certification program shall include basic contact
information and will address whether the railroad accepts
responsibility for training previously uncertified dispatchers. Section
2 of a program addresses how the railroad will handle training
dispatchers who have been previously certified. The main focus in
Section 2 is how the railroad will address its requirement to provide
continuing education for its previously certified dispatchers.
Continuing education is essential because time and circumstances have
the capacity to diminish both abstract knowledge and the proper
application of that knowledge to discrete events. Time and
circumstances also have the capacity to alter the value of previously
obtained knowledge and the application of that knowledge. Therefore,
dispatchers need to have their fundamental knowledge of operating rules
and practices refreshed periodically. While a railroad has latitude to
select the specific subject matters to be covered, the duration of the
training, the methods of presenting the information, and the frequency
with which the training will be provided, the railroad must describe in
this section how it will use that latitude to ensure that its
dispatchers remain knowledgeable concerning the safe discharge of their
responsibilities so as to comply with the standard set forth in Sec.
245.119(j).
A matter of particular concern to FRA is how each railroad acts to
ensure that dispatchers remain knowledgeable about the territory over
which they are authorized to dispatch, but from which the dispatcher
has been absent. Paragraph (b)(2)(v) requires that Section 2 of the
program addresses how long a person may be absent from dispatching over
a territory before familiarization training is required and how the
dispatcher will acquire that familiarization training. This time period
can be less than 12 months, but
[[Page 35586]]
it cannot exceed 12 months in accordance with Sec. 245.120(c).
Section 3 of the program includes requirements for the testing and
evaluation procedures for previously certified dispatchers. Paragraph
(b)(3)(i) notes that railroads must address how their programs will
comply with the standards found in Sec. 245.121. Section 245.121
directs that, when seeking a demonstration of the person's knowledge, a
railroad must employ a written test that contains objective questions
that cover the following subject matters: (i) safety and operating
rules; (ii) timetable instructions; (iii) compliance with all
applicable Federal regulations; (iv) physical characteristics of the
territory on which a person will be serving as a dispatcher; and (v)
dispatching systems and technology. The test must accurately measure
the person's knowledge of all of these areas. Paragraph (b)(3)(ii)
requires the program to detail the railroad's procedures for testing
vision and hearing acuity and for ensuring that its medical examiners
have sufficient knowledge to make a determination as to whether a
person can safely work as a dispatcher.
Section 4 of the program includes the requirements for training,
testing, and evaluating persons not previously certified. Railroads who
elect, in Section 1 of the program, to not take responsibility for
training previously uncertified dispatchers can skip this section.
However, all other railroads must provide details for how they will
train, test, and evaluate previously uncertified persons to ensure that
they acquire and demonstrate sufficient knowledge and skills to safely
perform the job of a dispatcher. Paragraph (b)(4)(ii) requires the same
level of detail in this section that is required in Sections 2 and 3 of
the program. This encompasses addressing both the training requirements
found in Sec. 245.119 and the knowledge testing requirements in Sec.
245.121. If a railroad relies on another entity to conduct its training
away from the railroad's own territory and dispatching systems,
paragraph (b)(4)(iii) states that the railroad must explain in its
program how dispatching students will be given the required training on
the physical characteristics of the railroad's territory and its
dispatching systems and technology.
Section 5 of the program addresses how the railroad will monitor
the operational performance of its certified dispatchers in accordance
with Sec. 245.123. In particular, the railroad must discuss the
processes and procedures it will use for ensuring that such monitoring
and testing is performed. This includes a description of the scoring
system the railroad will employ during such testing. Finally, Section 6
of the program addresses how the railroad will perform its routine
administration of the program. This section must include summaries of
how the program will comply with the various provisions listed in
paragraph (b)(6) that contain certain procedural requirements for a
railroad's certification program.
Section 245.109 Determinations Required for Certification and
Recertification
This proposed section lists the determinations that would be
required for evaluating a candidate's eligibility to be certified or
recertified. The reference to Sec. 245.303 in paragraph (a)(2) of this
section is to ensure railroads determine whether a candidate is
eligible to hold a certification by reviewing any prior revocations
addressed in subpart D of this rule.
Despite the reference to provisions in Sec. Sec. 245.111 and
245.113 requiring a review of safety conduct information from the
preceding five years, Sec. 245.113(h)(1) would not permit a railroad
to consider information concerning safety conduct that occurred prior
to the effective date of the final rule issued in this rulemaking. Even
though this provision would result in a railroad's evaluation of less
than five years' worth of information for some dispatchers early on in
the rule's effective period, it is included in Part 245 for the same
reason similar provisions were included in parts 240 and 242. Namely,
that all dispatchers should be permitted to start with a ``clean
slate'' for certification purposes as a matter of basic fairness. See
56 FR 28228, 28242 (June 19, 1991).
Paragraph (b) of this section would provide flexibility to
railroads and dispatchers or dispatcher candidates in obtaining the
information required by Sec. Sec. 245.111 and 245.113.
Section 245.111 Prior Safety Conduct as Motor Vehicle Operator
This section, derived from 49 CFR 240.111, 240.115, and 242.111,
would provide the requirements and procedures that a railroad would be
required to follow when evaluating a dispatcher or dispatcher
candidate's prior safety conduct as a motor vehicle operator. FRA
believes that the prior safety conduct of a motor vehicle operator is
one indicator of that person's drug and/or alcohol use and therefore an
important piece of information for a railroad to consider.
Pursuant to this section, each person seeking certification or
recertification as a dispatcher would be required to request in writing
that the chief of each driver licensing agency that issued them a
driver's license within the preceding five years provide a copy of the
person's driving record to the railroad. Unlike part 240, this proposed
rule would not require individuals to also request motor vehicle
operator information from the National Driver Register (NDR). Based on
the NDR statute and regulation (see 49 U.S.C. chapter 303 and 23 CFR
part 1327), railroads are prohibited from running NDR checks or
requesting NDR information from individuals seeking employment as
certified dispatchers.
Paragraphs (b) and (c) of this section would require a railroad to
certify or recertify a person for 60 days if the person: (1) requested
the required information at least 60 days prior to the date of the
decision to certify or recertify; and (2) otherwise meets the
eligibility requirements provided in Sec. 245.109(a)(2) through (5).
If a railroad certifies or recertifies a person for 60 days pursuant to
paragraphs (b) and (c) but is unable to obtain and evaluate the
required information during those 60 days, the person would be
ineligible to perform as a dispatcher until the information can be
evaluated. However, if a person is simply unable to obtain the required
information, that person or the certifying or recertifying railroad
could petition for a waiver from FRA (see 49 CFR part 211). During the
pendency of the waiver request, a railroad would be required to certify
or recertify a person if the person otherwise meets the eligibility
requirements of Sec. 245.109(a)(2) through (5).
Paragraph (k) of this section would require certified dispatchers
or persons seeking initial certification as dispatchers to notify the
certifying railroad (or the prospective certifying railroad, if
applicable) of motor vehicle incidents described in paragraphs (m)(1)
and (2) of this section within 48 hours of the conviction or completed
State action to cancel, revoke, suspend, or deny a motor vehicle
driver's license for such incidents. This proposed paragraph would also
prohibit railroads from having a more restrictive company rule
requiring certified dispatchers to report a conviction or completed
State action to cancel, revoke, or deny a motor vehicle driver's
license in less than 48 hours.
The reasoning behind proposed paragraph (k) involves several
intertwined objectives. As a matter of fairness, a railroad should not
revoke, deny, or otherwise make a person
[[Page 35587]]
ineligible for certification until that person has received due process
from the State agency taking the action against the motor vehicle
license. Further, by not requiring reporting until 48 hours after the
completed State action, the proposed rule would have the practical
effect of ensuring that a required referral to a drug and alcohol
counselor (DAC) under paragraph (n) of this section would not occur
prematurely. However, proposed paragraph (k) would not prevent an
eligible person from choosing to voluntarily self-refer. Nor would it
prevent the railroad from referring the person for an evaluation under
an internal railroad policy, if other information exists that
identifies the person as possibly having a substance abuse disorder.
Paragraph (n) of this section would provide that, if a motor
vehicle incident described in paragraph (m) is identified, the railroad
would be required to provide the data to its DAC along with ``any
information concerning the person's railroad service record.''
Furthermore, the person would have to be referred for evaluation to
determine whether the person has an active substance abuse disorder. If
the person has an active substance abuse disorder, the person would not
be eligible for certification. However, even if it is determined that
the person is not currently affected by an active substance abuse
disorder, the railroad would be required, if recommended by a DAC, to
condition certification upon participation in any needed aftercare and/
or follow-up testing for alcohol or drugs or both. The intent of this
proposed provision is to use motor vehicle records to identify
dispatchers or candidates for dispatcher certification who may have
active substance abuse disorders and make sure they are referred for
evaluation and any necessary treatment before allowing them to perform
safety sensitive service. Any testing performed as a result of a DAC's
recommendation under paragraph (n) would be done under company
authority, not Federal authority. However, the testing would be
required to comply with the ``technical standards'' of part 219,
subpart H, and part 40.
Paragraph (n)(5) is intended to clarify that failure to cooperate
in the DAC evaluation discussed in paragraph (n)(2) of this section
would result in the person being ineligible to perform as a certified
dispatcher until such time as the person cooperates in the evaluation.
Section 245.113 Prior Safety Conduct With Other Railroads
This proposed section, which is derived from 49 CFR 240.113,
240.205, and 242.113, would establish a process for certification
candidates to request information about their prior safety conduct when
employed or certified by another railroad. Except as otherwise provided
by the retroactive time limit contained in paragraph (g) of this
section, this section would require railroads to review records
provided by railroads that previously employed or certified the
certification candidate regarding the candidate's prior compliance with
Sec. Sec. 245.115 and 245.303 within the previous five years, as well
as the candidate's prior compliance with Sec. 245.111 within the
previous three years.
Paragraph (b) of this section contains an exception that if a
certification candidate has not been employed or certified by any other
railroad in the previous five years, they do not have to submit a
request pursuant to paragraph (c) of this section. Such candidates,
however, must notify the railroad to which they are seeking
certification of this fact. This exception should help minimize any
burden arising from these proposed requirements.
For certification candidates who do not qualify for the exception
provided in paragraph (b), paragraph (c) would require the
certification candidate to submit a written request to each railroad
that employed or certified the candidate within the previous five
years. As indicated earlier, the written request would direct the
previous railroad employer or certifying railroad to provide
information about the certification candidate's prior compliance with
Sec. Sec. 245.115 and 245.303 within the previous five years, as well
as the candidate's prior compliance with Sec. 245.111 within the
previous three years from the date of the written request.
In addition, railroads would be required by paragraph (e) of this
section to comply with written requests for records of prior safety
conduct submitted by former employees or certified persons pursuant to
this section within 30 days after receipt of such requests. Railroads
that are unable to provide information about prior safety conduct
within 30 days would be required, by paragraph (f) of this section, to
either: (1) provide a written explanation of why the railroad cannot
provide the information within the requested time frame, along with an
estimate of how much time will be needed to supply the requested
information; or (2) provide an adequate explanation for why the
railroad cannot provide the information requested.
In the event a railroad seeking to certify or recertify a
certification candidate receives a written statement from another
railroad pursuant to paragraph (f) of this section, which explains that
the railroad cannot provide the information requested, the railroad
seeking to certify or recertify the certification candidate would be
deemed to have complied with the eligibility determination required by
paragraph (a) of this section provided it retains a copy of the other
railroad's written statement in its records.
Similarly, in the event a railroad seeking to certify or recertify
a certification candidate does not receive any written response from
other railroads, the railroad would be deemed to have complied with the
eligibility determination required by paragraph (a) of this section
provided it retains a copy of the written request for this information
in its records.
Section 245.115 Substance Abuse Disorders and Alcohol Drug Rules
Compliance
This proposed section, which is derived from 49 CFR 240.119,
240.205, and 242.115, addresses: (1) active substance abuse disorders
and (2) specific alcohol/drug regulatory violations. As noted earlier,
annual drug and alcohol testing data submitted to FRA revealed that
dispatch employees had a random violation rate (drug and alcohol
positives and refusals) and a pre-employment violation rate that was
considerably higher than their train and engine service counterparts.
Therefore, this section and Sec. 245.111 address certain
situations in which inquiry must be made into the possibility that the
individual has an active substance abuse disorder if the individual is
to obtain or retain a certificate. The fact that specific instances are
cited in this section would not eliminate the general duty of the
railroad to take reasonable and proportional action in other
appropriate cases. Declining job performance, extreme mood swings,
irregular attendance, and other indicators may, to the extent not
immediately explicable, indicate the need for an evaluation under
internal policies of the railroad.
The purpose of identifying conditions is not to require (and does
not require) a railroad to order an evaluation any time a listed
condition is exhibited. Rather, FRA is simply providing guidance here
as to conditions that may, given the context, call for an evaluation
under internal policies of the railroad.
[[Page 35588]]
Moreover, FRA remains vigilant of harassment and intimidation and will
take appropriate action if such conduct is discovered.
Paragraph (a) of this section would require railroads to determine
that a person initially certifying, or a dispatcher recertifying, meets
the eligibility requirements of this section. In addition, each
railroad would be required by Sec. 245.203 to retain the documents
used to make that determination.
Paragraph (c) of this section would prohibit a person with an
active substance abuse disorder from being certified as a dispatcher.
This means appropriate action must be taken with respect to a
certificate (whether denial or suspension) whenever the existence of an
active substance abuse disorder comes to the official attention of the
railroad, with the exception discussed below. Paragraph (c) would also
provide a mechanism for an employee to voluntarily self-refer for
substance abuse counseling or treatment.
Paragraph (d) would address conduct constituting a violation of
Sec. 219.101 or Sec. 219.102 of FRA's alcohol/drug regulations.
Section 219.101(a)(1) prohibits regulated employees from using or
possessing alcohol or any controlled substance when the employee is on
duty and subject to performing regulated service for a railroad.
Section 219.101(a)(2) prohibits regulated employees from reporting for
regulated service, or going on or remaining on duty in regulated
service, while under the influence of (or impaired by) alcohol or while
having a breath or blood alcohol concentration of 0.04 or more. A
regulated employee is also prohibited from using alcohol either within
four hours of reporting for regulated service or after receiving notice
to report for regulated service, whichever is less. This is conduct
that specifically and directly threatens safety in a way that is wholly
unacceptable, regardless of its genesis and regardless of whether it
has occurred previously. In its more extreme forms, such conduct is
punishable as a felony under the criminal laws of the United States (18
U.S.C. 341 et seq.) and a number of states.
Section 219.102 prohibits use of a controlled substance by a
regulated employee at any time, whether on or off duty, except for
approved medical use. Abuse of marijuana, cocaine, amphetamines, and
other controlled substances poses unacceptable risks to safety.
Under the alcohol/drug regulations, whenever a violation of Sec.
219.101 or Sec. 219.102 is established, based on authorized or
mandated chemical testing, the employee must be removed from service
and may not return until after an SAP evaluation, any needed treatment
and/or education, and a negative return-to-duty test, and follow-up
testing (as required by Sec. 219.104). These requirements constitute
an absolute minimum standard for action when a dispatcher is determined
to have violated one of these prohibitions. Considering the need both
for general and specific deterrence with respect to future unsafe
conduct, additional action should be premised on the severity of the
violation and whether the same individual has had prior violations.
This proposed rule would require railroads to consider conduct that
occurred within the period of five consecutive years prior to the
review. This is the same period provided in this proposed rule as the
maximum period of ineligibility for certification following repeated
alcohol/drug violations and is the same period used in parts 240 and
242. Use of a five-year cycle reflects railroad industry experience
indicating that conduct committed as much as five years before may tend
to predict future alcohol or drug abuse behavior. For example, in
analyzing data submitted to FRA between 2017 and 2021, FRA found that
railroad employees returning to duty from previous drug or alcohol
violations were approximately five times more likely to test positive
than other railroad employees. Of course, railroads would retain the
flexibility to consider prior conduct (including conduct more than five
years prior) in determining whom they will hire as dispatchers.
Conduct violative of the FRA proscriptions against alcohol and
drugs need not occur while the person is serving in the capacity of a
dispatcher in order to be considered. For instance, a person who
violated Sec. 219.101 while working as a locomotive engineer and then
sought dispatcher certification six months later (under the provision
described below) would not be eligible for certification. The same is
true under Part 240--an employee who violates Sec. 219.101 while
working as a brakeman and then seeks locomotive engineer certification
six months later would not be eligible for certification at that time.
The responsibility of the railroad would therefore not be limited to
periodic recertification. This proposed rule would require a review of
certification status for any conduct in violation of Sec. 219.101 or
Sec. 219.102.
The proposed rule would require a determination of ineligibility
for a period of nine months for an initial violation of Sec. 219.101.
This would parallel the nine-month disqualification in Sec. Sec.
240.119(c)(4)(iii) and 242.115(e)(4)(iii).
Specifying a period of ineligibility serves the interest of
deterrence while giving further encouragement to deal with the problem
before it is detected by management. In order to preserve and encourage
referrals, the nine-month period could only be waived in the case of a
qualifying referral (see Sec. 219.1001). FRA believes that this
distinction in treatment, which is also found in part 242, is warranted
as a strong inducement to participation because referral programs help
identify troubled employees before those employees get into accidents
and incidents. Although FRA does not know how many actual referrals may
be generated, the intended result would be reached if an atmosphere of
intolerance for drug and/or alcohol abusing behavior is reinforced in
the workplace and violators know that they may be reported by their
colleagues or others if they report for duty while impaired.
In the case of a second violation of Sec. 219.101, the dispatcher
would be ineligible for a period of five years. Given railroad
employment practices and commitment to alcohol/drug compliance, it is
likely that any individual so situated may also be permanently
dismissed from employment. However, it would be important that the
employing railroad follow through and revoke the certificate under this
proposed rule, so the dispatcher could not go to work for another
railroad (or railroad contractor) within the five-year period using the
unexpired certificate issued by the first railroad as the basis for
certification. These proposed sanctions mirror the sanctions in
Sec. Sec. 240.119 and 242.115.
Under this proposed rule, one violation of Sec. 219.102 within the
five-year window would require only temporary suspension and the
minimum response described in Sec. 245.115(e) (referral for
evaluation, treatment as necessary, negative return-to-duty test, and
appropriate follow-up). This parallels the approach taken in parts 240
and 242 and reflects FRA's intent to not undercut the therapeutic
approach to drug abuse employed by many railroads. This approach
permits first-time positive drug tests to be handled in a non-punitive
manner that concentrates on remediation of any underlying substance
abuse problem and avoids the adversarial process associated with
investigations, grievances, and arbitrations under the Railway Labor
Act and collective bargaining agreements. A second violation of Sec.
219.102 would subject the
[[Page 35589]]
employee to a mandatory two-year period of ineligibility. A third
violation within five years would lead to a five-year period of
ineligibility.
This proposed rule also addresses violations of Sec. Sec. 219.101
and 219.102 in combination. A person violating Sec. 219.101 after a
prior Sec. 219.102 violation would be ineligible for three years; and
the same would be true for the reverse sequence. This mirrors the
ineligibility period for locomotive engineers and conductors who have
one Sec. 219.101 violation and one Sec. 219.102 violation. See 49 CFR
240.119(e)(4)(ii) and 242.115(e)(4)(ii).
Refusals to participate in chemical tests would be treated as if
the test were positive. A refusal to provide a breath or body fluid
sample for testing under the requirements of 49 CFR part 219 when
instructed to do so by a railroad representative would be treated, for
purposes of ineligibility under this section, in the same manner as a
violation of: (1) Sec. 219.101, in the case of a refusal to provide a
breath sample for alcohol testing, or a blood specimen for mandatory
post-accident toxicological testing; or (2) Sec. 219.102, in the case
of a refusal to provide a body fluid specimen for drug testing.
Interested parties should, however, note that 49 CFR part 40, subpart
I, discusses medical conditions under which an individual's failure to
provide a sufficient sample would not be deemed a refusal. In addition,
subpart G of FRA's alcohol and drug regulations excuses employees from
compliance with the requirement to participate in random drug and
alcohol testing if the employee can substantiate a medical emergency
involving the employee or an immediate family member. See 49 CFR
219.617.
If an employee covered by 49 CFR part 219 refuses to provide a
breath or body fluid specimen or specimens when required to by a
railroad pursuant to a mandatory provision of 49 CFR part 219, then the
railroad (apart from any action it takes under part 245) would be
required to remove that employee from regulated service and disqualify
the employee from working in regulated service for nine months. See 49
CFR 219.104 and 219.107; see also, 49 CFR part 219, subpart H, and 49
CFR 40.191 and 40.261.
Paragraph (e) prescribes the conditions under which employees may
be certified or recertified after a determination that the
certification should be denied, suspended, or revoked, due to a
violation of Sec. 219.101 or Sec. 219.102 of FRA's alcohol/drug
regulations. These conditions are derived from the conditions in
Sec. Sec. 240.119(d) and 242.115(f) and closely parallel the return-
to-duty provisions of the alcohol/drug rule. The proposed regulation
would not require compensation of the employee for the time spent in
this testing, which is a condition precedent to retention of the
certificate; but the issue of compensation would ultimately be resolved
by reference to the collective bargaining agreement or other terms and
conditions of employment under the Railway Labor Act. Moreover, the
railroad that intends to withdraw its conditional certification would
be required to afford the dispatcher the hearing procedures provided by
Sec. 245.307 if the dispatcher does not waive their right to the
hearing.
Paragraph (f) would ensure that a dispatcher, like any other
covered employee, can self-refer for treatment under the alcohol/drug
rule (49 CFR 219.1003) before being detected in violation of alcohol/
drug prohibitions and would be entitled to confidential handling of
that referral and subsequent treatment. This means that a railroad
would not normally receive notice from the DAC of any substance abuse
disorder identified as a result of a voluntary self-referral under 49
CFR 219.1003. However, paragraph (f) would also require that the
railroad policy provide that confidentiality is waived if the
dispatcher at any time refuses to cooperate in a recommended course of
counseling or treatment, to the extent that the railroad must receive
notice that the employee has an active substance abuse disorder so that
appropriate certificate action can be taken. The effect of this
proposed provision is that the certification status of a dispatcher who
seeks help and cooperates in treatment would not be affected, unless
the dispatcher fails to follow through.
Section 245.117 Vision Acuity
This proposed section, derived from 49 CFR 240.121, 240.207, and
242.117, contains the requirements for vision acuity testing that a
railroad would have to incorporate in its dispatcher certification
program. This section differs from its analogous sections in 49 CFR
parts 240 and 242 in that 49 CFR parts 240 and 242 address the
requirements for vision and hearing acuity in the same section.
However, FRA determined that for this proposed rule, it could more
clearly present these requirements if they were in two separate
sections: one section for vision acuity (Sec. 245.117) and one section
for hearing acuity (Sec. 245.118).
Paragraph (c) of this section contains the general vision standards
that a person must satisfy in order to be certified as a dispatcher
unless they are determined to have sufficient vision acuity under
paragraph (d) of this section. The standards in paragraph (c) mirror
the vision acuity standards for locomotive engineers and conductors in
49 CFR parts 240 and 242. In drafting this proposed rule, FRA discussed
whether vision acuity standards were necessary for dispatchers and if
so, whether they needed to be as stringent as the standards for
engineers and conductors. Ultimately, FRA concluded that dispatchers
should have to satisfy certain vision standards with a dispatcher's
ability to distinguish between colors being particularly important. FRA
requests comments on whether vision acuity standards for dispatchers
are necessary, and if so, whether they should be as strict as the
standards for locomotive engineers and conductors.
Although some individuals may not be able to meet the threshold
acuity levels in paragraph (c) of this section, they may be able to
compensate in other ways that will permit them to function at an
appropriately safe level despite their physical limitations. Paragraph
(d) of this section permits a railroad to have procedures whereby
medical examiners can evaluate such individuals and make discrete
determinations about each person's ability to compensate for their
physical limitations. If the railroad's medical examiner concludes that
an individual has compensated for their limitations and could safely
serve as a dispatcher, the railroad could certify that person under
this regulation once the railroad possesses the medical examiner's
professional medical opinion to that effect. If necessary, medical
examiners can condition their opinion on certain circumstances or
restrictions, such as the use of corrective lens for example.
Paragraph (e) of this section describes what documents the railroad
must keep on file with respect to vision acuity testing. Such records
must be retained for both individuals who the railroad certifies as
dispatchers and those individuals who the railroad denies
certification. Paragraph (g) of this section addresses the issue of
vision deterioration. Once certified dispatchers become aware that
their vision has deteriorated, they must notify the railroad before
performing any subsequent service as a dispatcher. FRA presumes that
certified dispatchers would most likely become aware of deterioration
in their vision either through their own personal observation or
through examination by a medical professional. Should this occur,
before a certified dispatcher can return to
[[Page 35590]]
service, they must be reexamined. If upon reexamination, the railroad's
medical examiner concludes that the certified dispatcher still
satisfies the vision acuity standards in this part, the dispatcher can
return to service. However, if the medical examiner concludes that the
dispatcher no longer satisfies these requirements, the railroad must
deny the person's certification in accordance with Sec. 245.301,
regardless of how much time remains before the dispatcher's current
certificate expires. Certified dispatchers should note that willful
noncompliance with the notification requirement in this paragraph could
result in enforcement action.
Section 245.118 Hearing Acuity
This proposed section, derived from 49 CFR 240.121, 240.207, and
242.117, contains the requirements for hearing acuity testing that a
railroad would have to incorporate in its dispatcher certification
program.
Paragraph (c) of this section contains the general hearing
standards that a person must satisfy in order to be certified as a
dispatcher unless they are determined to have sufficient hearing acuity
under paragraph (d) of this section. The standards in paragraph (c)
mirror the hearing acuity standards for locomotive engineers and
conductors in 49 CFR parts 240 and 242. FRA discussed whether hearing
acuity standards were necessary for dispatchers and if so, whether they
needed to be as stringent as the standards for engineers and
conductors. Ultimately, FRA concluded that dispatchers should have to
satisfy certain hearing standards and it was logical for these
standards to be consistent with the hearing standards for engineers and
conductors. FRA requests comments on whether hearing acuity standards
for dispatchers are necessary, and if so, whether they should be as
strict as the standards for locomotive engineers and conductors.
Although some individuals may not be able to meet the threshold
acuity levels in paragraph (c) of this section, they may be able to
compensate in other ways that will permit them to function at an
appropriately safe level despite their physical limitations. Paragraph
(d) of this section permits a railroad to have procedures whereby
doctors can evaluate such individuals and make discrete determinations
about each person's ability to compensate for their physical
limitations. If the railroad's medical examiner concludes that an
individual has compensated for their limitations and could safely serve
as a dispatcher, the railroad could certify that person under this
regulation once the railroad possesses the medical examiner's
professional medical opinion to that effect. If necessary, medical
examiners can condition their opinion on certain circumstances or
restrictions, such as the use of a hearing aid for example.
Paragraph (e) of this section describes what documents the railroad
must keep on file with respect to hearing acuity testing. Such records
must be retained for both individuals who the railroad certifies as
dispatchers and those individuals who the railroad denies
certification. Paragraph (g) of this section addresses the issue of
hearing deterioration. Once certified dispatchers become aware that
their hearing has deteriorated, they must notify the railroad before
performing any subsequent service as a dispatcher. FRA presumes that
certified dispatchers would most likely become aware of deterioration
in their hearing either through their own personal observation or
through examination by a medical professional. Should this occur, they
must be reexamined before returning to service. If upon reexamination,
the railroad's medical examiner concludes that the certified dispatcher
still satisfies the hearing acuity standards in this part, the
dispatcher can return to service. However, if the medical examiner
concludes that the dispatcher no longer satisfies these requirements,
the railroad must deny the person's certification in accordance with
Sec. 245.301, regardless of how much time remains before the
dispatcher's current certificate expires. Certified dispatchers should
note that willful noncompliance with the notification requirement in
this paragraph could result in enforcement action.
Section 245.119 Training Requirements
This proposed section, derived from 49 CFR 240.123, 240.213, and
242.119, would require railroads to provide initial and periodic
training to dispatchers. Such training is necessary to ensure that
dispatchers have the knowledge, skills, and abilities necessary to
safely perform all of the safety-related duties mandated by Federal
laws, regulations, and orders.
Paragraph (b) of this section requires a railroad's certification
program to address whether the railroad will accept responsibility for
training dispatchers and thus be able to initially certify dispatchers
or whether the railroad will only be recertifying dispatchers who were
previously certified by other railroads. If a railroad accepts
responsibility for training dispatchers, paragraph (c) of this section
notes that the railroad must state in its certification program whether
it will conduct the training program for dispatchers or it will have
another entity perform the training on its behalf.
Under this section, railroads have latitude to design and develop
the training and delivery methods they will employ; but paragraphs (d),
(e), and (f) of this section provide requirements for railroads that
elect to train a previously untrained person to be a dispatcher.
Pursuant to paragraph (d), a railroad that makes this election would be
required to determine how training must be structured, developed, and
delivered, including an appropriate combination of classroom,
simulator, computer-based, correspondence, on-the-job training, or
other formal training. Paragraph (d)(3) also requires railroads to
review and modify their training programs whenever new safety-related
railroad laws, regulations, orders, technologies, procedures, software,
or equipment are introduced into the workplace.
Paragraph (f) of this section provides the requirements a
previously untrained person must satisfy in order to become certified.
Paragraph (f)(2) states the person must demonstrate on-the-job
proficiency by successfully completing dispatching tasks and using the
necessary dispatching systems and technology. These tasks may be
performed under the direct onsite supervision of a person who has the
necessary dispatching experience and at least one year of experience as
a dispatcher. FRA requests comments, including any supporting data, on
whether this ``one year of experience'' requirement for persons
supervising a certification candidate is sufficient. The final
requirement, found in paragraph (f)(3), is that the previously
untrained person shall demonstrate their knowledge of the physical
characteristics of any assigned territory by successfully completing a
test. FRA understands that a railroad may assign dispatchers additional
territories after they become certified and the dispatchers can go
through the process for becoming qualified on those territories after
they are already certified. However, paragraph (f)(3) establishes the
basic requirement that before a previously untrained person can become
certified, they must demonstrate that they are qualified on at least
one territory. Paragraph (f)(3) also requires railroads to provide the
person(s) being tested with an opportunity to consult with a
supervisory employee, who possesses territorial qualifications for the
territory,
[[Page 35591]]
to explain a test question. This requirement is equivalent to 49 CFR
242.119(f) and is included so that certification candidates being
tested would be able to obtain clarification of test questions from
someone who possesses knowledge of the relevant territory.
Paragraph (g) of this section requires railroads to retain written
documentation of the listed determinations. Paragraph (g)(1) only
applies to individuals who have not been previously certified as
dispatchers whereas paragraphs (g)(2) and (3) apply to all certified
dispatchers.
Paragraph (h) of this section requires a railroad's certification
program to explain the methods for acquiring familiarity with the
physical characteristics of a territory and becoming qualified or
requalified on a territory. Paragraph (h)(3) requires railroads to
designate in their programs the maximum amount of time that a
dispatcher can be absent from a territory before requalification is
required. To conform with Sec. 245.120(c), this time period cannot
exceed 12 months. However, railroads can choose a shorter time period
if they desire. For example, if a railroad wants to require that a
dispatcher get requalified on a territory if they have not dispatched
over that territory in six months, the railroad is allowed to do so,
but it must include this requirement in its certification program.
Section 245.120 Requirements for Territorial Qualification
This proposed section, derived from 49 CFR 240.231 and 242.301,
explains the requirements for territorial qualifications. Paragraph (a)
of this section prohibits railroads from permitting or requiring a
person to serve as a dispatcher on a particular territory, unless the
railroad determines that the person is a certified dispatcher who is
either qualified on that particular territory or assisted by a
Dispatcher Pilot who is qualified on the territory. Paragraph (b) of
this section requires a person to immediately notify the railroad if
they are called to serve on a territory on which the person is not
qualified. In such scenarios, the dispatcher could only dispatch over
the territory if they were assisted by a Dispatcher Pilot who is
qualified on the territory. Paragraph (c) of this section establishes
that the maximum amount of time that a dispatcher can be absent from a
territory before requalification on that territory is required is 12
months. However, railroads have the option, under Sec. 245.119(h)(3),
to make this time period shorter.
Section 245.121 Knowledge Testing
This proposed section, derived from 49 CFR 240.125, 240.209, and
242.121, would require railroads to provide for the initial and
periodic testing of dispatchers. Paragraph (b) of this section outlines
the general requirements for such testing. This testing will have to
effectively examine and measure a dispatcher's knowledge of five
subject areas: safety and operating rules; timetable instructions;
compliance with all applicable Federal regulations; physical
characteristics of the territory on which a person will be or is
currently working as a dispatcher; and dispatching systems and
technology.
Under this section, railroads have discretion to design the tests
that will be employed; for most railroads that will entail some
modification of their existing ``book of rules'' examination to include
new subject areas. This section does not specify the number of
questions to be asked or the passing score to be obtained. However, it
does require that the test be conducted without open reference books
unless use of such materials is part of a test objective. A railroad
may not give an all-open book exam. Some portion of the test must be
closed book. Since the testing procedures and requirements selected by
the railroad would be submitted to FRA for approval, FRA would monitor
the exercise of discretion being afforded railroads by this section.
Paragraph (c) of this section mirrors 49 CFR 242.121(e) by
requiring railroads to provide the person(s) being tested with an
opportunity to consult with a supervisory employee, who possesses
territorial qualifications for the territory, to explain a test
question.
Paragraph (d) of this section states that if a person fails a test,
the railroad cannot allow that person to serve as a dispatcher until
they achieve a passing score on reexamination. The railroad would
decide how much time, if any, must pass after a test failure before a
certification candidate can be reexamined. Furthermore, the railroad
would decide what additional training, if any, a candidate would
receive after a test failure. The railroad would also decide whether
there should be a limit on the number of times a candidate could retake
a test, and if so, the maximum number of test retakes the railroad will
allow.
Section 245.123 Monitoring Operational Performance
This proposed section, derived from 49 CFR 240.129 and 242.123,
contains the requirements for conducting unannounced compliance tests.
Paragraph (a) of this section requires each railroad to describe in its
certification program how it will monitor the conduct of its certified
dispatchers by performing unannounced compliance tests on railroad and
Federal rules, as well as territorial and dispatch systems. Paragraph
(a)(3) requires railroads to indicate the types of actions they will
take in the event they find deficiencies with a dispatcher's
performance during an unannounced compliance test. FRA believes it is
up to each railroad to decide the appropriate action to take in light
of various factors, including collective bargaining agreements.
Further, FRA believes that the vast majority of railroads have adequate
policies to deal with deficiencies with a dispatcher's performance and
have handled them appropriately for many years.
To avoid restricting the options available to the railroads and
employee representatives to develop processes for handling test
failures, FRA designed this regulation to be as flexible as possible.
There are a variety of actions and approaches that a railroad could
take such as developing and providing formal remedial training for
dispatchers who fail tests or have deficiencies in their performance.
Each railroad could also consider implementing a formal procedure
whereby a dispatcher is given the opportunity to explain, in writing,
the factors that they believe caused their test failure or performance
deficiencies. This explanation may allow a railroad to determine what
areas of training to focus on or perhaps discover that the reason for
the failure/deficiency was due to something other than a lack of
skills. FRA believes there are numerous other approaches that could be
considered and evaluated by railroads and their dispatchers, and FRA
does not want to stifle a railroad's ability to adopt an approach that
is best for its organization.
Paragraph (b) of this section provides the requirements for these
unannounced compliance tests, including the operational tests that must
be performed and who is allowed to conduct the test. Paragraph (b)(3)
specifies that each railroad must give each of its certified
dispatchers at least one unannounced compliance test each calendar
year, except as provided in paragraph (c) of this section. FRA
recognizes that before these unannounced compliance tests can be
performed in conformance with this section, a railroad's certification
program must first be approved by FRA. Thus, at the latest, FRA expects
railroads to perform these unannounced compliance tests on all of their
certified
[[Page 35592]]
dispatchers during the calendar year immediately following the year
their certification program is first approved by FRA. For example, if
FRA approves one railroad's program in January 2025 and another
railroad's program in December 2025, both of these railroads would have
to perform unannounced compliance tests on all of their certified
dispatchers starting in 2026. While FRA would encourage these railroads
to commence the unannounced tests after their programs are approved in
2025, FRA recognizes it may not be practical to perform unannounced
tests on all of their certified dispatchers by the end of 2025,
especially for the railroad whose program was not approved until
December 2025.
Paragraph (c) of this section recognizes that some certified
dispatchers may not be performing a service that requires a dispatcher
certificate, and thus, a railroad may not be able to provide those
dispatchers with the annual, unannounced compliance test. For example,
a certified dispatcher may be on furlough, in military service, off
with an extended illness, or working in another service. In situations
like these where a dispatcher is not performing service that requires
certification, the railroad does not have to give an unannounced
compliance test. However, when the certified dispatcher returns to
dispatcher service, they will have to be given an unannounced
compliance test within 30 days of their return. Moreover, the railroad
will have to retain a written record that documents the date the
dispatcher stopped performing service requiring certification, the date
the dispatcher returned to service requiring certification, and the
date the dispatcher received their unannounced compliance test
following their return to service requiring certification.
Section 245.125 Certification Determinations Made by Other Railroads
This section of the proposed rule, derived from 49 CFR 240.225 and
242.125, contains requirements that would apply when a certified or
previously certified dispatcher is about to begin work for a different
railroad. This section would permit a railroad to rely on
determinations made by another railroad concerning a person's
certification. However, this section would require railroads to address
in their certification programs how they will administer training for
previously uncertified dispatchers with extensive dispatching
experience or previously certified dispatchers who have had their
certification expire. In both scenarios, FRA would allow the railroad
to reduce the on-the-job training that might otherwise be required if
the person were treated as having no dispatching experience. However,
if a railroad's certification program fails to specify how the railroad
will train a dispatcher who was previously certified by another
railroad, all dispatchers and dispatcher candidates will be required to
take the railroad's entire training program (regardless of the
dispatcher's prior certification status).
Subpart C--Administration of the Certification Program
Section 245.201 Time Limitations for Certification
This proposed section, derived from 49 CFR 240.217 and 242.201,
contains various time constraints to preclude railroads from relying on
stale information when evaluating candidates for certification or
recertification. For example, when making a determination of
eligibility based on prior safety conduct as an employee of a different
railroad pursuant to Sec. 245.113, paragraph (a) would prohibit a
railroad from relying on data provided more than one year before the
date of the railroad's certification decision. However, paragraph (b)
goes on to explain that the time constraints listed in paragraph (a)
would not apply to railroads who are not evaluating candidates for
certification or recertification, but simply relying on eligibility
determinations that have already been made by another railroad in
accordance with Sec. 245.125.
Paragraph (c) prohibits a railroad from certifying a person as a
dispatcher for more than three years except for those individuals who
are designated as certified dispatchers under Sec. 245.105(c) or (d).
When a railroad designates an individual as a certified dispatcher
under Sec. 245.105(c) or (d), that certification can last for three
years after the date that FRA initially approves the railroad's
certification program. This could lead to situations where a
certificate could be valid for more than three years. For example, if a
railroad designates an individual as a certified dispatcher in January
2025, but FRA does not approve the railroad's certification program
until January 2026, the dispatcher's certification could last until
January 2029 (four years in total). However, any subsequent
recertifications for that dispatcher could only last for three years.
In other words, if the dispatcher in the previous example got
recertified in January 2029, that certificate would expire no later
than January 2032.
Paragraph (d) would require railroads to issue certificates that
comply with Sec. 245.207 to their certified dispatchers within 30 days
from the date of the railroad's decision to certify or recertify that
person.
Section 245.203 Retaining Information Supporting Determinations
This proposed section, derived from 49 CFR 240.215 and 242.203,
contains recordkeeping requirements for railroads that certify
dispatchers. Paragraph (b) lists the information that railroads would
be required to retain for each of their certified dispatchers and
certification candidates, while paragraph (e) provides that all records
required to be retained must be retained for six years from the date of
the railroad's certification, recertification, denial, or revocation
decision. Paragraph (e) would also require railroads to make these
records available to FRA representatives, upon request, in a timely
manner.
Paragraph (f) would prohibit railroads and individuals from
falsifying records that railroads are required to retain pursuant to
this section. Paragraph (g) contains minimum standards for electronic
recordkeeping with which railroads would be required to comply, in
order to maintain electronic versions of the required records. These
minimum standards for electronic recordkeeping are virtually identical
to the electronic recordkeeping standards contained in 49 CFR 242.203.
Section 245.205 List of Certified Dispatchers and Recordkeeping
This proposed section, derived from 49 CFR 240.221 and 242.205,
would require a railroad to maintain a list of its certified
dispatchers. Paragraph (b) of this section would also require a
railroad to update its list of certified dispatchers at least annually
and to make its list of certified dispatchers available, upon request,
to FRA representatives in a timely manner.
Paragraph (c) contains minimum standards for electronic
recordkeeping with which railroads would be required to comply, in
order to maintain an electronic version of the list of certified
dispatchers required by this section. These minimum standards are
similar to the electronic recordkeeping standards contained in 49 CFR
242.205.
Paragraph (d) would prohibit railroads and individuals from
falsifying the list of certified dispatchers that railroads are
required to maintain pursuant to this section.
[[Page 35593]]
Section 245.207 Certificate Requirements
This proposed section contains requirements for the certificate
that each certified dispatcher would be required to carry. The
requirements in paragraphs (a)-(e) of this section, which pertain to
the required minimum content for certificates and authorization of the
person designated by the railroad to sign the certificates, are derived
from 49 CFR 240.223 and 242.207.
Paragraph (a) of this section specifies that railroads have the
option of issuing certificates electronically or in paper form.
Paragraph (a)(1) would require that the dispatcher certificate identify
the railroad issuing the certificate. Therefore, a certified dispatcher
who works for more than one railroad would be required to have a
separate certificate for each railroad with which the dispatcher is
currently certified. Paragraph (a)(7) would require the certificate to
be signed by an individual who has been designated by the railroad as
an authorized signatory of dispatcher certificates, as described in
paragraph (c) of this section. Electronic signatures are permitted
under this proposed rule. In addition, paragraph (e) of this section
would prohibit railroads and individuals from falsifying dispatcher
certificates.
Paragraphs (f) and (i) are derived from 49 CFR 240.305 and 242.209.
These paragraphs would require dispatchers to have their certificates
in their possession while on duty as a dispatcher, to display their
certificates when requested to do so by FRA representatives, State
inspectors \18\ authorized under 49 CFR part 212, and certain railroad
officers, and to notify a railroad if they are called to serve as a
dispatcher in a service that would cause them to exceed their
certificate limits.
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\18\ Although State inspectors authorized under 49 CFR part 212
could be considered ``FRA representatives,'' they are mentioned
separately in this section to ensure that there is no dispute
regarding their authority.
---------------------------------------------------------------------------
Paragraph (g), derived from 49 CFR 240.301 and 242.211(a), would
require railroads to promptly replace a dispatcher's certificate at no
cost to the dispatcher, if the certificate is lost, stolen, or
mutilated. However, unlike Sec. 242.211(b), this section does not
contain detailed requirements for temporary replacement certificates.
Temporary replacement certificates generally contain most of the
information provided on official certificates. Therefore, it does not
appear to be especially burdensome for railroads to issue temporary
certificates to replace certificates that have been lost, stolen, or
mutilated. Nonetheless, by refraining from proposing a formal process
for the issuance of temporary dispatcher replacement certificates, FRA
would allow railroads to decide how and when to issue temporary
replacement certificates to dispatchers. FRA is soliciting comment on
this proposed approach.
Section 245.213 Multiple Certifications \19\
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\19\ To the extent possible, FRA has attempted to match the
section numbers in this proposed rule to the analogous sections in
the conductor certification rule (49 CFR part 242). Since 49 CFR
242.213 addresses multiple certification issues, FRA is proposing
section number 245.213 for the multiple certification section in
this proposed rule instead of the next sequential section number
which would be 245.209.
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This proposed section, derived from 49 CFR 240.308 and 242.213,
establishes how railroads should handle certified dispatchers who are
certified with multiple railroads, attempting to become certified with
multiple railroads, or certified in another railroad craft. FRA
recognizes that while it is fairly common for an individual to work as
both a locomotive engineer and a conductor, it is less common for a
dispatcher to also work in another craft that requires certification.
However, because situations may arise where a dispatcher is also
certified to work in another craft, such as a locomotive engineer or
conductor, FRA wanted to address how to handle such situations.
Paragraph (a) of this section would allow a certified dispatcher to
become certified in one or more of the other railroad crafts that
require certification such as locomotive engineer or conductor. If a
person is certified in multiple crafts by the same railroad, paragraph
(b) would require the railroad to coordinate the expiration dates of
the certificates, to the extent possible. While railroads are not
required to have all of a person's certificates expire at the same
time, it would be beneficial, from the standpoint of administrating the
certification programs, if railroads followed this practice. Thus, FRA
encourages railroads to coordinate these expiration dates when
possible.
Paragraph (c) of this section would pertain to individuals who are
certified dispatchers for multiple railroads or who are seeking to
become certified dispatchers for multiple railroads. Paragraph (c)(1)
would require a dispatcher to notify all railroads with which the
dispatcher holds a current dispatcher certificate, if another railroad
denies, suspends, or revokes the dispatcher's certification. Paragraph
(c)(2) would prohibit an individual from working as a dispatcher for
any railroad while their dispatcher certification is suspended or
revoked by a railroad. For example, if a person is a certified
dispatcher with Railroad ABC and Railroad DEF, and ABC suspends and/or
revokes the person's certificate, that person would not be able to work
as a dispatcher for DEF, or any other railroad, during the period of
suspension and/or revocation. Furthermore, paragraph (c)(3) states that
if a person has their dispatcher certification suspended or revoked by
one railroad, and they attempt to become a certified dispatcher with
another railroad while their certification is suspended or revoked,
they must notify the railroad they are seeking certification from of
their current suspended or revoked certification status. Therefore, if
a person is seeking dispatcher certification with Railroad XYZ while
their dispatcher certificate is suspended or revoked by Railroad ABC,
they must notify XYZ of their current suspended or revoked
certification status.
Paragraphs (d), (e), and (f) of this section address how the
revocation of a dispatcher's certification would affect an individual's
ability to work in another railroad craft requiring certification, and
vice versa. If a person's dispatcher certification was revoked because
of a drug or alcohol violation, as described in Sec. 245.303(e)(8),
then that person would be ineligible to work in any craft requiring
certification, such as a locomotive engineer or conductor, for any
railroad during the period of revocation. Such person would also not be
able to obtain a certificate in any of those crafts from any railroad
while their dispatcher certificate is revoked. Likewise, if a person's
non-dispatcher certification(s), such as locomotive engineer or
conductor, are revoked because of an alcohol or drug violation, that
person will be ineligible to work as a certified dispatcher or obtain a
dispatcher certificate from any railroad during the revocation period.
In contrast, if a dispatcher's certification is revoked for a violation
that does not involve alcohol or drugs, such as Sec. 245.303(e)(1)
through (7), that person would still be able to work in any other craft
requiring certification, such as a locomotive engineer or conductor,
during the period of revocation, as long as the person is certified in
that craft. Likewise, a person could still work as a certified
dispatcher if their certificate for another craft, such as locomotive
engineer or conductor, was revoked due
[[Page 35594]]
to a violation that did not involve drugs or alcohol.
FRA's reasoning for this line of delineation between revocable
events that involve alcohol and drugs and those that do not is rooted
in railroad safety. If someone shows up to work as a dispatcher under
the influence of alcohol or drugs, it stands to reason that they could
likely show up to work for another certified craft, such as a
locomotive engineer or conductor, under the influence as well. Thus, it
makes sense for an individual's alcohol or drug violations as a
dispatcher to impact their eligibility to work in another craft that
requires certification and vice versa. With respect to revocable events
that do not involve alcohol or drugs, FRA finds that the tasks
performed by a dispatcher are so inherently different from the tasks
performed in another certified craft, such as an operating crew member,
that it does not automatically follow that a person's revocable event
as a dispatcher indicates that they are more likely to also have a
revocable event while performing in another certified craft. Thus, FRA
is taking the position that a revocation of a dispatcher certificate
which does not involve alcohol or drugs should not affect that person's
eligibility to work in another railroad craft requiring certification,
and vice versa. However, FRA requests comments on this issue.
Paragraphs (g) and (h) of this section would prohibit a railroad
from denying or revoking a dispatcher's certification just because
their attempt at certification or recertification in another railroad
craft, such as locomotive engineer or conductor, was denied, and vice
versa. Paragraph (i) of this section would allow a railroad to issue a
single certificate to a person who is certified in multiple railroad
crafts that require certification. If a railroad exercises this option,
it must ensure that the single certificate contains all of the
components required for each craft. Alternatively, railroads are also
welcome to issue multiple certificates to a person who is certified in
multiple crafts (one certificate for each craft). Thus, if a person is
certified as both a dispatcher and conductor, the railroad could issue
the person a single certificate containing both crafts or it could
issue one dispatcher certificate and one conductor certificate.
Finally, paragraph (j) of this section denotes that if a person is
certified in multiple crafts and they are involved in a revocable
event, that event can only lead to the revocation of a certificate for
a single railroad craft. The railroad must determine which certificate
should be revoked based on the work the individual was performing at
the time of the event. In such instances, while the railroad may only
revoke a certificate for a single craft, that revocation could affect a
person's eligibility to perform other crafts. For example, if a person
who is certified as a dispatcher and a conductor, violates 49 CFR
219.101 while on duty as a dispatcher, the railroad should only revoke
the individual's dispatcher certification. The person's conductor
certificate cannot be revoked for the incident that occurred while the
person was on duty as a dispatcher. However, as discussed in paragraph
(d)(1) of this section, this person would not be able to work as a
conductor while their dispatcher certificate was revoked for this
offense.
Section 245.215 Railroad Oversight Responsibilities
This proposed section, derived from 49 CFR 240.309 and 242.215,
would require each Class I railroad (including the National Railroad
Passenger Corporation), each railroad providing commuter service, and
each Class II railroad to conduct an annual review and analysis of its
program for responding to detected instances of poor safety conduct by
certified dispatchers. FRA has formulated the information collection
requirements of this proposed section to ensure that railroads collect
data on dispatcher safety behavior and feed that information into their
operational monitoring efforts, thereby enhancing safety.
This section would require each Class I railroad (including the
National Railroad Passenger Corporation), railroad providing commuter
service, and Class II railroad to have an internal auditing plan to
keep track of eight distinct events that involve poor safety conduct by
dispatchers. For each event, the railroad would be required to indicate
what response it took to that situation. The railroad would then be
required to evaluate this information, together with data showing the
results of annual operational testing and causation of FRA reportable
train accidents, to determine what additional or different efforts, if
any, are needed to improve the safety performance of that railroad's
certified dispatchers. FRA would not require railroads to furnish this
data or their analysis of the data to FRA. Instead, FRA would require
that railroads be prepared to submit such information when requested.
As set forth in paragraph (i), an instance of poor safety conduct
involving a person who is a certified dispatcher and is certified in
another railroad craft (such as a locomotive engineer or conductor)
need only be reported once under the appropriate section of this
chapter (e.g., under Sec. 240.309, Sec. 242.215, or under this
section). The determination as to where to report the instance of poor
safety conduct should be based on the work the person was performing at
the time the conduct occurred. This determination is similar to the
determination made under part 225, in which railroads determine whether
an accident was caused by poor performance of what is traditionally
considered a conductor's job function (e.g., switch handling, derail
handling, etc.) or whether it was caused by poor performance of what is
traditionally considered a locomotive engineer's job function (e.g.,
operation of the locomotive, braking, etc.)
Denial and Revocation of Certification
This subpart parallels part 240 and part 242's approach to adverse
decisions concerning certification (i.e., decisions to deny
certification or recertification and revoke certification). With
respect to denials, the approach of this rule is predicated principally
on the theory that decisions to deny certification or recertification
will come at the conclusion of a prescribed evaluation process which
will be conducted in accordance with the provisions set forth in this
subpart. Thus, this proposed rule contains specific procedures designed
to ensure that a person in jeopardy of being denied certification or
recertification will be given a reasonable opportunity to examine and
respond to the negative information that might serve as the basis for
being denied certification or recertification.
When considering revocation, this proposed rule contemplates that
decisions to revoke certification will only occur for the reasons
specified in this subpart. Since revocation decisions by their very
nature involve a clear potential for factual disagreement, this subpart
is structured to ensure that such decisions will only come after a
certified dispatcher has been afforded an opportunity for an
investigatory hearing at which the presiding officer will determine
whether there is sufficient evidence to establish that the dispatcher's
conduct warranted revocation of their certification.
This subpart also provides for certificate suspension in certain
circumstances. Certificate suspension would be employed in instances
where there is reason to think the certificate should be revoked or
made conditional but time is needed to resolve the situation.
Certificate suspension is applicable in instances where a person
[[Page 35595]]
is awaiting an investigatory hearing to determine whether that person
violated certain provisions of FRA's alcohol and drug control rules, or
committed a violation of certain operating rules or practices, and
situations in which the person is being evaluated or treated for an
active substance abuse disorder.
Section 245.301 Process for Denying Certification
This proposed section, derived from 49 CFR 240.219 and 242.401,
establishes minimum procedures that must be offered to a certification
candidate before a railroad denies the candidate certification or
recertification. Paragraph (a) of this section gives a certification
candidate a reasonable opportunity to explain or rebut adverse
information, including written documents or records, that the railroad
intends to use as the basis for its decision to deny certification or
recertification.
Paragraph (b) of this section requires that a written explanation
of an adverse decision be `served' on a certification candidate within
10 days of the railroad's decision. Paragraph (b) also requires that
the basis for a railroad's denial decision address any explanation or
rebuttal information that the dispatcher candidate may have provided
pursuant to paragraph (a) of this section.
Paragraph (c) of this section prohibits a railroad from denying
certification based on a failure to comply with a railroad operating
rule or practice which constitutes a violation under Sec.
245.303(e)(1) through (7) if sufficient evidence exists to establish
that an intervening cause prevented or materially impaired the
dispatcher's ability to comply with that railroad operating rule or
practice. This paragraph is derived from the intervening cause
exception for revocation in Sec. 245.307(h).
Section 245.303 Criteria for Revoking Certification
This proposed section, derived from 49 CFR 240.117, 240.305, and
242.403, provides the circumstances under which a dispatcher may have
their certification revoked. In addition, paragraph (a) of this section
makes it unlawful to fail to comply with any of the railroad rules or
practices described in paragraph (e) of this section. Paragraph (a) is
needed so that FRA can initiate enforcement action. For example, FRA
might want to initiate enforcement action in the event that a railroad
fails to initiate revocation action or a person who is not a certified
dispatcher violates a railroad rule or practice described in paragraph
(e) of this section. (Railroads should, however, note that they may not
revoke a dispatcher's certificate, including a designated dispatcher's
certificate, until they have obtained FRA approval of their
certification programs pursuant to Sec. 245.103.)
Paragraph (b) of this section provides that a certified dispatcher
who fails to comply with a railroad rule or practice described in
paragraph (e) would have their dispatcher certification revoked.
Paragraph (c) provides that a certified dispatcher who is monitoring,
piloting, or instructing another dispatcher could have their
certification revoked if the certified dispatcher fails to take
appropriate action to prevent a violation of a railroad rule or
practice described in paragraph (e) of this section. As explained in
paragraph (c), ``appropriate action'' does not mean that a supervisor,
pilot, or instructor must prevent a violation from occurring at all
costs, but rather the duty may be met by warning the dispatcher, as
appropriate, of a potential or foreseeable violation.
Paragraph (d) provides that a certified dispatcher who is called by
a railroad to perform a duty other than that of a dispatcher would not
have their dispatcher certification revoked based on actions taken or
not taken while performing that duty. In general, this paragraph would
apply regardless of whether the individual was called to perform a
certified craft, such as locomotive engineer or conductor, or a non-
certified craft. However, this exemption would not apply to violations
described in paragraph (e)(8) of this section. Therefore, certified
dispatchers working in other capacities, that do not require
certification, who violate certain alcohol and drug rules would have
their certification revoked for the appropriate period pursuant to
Sec. 245.115. However, if the certified dispatcher was working in
another certified craft, such as a locomotive engineer or conductor, at
the time of the alcohol or drug violation, their certificate for the
craft that they were performing at the time of the violation would be
revoked as opposed to their dispatcher certificate. If a certified
dispatcher who is also certified in another craft, such as locomotive
engineer or conductor, violates Sec. 219.101 while performing a craft
that does not require certification, the railroad shall pick one, and
only one, certificate to revoke. For example, if a person, who is a
certified dispatcher and conductor, violates Sec. 219.101 while
working as a brakeman, the railroad must decide to revoke either their
dispatcher certificate or their conductor certificate, but it cannot
revoke both certificates. Regardless of which certificate the railroad
chooses to revoke, the person will be unable to work as a dispatcher or
conductor during the period of revocation. See Sec. 245.213(d)(1) and
(3).
Paragraph (e) provides the eight types of rule infractions that
could result in certification revocation. The infractions listed in
paragraphs (e)(1) through (8) are derived in part from the revocable
events provided in 49 CFR 242.117(e) but have been modified to account
for the duties and responsibilities of a dispatcher.
Paragraph (e)(1) refers to a dispatcher's failure to properly
protect the public and railroad personnel after receiving a report of
highway-rail grade crossing warning system malfunction. Depending on
the type of warning system malfunction at issue, this violation could
involve the dispatcher's failure to issue a mandatory directive that
restricts speed or imposes a stop and flag order for train crews
approaching the highway-rail grade crossing.
Paragraph (e)(2) refers to violations that could include a
dispatcher granting authority or permission for a train or on-track
equipment to enter an out of service or blue flag protected track.
Paragraph (e)(3) refers to violations that could include a
dispatcher granting authority or permission for a train or on-track
equipment to enter established Roadway Worker In Charge (RWIC) limits
without authorization from the RWIC who owns the limits.
Paragraph (e)(4) refers to the removal of blocking devices or
established protection of RWIC working limits, prior to the RWIC
releasing the limits. Similar to the previous paragraph, this entry is
directly correlated to the protection of personnel and equipment on
controlled track. In setting up protected limits for an RWIC,
dispatchers apply blocking devices which are used to isolate the limits
owned by the RWIC. Removing these devices and established protection
exposes the RWIC to movements of trains, engines, and on-track
equipment.
Paragraph (e)(5) refers to violations that could include the
failure of a dispatcher to properly apply blocking devices or establish
appropriate protection necessary to protect working limits or the
movement of trains or on-track equipment.
Paragraph (e)(6) references a dispatcher's failure to properly
issue or apply mandatory directives when warranted. Mandatory
directives are defined in Sec. 245.7 as any movement authority or
speed restriction that affects a railroad operation. Therefore, any
form used to authorize the use of, or
[[Page 35596]]
provide protection for, controlled track is a mandatory directive.
Mandatory directives can be in the form of speed restrictions/slow
orders, track authorities, track warrants, and various other movement
orders.
Paragraph (e)(7) refers to violations that could include a
dispatcher circumventing train control systems by granting permission
or authorizing a train or engine with inoperative or malfunctioning PTC
or cab signal equipment onto territory requiring the use of these
systems.
Paragraph (f) proposes a three-year period for considering
certified dispatcher conduct that failed to comply with a railroad
operating rule or practice described in paragraphs (e)(1) through (7)
of this section. However, when alcohol and drug violations are at
issue, the time period for evaluating prior operating rule misconduct
would be dictated by Sec. 245.115, which would establish a period of
60 consecutive months prior to the date of review for such evaluations.
Paragraph (g) provides that if a single incident contravenes more
than one railroad operating rule or practice listed in paragraph (e) of
this section, the incident would be treated as a single violation. FRA
considers a single incident to be a unique identifiable occurrence
caused by a certified dispatcher's violation of one or more railroad
operating rules or practices listed in paragraph (e). However, a
certified dispatcher could be involved in more than one incident during
a single tour of duty, if the incidents are separated by time,
distance, or circumstance.
Paragraph (h) provides that a certified dispatcher may have their
certification revoked for violation of a railroad operating rule or
practice listed in paragraph (e) that occurs during a properly
conducted operational compliance test. However, as reflected in
paragraph (i), violations of railroad operating rules or practices that
occur during operational tests that are not conducted in compliance
with this part, the railroad's operating rules, or the railroad's
program under Sec. 217.9 will not be considered for revocation
purposes.
Section 245.305 Periods of Ineligibility
This section of the proposed rule, derived from 49 CFR 240.117 and
242.405, describes how a railroad would determine the period of
ineligibility (e.g., for revocation or denial of certification) for a
dispatcher or dispatcher candidate. Paragraph (a) of this section
provides the starting date for a period of ineligibility. For persons
who are not currently certified as dispatchers, a period of
ineligibility would begin on the date of the railroad's written
determination that the most recent incident has occurred. For example,
if the railroad made a written determination on March 10th that the
most recent incident occurred on March 1st, the period of ineligibility
would begin on March 10th. For persons who are currently certified
dispatchers, a period of ineligibility would begin on the date the
railroad notifies the person that their recertification has been denied
or their certification has been suspended. For dispatchers who have
their certification revoked, the period of ineligibility would begin on
the date the railroad notifies the dispatcher of the certificate
suspension as opposed to the notification date of certificate
revocation because once a person's certificate is suspended, they are
ineligible to work as a dispatcher pending a determination as to
whether the certificate should be revoked.
With respect to revocation, paragraph (b) of this section provides
that once a railroad determines that a dispatcher has failed to comply
with its safety rule concerning one or more events listed in Sec.
245.303(e), two consequences will occur. First, the railroad will be
required to revoke the dispatcher's certification for a period of time
provided in this section. Second, that revocation will initiate a
period during which the dispatcher will be subject to an increasingly
more severe period of revocation if additional revocable events occur
in the next 24 to 36 months. The standard periods of revocation
proposed in this section track the revocation periods provided in parts
240 and 242. One revocable event would result in revocation for 30
days. Two revocable events within 24 months of each other would result
in revocation for six (6) months. Three revocable events within 36
months of each other would result in revocation of one (1) year. Four
revocable events within 36 months of each other would result in
revocation for three (3) years.
While paragraph (c) of this section contains a provision that
parallels Sec. 242.405(b) and provides that all periods of revocation
may consist of training, paragraph (d) contains a provision that
parallels Sec. Sec. 240.117(h) and 242.405(c). Paragraph (d) provides
that a person whose dispatcher certification is denied or revoked will
be eligible for grant or reinstatement of the certificate prior to the
expiration of the initial period of revocation if they satisfy all of
the criteria listed in the paragraph.
Section 245.307 Process for Revoking Certification
This proposed section, derived from 49 CFR 240.307 and 242.407,
provides the procedures a railroad must follow if it acquires reliable
information regarding a dispatcher's violation of an operating rule or
practice listed in Sec. Sec. 245.303(e) or 245.115(d). Paragraph
(b)(1) of this section provides that, upon receipt of reliable
information regarding a violation of a railroad operating rule or
practice described in Sec. Sec. 245.303(e) or 245.115(d), a railroad
must suspend the person's certificate immediately. Paragraph (b)(2)
provides that, prior to or upon suspending the person's certificate,
the railroad would have to provide either oral or written notice of the
reason for the suspension, the pending revocation, and an opportunity
for a hearing. If the initial notice was verbal, then the notice would
have to be promptly confirmed in writing. The amount of time the
railroad has to confirm the notice in writing would depend on whether
or not a collective bargaining agreement is in effect and applicable.
In the absence of such an agreement, a railroad would have four days to
provide written notice. If a notice of suspension is amended after a
hearing is convened and/or does not contain citations to all railroad
rules and practices that may apply to a potentially revocable event,
the Certification Review Board (CRB or Board), if asked to review the
revocation decision, might subsequently find that this constitutes
procedural error pursuant to Sec. 245.405.
Pursuant to paragraph (b)(4) of this section, no later than the
convening of a hearing, the railroad must provide the dispatcher with a
copy of the written information and a list of witnesses the railroad
will present at the hearing. If requested, a recess to the start of the
hearing shall be granted if the copy of the written information and
list of witnesses is not provided until just prior to the convening of
the hearing. If the information that led to the suspension of a
dispatcher's certificate pursuant to paragraph (b)(1) of this section
is provided through statements of an employee of the convening
railroad, the railroad must make that employee available for
examination during the hearing. Examination may be telephonic or
virtual when it is impractical to provide the witness at the hearing.
These provisions in paragraph (b)(4) of this section were added to
ensure that dispatchers are provided with information and/or witnesses
necessary to defend themselves at their hearing. Even if a railroad
conducts a
[[Page 35597]]
hearing pursuant to the procedures in an applicable collective
bargaining agreement, the railroad will still have to comply with the
provisions of paragraph (b)(4). It is not, however, FRA's intent to
require railroads to call every witness included on the railroad's list
of witnesses to testify at the hearing. If, for example, a railroad
believes that it has provided sufficient evidence during a hearing to
prove its case, and that calling a witness on its list to testify would
be unduly repetitive, the railroad would not be obligated to call that
witness to testify. Of course, the opposing party could request that
the witness be produced to testify, but the hearing officer would have
the authority pursuant to paragraph (d)(4) of this section to determine
whether the witness's testimony would be unduly repetitive or so
extensive and lacking in relevancy that its admission would impair the
prompt, orderly, and fair resolution of the proceeding.
Paragraph (d)(2) of this section provides the presiding officer
with the powers necessary to regulate the conduct of the hearing. Thus,
a presiding officer would be permitted to deny excessive hearing
request delays by the dispatcher. Moreover, a presiding officer could
find implied consent to postpone a hearing when a dispatcher's
witnesses are not available within 10 days of the date the certificate
is suspended. However, the CRB may grant a petition on review if the
CRB finds that the hearing schedule caused the petitioner substantial
harm.
Paragraph (e) of this section contains requirements regarding the
written decision in a railroad hearing. FRA believes these requirements
will ensure that railroads issue clear and detailed decisions. In turn,
clear and detailed decisions will allow a dispatcher to understand
exactly why their certification was revoked and will allow the CRB to
have a more detailed understanding of the case if it is asked to review
the revocation decision pursuant to subpart E of this proposed rule.
Paragraph (f) credits the period of certificate suspension prior to
the commencement of a hearing required under this section towards
satisfying any applicable revocation period imposed in accordance with
the provisions of Sec. 245.305. For example, if a dispatcher's
certificate is suspended on July 1st and on July 11th, the railroad
issues a decision to revoke the dispatcher's certificate for 30 days,
the time between July 1st and July 11th would count towards the 30-day
revocation period. Thus, the dispatcher's certificate would only be
revoked for an additional 20 days after the railroad issued its
revocation decision.
Paragraph (g) requires a railroad to revoke a dispatcher's
certification if it discovers that another railroad has revoked that
person's dispatcher certification. The revocation period shall coincide
with the revocation period of the railroad that initially revoked the
dispatcher's certification. For example, if a dispatcher is certified
by Railroad ABC and Railroad XYZ, and ABC revokes the dispatcher's
certification from November 1st through November 30th, XYZ must revoke
the dispatcher's certification through November 30th once it learns of
ABC's revocation. The revocation hearing requirement in this rule is
satisfied when any single railroad holds a revocation hearing for a
dispatcher that arises from the same set of facts.
Paragraphs (h) and (i) provide two specific defenses for railroad
supervisors and hearing officers to consider when deciding whether to
suspend or revoke a person's certificate due to an alleged revocable
event. Pursuant to these provisions, either defense would have to be
proven by sufficient evidence. Paragraph (h) prohibits railroads from
revoking a dispatcher's certificate when there is sufficient evidence
of an intervening cause that prevented or materially impaired the
dispatcher's ability to comply. For example, a railroad should consider
assertions that a Dispatcher Pilot or Dispatcher Trainer failed to take
appropriate action to prevent an uncertified dispatcher or dispatcher
trainee from using defective equipment. Similarly, a railroad should
consider assertions that a train crew member relayed incorrect
information to the dispatcher who reasonably relied on it, thus causing
a revocable event. However, FRA does not intend to imply that all
equipment failures and errors caused by others will serve to absolve
dispatchers from certification revocation under this proposed rule. The
factual issues presented by each incident would need to be analyzed on
a case-by-case basis.
Paragraph (i) would allow railroads to exercise discretion when
determining whether to revoke a dispatcher's certification ``if
sufficient evidence exists to establish that the violation of the
railroad operating rule or practice described in Sec. 245.303(e) was
of a minimal nature and had no direct or potential effect on rail
safety.'' However, FRA acknowledges that the determination as to
whether an incident meets this criterion could be subject to different
interpretations. For this reason, paragraph (j) would require railroads
to retain information about the evidence relied upon when exercising
this discretion. Unless a railroad fails to retain information as
required in paragraph (j) or acts in bad faith, FRA does not anticipate
taking enforcement action against the railroad even if FRA believes the
railroad could have revoked the dispatcher's certification.
Paragraph (j) of this section requires railroads to keep records of
those violations in which they must not or elect not to revoke a
dispatcher's certificate pursuant to paragraph (h) or (i) of this
section. Paragraph (k) addresses concerns that problems could arise if
FRA disagrees with a railroad's decision not to suspend a dispatcher's
certificate for an alleged violation of an operating rule or practice
pursuant to Sec. 245.303(e). As long as a railroad makes a good faith
determination after a reasonable inquiry, the railroad will have
immunity from civil enforcement for making what the agency believes to
be an incorrect determination. However, if railroads do not conduct a
reasonable inquiry or act in good faith, they could be subject to civil
penalty assessment under this rule. In addition, even if a railroad
does not take what FRA considers appropriate revocation action, FRA
could still take enforcement action against an individual responsible
for the noncompliance by assessing a civil penalty against the
individual or issuing an order prohibiting the individual from
performing safety-sensitive functions in the rail industry for a
specified period pursuant to part 209, subpart D.
Subpart E--Dispute Resolution Procedures
This subpart details the opportunities and procedures for a person
to challenge a railroad's decision to deny certification or
recertification or to revoke a dispatcher's certification. While the
proposed dispute resolution process for dispatchers largely mirrors the
processes for engineers under part 240 and conductors under part 242,
FRA has made some modifications that will be discussed below. In
addition, FRA has undertaken efforts to simplify these regulations so
that they are clear and comprehensible to all interested parties.
Section 245.401 Review Board Established
This proposed section, derived from 49 CFR 240.401 and 242.501,
provides that a person who is denied certification or recertification
or has had their dispatcher certification revoked may petition FRA to
review the railroad's decision. Pursuant to this section, FRA
[[Page 35598]]
delegates initial responsibility for adjudicating such disputes to the
CRB. Although creation of the CRB will require issuance of an internal
FRA order, FRA anticipates that the CRB will mirror the Operating Crew
Review Board (OCRB) which currently adjudicates disputes under parts
240 and 242.\20\ Under this proposed rule, this newly created Board
would adjudicate certification disputes for all certified crafts,
including locomotive engineers, conductors, and dispatchers. FRA is
fully aware that these different job disciplines require different
knowledge bases and skill sets. While the specific process for
selecting CRB members would be delineated in an FRA order or other
internal document, FRA would ensure that the CRB is composed of
employees with sufficient backgrounds in these various disciplines.
Only those CRB members with sufficient knowledge of dispatching would
be able to participate as a voting member on a petition filed under
this part.
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\20\ In a future rulemaking, FRA expects to revise parts 240 and
242 to refer to the CRB instead of the OCRB.
---------------------------------------------------------------------------
Section 245.403 Petition Requirements
This proposed section, derived from 49 CFR 240.403 and 242.503,
provides the requirements for obtaining FRA review of a railroad's
decision to deny certification, deny recertification, or revoke
certification. The requirements contained in paragraph (b) of this
section include the need to seek review in a timely fashion once the
adverse decision is served on the petitioner. In the interest of
consistency and uniformity with parts 240 and 242, petitioners under
this part would have 120 days, from the date the adverse decision was
served upon them, to file a petition for review by the CRB.
Paragraph (b)(3) provides that a petitioner must file their
petition through https://www.regulations.gov. Petitioners and their
representatives should save some form of proof of their filing in case
an error occurs in the Regulations.gov system and they have to submit
proof that their petition was timely filed. All documents associated
with a CRB petition will be posted to the docket for that case on
Regulations.gov and all DOT dockets on Regulations.gov are available to
the public. You may review DOT's complete Privacy Act Statement
published in the Federal Register on April 11, 2000 (Volume 65, Number
70, Pages 19477-78).
Paragraph (b)(4) requires that a petition contain certain contact
information, including an email address, for the petitioner and their
representative, if any. The OCRB solely communicates with parties via
email. FRA anticipates that the CRB will operate in a similar manner,
and will only send communications to the parties via email. If a
petition only contains an email address for the petitioner's
representative, but not the petitioner, the CRB will only send any
necessary communications to the representative. Because all
communications will be performed via email, FRA has determined that it
is unnecessary for a petition to include a mailing address for
petitioner or their representative. Thus, unlike in parts 240 and 242,
this information will not be required.\21\ Lastly, if any required
contact information for petitioner or their representative, such as a
phone number or email address, changes during the pendency of a
petition before the CRB, it is the responsibility of the petitioner or
their representative to provide the CRB and the railroad with the new
contact information.
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\21\ In a future rulemaking, FRA expects to revise Parts 240 and
242 to conform to the electronic communication requirements of this
rulemaking.
---------------------------------------------------------------------------
Paragraph (b)(6) requires petitioners or their representatives to
state the facts and arguments in support of their petition. In other
words, they need to explain to the CRB why they think the railroad was
incorrect in denying or revoking the petitioner's certification.
Paragraph (b)(7) requires petitioners to submit all documents related
to the railroad's decision that are in their possession or reasonably
available to them. This potentially includes the transcript and
exhibits from the petitioner's denial or revocation hearing. In most
cases, these documents will be essential to the Board's ability to make
an informed decision on the petition. If neither the petitioner nor the
railroad provides these documents, the Board may have to specifically
request these documents. Such a request is likely to delay the Board's
adjudication of the petition. Therefore, it is in the petitioner's
interest to provide the Board with these documents as part of their
petition.
Paragraph (c) of this section was added to clarify a petitioner's
responsibilities, if requested by the CRB, with respect to a petition
seeking review of a railroad decision that is based on a failure to
comply with any drug or alcohol related rules or a return-to-service
agreement. It provides that, if requested by the CRB, a petitioner must
supplement the petition with ``a copy of the information under 49 CFR
40.329 that laboratories, medical review officers, and other service
agents are required to release to employees.'' This paragraph also
provides that a petitioner must provide a written explanation in
response to a CRB request if they do not supply the Board with the
written documents that should be reasonably available under 49 CFR
40.329.
Paragraph (d) of this section gives the CRB discretion to grant a
request for additional time to file a petition if certain circumstances
are met. As an initial matter, the petitioner must put forth good cause
for granting the extension. Thus, a petitioner will have to demonstrate
a reasonable justification for granting the extension of time. This
justification should be as detailed as possible to assist the Board in
its determination. In addition to showing good cause for an extension,
a petitioner must either submit their extension request before the
deadline for filing their petition or, if the deadline has already
passed, they must allege facts constituting ``excusable neglect'' for
failing to meet the deadline. The mere assertion of excusable neglect,
unsupported by facts, will be insufficient. Excusable neglect requires
a demonstration of good faith on the part of the party seeking an
extension of time, and some reasonable basis for noncompliance within
the time frame specified in the rules. Absent a showing along these
lines, relief will be denied. The Board will make determinations on
whether ``good cause'' and/or ``excusable neglect'' has been shown on a
case-by-case basis.
Paragraph (e) of this section explains that a decision by the CRB
to deny a petition for untimeliness or lack of compliance with the
requirements of Sec. 245.403 may be appealed directly to the FRA
Administrator. Normally an appeal to the Administrator can only occur
after a case has been heard by FRA's hearing officer. However,
petitions that the Board finds to be untimely or incomplete are the two
exceptions where a party can skip petitioning the hearing officer and
go directly to filing an appeal with the Administrator.
Section 245.405 Processing Certification Review Petitions
This section of the proposed rule, derived from 49 CFR 240.405 and
242.505, details how petitions for review by the CRB will be handled.
Paragraph (a) of this section notes that when FRA receives a CRB
petition, it will send a written notification to the parties involved
in the petition. FRA will send these acknowledgments via email. If a
representative files a petition
[[Page 35599]]
on behalf of a petitioner, the petition must include the petitioner's
email address, if the petitioner also wants to receive the
acknowledgment email and any other correspondence (including the
Board's decision) from FRA. The acknowledgment email will include the
docket number for the petition so that both parties can access the
documents in the case on https://www.regulations.gov. FRA will not send
a copy of the petition to the railroad.
Paragraph (b) of this section provides railroads with the
opportunity to respond to a petition. While it is always optional for a
railroad to respond to a petitioner's arguments, if the petitioner did
not include relevant documents in their petition, such as hearing
transcripts or exhibits, the railroad is required to provide FRA with
those documents, even if it does not otherwise respond to the arguments
in the petition. Railroads would have 60 days, from the date FRA sends
the acknowledgment email, to file a response in the docket on https://www.regulations.gov. Railroads may submit responses after the 60-day
deadline, but the Board will only review such late filings if it is
practicable. In other words, there is no guarantee that the Board will
review a late response prior to issuing a decision; thus, if a railroad
wishes to respond to a petition, it should meet the 60-day deadline.
The railroad can fulfill its requirement to serve a copy of its
response on the other party by sending its response to petitioner and/
or petitioner's representative via email.
Paragraph (c) of this section specifies when a case will be
referred to the Board, and what authority the Board has to decide on a
petition. If a railroad files a response before the 60-day deadline in
paragraph (b) of this section, the petition will be referred to the
Board upon receipt of the response. Otherwise, the petition will be
referred to the Board 60 days after the date the acknowledgment email
was sent. The Board has the authority to grant a petition (rule in
favor of the petitioner), deny a petition (rule in favor of the
railroad), or dismiss a petition. An example of when the Board would
dismiss a petition would be if the railroad did not deny or revoke the
petitioner's certification, and thus, there was no case or controversy
before the Board. If there is insufficient evidence of record for the
Board to make a decision on the merits of a petition, the Board may
choose to remand a petition or issue an interim order, so that
additional fact-finding can occur.
Paragraphs (d), (e), and (f) of this section provide the standards
of review that the Board will employ for procedural issues, factual
issues, and legal issues, respectively. These standards mirror the
standards of review used by the OCRB to review locomotive engineer and
conductor petitions. It is not the Board's intention to correct all
procedural errors committed by a railroad. Instead, the Board will only
grant a petition if the railroad's procedural error caused substantial
harm to the petitioner. For factual issues, the petitioner must show
that the railroad did not have substantial evidence to support its
decision to deny or revoke the petitioner's certification. If the Board
must decide a legal issue, it will perform de novo review, meaning that
it will not give deference to any decision or interpretation made by
the railroad.
Paragraph (g) of this section acknowledges that the Board's
decision-making power is limited to granting or denying a petition. In
other words, the Board is only empowered to make determinations
concerning qualifications under this regulation. The Board is not
empowered to mitigate the consequences of a railroad decision if the
decision was valid under this regulation. The contractual consequences,
if any, of these determinations would have to be resolved under dispute
resolution mechanisms that do not directly involve FRA. For example,
FRA cannot order a railroad to alter its seniority rosters or make an
award of back pay, in the event of a finding that a railroad wrongfully
denied certification.
Paragraph (h) of this section notes that the Board will issue a
written decision that will be served on both parties. FRA will send the
decision to the parties by email and it will also be posted in the
case's docket on https://www.regulations.gov.
Section 245.407 Request for a Hearing
This proposed section, derived from 49 CFR 240.407 and 49 CFR
242.507, provides that a party who has been adversely affected by a CRB
decision will have the opportunity to request an administrative
proceeding as prescribed in Sec. 245.509. Paragraph (b) of this
section gives the instructions and the deadline for submitting a
hearing request. Just like with CRB petitions, parties must file
hearing requests electronically. To file a hearing request, the
adversely affected party should upload the request to the docket on
https://www.regulations.gov that was used while the case was before the
Board. This docket will also be used to file documents while the case
is before the hearing officer. After the 20-day deadline to file a
hearing request has passed, FRA will check the docket on https://www.regulations.gov to see if a hearing request was filed. Paragraph
(c) of this section contains the requirements for a hearing request,
which includes the docket number for the case while it was before the
Board. Paragraph (c) also requires the signature of the requesting
party or their representative. FRA will accept electronic signatures
for purposes of satisfying this requirement.
Paragraph (d) of this section notes that FRA will arrange for the
appointment of a presiding officer, and it will be the presiding
officer's duty to schedule a hearing for the earliest practicable date.
Paragraph (e) of this section provides that a party who fails to
request an administrative hearing in a timely fashion will lose the
right to further administrative review and the CRB's decision will
constitute final agency action.
Section 245.409 Hearings
This section of the proposed rule, derived from 49 CFR 240.409 and
49 CFR 242.509, describes the authority of the presiding officer to
conduct an administrative hearing and the procedures by which the
administrative hearing will be governed. Paragraph (b) of this section
provides that the proceeding will afford an aggrieved party a de novo
hearing at which the relevant facts will be adduced, and the correct
application of this part will be determined. In instances when the
issues are purely legal, or when only limited factual findings are
necessary to determine issues, the presiding officer may determine the
issues following an evidentiary hearing only on the disputed factual
issues, if any. The presiding officer can therefore grant full or
partial summary judgment.
Paragraph (d) of this section provides that the presiding officer
may authorize discovery. It also authorizes the presiding officer to
sanction willful noncompliance with permissible discovery requests.
Paragraph (e) of this section requires that documents in the nature of
pleadings be signed. This signature can be electronic and will
constitute a certification of factual and legal good faith. Paragraph
(f) of this section provides the requirement for service and for
certificates of service. Paragraph (g) of this section expresses the
presiding officer's authority to address noncompliance with a law or
directive. This provision is intended to ensure that the presiding
officer will have the authority to control the proceeding so that an
efficient and fair hearing is conducted.
[[Page 35600]]
Paragraph (h) of this section states the right of each party to
appear and be represented. Paragraph (i) of this section protects
witnesses by ensuring their right of representation and their right to
have their representative question them. Paragraph (j) of this section
allows any party to request consolidation or separation of hearings of
two or more petitions when to do so would be appropriate under
established jurisprudential standards. This option is intended to allow
more efficient determination of petitions in cases where a joint
hearing would be advantageous.
Under paragraph (k) of this section, the presiding officer could,
with certain exceptions, extend periods for action required in the
proceedings, provided substantial prejudice would not result to a
party. The authority to deny an extension request submitted after a
deadline has already passed shows the preference for use of this
authority to provide extensions of time as a tool to alleviate
unforeseen or unnecessary burdens, and not as a remedy for inexcusable
neglect.
Paragraph (l) of this section establishes a motion as the
appropriate method for requesting action by the presiding officer. This
paragraph also provides the form of motions and the response period for
written motions. Paragraph (m) of this section provides rules for the
mode of hearing and record maintenance, including requirements for
sworn testimony, verbatim record (including oral testimony and
argument), and inclusion of evidence or substitutes therefor in the
record. Paragraph (n) of this section directs the presiding officer to
employ specific rules of evidence as guidelines for the introduction of
evidence, and permits the presiding officer to determine what evidence
may be received. Further, paragraph (o) of this section provides
additional powers the presiding officer may exercise during the
proceedings.
Paragraph (p) of this section provides that the petitioner before
the CRB, the railroad that took the certification action at issue, and
FRA are mandatory parties to the administrative proceeding. Paragraph
(q) of this section states what party will be the hearing petitioner
and what parties will be the respondents. If the Board granted the
petition, the railroad will be the hearing petitioner and the
dispatcher or dispatcher candidate will be a respondent. If the Board
denied the petition, the dispatcher or dispatcher candidate will be the
hearing petitioner and the railroad will be a respondent. The actions
of the dispatcher and the railroad will be at issue in the hearing--not
the actions of the CRB. Thus, it is appropriate that the dispatcher and
the railroad fill the roles of petitioner and respondent for the
hearing.
Paragraph (q) also provides that FRA will be a mandatory party in
the proceeding. In all proceedings, FRA will initially be considered a
co-respondent. If, based on evidence acquired after the filing of a
hearing petition, FRA concludes that the public interest in safety is
more closely aligned with the position of the petitioner than the
respondent, FRA can request that the hearing officer exercise their
inherent authority to realign parties for good cause shown. However,
FRA anticipates that such a situation would rarely occur. FRA
represents the interests of the government; hence, parties and their
representatives will have to be careful to avoid ethical dilemmas that
might arise due to FRA's ability to realign itself. Paragraph (q) also
notes that the party requesting the hearing has the burden of proving
its case by the preponderance of evidence.
Paragraph (r) of this section gives the presiding officer authority
to close the record in a case. Paragraph (s) of this section provides
the presiding officer with the authority to issue a decision and
includes requirements for that decision.
Section 245.411 Appeals
This proposed section, derived from 49 CFR 240.411 and 49 CFR
242.511, permits any party aggrieved by the presiding officer's
decision to file an appeal with the FRA Administrator. Paragraph (a) of
this section provides that if no appeal is timely filed, the presiding
officer's decision will constitute final agency action. The appeal
shall be filed in the same docket on https://www.regulations.gov used
when the case was before the Board and the presiding officer.
Paragraph (b) of this section allows for a party to reply to the
appeal. Paragraphs (c) and (d) of this section describe the
Administrator's authority to conduct the proceedings of an appeal.
Paragraph (e) of this section addresses the Administrator's different
options for ruling on an appeal. The phrase ``except where the terms of
the Administrator's decision (for example, remanding a case to the
presiding officer) show that the parties' administrative remedies have
not been exhausted'' is included in this rule so that parties
understand that a remand, or other intermediate decision, will not
constitute final agency action. The inclusion of this phrase clarifies
this potential outcome to those parties that are not represented by an
attorney or who might otherwise be confused as to whether any action
taken by the Administrator should be considered final agency action.
Paragraph (f) of this section provides instructions for how appeals
to the Administrator that come directly from the CRB should be handled.
The only cases that can go directly from the Board to the Administrator
are cases where the Board denied a petition for being untimely or
incomplete. If the Administrator vacates and remands the Board's
decision, the case will return to the Board. If the Administrator
affirms the Board's decision, that will constitute final agency action.
Appendices
FRA has included two appendices with this proposed rule.
Appendix A, derived from appendix C to part 240 and appendix C to
part 242, provides a narrative discussion of the procedures that a
person seeking certification or recertification should follow to
furnish a railroad with information concerning their motor vehicle
driving record. Appendix B, derived from appendix D to part 240 and
appendix D to part 242, provides a narrative discussion of the
procedures that a railroad is required to employ in administering the
vision and hearing requirements of Sec. 245.117 and Sec. 245.118. The
main issue addressed in this appendix is discussing test methods for
determining whether a person has the ability to recognize and
distinguish among the colors used as signals in the railroad industry.
V. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by Executive Order 14094
This proposed rule is not a significant regulatory action within
the meaning of Executive Order 12866 as amended by Executive Order
14094, Modernizing Regulatory Review. Details on the estimated costs of
this NPRM can be found in the Regulatory Impact Analysis (RIA), which
FRA has prepared and placed in the docket (FRA-2022-0019).
FRA is proposing regulations establishing a formal certification
process for railroad dispatchers. As part of that process, railroads
would be required to develop a program for training current and
prospective dispatchers, documenting and verifying that the holder of
the certificate has achieved certain training and proficiency, and
creating a record of safety compliance infractions that other railroads
can review when considering individuals for certification. This
proposed regulation would ensure that dispatchers are properly trained,
are
[[Page 35601]]
qualified to perform their duties, and meet Federal safety standards.
Additionally, this proposed regulation is expected to improve railroad
safety by reducing the rate of accidents/incidents.
The RIA presents estimates of the costs likely to occur over the
first 10 years of the proposed rule. The analysis includes estimates of
costs associated with development of certification programs, initial
and periodic training, knowledge testing, and monitoring of operational
performance. Additionally, costs are estimated for vision and hearing
tests, review of certification determinations made by other railroads,
and Government administrative costs.
FRA estimated 10-year costs of $5.3 million discounted at 7
percent. The annualized cost would be $0.8 million discounted at 7
percent. The following table shows the estimated 10-year costs of the
proposed rule.
Total 10-Year Discounted Costs
[2020 dollars]
----------------------------------------------------------------------------------------------------------------
10-Year cost Present value Present value Annualized 7% Annualized 3%
Category ($) 7% ($) 3% ($) ($) ($)
----------------------------------------------------------------------------------------------------------------
Development of Certification 976,996 929,395 953,949 132,325 111,832
Program........................
Certification Eligibility 67,860 55,360 61,963 7,882 7,264
Requirements...................
Recertification Eligibility 101,515 65,831 83,877 9,373 9,833
Requirements...................
Training........................ 910,415 707,334 812,820 100,708 95,287
Knowledge Testing............... 327,028 233,988 281,581 33,315 33,010
Vision and Hearing.............. 2,217,910 1,586,913 1,909,692 225,941 223,874
Monitoring Operational 353,656 256,017 305,956 36,451 35,867
Performance....................
Railroad Oversight 383,510 267,530 326,714 38,090 38,301
Responsibilities...............
Certification Card.............. 37,501 26,832 32,289 3,820 3,785
Petitions and Hearings.......... 11,325 8,198 9,797 1,167 1,149
Government Administrative Cost.. 1,505,376 1,208,191 1,361,239 172,019 159,579
-------------------------------------------------------------------------------
Total....................... 6,893,092 5,345,589 6,139,877 761,092 719,781
----------------------------------------------------------------------------------------------------------------
The primary benefit of this proposed rule is that it would ensure
that railroads properly train and monitor dispatcher performance to
reduce the risk of accidents caused by dispatcher error. This rule
would allow railroads to revoke certification of dispatchers who make
serious safety-related violations. This includes failure to protect a
malfunctioning highway-rail grade crossing or incorrectly granting
permission to proceed through a protected track segment.
This rule is expected to reduce the likelihood of an accident
occurring due to dispatcher error. FRA has analyzed accidents over the
past five years to categorize those where dispatcher training and
certification would have impacted the accident. FRA estimated that this
rule would prevent 30% of accidents that were caused or likely caused
by the dispatcher. FRA estimated that this rule would prevent 10% of
accidents where a dispatcher may have contributed to the accident.
The following table shows the estimated 10-year benefits of the
proposed rule. The total 10-year estimated benefits would be $0.8
million (PV, 7%) and annualized benefits would be $0.1 million (PV,
7%).
Total 10-Year Discounted Benefits
[2020 dollars]
----------------------------------------------------------------------------------------------------------------
Present value 3% Annualized 7% Annualized 3%
Present value 7% ($) ($) ($) ($)
----------------------------------------------------------------------------------------------------------------
785,599................................................... 918,450 111,852 107,670
----------------------------------------------------------------------------------------------------------------
FRA has quantified the monetary impact from accidents reported on
FRA accident forms. However, some accident costs are not required to be
reported on FRA accident forms (e.g., environmental impact). For
example, the cost of property damage represents a portion of the total
cost of train accidents, such as, the cost of direct labor and damage
to on-track equipment, track, track structures, and roadbed. Other
direct accident costs, such as accident clean up, third party property
damage, lost lading, environmental damage, loss of economic activity to
the community, and train delays are not included in FRA's accident/
incident reportable damages from the railroads. That impact may account
for additional benefits not quantified in this analysis. If these costs
not covered by FRA data were realized, accidents affected by this
proposed rulemaking could have much greater economic impact than the
quantitative benefit estimates provided here.
[[Page 35602]]
B. Regulatory Flexibility Act and Executive Order 13272
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
E.O. 13272 (67 FR 53461, Aug. 16, 2002) require agency review of
proposed and final rules to assess their impacts 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 economic impact on a substantial number of small
entities. FRA has not determined whether this proposed rule would have
a significant economic impact on a substantial number of small
entities. Therefore, FRA prepared this IRFA to facilitate public
comment on the potential small business impacts of the requirements in
this NPRM.
FRA invites all interested parties to submit data and information
regarding the potential economic impact on small entities that would
result from adoption of the proposals in this NPRM. FRA particularly
encourages small entities that could potentially be impacted by the
proposed rule to participate in the public comment process. FRA will
consider all information and comments received in the public comment
process when making a determination of the economic impact on small
entities.
1. Reasons for Considering Agency Action
FRA is concerned with the potential for accidents caused by
dispatcher error. Railroads' dispatcher training programs may not be
covering all aspects of a dispatcher's job responsibility.
Additionally, railroads may not be testing dispatchers and ensuring
that their knowledge is maintained continuously. The risk from job-
hopping of a dispatcher with a substance abuse problem is also
addressed by the proposed rule.
This NPRM would require railroads to develop a dispatcher
certification program. This proposed rule would ensure that railroads
examine railroad safety with respect to dispatchers. If FRA did not
issue the rule as proposed, railroads would be free to hire and train
dispatchers as they see fit.
2. A Succinct Statement of the Objectives of, and the Legal Basis for,
the Proposed Rule
This proposed rule is expected to help reduce the rate of
dispatcher-caused accidents. The annual operational performance
monitoring would ensure that dispatchers maintain their knowledge after
the initial certification process.
FRA is proposing regulations concerning dispatcher certification
based on the general statutory authority of the Secretary. The general
authority states, in relevant part, that the Secretary ``as necessary,
shall prescribe regulations and issue orders for every area of railroad
safety supplementing laws and regulations in effect on October 16,
1970.'' \22\ The Secretary delegated this authority to the Federal
Railroad Administrator.\23\ In addition, section 402 of the RSIA grants
the Secretary authority to prescribe regulations requiring the
certification of certain crafts or classes, including dispatchers, to
improve railroad safety.
---------------------------------------------------------------------------
\22\ 49 U.S.C. 20103.
\23\ 49 CFR 1.89(a).
---------------------------------------------------------------------------
3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Would Apply
The Regulatory Flexibility Act of 1980 requires a review of
proposed and final rules to assess their impact on small entities,
unless the Secretary certifies that the rule would not have a
significant economic impact on a substantial number of small entities.
``Small entity'' is defined in 5 U.S.C. 601 as 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 ``line-haul railroad'' that has fewer
than 1,500 employees, a ``short line railroad'' with fewer than 1,500
employees, a ``commuter rail system'' with annual receipts of less than
$16.5 million dollars, or a contractor that performs support activities
for railroads with annual receipts of less than $16.5 million.\24\
---------------------------------------------------------------------------
\24\ U.S. Small Business Administration, ``Table of Small
Business Size Standards Matched to North American Industry
Classification System Codes, August 19, 2019. https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019,%202019.pdf.
---------------------------------------------------------------------------
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Under that authority, FRA has published a proposed statement
of agency policy that formally establishes ``small entities'' or
``small businesses'' as 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,\25\ 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). FRA is using this definition for the proposed rule.
---------------------------------------------------------------------------
\25\ The Class III railroad revenue threshold is $40.4 million
or less, for 2021. (The Class II railroad threshold is between $40.4
million and $900 million.) Surface Transportation Board (STB),
available at https://www.stb.gov/news-communications/latest-news/pr-21-16/.
---------------------------------------------------------------------------
When developing the proposed rule, FRA considered the impact that
the proposed rule would have on small entities.
The proposed rule would be applicable to all railroads who perform
dispatching operations. However, the majority of small railroads do not
have a dispatching function as part of their operations. The remaining
small railroads would only be minimally impacted as most of their
dispatch operations are contracted out to third parties. FRA estimates
there are 744 Class III railroads, of which 704 operate on the general
system. These railroads are of varying size, with some belonging to
larger holding companies. Approximately 140 Class III railroads would
be impacted by this rulemaking because they have dispatchers on staff
or use third parties to dispatch trains for their operation. The
remaining Class III railroads operate on track owned by Class I
railroads or do not have a dispatching function as part of their
operation. For those railroads operating on Class I track, the host
railroad would be responsible for the dispatching on those tracks;
therefore, the smaller railroad would not require a dispatcher
certification program.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the Class
of Small Entities That Would Be Subject to the Requirements and the
Type of Professional Skill Necessary for Preparation of the Report or
Record
Railroads would be required to submit information to FRA for
approval of dispatching certification programs. For small railroads
that choose to develop their own certification programs, they would
likely be less complex than larger railroads' operations. This would
ease some of the burden on small railroads.
The training program, and annual railroad responsibilities would be
prepared by a professional or administrative employee. The type of
professional skills needed by an employee responsible for submitting a
special approval request includes the
[[Page 35603]]
ability to plan and organize work. Such an employee would also need
good verbal and written communication skills and attention to detail.
Summary of Class III Railroad Costs
Class III Railroads would have all the same cost components as
larger railroads except they would not be required to perform annual
railroad oversight responsibilities in accordance with the proposed
rule. Therefore, that cost has been excluded for Class III railroads.
The following table shows the annualized cost for Class III
railroads over the 10-year analysis period. The total estimated 10-year
costs for Class III railroads would be $0.8 million and the annualized
cost for all Class III railroads would be $118,984 (PV, 7 percent).
Total 10-Year and Annualized Costs, Class III Railroads
------------------------------------------------------------------------
Present value Annualized 7%
Category 7% ($) ($)
------------------------------------------------------------------------
Development of Certification Program.... 100,579 14,320
Certification Eligibility Requirements.. 13,840 1,971
Recertification Eligibility Requirements 16,458 2,343
Training................................ 176,834 25,177
Knowledge Testing....................... 58,497 8,329
Vision and Hearing...................... 396,728 56,485
Monitoring Operational Performance...... 64,004 9,113
Certification Card...................... 6,708 955
Petitions and Hearings.................. 2,050 292
-------------------------------
Total............................... 835,697 118,984
------------------------------------------------------------------------
The industry trade organization representing small railroads,
ASLRRA, reports the average freight revenue per Class III railroad is
$4.75 million.\26\ The following table summarized the average annual
costs and revenue for Class III railroads.
---------------------------------------------------------------------------
\26\ American Short Line and Regional Railroad Association,
Short Line and Regional Railroad Facts and Figures, p. 10 (2017
pamphlet).
Average Class III Railroads' Costs and Revenue
----------------------------------------------------------------------------------------------------------------
Number of class Average annual Average annual
Total cost for class III railroads, III railroads cost per class Average class cost as a
annualized 7% ($) with dispatcher III railroad III annual percent of
plans ($) revenue ($) revenue
A B c = a / b d e = c / d
----------------------------------------------------------------------------------------------------------------
118,984..................................... 140 850 4,750,000 0.02
----------------------------------------------------------------------------------------------------------------
The average annual cost for a Class III railroad impacted by this
rule would be $850. This represents a small percentage (0.02%) of the
average annual revenue for a Class III railroad.
The estimates above show that the burden on Class III railroads
would not be a significant economic burden. FRA requests comments on
this estimate and will consider all comments when making a
determination for the final rule.
5. Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
FRA is not aware of any relevant Federal rule that duplicates,
overlaps with, or conflicts with this NPRM. This proposed rule is
complementary to, rather than duplicative of, other recent regulatory
initiatives FRA has issued or is in the process of developing. These
initiatives include: the implementation of positive train control (PTC)
systems by required railroads; \27\ training, qualification, and
oversight; \28\ railroad safety risk reduction programs; \29\ and the
development of fatigue risk management programs.\30\
---------------------------------------------------------------------------
\27\ See generally 49 CFR part 236, subpart I; and press release
in which FRA announces full implementation of positive train control
(Dec. 29, 2020), available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.
\28\ 49 CFR part 243.
\29\ 49 CFR parts 270 and 271.
\30\ 87 FR 35660 (Jul. 13, 2022) (final rule amending 49 CFR
parts 270 and 271 to require certain railroads to develop and
implement a Fatigue Risk Management Program as one component of the
railroads' larger railroad safety risk reduction programs).
---------------------------------------------------------------------------
6. A Description of Significant Alternatives to the Rule
This analysis considered two alternatives to the rule: the baseline
approach, and an approach that would certify just the training program.
The baseline alternative (no action) would not ensure that dispatchers
are being properly trained. Without this rule, railroad operations may
be less safe if railroads are not providing adequate training to their
dispatchers.
The alternative of certifying only the training program would
require a railroad to enhance their training of dispatchers. Training,
however, is only a part of the certification process. The additional
requirements of this proposed rule would ensure that dispatchers'
hearing, vision, prior safety conduct at other railroads, and other
aspects have been reviewed and are consistent with railroad safety.
C. Paperwork Reduction Act
FRA is submitting the information collection requirements in this
proposed rule to the Office of Management and
[[Page 35604]]
Budget (OMB) for approval under the Paperwork Reduction Act of
1995.\31\ The entire table contains the new information collection
requirements and the estimated time to fulfill each requirement are as
follows:
---------------------------------------------------------------------------
\31\ 44 U.S.C. 3501 et seq.
\32\ Throughout the tables in this document, the dollar
equivalent cost is derived from the 2020 Surface Transportation
Board's Full Year Wage A&B data series using the appropriate
employee group hourly wage rate that includes 75-percent overhead
charges.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
Average time per annual Total cost
CFR section Respondent universe Total annual responses response burden Wage rate equivalent
hours
(A).................... (B).................... (C) = A * B (D) \32\ (E) = C * D
--------------------------------------------------------------------------------------------------------------------------------------------------------
245.9--Waivers--Petitions............ 203 railroads........... .33 petitions.......... 3 hours................ 1.00 $77.44 $77.44
245.101/.103--Certification program 203 railroads + ASLRRA 71 plans (14.33 Class I 120 hours + 120 hours + 2,439.18 115.24 281,091.10
required and FRA review of and holding companies. and commuter railroads 6 hours.
certification program--Development plans + 3.33 generic
of certification program in program developed by
accordance with this Part and ASLRRA and holding
procedures contained under Sec. companies plans +
245.107--Railroads with Current 53.33 Class II and III
Dispatching Operations and New railroads plans).
Dispatching Railroads (Note: Each
certification program includes
procedure requirements under Sec.
245.111 through Sec. 245.121.).
--(d)(1) Dispatcher certification 203 railroads........... 3 copies............... 15 minutes............. .75 77.44 58.08
submission--Copies of the program
provided to the president of each
rail labor organization (RLO) that
represents the railroad's employees
that are subject to this part.
--(d)(2) Affirmative statements that 203 railroads........... 3 affirmative 15 minutes............. .75 77.44 58.08
the railroad has provided a copy of statements.
the program to RLOs.
--(e) Comment Period--Affirmed 203 railroads........... 12 comments............ 4 hours................ 48.00 77.44 3,717.12
comments on a railroad's program by
any designated representative of
employees subject to this part or
any directly affected employee who
does not have a designated
representative.
------------------------------------------------------------------------------------------------------------------
--(g) Material Modifications of FRA- The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
approved program--Railroad to submit
a description of how it intends to
modify the program and a copy of the
modified program to FRA.
------------------------------------------------------------------------------------------------------------------
--(h) Resubmission--Railroad can 203 railroads + ASLRRA 4.67 revised plans 20 hours............... 94.00 77.44 7,279.36
resubmit its program or material and holding companies. (3.67 revised plans
modification as described in Class I and commuter
paragraph (f)(2) of this section railroads + 1 revised
after addressing all of the plan ASLRRA and
deficiencies noted by FRA and the holding companies).
resubmission must conform with the
procedures and requirements
contained in Sec. 245.107.
------------------------------------------------------------------------------------------------------------------
--(i) Rescinding Prior Approval of The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
Program--Railroad to resubmit its
certification program and the
program must conform with the
procedures and requirements
contained in Sec. 245.107.
------------------------------------------------------------------------------------------------------------------
245.105 (c)(1)-(d)(1)--Implementation 203 railroads........... 522 designated lists... 5 minutes.............. 43.50 77.44 3,368.64
schedule for certification programs--
Designation of certified dispatcher.
--(c)(2)-(d)(2) Issue a certificate 203 railroads........... 522 issued certificate 3 minutes.............. 26.10 77.44 2,021.18
that complies with Sec. 245.207 to cards.
each person that it designates.
------------------------------------------------------------------------------------------------------------------
--(f) Written requests for delayed FRA anticipates zero submissions.
certification--Railroad may wait to
recertify the person making the
request until the end of the three-
year period after FRA has approved
the railroad's certification program.
------------------------------------------------------------------------------------------------------------------
--(g) Testing and evaluation-- The paperwork burden for testing and evaluation is included in the economic burden and the burden for
Railroad shall only certify or certificates is included under Sec. 245.105.
recertify a person as a dispatcher
if that person has been tested and
evaluated in accordance with
procedures that comply with subpart
B of this part.
------------------------------------------------------------------------------------------------------------------
245.107--Requirements for The paperwork requirements described in this appendix are accounted for throughout this table.
Certification Programs--Procedures
for Obtaining and Evaluating Motor
Vehicle Driving Record Data.
------------------------------------------------------------------------------------------------------------------
245.109(a)--Determinations required The paperwork burden for this requirement is covered under Sec. 245.111 through Sec. 245.121 and Sec.
for certification and 245.303.
recertification--Eligibility
requirements.
------------------------------------------------------------------------------------------------------------------
[[Page 35605]]
--(b) Person entering into an As a condition of employment, dispatchers will sign an agreement upon being hired. There is no paperwork burden
agreement that results in a railroad since this is the usual and customary procedure.
obtaining the information needed for
compliance with this subpart in a
different manner than that
prescribed in Sec. 245.111 or Sec.
245.113.
------------------------------------------------------------------------------------------------------------------
245.111(a)-(c)--Prior safety conduct 203 railroads........... 522 motor vehicle 5 minutes.............. 43.50 77.44 3,368.64
as motor vehicle operator-- records.
Eligibility requirements of this
section involving prior conduct as a
motor vehicle operator.
--(e) If driver information is not 203 railroads........... 2 waivers.............. 2 hours................ 4.00 77.44 309.76
obtained as required pursuant to
paragraph (g) of this section, that
person or the railroad certifying or
recertifying that person may
petition for a waiver in accordance
with the provisions of part 211 of
this chapter.
------------------------------------------------------------------------------------------------------------------
--(f) Individual's duty--Consent to This is usual and customary procedure. The consent form is signed at the time of hiring to make driving
make information concerning driving information available to the railroad.
record available to that railroad.
------------------------------------------------------------------------------------------------------------------
--(g)-(h) Request to obtain driver's 203 railroads........... 522 written requests... 5 minutes.............. 43.50 59.00 2,566.50
license information from licensing
agency.
------------------------------------------------------------------------------------------------------------------
--(i) Requests for additional The paperwork burden for this requirement is included under Sec. 242.111(g)-(h).
information from licensing agency.
------------------------------------------------------------------------------------------------------------------
--(j) Notification to railroad by 203 railroads........... 2 notices.............. 10 minutes............. .33 77.44 25.56
persons of never having a license.
--(k) Report of motor vehicle 203 railroads........... 10 self-reports........ 10 minutes............. 1.67 77.44 129.32
incidents described in paragraphs
(m)(1) and (2) of this section to
the employing railroad within 48
hours.
--(l)-(m) Evaluation of person's 203 railroads........... 522 motor vehicle 5 minutes.............. 43.50 71.89 3,127.22
driving record by railroad. record evaluations.
--(n)(1) DAC referral by railroad 203 railroads........... 9 DAC referrals........ 5 minutes.............. .75 115.24 86.43
after report of driving drug/alcohol
incident.
--(n)(2) DAC request and supply by 203 railroads........... 1 request and supplied 30 minutes............. .50 115.24 57.62
persons of prior counseling or record.
treatment.
--(n)(3) Conditional certifications 203 railroads........... 3 conditional 4 hours................ 12.00 115.24 1,382.88
recommended by DAC. certification
recommendations.
------------------------------------------------------------------------------------------------------------------
245.113(b)--Prior safety conduct as This is usual and customary procedure and, therefore, there is no paperwork burden.
an employee of a different railroad--
Certification candidate has not been
employed or certified by any other
railroad in the previous five years,
they do not have to submit a request
in accordance with paragraph (c) of
this section, but they must notify
the railroad of this fact in
accordance with procedures
established by the railroad in its
certification program.
------------------------------------------------------------------------------------------------------------------
--(c) Person seeking certification or 203 railroads........... 3.33 requests.......... 15 minutes............. .83 77.44 64.28
recertification under this part
shall submit a written request to
each railroad that employed or
certified the person within the
previous five years.
--(e) and (g) Railroad shall provide 203 railroads........... 3.33 records........... 15 minutes............. .83 77.44 64.28
the information requested to the
railroad designated in the written
request.
------------------------------------------------------------------------------------------------------------------
--(f) An explanation shall state why FRA anticipates zero submissions.
the railroad cannot provide the
information within the requested
time frame or cannot provide the
requested information.
------------------------------------------------------------------------------------------------------------------
245.115(a)--Substance abuse disorders 203 railroads........... 459 determinations..... 2 minutes.............. 15.30 77.40 1,184.22
and alcohol drug rules compliance--
Determination that person meets
eligibility requirements.
--(b) Written documents from DAC that 203 railroads........... 20 filed documents..... 30 minutes............. 10.00 115.24 1,152.40
person is not affected by a disorder.
--(c)(3) Fitness requirement-- 203 railroads........... 1 self-referral........ 10 minutes............. .17 115.24 19.59
Voluntarily self-referral by
dispatcher for substance abuse
counseling or treatment under the
policy required by Sec. 219.1003
of this chapter.
[[Page 35606]]
--(d)(1)-(d)(2) Prior alcohol/drug 203 railroads........... 522 certification 10 minutes............. 87.00 115.24 10,025.88
conduct; Federal rule compliance. reviews.
--(d)(3)(i) Written determination 203 railroads........... 8 written 1 hour................. 8.00 115.24 921.92
that most recent incident has determinations.
occurred.
--(d)(3)(ii) Notification to person 203 railroads........... 8 notifications........ 30 minutes............. 4.00 77.44 309.76
that recertification has been denied.
--(d)(4) Persons/conductors waiving 203 railroads........... 5 waived investigations 10 minutes............. .83 77.44 64.28
investigation/de-certifications.
245.117(a)-(c)--Vision acuity-- 203 railroads........... 522 records............ 2 minutes.............. 17.40 71.89 1,250.89
Determination vision standards met--
Medical examiner certificate/record.
--(d)(1) Request for retest and 203 railroads........... 5 records.............. 2 minutes.............. .17 71.89 12.22
another medical evaluation--Medical
examiner certificate/record.
--(d)(2) Railroad to provide a copy 203 railroads........... 522 copies............. 5 minutes.............. 43.50 71.89 3,127.22
of this part to medical examiner.
--(d)(3) Consultations by medical 203 railroads........... 5 consultations + 30 minutes + 10 minutes 3.33 71.89 239.39
examiners with railroad officer and conditional
issue of conditional certification. certifications.
--(g) Notification by certified 203 railroads........... 1 notification......... 10 minutes............. .17 71.89 12.22
dispatcher of deterioration of
vision.
245.118--Hearing acuity-- 203 railroads........... 522 medical records.... 2 minutes.............. 17.40 71.89 1,250.89
Determination hearing standards met--
Medical records.
--(d)(1) Request for retest and 203 railroads........... 5 records.............. 2 minutes.............. .17 71.89 12.22
another medical evaluation--Medical
examiner certificate/record.
--(d)(2) Railroad to provide a copy 203 railroads........... 522 copies............. 5 minutes.............. 43.50 71.89 3,127.22
of this part to medical examiner.
--(d)(3) Consultations by medical 203 railroads........... 5 consultations + 30 minutes + 10 minutes 3.33 71.89 239.39
examiners with railroad officer and conditional
issue of conditional certification. certifications.
--(g) Notification by certified 203 railroads........... 1 notification......... 10 minutes............. .17 71.89 12.22
dispatcher of deterioration of
hearing.
------------------------------------------------------------------------------------------------------------------
245.119(b)-(c)--Training The paperwork burden for this requirement is covered under Sec. 245.101/.103.
requirements--A railroad's election
for the training of dispatchers
shall be stated in its certification
program.
------------------------------------------------------------------------------------------------------------------
--(d) Initial training program for 203 railroads........... 71 training programs... 3 hours................ 213.00 115.24 24,546.12
previously untrained person to be a
dispatcher.
------------------------------------------------------------------------------------------------------------------
--(d)(3) Modification to training The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
program when new safety-related
railroad laws, regulations and etc.
are introduced into the workplace.
------------------------------------------------------------------------------------------------------------------
--(e) Relevant information or The paperwork burden for this requirement is covered under Sec. 245.101/.103.
materials on safety or other rules
made available to certification
candidates.
------------------------------------------------------------------------------------------------------------------
--(f) and (g) Completion of initial 203 railroads........... 67 written documents or 10 minutes............. 11.17 77.44 865.00
training program by a person being records.
certified as a dispatcher--Written
documentation showing completed
training program that complies with
paragraph (d) of this section.
------------------------------------------------------------------------------------------------------------------
--(f)(3) Employee consultation with The paperwork burden for this requirement is covered under Sec. 245.119.
qualified supervisory employee if
given written test to demonstrate
knowledge of physical
characteristics of any assigned
territory.
------------------------------------------------------------------------------------------------------------------
--(h) Certification program is The paperwork burden for this requirement is covered under Sec. 245.101/.103.
submitted in accordance with the
procedures and requirements
described in Sec. 245.107.
------------------------------------------------------------------------------------------------------------------
--(i) Familiarization training for FRA anticipates zero submissions.
dispatcher of acquiring railroad
from selling company/railroad prior
to commencement of new operation.
------------------------------------------------------------------------------------------------------------------
--(j) Continuing education of 203 railroads........... 522 training records... 15 minutes............. 130.50 71.89 9,381.65
certified dispatchers.
------------------------------------------------------------------------------------------------------------------
245.120--Requirements for territorial The paperwork burden for this requirement is covered under Sec. 245.119.
qualification--Determining
eligibility and
------------------------------------------------------------------------------------------------------------------
--(b) Notification by persons who do The paperwork burden for this requirement is covered under Sec. 245.119.
not meet territorial qualification.
------------------------------------------------------------------------------------------------------------------
[[Page 35607]]
245.121(a)-(c)--Knowledge testing-- 203 railroads........... 522 test records....... 5 minutes.............. 43.50 77.44 3,368.64
Determining eligibility.
--(d) Reexamination of the failed 203 railroads........... 2 examination records.. 5 minutes.............. .17 77.44 13.16
test.
245.123(c)--Monitoring operational 203 railroads........... 1,822 records.......... 2 minutes.............. 60.73 77.44 4,702.93
performance--Unannounced compliance
tests--Retention of a written record.
245.125--Certification determinations 203 railroads........... 3.33 determinations.... 30 minutes............. 1.67 77.44 129.32
made by other railroads.
245.203(b)--Retaining information 203 railroads........... 522 record retentions.. 15 minutes............. 130.50 77.44 10,105.92
supporting determination--Records.
--(g) Amended electronic records..... 203 railroads........... 1 amended record....... 15 minutes............. .25 77.44 19.36
------------------------------------------------------------------------------------------------------------------
245.205--List of certified The paperwork requirement for this burden is covered under Sec. 245.105(c)(1)-(d)(1).
dispatchers and recordkeeping.
------------------------------------------------------------------------------------------------------------------
245.207(a)-(f)--Certificate The paperwork requirement for this burden is covered under Sec. 245.105(c)(2)-(d)(2).
requirements.
------------------------------------------------------------------------------------------------------------------
--(b) Notification by dispatchers 203 railroads........... 30 notifications....... 30 seconds............. .25 71.89 17.97
that railroad request to serve
exceeds certification.
--(g)-(h) Replacement of certificates 203 railroads........... 15 replacement 5 minutes.............. 1.25 hour 77.44 96.80
certificates.
245.213(a)-(h)--Multiple 203 railroads........... 3 notifications........ 10 minutes............. .50 hour 77.44 38.72
Certificates--Notification of denial
of certification by individuals
holding multiple certifications.
------------------------------------------------------------------------------------------------------------------
--(i) In lieu of issuing multiple The paperwork requirement for this burden is covered under Sec. 245.105.
certificates, a railroad may issue
one certificate to a person who is
certified in multiple crafts.
------------------------------------------------------------------------------------------------------------------
245.215--Railroad oversight 203 railroads........... 17.33 annual reviews 8 hours................ 138.64 115.24 15,976.87
responsibility--Review and analysis and analyses.
of administration of certification
program.
--(d) Report of findings and 203 railroads........... 2 reports.............. 4 hours................ 8.00 115.24 921.92
conclusions reached during annual
review by railroad to FRA (if
requested in writing by FRA) review
and analysis effort.
245.301(a)--Denial of certification-- 203 railroads........... 2 notices + 1 response. 1 hour................. 3.00 77.44 232.32
Notification to candidate of
information that and candidate
response forms basis for denying
certification.
--(b) Denial Decision Requirements-- 203 railroads........... 2 notifications........ 1 hour................. 2.00 77.44 154.88
Written notification of denial of
certification by railroad to
candidate.
245.307(b)(1)-(b)(4)--Process for 203 railroads........... 5 suspended 30 minutes............. 2.50 77.44 193.60
revoking certification--Immediate certification letters
suspension of dispatcher's and documentations.
certification.
------------------------------------------------------------------------------------------------------------------
--(b)(5)-(b)(6) Determinations based The paperwork requirement for this burden is covered under Sec. 245.307(e).
on the record of the hearing,
whether revocation of the
certification is warranted.
------------------------------------------------------------------------------------------------------------------
--(b)(7) Retention of record of the 203 railroads........... 5 records.............. 15 minutes............. 1.25 77.44 96.80
hearing for three years after the
date the decision is rendered.
--(d)(9) Hearing Procedures--Written 203 railroads........... 1 written waiver....... 10 minutes............. .17 59.00 10.03
waiver of right to hearing.
--(e) Revocation Decision 203 railroads........... 5 written decisions and 2 hours................ 10.00 115.24 1,152.40
Requirements--Written decisions by service of decisions.
railroad official.
--(g) Revocation of certification 203 railroads........... 1 revoked certification 10 minutes............. .17 115.24 19.59
based on information that another
railroad has done so.
------------------------------------------------------------------------------------------------------------------
--(j) Placing relevant information in The paperwork requirement for this burden is covered under Sec. 245.307(b)(7).
record if sufficient evidence
meeting the criteria in paragraph
(h) or (i) of this section becomes
available.
------------------------------------------------------------------------------------------------------------------
--(k) Good faith determination....... 203 railroads........... 1 good faith 1 hour................. 1.00 hour 77.44 77.44
determination.
------------------------------------------------------------------------------------------------------------------
Subpart E--Dispute Resolution The requirements under these provisions are exempted from the PRA under 5 CFR 1320.4(a)(2). Since these
Procedures--Sec. 245.401 through provisions pertain to an administrative action or investigation, there is no PRA burden associated with these
Sec. 245.411. requirements.
------------------------------------------------------------------------------------------------------------------
Appendix A to Part 245--Procedures The paperwork requirements described in this appendix are accounted for throughout this table.
for Obtaining and Evaluating Motor
Vehicle Driving Record Data.
------------------------------------------------------------------------------------------------------------------
[[Page 35608]]
Appendix B to Part 245--Medical The paperwork requirements described in this appendix are accounted for throughout this table.
Standards Guidelines.
------------------------------------------------------------------------------------------------------------------
Totals \33\...................... 203 railroads + ASLRRA 9,493 responses........ N/A.................... 3,819 N/A 403,937
and holding companies.
--------------------------------------------------------------------------------------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), FRA solicits comments concerning: Whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Ms. Arlette Mussington,
Information Collection Clearance Officer, at (571) 609-1285, or Ms.
Joanne Swafford, Information Collection Clearance Officer, at (757)
897-9908.
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\33\ Totals may not add due to rounding.
---------------------------------------------------------------------------
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them via email to
Ms. Arlette Mussington at [email protected], or Ms. Joanne
Swafford at [email protected].
OMB is required to decide concerning the collection of information
requirements contained in this rule between 30 and 60 days after
publication of this document in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. FRA is not authorized to
impose a penalty on persons for violating information collection
requirements that do not display a current OMB control number, if
required. FRA intends to obtain current OMB control numbers for any new
information collection requirements resulting from this rulemaking
action prior to the effective date of the final rule. The OMB control
number, when assigned, will be announced by separate notice in the
Federal Register.
D. Federalism Implications
Executive Order 13132, Federalism,\34\ requires FRA to develop an
accountable process to ensure ``meaningful and timely input by State
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects 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.'' Under Executive Order 13132, the agency may not issue
a regulation with federalism implications that imposes substantial
direct compliance costs and that is not required by statute, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, the agency
consults with State and local governments, or the agency consults with
State and local government officials early in the process of developing
the regulation. Where a regulation has federalism implications and
preempts State law, the agency seeks to consult with State and local
officials in the process of developing the regulation.
---------------------------------------------------------------------------
\34\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------
FRA has analyzed this proposed rule in accordance with the
principles and criteria contained in Executive Order 13132. FRA has
determined that this proposed rule has no federalism implications,
other than the possible preemption of State laws under 49 U.S.C. 20106.
Therefore, the consultation and funding requirements of Executive Order
13132 do not apply, and preparation of a federalism summary impact
statement for the proposed rule is not required.
E. International Trade Impact Assessment
The Trade Agreements Act of 1979 \35\ 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. This proposed 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.
---------------------------------------------------------------------------
\35\ 19 U.S.C. Ch. 13.
---------------------------------------------------------------------------
F. Environmental Impact
FRA has evaluated this proposed rule consistent with the National
Environmental Policy Act \36\ (NEPA), the Council on Environmental
Quality's NEPA implementing regulations,\37\ and FRA's NEPA
implementing regulations \38\ and determined that it is categorically
excluded from environmental review and therefore does not require the
preparation of an environmental assessment (EA) or environmental impact
statement (EIS). Categorical exclusions (CEs) are actions identified in
an agency's NEPA implementing regulations that do not normally have a
significant impact on the environment and therefore do not require
either an EA or EIS.\39\ Specifically, FRA has determined that this
proposed rule is categorically excluded from detailed environmental
review.\40\
---------------------------------------------------------------------------
\36\ 42 U.S.C. 4321 et seq.
\37\ 40 CFR parts 1500-1508.
\38\ 23 CFR part 771.
\39\ 40 CFR 1508.4.
\40\ See 23 CFR 771.116(c)(15) (categorically excluding
``[p]romulgation of rules, the issuance of policy statements, the
waiver or modification of existing regulatory requirements, or
discretionary approvals that do not result in significantly
increased emissions of air or water pollutants or noise'').
---------------------------------------------------------------------------
The main purpose of this rulemaking is to establish certification
requirements
[[Page 35609]]
for train dispatchers. This rule would not directly or indirectly
impact any environmental resources and would not result in
significantly increased emissions of air or water pollutants or noise.
In analyzing the applicability of a CE, FRA must also consider whether
unusual circumstances are present that would warrant a more detailed
environmental review.\41\ FRA has concluded that no such unusual
circumstances exist with respect to this proposed rule and it meets the
requirements for categorical exclusion.\42\
---------------------------------------------------------------------------
\41\ 23 CFR 771.116(b).
\42\ 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------
Pursuant to Section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to affect historic properties.\43\ FRA has also
determined that this rulemaking does not approve a project resulting in
a use of a resource protected by Section 4(f).\44\ Further, FRA
reviewed this proposed rulemaking and found it consistent with
Executive Order 14008, ``Tackling the Climate Crisis at Home and
Abroad.''
---------------------------------------------------------------------------
\43\ See 16 U.S.C. 470.
\44\ See Department of Transportation Act of 1966, as amended
(Pub. L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------
G. Executive Order 12898 (Environmental Justice)
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,'' and DOT
Order 5610.2C \45\ require DOT agencies to achieve environmental
justice as part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects, including interrelated social and economic
effects, of their programs, policies, and activities on minority
populations and low-income populations. The DOT Order instructs DOT
agencies to address compliance with Executive Order 12898 and
requirements within the DOT Order in rulemaking activities, as
appropriate, and also requires consideration of the benefits of
transportation programs, policies, and other activities where minority
populations and low-income populations benefit, at a minimum, to the
same level as the general population as a whole when determining
impacts on minority and low-income populations. FRA has evaluated this
proposed rule under Executive Order 12898 and the DOT Order and has
determined it would not cause disproportionately high and adverse human
health and environmental effects on minority populations or low-income
populations.
---------------------------------------------------------------------------
\45\ Available at: https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210312-003-signed.pdf.
---------------------------------------------------------------------------
H. Unfunded Mandates Reform Act of 1995
Under section 201 of the Unfunded Mandates Reform Act of 1995,\46\
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 \47\ further requires that ``before promulgating
any general notice of proposed rulemaking that is likely to result in
promulgation of any rule that includes any Federal mandate that may
result in the 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 proposed rule would not result
in the expenditure, in the aggregate, of $100,000,000 or more (as
adjusted annually for inflation) in any one year, and thus preparation
of such a statement is not required.
---------------------------------------------------------------------------
\46\ Public Law 104-4, 2 U.S.C. 1531.
\47\ 2 U.S.C. 1532.
---------------------------------------------------------------------------
I. Energy Impact
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' requires
Federal agencies to prepare a Statement of Energy Effects for any
``significant energy action.'' \48\ FRA evaluated this proposed rule
under Executive Order 13211 and determined that this regulatory action
is not a ``significant energy action'' within the meaning of Executive
Order 13211.
---------------------------------------------------------------------------
\48\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------
J. Privacy Act Statement
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to https://www.regulations.gov, as described in
the system of records notice, DOT/ALL-14 FDMS, accessible through
www.transportation.gov/privacy. To facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is completely
optional. Whether or not commenters identify themselves, all timely
comments will be fully considered. If you wish to provide comments
containing proprietary or confidential information, please contact the
agency for alternate submission instructions.
K. Executive Order 13175 (Tribal Consultation)
FRA has evaluated this proposed rule in accordance with the
principles and criteria contained in Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, dated
November 6, 2000. The proposed rule would not have a substantial direct
effect on one or more Indian Tribes, would not impose substantial
direct compliance costs on Indian Tribal governments, and would not
preempt Tribal laws. Therefore, the funding and consultation
requirements of Executive Order 13175 do not apply, and a Tribal
summary impact statement is not required.
List of Subjects in 49 CFR Part 245
Administrative practice and procedure, Dispatcher, Penalties,
Railroad employees, Railroad operating procedures, Railroad safety,
Reporting and recordkeeping requirements.
The Proposed Rule
0
For the reasons discussed in the preamble, FRA proposes to amend
chapter II, subtitle B, of title 49 of the Code of Federal Regulations,
by adding part 245 to read as follows:
PART 245--QUALIFICATION AND CERTIFICATION OF DISPATCHERS
Sec.
Subpart A--General
245.1 Purpose and scope.
245.3 Application and responsibility for compliance.
245.5 Effect and construction.
245.7 Definitions.
245.9 Waivers.
245.11 Penalties and consequences for noncompliance.
Subpart B--Program and Eligibility Requirements
245.101 Certification program required.
245.103 FRA review of certification programs.
245.105 Implementation schedule for certification programs.
245.107 Requirements for certification programs.
245.109 Determinations required for certification and
recertification.
[[Page 35610]]
245.111 Prior safety conduct as motor vehicle operator.
245.113 Prior safety conduct with other railroads.
245.115 Substance abuse disorders and alcohol drug rules compliance.
245.117 Vision acuity.
245.118 Hearing acuity.
245.119 Training requirements.
245.120 Requirements for territorial qualification.
245.121 Knowledge testing.
245.123 Monitoring operational performance.
245.125 Certification determinations made by other railroads.
Subpart C--Administration of the Certification Program
245.201 Time limitations for certification.
245.203 Retaining information supporting determinations.
245.205 List of certified dispatchers and recordkeeping.
245.207 Certificate requirements.
245.213 Multiple certifications.
245.215 Railroad oversight responsibilities.
Subpart D--Denial and Revocation of Certification
245.301 Process for denying certification.
245.303 Criteria for revoking certification.
245.305 Periods of ineligibility.
245.307 Process for revoking certification.
Subpart E--Dispute Resolution Procedures
245.401 Review board established.
245.403 Petition requirements.
245.405 Processing certification review petitions.
245.407 Request for a hearing.
245.409 Hearings.
245.411 Appeals.
Appendix A to Part 245--Procedures for Obtaining and Evaluating Motor
Vehicle Driving Record Data
Appendix B to Part 245--Medical Standards Guidelines
Authority: 49 U.S.C. 20103, 20107, 20162, 21301, 21304, 21311;
28 U.S.C. 2461 note; 49 CFR 1.89; and Public Law 110-432, sec. 402,
122 Stat. 4884.
Subpart A--General
Sec. 245.1 Purpose and scope.
(a) The purpose of this part is to ensure that only those persons
who meet minimum Federal safety standards serve as dispatchers, to
reduce the rate and number of accidents and incidents, and to improve
railroad safety.
(b) This part prescribes minimum Federal safety standards for the
eligibility, training, testing, certification, and monitoring of all
dispatchers to whom it applies. This part does not restrict a railroad
from adopting and enforcing additional or more stringent requirements
consistent with this part.
(c) The dispatcher certification requirements prescribed in this
part apply to any person who meets the definition of dispatcher
contained in Sec. 245.7, regardless of the fact that the person may
have a job classification title other than that of dispatcher.
Sec. 245.3 Application and responsibility for compliance.
(a) This part applies to all railroads except:
(1) Railroads that do not have any dispatch tasks, as defined in
Sec. 245.7, performed either by dispatchers employed by the railroad
or employed by a contractor or subcontractor;
(2) Railroads that operate only on track inside an installation
that is not part of the general railroad system of transportation
(i.e., plant railroads, as defined in Sec. 245.7);
(3) Tourist, scenic, historic, or excursion operations that are not
part of the general railroad system of transportation as defined in
Sec. 245.7; or
(4) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
(b) Although the duties imposed by this part are generally stated
in terms of the duty of a railroad, each person, as defined in Sec.
245.7, who performs any function required by this part must perform
that function in accordance with this part.
Sec. 245.5 Effect and construction.
(a) FRA does not intend, by use of the term dispatcher in this
part, to alter the terms, conditions, or interpretation of existing
collective bargaining agreements that employ other job classification
titles when identifying a person who dispatches train.
(b) FRA does not intend, by issuance of these regulations, to alter
the authority of a railroad to initiate disciplinary sanctions against
its employees, including managers and supervisors, in the normal and
customary manner, including those contained in its collective
bargaining agreements.
(c) Except as provided in Sec. 245.213, nothing in this part shall
be construed to create or prohibit an eligibility or entitlement to
employment in other service for the railroad as a result of denial,
suspension, or revocation of certification under this part.
(d) Nothing in this part shall be deemed to abridge any additional
procedural rights or remedies not inconsistent with this part that are
available to the employee under a collective bargaining agreement, the
Railway Labor Act, or (with respect to employment at will) at common
law with respect to removal from service or other adverse action taken
as a consequence of this part.
Sec. 245.7 Definitions.
As used in this part:
Administrator means the Administrator of the FRA or the
Administrator's delegate.
Alcohol means ethyl alcohol (ethanol) and includes use or
possession of any beverage, mixture, or preparation containing ethyl
alcohol.
Blocking device means a method of control that either prohibits the
operation of a switch or signal or restricts access to a section of
track.
Controlled substance has the meaning assigned by 21 U.S.C. 802 and
includes all substances listed on Schedules I through V as they may be
revised from time to time (21 CFR parts 1301 through 1316).
Controlled track means a track upon which movements of trains,
engines, and on-track equipment must be authorized by a control
station.
Dispatch means:
(1) To perform a function that would be classified as a duty of a
``dispatching service employee,'' as that term is defined by the hours
of service laws at 49 U.S.C. 21101(2), if the function were to be
performed in the United States. The term dispatch includes, but is not
limited to, by the use of an electrical or mechanical device:
(i) Controlling the movement of a train or other on-track equipment
by the issuance of a written or verbal authority or permission
affecting a railroad operation, or by establishing a route through the
use of a railroad signal or train control system but not merely by
aligning or realigning a switch; or
(ii) Controlling the occupancy of a track by a roadway worker or
stationary on-track equipment, or both; or
(iii) Issuing an authority for working limits to a roadway worker.
(2) The term dispatch does not include the action of personnel in
the field:
(i) Effecting implementation of a written or verbal authority or
permission affecting a railroad operation or an authority or permission
affecting a railroad operation or an authority for working limits to a
roadway worker (e.g., initiating an interlocking timing device,
authorizing a train to enter working limits); or
(ii) Operating a function of a signal system designed for use by
those personnel; or
(iii) Sorting and grouping rail cars inside a railroad yard to
assemble or disassemble a train.
Dispatcher means any individual who dispatches.
Dispatcher Pilot means a dispatcher qualified on assigned
territory, tasked with overseeing a non-qualified
[[Page 35611]]
employee who has not successfully completed all instruction, training
and examination programs for the physical characteristics of the
territory or position.
Drug means any substance (other than alcohol) that has known mind
or function-altering effects on a human subject, specifically including
any psychoactive substance and including, but not limited to,
controlled substances.
Drug and alcohol counselor (DAC) means a person who meets the
credentialing and qualification requirements of a ``Substance Abuse
Professional'' (SAP), as provided in 49 CFR part 40.
File, filed, and filing mean submission of a document under this
part on the date when the Docket Clerk receives it, or if sent by mail,
the date mailing was completed.
FRA means the Federal Railroad Administration.
FRA representative means the FRA Associate Administrator for
Railroad Safety/Chief Safety Officer and the Associate Administrator's
delegate, including any safety inspector employed by the Federal
Railroad Administration and any qualified State railroad safety
inspector acting under part 212 of this chapter.
Ineligible or ineligibility means that a person is legally
disqualified from serving as a certified dispatcher. The term covers a
number of circumstances in which a person may not serve as a certified
dispatcher. Revocation of certification pursuant to Sec. 245.307 and
denial of certification pursuant to Sec. 245.301 are two examples in
which a person would be ineligible to serve as a dispatcher. A period
of ineligibility may end when a condition or conditions are met, such
as when a person meets the conditions to serve as a dispatcher
following an alcohol or drug violation pursuant to Sec. 245.115.
Knowingly means having actual knowledge of the facts giving rise to
the violation or that a reasonable person acting in the circumstances,
exercising due care, would have had such knowledge.
Main track means a track upon which the operation of trains is
governed by one or more of the following methods of operation:
Timetable; mandatory directive; signal indication; or any form of
absolute or manual block system.
Mandatory directive means any movement authority or speed
restriction that affects a railroad operation.
Medical examiner means a person licensed as a doctor of medicine or
doctor of osteopathy. A medical examiner can be a qualified full-time
salaried employee of a railroad, a qualified practitioner who contracts
with the railroad on a fee-for-service or other basis, or a qualified
practitioner designated by the railroad to perform functions in
connection with medical evaluations of employees. As used in this rule,
the medical examiner owes a duty to make an honest and fully informed
evaluation of the condition of an employee.
On-the-job training means job training that occurs in the
workplace, i.e., the employee learns the job while doing the job.
Person means an entity of any type covered under 1 U.S.C. 1,
including but not limited to the following: a railroad; a manager,
supervisor, official, or other employee or agent of a railroad; any
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; any independent contractor providing goods or services to a
railroad; and any employee of such owner, manufacturer, lessor, lessee,
or independent contractor.
Physical characteristics means the actual track profile of and
physical location for points within a specific yard or route that
affect the movement of a locomotive or train. Physical characteristics
includes main track physical characteristics (see definition of ``main
track'' in this section) and other than main track physical
characteristics.
Plant railroad means a plant or installation that owns or leases a
locomotive, uses that locomotive to switch cars throughout the plant or
installation, and is moving goods solely for use in the facility's own
industrial processes. The plant or installation could include track
immediately adjacent to the plant or installation if the plant railroad
leases the track from the general system railroad and the lease
provides for (and actual practice entails) the exclusive use of that
trackage by the plant railroad and the general system railroad for
purposes of moving only cars shipped to or from the plant. A plant or
installation that operates a locomotive to switch or move cars for
other entities, even if solely within the confines of the plant or
installation, rather than for its own purposes or industrial processes,
will not be considered a plant railroad because the performance of such
activity makes the operation part of the general railroad system of
transportation.
Qualified means a person who has successfully completed all
instruction, training and examination programs required by the
employer, and the applicable parts of this chapter and that the person
therefore may reasonably be expected to be proficient on all safety
related tasks the person is assigned to perform.
Qualified instructor means a person who has demonstrated, pursuant
to the railroad's written program, an adequate knowledge of the
subjects under instruction and, where applicable, has the necessary
dispatching experience to effectively instruct in the field, and has
the following qualifications:
(1) Has demonstrated, pursuant to the railroad's written program,
an adequate knowledge of the subjects under instruction;
(2) Where applicable, has the necessary experience to effectively
instruct in the field;
(3) Is a certified dispatcher under this part; and
(4) If the railroad has designated employee representation, has
been selected by a designated railroad officer, in concurrence with the
designated employee representative, or has a minimum of one year of
service working as a certified dispatcher.
Railroad means any form of nonhighway ground transportation that
runs on rails or electromagnetic guideways and any entity providing
such transportation, including:
(1) Commuter or other short-haul railroad passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
(2) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads; but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
Railroad officer means any supervisory employee of a railroad.
Roadway worker in charge (RWIC) means a roadway worker who is
qualified under Sec. 214.353 of this chapter to establish on-track
safety for roadway work groups, and lone workers qualified under Sec.
214.347 of this chapter to establish on-track safety for themselves.
Serve or service, in the context of serving documents, has the
meaning given in Rule 5 of the Federal Rules of Civil Procedure as
amended. Similarly, the computation of time provisions in Rule 6 of the
Federal Rules of Civil Procedure as amended are also applicable in this
part. See also the definition of ``filing'' in this section.
Substance abuse disorder refers to a psychological or physical
dependence on alcohol or a drug, or another identifiable and treatable
mental or
[[Page 35612]]
physical disorder involving the abuse of alcohol or drugs as a primary
manifestation. A substance abuse disorder is ``active'' within the
meaning of this part if the person is currently using alcohol or other
drugs, except under medical supervision consistent with the
restrictions described in Sec. 219.103 of this chapter or has failed
to complete primary treatment successfully or participate in aftercare
successfully as directed by a DAC or SAP.
Substance Abuse Professional (SAP) means a person who meets the
qualifications of a substance abuse professional, as provided in 49 CFR
part 40.
Territorial qualifications means possessing the necessary knowledge
concerning a railroad's operating rules and timetable special
instructions including familiarity with applicable main track and other
than main track physical characteristics of the territory over which
the locomotive or train movement will occur as well as the
characteristics of the position to include and not limited to the
operation and capabilities of dispatch control systems.
Tourist, scenic, historic, or excursion operations that are not
part of the general railroad system of transportation means a tourist,
scenic, historic, or excursion operation conducted only on track used
exclusively for that purpose (i.e., there is no freight, intercity
passenger, or commuter passenger railroad operation on the track).
Sec. 245.9 Waivers.
(a) A person subject to a requirement of this part may petition FRA
for a waiver of compliance with such requirement. The filing of such a
petition does not affect that person's responsibility for compliance
with that requirement while the petition is being considered.
(b) Each petition for a waiver under this section must be filed in
the manner and contain the information required by part 211 of this
chapter.
(c) If FRA finds that a waiver of compliance is in the public
interest and is consistent with railroad safety, FRA may grant the
waiver subject to any conditions FRA deems necessary.
Sec. 245.11 Penalties and consequences for noncompliance.
(a) Any person (including but not limited to a railroad; any
manager, supervisor, official, or other employee or agent of a
railroad; any owner, manufacturer, lessor, or lessee of railroad
equipment, track, or facilities; any employee of such owner,
manufacturer, lessor, or lessee; or any independent contractor or
subcontractor of a railroad) who violates any requirement of this part
or causes the violation of any such requirement is subject to a civil
penalty of at least the minimum civil monetary penalty and not more
than the ordinary maximum civil monetary penalty per violation.
However, penalties may be assessed against individuals only for willful
violations, and a penalty not to exceed the aggravated maximum civil
monetary penalty per violation may be assessed, where:
(1) A grossly negligent violation, or a pattern of repeated
violations, has created an imminent hazard of death or injury to
persons; or
(2) A death or injury has occurred. See 49 CFR part 209, appendix
A.
(b) Each day a violation continues constitutes a separate offense.
(c) A person who violates any requirement of this part or causes
the violation of any such requirement may be subject to
disqualification from all safety-sensitive service in accordance with
part 209 of this chapter.
(d) A person who knowingly and willfully falsifies a record or
report required by this part may be subject to criminal penalties under
49 U.S.C. 21311.
(e) In addition to the enforcement methods referred to in
paragraphs (a) through (d) of this section, FRA may also address
violations of this part by use of the emergency order, compliance
order, and/or injunctive provisions of the Federal rail safety laws.
(f) FRA's website at https://railroads.dot.gov/ contains a schedule
of civil penalty amounts used in connection with this part.
Subpart B--Program and Eligibility Requirements
Sec. 245.101 Certification program required.
(a) Each railroad that this part applies to shall have a written
dispatcher certification program.
(b) Each certification program shall include all of the following:
(1) A procedure for evaluating prior safety conduct as a motor
vehicle operator that complies with the criteria established in Sec.
245.111.
(2) A procedure for evaluating prior safety conduct as an employee
or certified dispatcher of a different railroad that complies with the
criteria established in Sec. 245.113.
(3) A procedure for evaluating potential substance abuse disorders
and compliance with railroad alcohol and drug rules that complies with
the criteria established in Sec. 245.115.
(4) A procedure for evaluating vision and hearing acuity that
complies with the criteria established in Sec. Sec. 245.117 and
245.118.
(5) A procedure for training that complies with the criteria
established in Sec. 245.119.
(6) A procedure for knowledge testing that complies with the
criteria established in Sec. 245.121.
(7) A procedure for monitoring operational performance that
complies with the criteria established in Sec. 245.123.
Sec. 245.103 FRA review of certification programs.
(a) Certification program submission schedule for railroads with
current dispatching operations. Each railroad with current dispatching
operations, as [EFFECTIVE DATE OF FINAL RULE] shall submit its
dispatcher certification program to FRA, in accordance with the
procedures and requirements contained in Sec. 245.107, according to
the following schedule:
(1) All Class I railroads (including the National Railroad
Passenger Corporation) and railroads providing commuter service shall
submit their programs to FRA no later than [DATE EIGHT MONTHS AFTER THE
EFFECTIVE DATE OF THE FINAL RULE].
(2) All Class II railroads and Class III railroads (including a
switching and terminal or other railroad not otherwise classified)
shall submit their programs to FRA no later than [DATE 16 MONTHS AFTER
THE EFFECTIVE DATE OF THE FINAL RULE].
(b) Certification program submission for new dispatching railroads.
For each railroad that commences dispatching operations after the
effective date of this rule, the railroad shall submit and obtain
approval of its written certification program to FRA, in accordance
with the procedures and requirements contained in Sec. 245.107, prior
to commencing dispatching operations.
(c) Method for submitting certification programs to FRA. Railroads
must submit their written certification programs and their requests for
approval (described in Sec. 245.107(a)) by uploading the program to
FRA's secure document submission site.
(d) Notification requirements. Each railroad that submits a program
to FRA must:
(1) Simultaneously with its submission, provide a copy of the
program and the request for approval to the president of each labor
organization that represents the railroad's dispatchers
[[Page 35613]]
and to all of the railroad's dispatchers that are subject to this part;
and
(2) Include in its submission to FRA, a statement affirming that
the railroad has provided a copy of the program and the request for
approval to the president of each labor organization that represents
the railroad's dispatchers and to all of the railroad's dispatchers
that are subject to this part, along with a list of the names and email
addresses of each president of a labor organization who was provided a
copy of the program.
(e) Comment period. Any designated representative of dispatchers
subject to this part or any directly affected person who does not have
a designated representative may comment on a railroad's program
provided that:
(1) The comment is submitted no later than 45 days after the date
the program was submitted to FRA;
(2) The comment includes a concise statement of the commenter's
interest in the matter;
(3) The commenter affirms that a copy of the comment was provided
to the railroad; and
(4) The comment was emailed to [email protected].
(f) FRA review period. Upon receipt of a program, FRA will commence
a thorough review of the program to ensure that it satisfies all of the
requirements under this part.
(1) If FRA determines that the program satisfies all of the
requirements under this part, FRA will issue a letter notifying the
railroad that its program has been approved. Such letter will typically
be issued within 90 days of the date the program was submitted to FRA.
(2) If FRA determines that the program does not satisfy all of the
requirements under this part, FRA will issue a letter notifying the
railroad that its program has been disapproved. Such letter will
typically be issued within 90 days of the date the program was
submitted to FRA and will identify the deficiencies found in the
program that must be corrected before the program can be approved.
After addressing these deficiencies, railroads can resubmit their
programs in accordance with paragraph (h) of this section.
(3) If a railroad does not receive an approval or disapproval
letter from FRA within 90 days of the date the program was submitted to
FRA, FRA's decision on the program will remain pending until such time
that FRA issues a letter either approving or disapproving the program.
A certification program is not approved until FRA issues a letter
approving the program.
(g) Material modifications. A railroad that intends to make one or
more material modifications to its FRA-approved program must submit a
description of how it intends to modify the program and a copy of the
modified program.
(1) A modification is material if it would affect the program's
conformance with this part.
(2) The description of the modification and the modified program
must conform with the procedures and requirements contained in Sec.
245.107.
(3) The process for submission and review of material modifications
shall conform with paragraphs (c) through (f) of this section.
(4) A railroad cannot implement a material modification to its
program until FRA issues its approval of the material modification in
accordance with paragraph (f)(1) of this section.
(h) Resubmissions. If FRA disapproves a railroad's program or
material modification, as described in paragraph (f)(2) of this
section, the railroad can resubmit its program or material modification
after addressing all of the deficiencies noted by FRA.
(1) The resubmission must conform with the procedures and
requirements contained in Sec. 245.107.
(2) The process for submission and review of resubmitted programs
and resubmitted material modifications shall conform with paragraphs
(c) through (f) of this section.
(3) The following deadlines apply for railroads that have their
programs or material modifications disapproved by FRA:
(i) For a railroad that submitted its program pursuant to paragraph
(a) of this section, the railroad must resubmit its program within 30
days of the date that FRA notified the railroad of the deficiencies in
its program. If a railroad fails to resubmit its program within this
timeframe and it continues its dispatching operations, FRA may consider
such actions to be a failure to implement a program.
(ii) For a railroad that submitted its program pursuant to
paragraph (b) of this section, there is no FRA-imposed deadline for
resubmitting its program. However, pursuant to Sec. 245.105(b), the
railroad cannot begin dispatching operations until its program has been
approved by FRA.
(iii) For a railroad that submitted a material modification to its
FRA-approved program, there is no FRA-imposed deadline for resubmitting
the material modification. However, pursuant to paragraph (g)(3) of
this section, the railroad cannot implement the material modification
until it has been approved by FRA.
(i) Rescinding prior approval of program. FRA reserves the right to
revisit its prior approval of a railroad's program at any time.
(1) If upon such review, FRA discovers deficiencies in the program
such that the program does not comply with subpart B of this part, FRA
shall issue the railroad a letter rescinding its prior approval of the
program and notifying the railroad of the deficiencies in its program
that must be addressed.
(2) Within 30 days of FRA notifying the railroad of the
deficiencies in its program, the railroad must address these
deficiencies and resubmit its program to FRA. The resubmitted program
must conform with the procedures and requirements contained in Sec.
245.107.
(3) The process for submission and review of resubmitted programs
under this paragraph shall conform with paragraphs (c) through (f) of
this section.
(4) If a railroad fails to resubmit its program to FRA within the
timeframe prescribed in paragraph (i)(2) of this section and the
railroad continues its dispatching operations, FRA may consider such
actions to be a failure to implement a program.
(5) If FRA issues a letter disapproving the railroad's resubmitted
program, the railroad shall continue to resubmit its program in
accordance with this paragraph (i).
(6) A program that has its approval rescinded under paragraph
(i)(1) of this section may remain in effect until whichever of the
following happens first:
(i) FRA approves the railroad's resubmitted program; or
(ii) FRA disapproves the railroad's second attempt at resubmitting
its program.
(7) If FRA disapproves a railroad's second attempt at resubmitting
its program under this paragraph and the railroad continues its
dispatching operations, FRA may consider such actions to be a failure
to implement a program.
(j) Availability of certification program documents. The following
documents will be available on FRA's website (railroads.dot.gov):
(1) A railroad's originally submitted program, a resubmission of
its program, or a material modification of its program;
(2) Any comments, submitted in accordance with paragraph (e) of
this section, to a railroad's originally submitted program, a
resubmission of its program, or a material modification of its program;
and
(3) Any approval or disapproval letter issued by FRA in response to
a
[[Page 35614]]
railroad's originally submitted program, a resubmission of its program,
or a material modification of its program.
Sec. 245.105 Implementation schedule for certification programs.
(a) Each railroad that submits its dispatcher certification program
to FRA in accordance with Sec. 245.103(a), may continue dispatching
operations while it awaits approval of its program by FRA. However, if
FRA disapproves a railroad's program on two occasions and the railroad
continues dispatching operations, FRA may consider such actions to be a
failure to implement a program.
(b) Each railroad that submits its dispatcher certification program
to FRA in accordance with Sec. 245.103(b), must have its program
approved by FRA prior to commencing dispatching operations. If such
railroad commences dispatching operations before its program is
approved by FRA, FRA may consider such actions to be a failure to
implement a program.
(c) By [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], each
railroad shall:
(1) In writing, designate as certified dispatchers all persons
authorized by the railroad to perform the duties of a dispatcher as of
[DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE]; and
(2) Issue a certificate that complies with Sec. 245.207 to each
person that it designates.
(d) After [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], each
railroad shall:
(1) In writing, designate as a certified dispatcher any person who
has been authorized by the railroad to perform the duties of a
dispatcher between [EFFECTIVE DATE OF FINAL RULE] and the date FRA
approves the railroad's certification program; and
(2) Issue a certificate that complies with Sec. 245.207 to each
person that it designates.
(e) After [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], no
railroad shall permit or require a person to perform service as a
dispatcher unless that person is a certified dispatcher.
(f) No railroad shall permit or require a person, designated as a
certified dispatcher under the provisions of paragraph (c) or (d) of
this section, to perform service as a certified dispatcher for more
than three years after the date FRA approves the railroad's
certification program unless that person has been tested and evaluated
in accordance with procedures that comply with subpart B of this part.
(1) Except as provided in paragraph (f)(3) of this section, a
person who has been designated as a certified dispatcher under the
provisions of paragraph (c) or (d) of this section and who is eligible
to receive a retirement pension in accordance with the terms of an
applicable agreement or in accordance with the terms of the Railroad
Retirement Act (45 U.S.C. 231) within three years from the date the
certifying railroad's program is approved by FRA, may request in
writing, that a railroad not recertify that person, pursuant to subpart
B of this part, until three years from the date the certifying
railroad's program is approved.
(2) Upon receipt of a written request pursuant to paragraph (f)(1)
of this section, a railroad may wait to recertify the person making the
request until the end of the three-year period after FRA has approved
the railroad's certification program. If a railroad grants any request,
it must grant the request of all eligible persons to every extent
possible.
(3) A person who is subject to recertification under part 240 or
242 of this chapter may not make a request pursuant to paragraph (f)(1)
of this section.
(g) After a railroad's certification program has been approved by
FRA, the railroad shall only certify or recertify a person as a
dispatcher if that person has been tested and evaluated in accordance
with procedures that comply with subpart B of this part.
Sec. 245.107 Requirements for certification programs.
(a) Railroad's certification program submission. (1) A railroad's
certification program submission must include a copy of the
certification program and a request for approval.
(2) The request for approval can be in letter or narrative format.
(3) A railroad will receive approval or disapproval notices from
FRA by email.
(4) FRA may electronically store any materials required by this
part.
(b) Organization of the certification program. Each program must be
organized to present the required information in paragraphs (b)(1)
through (6) of this section. Each section must begin by giving the
name, title, telephone number, and email address of the person to be
contacted concerning the matters addressed by that section. If a person
is identified in a prior section, it is sufficient to merely repeat the
person's name in a subsequent section.
(1) Section 1 of the program: general information and elections.
(i) The first section of the submission must contain the name of the
railroad, the person to be contacted concerning the request (including
the person's name, title, telephone number, and email address) and a
statement electing either to accept responsibility for educating
previously uncertified persons to be dispatchers or to not accept this
responsibility.
(ii) If a railroad elects not to provide initial dispatcher
training, the railroad will be limited to recertifying persons
initially certified by another railroad. A railroad can change its
election by obtaining FRA approval of a material modification to its
program in accordance with Sec. 245.103(g).
(iii) If a railroad elects to accept responsibility for training
persons not previously certified as dispatchers, the railroad must
submit information on how such persons will be trained, but is not
required to actually perform such training. A railroad that elects to
accept the responsibility for the training of such persons may
authorize another railroad or a non-railroad entity to perform the
actual training effort. The electing railroad remains responsible for
ensuring that such other training providers adhere to the training
program the railroad submits.
(2) Section 2 of the program: training persons previously
certified. The second section of the submission must contain
information concerning the railroad's program for training previously
certified dispatchers, including all of the following information:
(i) As provided for in Sec. 245.119(j), each railroad must have a
program for the ongoing education of its dispatchers to ensure that
they maintain the necessary knowledge concerning relevant Federal
safety regulations, operating rules and practices, familiarity with
physical characteristics of the territory, and the dispatching systems
and technology. The railroad must describe in this section how it will
ensure that its dispatchers remain knowledgeable concerning the safe
discharge of their responsibilities so as to comply with the standard
set forth in Sec. 245.119(j);
(ii) In accordance with the requirements in Sec. 245.119(h), this
section must contain sufficient detail to permit effective evaluation
of the railroad's training program in terms of the subject matters
covered, the frequency and duration of the training sessions (including
the interval between attendance at such trainings), the training
environment employed (for example, use of classroom, use of computer-
based training, use of film or slide presentations, and use of on-the-
job training), and which aspects of the program are voluntary or
mandatory;
[[Page 35615]]
(iii) How the training will address a certified dispatcher's loss
of retention of knowledge over time;
(iv) How the training will address changed circumstances over time
such as the introduction of new or modified technology, including
software modifications to dispatch systems and related signal and train
control systems, new operating rule books, or significant changes in
operations including alteration in the territory dispatchers are
authorized to work over; and
(v) A plan for familiarization training that addresses how long a
person can be absent from dispatching on a territory before needing to
be requalified on that territory (a time period that cannot exceed 12
months), and once that threshold is reached, how the person will
acquire the needed familiarization training.
(3) Section 3 of the program: testing and evaluating persons
previously certified. The third section of the submission must contain
information concerning the railroad's program for testing and
evaluating previously certified dispatchers including all of the
following information:
(i) The railroad must describe in this section how it will ensure
that its dispatchers demonstrate their knowledge concerning the safe
discharge of their responsibilities so as to comply with the standards
set forth in Sec. 245.121; and
(ii) The railroad must describe in this section how it will have
ongoing testing and evaluation to ensure that its dispatchers have the
necessary vision and hearing acuity as provided for in Sec. Sec.
245.117 and 245.118. This section must also address how a railroad will
ensure that its medical examiners have sufficient information
concerning the railroad's operations, as well as the dispatcher's
safety related tasks, to effectively form appropriate conclusions about
the ability of a particular individual to safely perform as a
dispatcher.
(4) Section 4 of the program: training, testing, and evaluating
persons not previously certified. Unless a railroad has made an
election not to accept responsibility for conducting the initial
training of persons to be dispatchers, the fourth section of the
submission must contain information concerning the railroad's program
for educating, testing, and evaluating persons not previously certified
as dispatchers including all of the following information:
(i) As provided for in Sec. 245.119(d), a railroad that is issuing
an initial dispatcher certification to a person must have a program for
the training, testing, and evaluation of its dispatchers to ensure that
they acquire the necessary knowledge and skills. A railroad must
describe in this section how it will ensure that its dispatchers will
acquire sufficient knowledge and skills and demonstrate their knowledge
and skills concerning the safe discharge of their responsibilities.
(ii) This section must contain the same level of detail concerning
initial training programs and the testing and evaluation of previously
uncertified dispatchers as is required for previously certified
dispatchers in Sec. 245.107(b)(2) and (3) (Sections 2 and 3 of the
program).
(iii) Railroads that elect to rely on other entities to conduct
training away from the railroad's own territory and dispatching systems
and technology, must indicate how the student will be provided with the
required training on the physical characteristics for the railroad's
territory and dispatching systems and technology.
(5) Section 5 of the program: monitoring operational performance by
certified dispatchers. The fifth section of the submission must contain
information concerning the railroad's program for monitoring the
operation of its certified dispatchers including all of the following
information:
(i) Section 245.123 requires that a railroad perform ongoing
monitoring of its dispatchers and that each dispatcher has an annual
unannounced compliance test. A railroad must describe in this section
how it will ensure that the railroad is monitoring that its dispatchers
demonstrate their skills concerning the safe discharge of their
responsibilities.
(ii) A railroad must describe the scoring system used by the
railroad during an operational monitoring observation or unannounced
compliance test administered in accordance with the procedures required
under Sec. 245.123.
(6) Section 6 of the program: procedures for routine administration
of the dispatcher certification program. The final section of the
submission must contain a summary of how the railroad's program and
procedures will implement the various aspects of the regulatory
provisions that relate to routine administration of its certification
program for dispatchers. Specifically, this section must address the
procedural aspects of the following provisions and must describe the
manner in which the railroad will implement its program so as to comply
with each of the following provisions:
(i) Section 245.301 which provides that each railroad must have
procedures for review and comment on adverse information;
(ii) Sections 245.111, 245.113, 245.115, and 245.303 which require
a railroad to have procedures for evaluating data concerning prior
safety conduct as a motor vehicle operator and as railroad workers;
(iii) Sections 245.109, 245.201, and 245.301 which place a duty on
the railroad to make a series of determinations. When describing how it
will implement its program to comply with those sections, a railroad
must describe: the procedures it will utilize to ensure that all of the
necessary determinations have been made in a timely fashion; who will
be authorized to conclude that a person will or will be not certified;
and how the railroad will communicate adverse decisions;
(iv) Sections 245.109, 245.117, 245.118, 245.119, and 245.121,
which place a duty on the railroad to make a series of determinations.
When describing how it will implement its program to comply with those
sections, a railroad must describe how it will document the factual
basis the railroad relied on in making determinations under those
sections;
(v) Section 245.125 which permits reliance on certification
determinations made by other railroads; and
(vi) Sections 245.207 and 245.307 which contain the requirements
for replacing lost certificates and the conduct of certification
revocation proceedings.
Sec. 245.109 Determinations required for certification and
recertification.
(a) After FRA has approved a railroad's dispatcher certification
program, the railroad, prior to initially certifying or recertifying
any person as a dispatcher, shall, in accordance with its FRA-approved
program, determine in writing that:
(1) The individual meets the prior safety conduct eligibility
requirements of Sec. Sec. 245.111 and 245.113;
(2) The individual meets the eligibility requirements of Sec. Sec.
245.115 and 245.303;
(3) The individual meets the vision and hearing acuity standards of
Sec. Sec. 245.117 and 245.118;
(4) The individual has the necessary knowledge, as demonstrated by
successfully completing a test that meets the requirements of Sec.
245.121; and
(5) If applicable, the individual has completed a training program
that meets the requirements of Sec. 245.119.
(b) Nothing in this section, Sec. 245.111, or Sec. 245.113 shall
be construed to prevent persons subject to this part from
[[Page 35616]]
entering into an agreement that results in a railroad obtaining the
information needed for compliance with this subpart in a different
manner than that prescribed in Sec. 245.111 or Sec. 245.113.
Sec. 245.111 Prior safety conduct as motor vehicle operator.
(a) Except as provided in paragraphs (b) through (e) of this
section, after FRA has approved a railroad's dispatcher certification
program, the railroad, prior to initially certifying or recertifying
any person as a dispatcher, shall determine that the person meets the
eligibility requirements of this section involving prior conduct as a
motor vehicle operator.
(b) A railroad shall initially certify a person as a dispatcher for
60 days if the person:
(1) Requested the information required by paragraph (g) of this
section at least 60 days prior to the date of the decision to certify
that person; and
(2) Otherwise meets the eligibility requirements provided in Sec.
245.109(a)(1) through (5).
(c) A railroad shall recertify a person as a dispatcher for 60 days
from the expiration date of that person's certification if the person:
(1) Requested the information required by paragraph (g) of this
section at least 60 days prior to the date of the decision to recertify
that person; and
(2) Otherwise meets the eligibility requirements provided in Sec.
245.109(a)(1) through (5).
(d) Except as provided in paragraph (e) of this section, if a
railroad who certified or recertified a person for 60 days pursuant to
paragraph (b) or (c) of this section does not obtain and evaluate the
information requested pursuant to paragraph (g) of this section within
60 days, that person will be ineligible to perform as a dispatcher
until the information can be evaluated by the railroad.
(e) If a person requests the information required pursuant to
paragraph (g) of this section but is unable to obtain it, that person
or the railroad certifying or recertifying that person may petition for
a waiver of the requirements of paragraph (a) of this section in
accordance with the provisions of part 211 of this chapter. A railroad
shall certify or recertify a person during the pendency of the waiver
request if the person otherwise meets the eligibility requirements
provided in Sec. 245.109(a)(1) through (5).
(f) Except for persons designated as dispatchers under Sec.
245.105(c) or (d) or for persons covered by paragraph (j) of this
section, each person seeking certification or recertification under
this part shall, within one year prior to the date of the railroad's
decision on certification or recertification:
(1) Take the actions required by paragraphs (g) through (i) of this
section to make information concerning their driving record available
to the railroad that is considering such certification or
recertification; and
(2) Take any additional actions, including providing any necessary
consent required by State, Federal, or foreign law to make information
concerning their driving record available to that railroad.
(g) Each person seeking certification or recertification under this
part shall request, in writing, that the chief of each driver licensing
agency identified in paragraph (h) of this section provide a copy of
that agency's available information concerning their driving record to
the railroad that is considering such certification or recertification.
(h) Each person shall request the information required under
paragraph (g) of this section from:
(1) The chief of the driver licensing agency of any jurisdiction,
including a State or foreign country, which last issued that person a
driver's license; and
(2) The chief of the driver licensing agency of any other
jurisdiction, including states or foreign countries, that issued or
reissued the person a driver's license within the preceding five years.
(i) If advised by the railroad that a driver licensing agency has
informed the railroad that additional information concerning that
person's driving history may exist in the files of a State agency or
foreign country not previously contacted in accordance with this
section, such person shall:
(1) Request in writing that the chief of the driver licensing
agency which compiled the information provide a copy of the available
information to the prospective certifying railroad; and
(2) Take any additional action required by State, Federal, or
foreign law to obtain that additional information.
(j) Any person who has never obtained a motor vehicle driving
license is not required to comply with the provisions of paragraph (g)
of this section but shall notify the railroad of that fact in
accordance with procedures established by the railroad in its
certification program.
(k) Each certified dispatcher or person seeking initial
certification shall report motor vehicle incidents described in
paragraphs (m)(1) and (2) of this section to the employing railroad
within 48 hours of being convicted for, or completed State action to
cancel, revoke, suspend, or deny a motor vehicle driver's license for,
such violations. For purposes of this paragraph and paragraph (m) of
this section, ``State action'' means action of the jurisdiction that
has issued the motor vehicle driver's license, including a foreign
country. For purposes of dispatcher certification, no railroad shall
require reporting earlier than 48 hours after the conviction, or
completed State action to cancel, revoke, suspend, or deny a motor
vehicle driver's license.
(l) When evaluating a person's motor vehicle driving record, a
railroad shall not consider information concerning motor vehicle
driving incidents that occurred:
(1) Prior to the effective date of this rule;
(2) More than three years before the date of the railroad's
certification decision; or
(3) At a time other than that specifically provided for in Sec.
245.111, Sec. 245.113, Sec. 245.115, or Sec. 245.303.
(m) A railroad shall only consider information concerning the
following types of motor vehicle incidents:
(1) A conviction for, or completed State action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for operating a motor
vehicle while under the influence of, or impaired by, alcohol or a
controlled substance; or
(2) A conviction for, or completed State action to cancel, revoke,
suspend, or deny a motor vehicle driver's license for refusal to
undergo such testing as is required by State or foreign law when a law
enforcement official seeks to determine whether a person is operating a
vehicle while under the influence of alcohol or a controlled substance.
(n) If such an incident, described in paragraph (m) of this
section, is identified:
(1) The railroad shall provide the data to the railroad's DAC,
together with any information concerning the person's railroad service
record, and shall refer the person for evaluation to determine if the
person has an active substance abuse disorder.
(2) The person shall cooperate in the evaluation and shall provide
any requested records of prior counseling or treatment for review
exclusively by the DAC in the context of such evaluation.
(3) If the person is evaluated as not currently affected by an
active substance abuse disorder, the subject data shall not be
considered further with respect to certification. However, the railroad
shall, on recommendation of the DAC, condition certification upon
participation in any needed aftercare and/or follow-up testing for
alcohol or
[[Page 35617]]
drugs deemed necessary by the DAC consistent with the technical
standards specified in 49 CFR part 219, subpart H, as well as 49 CFR
part 40.
(4) If the person is evaluated as currently affected by an active
substance abuse disorder, the provisions of Sec. 245.115(c) will
apply.
(5) If the person fails to comply with the requirements of
paragraph (n)(2) of this section, the person shall be ineligible to
perform as a certified dispatcher until such time as the person
complies with the requirements.
(o) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
Sec. 245.113 Prior safety conduct with other railroads.
(a) After FRA has approved a railroad's dispatcher certification
program, the railroad shall determine, prior to issuing any person a
dispatcher certificate, that the certification candidate meets the
eligibility requirements of this section.
(b) If the certification candidate has not been employed or
certified by any other railroad in the previous five years, they do not
have to submit a request in accordance with paragraph (c) of this
section, but they must notify the railroad of this fact in accordance
with procedures established by the railroad in its certification
program.
(c) Except as provided for in paragraph (b) of this section, each
person seeking certification or recertification under this part shall
submit a written request to each railroad that employed or certified
the person within the previous five years to provide the following
information to the railroad that is considering whether to certify or
recertify that person as a dispatcher:
(1) Information about that person's compliance with Sec. 245.111
within the three years preceding the date of the request;
(2) Information about that person's compliance with Sec. 245.115
within the five years preceding the date of the request; and
(3) Information about that person's compliance with Sec. 245.303
within the five years preceding the date of the request.
(d) Each person submitting a written request required by paragraph
(c) of this section shall:
(1) Submit the request no more than one year before the date of the
railroad's decision on certification or recertification; and
(2) Take any additional actions, including providing any necessary
consent required by State or Federal law to make information concerning
their service record available to that railroad.
(e) Within 30 days after receipt of a written request that complies
with paragraph (c) of this section, a railroad shall provide the
information requested to the railroad designated in the written
request.
(f) If a railroad is unable to provide the information requested
within 30 days after receipt of a written request that complies with
paragraph (c) of this section, the railroad shall provide an
explanation, in writing, of why it cannot provide the information
within the requested time frame. If the railroad will ultimately be
able to provide the requested information, the explanation shall state
approximately how much more time the railroad needs to supply the
requested information. If the railroad will not be able to provide the
requested information, the explanation shall provide an adequate
explanation for why it cannot provide this information. Copies of this
explanation shall be provided to the railroad designated in the written
request and to the person who submitted the written request for
information.
(g) When evaluating a person's prior safety conduct with a
different railroad, a railroad shall not consider information
concerning prior safety conduct that occurred:
(1) Prior to [EFFECTIVE DATE OF FINAL RULE]; or
(2) At a time other than that specifically provided for in Sec.
245.111, Sec. 245.113, Sec. 245.115, or Sec. 245.303.
(h) Each railroad shall adopt and comply with a program that
complies with the requirements of this section. When any person
(including but not limited to a railroad; any manager, supervisor,
official, or agent of a railroad; any owner, manufacturer, lessor, or
lessee of railroad equipment, track, or facilities; any employee of
such owner, manufacturer, lessor, lessee, or independent contractor or
subcontractor) violates any requirement of a program that complies with
the requirements of this subject, that person shall be considered to
have violated the requirements of this section.
Sec. 245.115 Substance abuse disorders and alcohol drug rules
compliance.
(a) Eligibility determination. After FRA has approved a railroad's
dispatcher certification program, the railroad shall determine, prior
to issuing any person a dispatcher certificate, that the person meets
the eligibility requirements of this section.
(b) Documentation. In order to make the determination required
under paragraph (c) of this section, a railroad shall have on file
documents pertinent to that determination, including a written document
from its DAC which states their professional opinion that the person
has been evaluated as not currently affected by a substance abuse
disorder or that the person has been evaluated as affected by an active
substance abuse disorder.
(c) Fitness requirement. (1) A person who has an active substance
abuse disorder shall be denied certification or recertification as a
dispatcher.
(2) Except as provided for in paragraph (f) of this section, a
certified dispatcher who is determined to have an active substance
abuse disorder shall be ineligible to hold certification. Consistent
with other provisions of this part, certification may be reinstated as
provided in paragraph (e) of this section.
(3) In the case of a current employee of a railroad evaluated as
having an active substance abuse disorder (including a person
identified under the procedures of Sec. 245.111), the employee may, if
otherwise eligible, voluntarily self-refer for substance abuse
counseling or treatment under the policy required by Sec.
219.1001(b)(1) of this chapter; and the railroad shall then treat the
substance abuse evaluation as confidential except with respect to
ineligibility for certification.
(d) Prior alcohol/drug conduct; Federal rule compliance. (1) In
determining whether a person may be or remain certified as a
dispatcher, a railroad shall consider conduct described in paragraph
(d)(2) of this section that occurred within a period of five
consecutive years prior to the review. A review of certification shall
be initiated promptly upon the occurrence and documentation of any
incident of conduct described in this paragraph (d).
(2) A railroad shall consider any violation of Sec. 219.101 or
Sec. 219.102 of this chapter and any refusal to provide a breath or
body fluid sample for testing under the requirements of part 219 of
this chapter when instructed to do so by a railroad representative.
(3) A period of ineligibility described in this section shall
begin:
[[Page 35618]]
(i) For a person not currently certified, on the date of the
railroad's written determination that the most recent incident has
occurred; or
(ii) For a person currently certified, on the date of the
railroad's notification to the person that recertification has been
denied or certification has been suspended.
(4) The period of ineligibility described in this section shall be
determined in accordance with the following standards:
(i) In the case of one violation of Sec. 219.102 of this chapter,
the person shall be ineligible to hold a certificate during evaluation
and any required primary treatment as described in paragraph (e) of
this section. In the case of two violations of Sec. 219.102 of this
chapter, the person shall be ineligible to hold a certificate for a
period of two years. In the case of more than two such violations, the
person shall be ineligible to hold a certificate for a period of five
years.
(ii) In the case of one violation of Sec. 219.102 of this chapter
and one violation of Sec. 219.101 of this chapter, the person shall be
ineligible to hold a certificate for a period of three years.
(iii) In the case of one violation of Sec. 219.101 of this
chapter, the person shall be ineligible to hold a certificate for a
period of nine months (unless identification of the violation was
through a qualifying referral program described in Sec. 219.1001 of
this chapter and the dispatcher waives investigation, in which case the
certificate shall be deemed suspended during evaluation and any
required primary treatment as described in paragraph (e) of this
section). In the case of two or more violations of Sec. 219.101 of
this chapter, the person shall be ineligible to hold a certificate for
a period of five years.
(iv) If a person refuses to provide a breath or body fluid sample
for testing under the requirements of part 219 of this chapter when
instructed to do so by a railroad representative, the person shall be
ineligible to hold a certificate for a period of nine months.
(e) Future eligibility to hold certificate following alcohol/drug
violation. The following requirements apply to a person who has been
denied certification or who has had their certification suspended or
revoked as a result of conduct described in paragraph (d) of this
section:
(1) The person shall not be eligible for grant or reinstatement of
the certificate unless and until the person has:
(i) Been evaluated by a SAP to determine if the person currently
has an active substance abuse disorder;
(ii) Successfully completed any program of counseling or treatment
determined to be necessary by the SAP prior to return to service; and
(iii) In accordance with the testing procedures of 49 CFR part 219,
subpart H, has had a return-to-duty alcohol test with an alcohol
concentration of less than .02 and return-to-duty body fluid sample
that tested negative for controlled substances.
(2) A dispatcher placed in service or returned to service under the
above-stated conditions shall continue in any program of counseling or
treatment deemed necessary by the SAP and shall be subject to a
reasonable program of follow-up alcohol and drug testing without prior
notice for a period of not more than five years following return to
service. Follow-up tests shall include not fewer than six alcohol tests
and six drug tests during the first year following return to service.
(3) Return-to-duty and follow-up alcohol and drug tests shall be
performed consistent with the requirements of 49 CFR part 219, subpart
H.
(4) This paragraph (e) does not create an entitlement to utilize
the services of a railroad SAP, to be afforded leave from employment
for counseling or treatment, or to employment as a dispatcher. Nor does
it restrict any discretion available to the railroad to take
disciplinary action based on conduct described herein.
(f) Confidentiality protected. Nothing in this part shall affect
the responsibility of the railroad under Sec. 219.1003(f) of this
chapter to treat qualified referrals for substance abuse counseling and
treatment as confidential; and the certification status of a dispatcher
who is successfully assisted under the procedures of that section shall
not be adversely affected. However, the railroad shall include in its
referral policy, as required pursuant to Sec. 219.1003(j) of this
chapter, a provision that, at least with respect to a certified
dispatcher or a candidate for certification, the policy of
confidentiality is waived (to the extent that the railroad shall
receive from the SAP or DAC official notice of the substance abuse
disorder and shall suspend or revoke the certification, as appropriate)
if the person at any time refuses to cooperate in a recommended course
of counseling or treatment.
(g) Complying with certification program. Each railroad shall adopt
and comply with a program meeting the requirements of this section.
When any person (including, but not limited to, each railroad, railroad
officer, supervisor, and employee) violates any requirement of a
program which complies with the requirements of this section, that
person shall be considered to have violated the requirements of this
section.
Sec. 245.117 Vision acuity.
(a) After FRA has approved a railroad's dispatcher certification
program, the railroad shall determine, prior to issuing any person a
dispatcher certificate, that the person meets the standards for visual
acuity prescribed in this section and Appendix B to this part.
(b) Any examination required under this section shall be performed
by or under the supervision of a medical examiner or a licensed
physician's assistant.
(c) Except as provided in paragraph (d) of this section, each
dispatcher shall have visual acuity that meets or exceeds the following
thresholds:
(1) For distant viewing, either:
(i) Distant visual acuity of at least 20/40 (Snellen) in each eye
without corrective lenses; or
(ii) Distant visual acuity separately corrected to at least 20/40
(Snellen) with corrective lenses and distant binocular acuity of at
least 20/40 (Snellen) in both eyes with or without corrective lenses;
(2) A field of vision of at least 70 degrees in the horizontal
meridian in each eye; and
(3) The ability to recognize and distinguish between the colors of
railroad signals as demonstrated by successfully completing one of the
tests in appendix B to this part.
(d) A person not meeting the thresholds in paragraph (c) of this
section shall, upon request of the certification candidate, be subject
to further medical evaluation by a railroad's medical examiner to
determine that person's ability to safely perform as a dispatcher. In
such cases, the following procedures will apply:
(1) In accordance with the guidance prescribed in appendix B to
this part, a person is entitled to:
(i) One retest without making any showing; and
(ii) An additional retest if the person provides evidence that
circumstances have changed since the last test to the extent that the
person may now be able to safely perform as a dispatcher.
(2) The railroad shall provide its medical examiner with a copy of
this part, including all appendices.
(3) If, after consultation with a railroad officer, the medical
examiner concludes that, despite not meeting the threshold(s) in
paragraph (c) of this section, the person has the ability to safely
perform as a dispatcher, the
[[Page 35619]]
railroad may conclude that the person satisfies the vision acuity
requirements of this section to be a certified dispatcher. Such
certification will be conditioned on any special restrictions the
medical examiner determines in writing to be necessary.
(e) In order to make the determination required under paragraph (a)
of this section, a railroad shall have on file the following for each
certification candidate:
(1) A medical examiner's certificate that the candidate has been
medically examined and either does or does not meet the vision acuity
standards prescribed in paragraph (c) of this section.
(2) If needed under paragraph (d) of this section, a medical
examiner's written professional opinion which states the basis for
their determination that:
(i) The candidate can be certified, under certain conditions if
necessary, even though the candidate does not meet the vision acuity
standards prescribed in paragraph (c) of this section; or
(ii) The candidate's vision acuity prevents the candidate from
being able to safely perform as a dispatcher.
(f) If the examination required under this section shows that the
person needs corrective lenses to meet the standards for vision acuity
prescribed in this section and appendix B to this part, that person
shall use corrective lenses at all times while performing as a
dispatcher unless the railroad's medical examiner subsequently
determines in writing that the person can safely perform as a
dispatcher without corrective lenses.
(g) When a certified dispatcher becomes aware that their vision has
deteriorated, they shall notify the railroad's medical department or
other appropriate railroad official of the deterioration. Such
notification must occur prior to performing any subsequent service as a
dispatcher. The individual cannot return to service as a dispatcher
until they are reexamined and determined by the railroad's medical
examiner to satisfy the vision acuity standards prescribed in this
section and appendix B to this part.
(h) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
Sec. 245.118 Hearing acuity.
(a) After FRA has approved a railroad's dispatcher certification
program, the railroad shall determine, prior to issuing any person a
dispatcher certificate, that the person meets the standards for hearing
acuity prescribed in this section and Appendix B to this part.
(b) Any examination required under this section shall be performed
by or under the supervision of a medical examiner or a licensed
physician's assistant.
(c) Except as provided in paragraph (d) of this section, each
dispatcher shall have hearing acuity that meets or exceeds the
following thresholds with or without use of a hearing aid: The person
does not have an average hearing loss in the better ear greater than 40
decibels at 500 Hz, 1,000 Hz, and 2,000 Hz. The hearing test or
audiogram used to show a person's hearing acuity shall meet the
requirements of one of the following:
(1) As required in 29 CFR 1910.95(h) (Occupational Safety and
Health Administration);
(2) As required in Sec. 227.111 of this chapter; or
(3) Conducted using an audiometer that meets the specifications of
and is maintained and used in accordance with a formal industry
standard, such as American National Standards Institute (ANSI) S3.6,
``Specifications for Audiometers.''
(d) A person not meeting the thresholds in paragraph (c) of this
section shall, upon request of the certification candidate, be subject
to further medical evaluation by a railroad's medical examiner to
determine that person's ability to safely perform as a dispatcher. In
such cases, the following procedures will apply:
(1) In accordance with the guidance prescribed in appendix B to
this part, a person is entitled to:
(i) One retest without making any showing; and
(ii) An additional retest if the person provides evidence that
circumstances have changed since the last test to the extent that the
person may now be able to safely perform as a dispatcher.
(2) The railroad shall provide its medical examiner with a copy of
this part, including all appendices.
(3) If, after consultation with a railroad officer, the medical
examiner concludes that, despite not meeting the threshold(s) in
paragraph (c) of this section, the person has the ability to safely
perform as a dispatcher, the railroad may conclude that the person
satisfies the hearing acuity requirements of this section to be a
certified dispatcher. Such certification will be conditioned on any
special restrictions the medical examiner determines in writing to be
necessary.
(e) In order to make the determination required under paragraph (a)
of this section, a railroad shall have on file the following for each
certification candidate:
(1) A medical examiner's certificate that the candidate has been
medically examined and either does or does not meet the hearing acuity
standards prescribed in paragraph (c) of this section.
(2) If needed under paragraph (d) of this section, a medical
examiner's written professional opinion which states the basis for
their determination that:
(i) The candidate can be certified, under certain conditions if
necessary, even though the candidate does not meet the hearing acuity
standards prescribed in paragraph (c) of this section; or
(ii) The candidate's hearing acuity prevents the candidate from
being able to safely perform as a dispatcher.
(f) If the examination required under this section shows that the
person needs a hearing aid to meet the standards for hearing acuity
prescribed in this section and appendix B to this part, that person
shall use a hearing aid at all times while performing as a dispatcher
unless the railroad's medical examiner subsequently determines in
writing that the person can safely perform as a dispatcher without a
hearing aid.
(g) When a certified dispatcher becomes aware that their hearing
has deteriorated, they shall notify the railroad's medical department
or other appropriate railroad official of the deterioration. Such
notification must occur prior to performing any subsequent service as a
dispatcher. The individual cannot return to service as a dispatcher
until they are reexamined and determined by the railroad's medical
examiner to satisfy the hearing acuity standards prescribed in this
section and appendix B to this part.
(h) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
Sec. 245.119 Training requirements.
(a) After FRA has approved a railroad's certification program, the
[[Page 35620]]
railroad shall determine, prior to issuing any person a dispatcher
certificate, that the person has successfully completed the training,
in accordance with the requirements of this section.
(b) A railroad's certification program shall state the railroad's
election either:
(1) To accept responsibility for the training of dispatchers and
thereby obtain authority for that railroad to initially certify a
person as a dispatcher; or
(2) To recertify only dispatchers previously certified by other
railroads.
(c) A railroad that elects to accept responsibility for the
training of dispatchers shall state in its certification program
whether it will conduct the training program or employ a training
program conducted by some other entity on its behalf but adopted and
ratified by the railroad.
(d) A railroad that elects to train persons not previously
certified as dispatchers shall develop an initial training program
which, at a minimum, includes the following:
(1) An explanation of how training must be structured, developed,
and delivered, including an appropriate combination of classroom,
simulator, computer-based, correspondence, on-the-job training, or
other formal training. The curriculum shall be designed to impart
knowledge of, and ability to comply with, applicable Federal railroad
safety laws, regulations, and orders, as well as any relevant railroad
rules and procedures promulgated to implement those applicable Federal
railroad safety laws, regulations, and orders. This training shall
document a person's knowledge of, and ability to comply with, Federal
railroad safety laws, regulations, and orders, as well as railroad
rules and procedures.
(2) An on-the-job training component which shall include the
following:
(i) A syllabus describing content, required tasks, and related
steps the employee learning the job shall be able to perform within a
specified timeframe;
(ii) A statement of the conditions (e.g., prerequisites, dispatch
and related dispatch support systems, documentation, briefings,
demonstrations, and practice) necessary for learning transfer; and
(iii) A statement of the standards by which proficiency is measured
through a combination of task/step accuracy, completeness, and
repetition.
(3) A description of the processes to review and modify its
training program when new safety-related railroad laws, regulations,
orders, technologies, procedures, software, or equipment are introduced
into the workplace, including how it is determined if additional or
refresher training is needed.
(e) Prior to beginning the initial dispatching related tasks
associated with on-the-job exercises discussed in paragraph (d)(2) of
this section, each railroad shall make any relevant information or
materials, such as operating rules, safety rules, or other rules,
available for referencing by certification candidates.
(f) Prior to a person, not previously certified as a dispatcher,
being certified as a dispatcher, a railroad shall require the person
to:
(1) Successfully complete the formal initial training program
developed pursuant to paragraph (d) of this section and any associated
examinations covering the skills and knowledge the person will need to
perform the tasks necessary to be a dispatcher;
(2) Demonstrate on-the-job proficiency, with input from a qualified
instructor, by successfully completing the tasks and using the
dispatching systems and technology necessary to be a dispatcher. A
certification candidate may perform such tasks under the direct onsite
supervision of a person who has the necessary dispatching experience
and at least one year of experience as a dispatcher; and
(3) Demonstrate knowledge of the physical characteristics of any
assigned territory. If the railroad uses a written test to fulfill this
requirement, the railroad must provide the certification candidate with
an opportunity to consult with a supervisory employee, who possesses
territorial qualifications for the territory, to explain a question.
(g) In making the determination required under paragraph (a) of the
section, a railroad shall have written documentation showing that:
(1) The person completed a training program that complies with
paragraph (d) of this section (if the person has not been previously
certified as a dispatcher);
(2) The person demonstrated their knowledge by achieving a passing
grade under the testing and evaluation procedures of the training
program; and
(3) The person achieved a passing score on the physical
characteristics exam associated with the territories, or its pertinent
segments, over which the person will be performing dispatching service.
(h) The certification program, required under this part and
submitted in accordance with the procedures and requirements described
in Sec. 245.107, shall include:
(1) The methods that a person may acquire familiarity with the
physical characteristics of a territory;
(2) The procedures used to qualify and requalify a dispatcher on a
territory; and
(3) The maximum time period in which a dispatcher can be absent
from a territory before requalification is required. In accordance with
Sec. 245.120(c), this time period cannot exceed 12 months.
(i) If ownership of a railroad is being transferred from one
company to another, the dispatchers of the acquiring company may
receive familiarization training from the selling company prior to the
acquiring company commencing operation.
(j) A railroad shall provide for the continuing education of
certified dispatchers to ensure that each dispatcher maintains the
necessary knowledge concerning:
(1) Railroad safety and operating rules;
(2) Physical territory:
(3) Dispatching systems and technology; and
(4) Compliance with all applicable Federal regulations including,
but not limited to, hazardous materials, passenger train emergency
preparedness, emergency response procedures, and physical
characteristics of a territory.
(k) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
Sec. 245.120 Requirements for territorial qualification.
(a) After FRA has approved a railroad's certification program, a
railroad shall not permit or require a person to serve as a dispatcher
on a particular territory unless that railroad determines that:
(1) The person is certified as a dispatcher; and
(2) The person either:
(i) Possesses the necessary territorial qualifications for the
applicable territory pursuant to Sec. 245.119; or
(ii) Is assisted by a Dispatcher Pilot who is qualified on the
territory.
(b) If a person is called to serve on a territory that they are not
qualified on, the person must immediately notify the railroad that they
are not qualified on the assigned territory.
(c) A person shall no longer be considered qualified on a territory
if they have not worked on that territory
[[Page 35621]]
as a dispatcher in the previous 12 months.
(d) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
Sec. 245.121 Knowledge testing.
(a) After FRA has approved a railroad's dispatcher certification
program, the railroad shall determine, prior to issuing any person a
dispatcher certificate and in accordance with the requirements of this
section, that the person has demonstrated sufficient knowledge of the
railroad's rules and practices for the safe movement of trains.
(b) In order to make the knowledge determination required by
paragraph (a) of this section, a railroad shall have procedures for
testing a person being evaluated for certification as a dispatcher that
shall be:
(1) Designed to examine a person's knowledge of the railroad's
operating rules and practices for the safe movement of trains;
(2) Objective in nature;
(3) In written or electronic form;
(4) Covering the following subjects:
(i) Safety and operating rules;
(ii) Timetable instructions;
(iii) Compliance with all applicable Federal regulations;
(iv) Physical characteristics of the territory on which a person
will be or is currently working as a dispatcher; and
(v) Dispatching systems and technology.
(5) Sufficient to accurately measure the person's knowledge of the
covered subjects; and
(6) Conducted without open reference books or other materials
except to the degree the person is being tested on their ability to use
such reference books or materials.
(c) The railroad shall provide the certification candidate with an
opportunity to consult with a supervisory employee, who possesses
territorial qualifications for the territory, to explain a test
question.
(d) If a person fails the test, no railroad shall permit or require
that person to function as a dispatcher prior to that person's
achieving a passing score during a reexamination of the test.
(e) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
Sec. 245.123 Monitoring operational performance.
(a) Each railroad's certification program shall describe how it
will monitor the operational performance of its certified dispatchers
by including procedures for:
(1) Giving each certified dispatcher at least one unannounced
railroad and Federal rules, territorial and dispatch systems compliance
test each calendar year, except as provided for in paragraph (c) of
this section;
(2) Giving unannounced compliance tests to certified dispatchers
who return to dispatcher service after performing service that does not
require certification pursuant to this part, as described in paragraph
(c) of this section; and
(3) What actions the railroad will take if it finds deficiencies in
a dispatcher's performance during an unannounced compliance test.
(b) An unannounced compliance test shall:
(1) Test certified dispatchers for compliance with one or more
operational tests in accordance with the provisions of Sec. 217.9 of
this chapter;
(2) Be performed by a railroad officer who meets the requirements
of Sec. 217.9(b)(1) of this chapter; and
(3) Be given to each certified dispatcher at least once each
calendar year, except as provided for in paragraph (c) of this section.
(c) A certified dispatcher who is not performing service that
requires certification pursuant to this part does not need to be given
an unannounced compliance test. However, when the certified dispatcher
returns to service that requires certification pursuant to this part,
the railroad shall:
(1) Give the certified dispatcher an unannounced compliance test
within 30 days of their return to dispatcher service; and
(2) Retain a written record that includes the following
information:
(i) The date the dispatcher stopped performing service that
required certification pursuant to this part;
(ii) The date the dispatcher returned to service that required
certification pursuant to this part; and
(iii) The date and the result of the unannounced compliance test
that was performed following the dispatcher's return to service
requiring certification.
(d) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
Sec. 245.125 Certification determinations made by other railroads.
(a) A railroad that is considering certification of a person as a
dispatcher may rely on certain determinations made by another railroad
concerning that person's certification.
(b) A railroad's certification program shall address how the
railroad will administer the training of previously uncertified
dispatchers with extensive dispatching experience or previously
certified dispatchers who have had their certification expire. If a
railroad's certification program fails to specify how it will train
these dispatchers, then the railroad shall require these dispatchers to
successfully complete the certifying railroad's entire training
program.
(c) A railroad relying on certification determinations made by
another railroad shall still be responsible for determining that:
(1) The prior certification is still valid in accordance with the
provisions of Sec. Sec. 245.201 and 245.307;
(2) The person has received training on the physical
characteristics of the new territory in accordance with Sec. 245.119;
and
(3) The person has demonstrated the necessary knowledge concerning
the railroad's operating rules, territory, dispatch systems and
technology in accordance with Sec. 245.121.
Subpart C--Administration of the Certification Program
Sec. 245.201 Time limitations for certification.
(a) After FRA approves a railroad's dispatcher certification
program, that railroad shall not certify or recertify a person as a
dispatcher if the railroad is making:
(1) A determination concerning eligibility under Sec. Sec.
245.111, 245.113, 245.115, and 245.303 and the eligibility data being
relied on was furnished more than one year before the date of the
railroad's certification decision;
(2) A determination concerning visual or hearing acuity and the
medical examination being relied on was
[[Page 35622]]
conducted more than 450 days before the date of the railroad's
certification decision;
(3) A determination concerning demonstrated knowledge and the
knowledge examination being relied on was conducted more than one year
before the date of the railroad's certification decision; or
(4) A determination concerning demonstrated knowledge and the
knowledge examination being relied on was conducted more than two years
before the date of the railroad's recertification decision if the
railroad administers a knowledge testing program pursuant to Sec.
245.121 at intervals that do not exceed two years.
(b) The time limitations of paragraph (a) of this section do not
apply to a railroad that is making a certification decision in reliance
on determinations made by another railroad in accordance with Sec.
245.125.
(c) Except if a person is designated as a certified dispatcher
under Sec. 245.105(c) or (d), no railroad shall certify a person as a
dispatcher for an interval of more than three years.
(d) Each railroad shall issue each certified dispatcher a
certificate that complies with Sec. 245.207 no later than 30 days from
the date of its decision to certify or recertify that person.
Sec. 245.203 Retaining information supporting determinations.
(a) After FRA approves a railroad's dispatcher certification
program, any time the railroad issues, denies, or revokes a certificate
after making the determinations required under Sec. 245.109, it shall
maintain a record for each certified dispatcher and certification
candidate. Each record shall contain the information, described in
paragraph (b) of this section, that the railroad relied on in making
the determinations required under Sec. 245.109.
(b) A railroad shall retain the following information:
(1) Relevant data from the railroad's records concerning the
person's prior safety conduct and eligibility;
(2) Relevant data furnished by another railroad;
(3) Relevant data furnished by a governmental agency concerning the
person's motor vehicle driving record;
(4) Relevant data furnished by the person seeking certification
concerning their eligibility;
(5) The relevant test results data concerning vision and hearing
acuity;
(6) If applicable, the relevant data concerning the professional
opinion of the railroad's medical examiner on the adequacy of the
person's vision or hearing acuity;
(7) Relevant data from the railroad's records concerning the
person's success or failure on knowledge test(s) under Sec. 245.121;
(8) A sample copy of the written knowledge test or tests
administered; and
(9) The relevant data from the railroad's records concerning the
person's success or failure on unannounced tests the railroad performed
to monitor the dispatcher's performance in accordance with Sec.
245.123.
(c) If a railroad is relying on successful completion of an
approved training program conducted by another entity, the relying
railroad shall maintain a record for each certification candidate that
contains the relevant data furnished by the training entity concerning
the person's demonstration of knowledge and relied on by the railroad
in making its determinations.
(d) If a railroad is relying on a certification decision initially
made by another railroad, the relying railroad shall maintain a record
for each certification candidate that contains the relevant data
furnished by the other railroad which it relied on in making its
determinations.
(e) All records required under this section shall be retained by
the railroad for a period of six years from the date of the
certification, recertification, denial, or revocation decision and
shall, upon request, be made available to FRA representatives in a
timely manner.
(f) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
(1) Make, cause to be made, or participate in the making of a false
entry on the record(s) required by this section; or
(2) Otherwise falsify such records through material misstatement,
omission, or mutilation.
(g) Nothing in this section precludes a railroad from maintaining
the information required to be retained under this section in an
electronic format provided that:
(1) The railroad maintains an information technology security
program adequate to ensure the integrity of the electronic data storage
system, including the prevention of unauthorized access to the program
logic or individual records;
(2) The program and data storage system must be protected by a
security system that utilizes an employee identification number and
password, or a comparable method, to establish appropriate levels of
program access meeting all of the following standards:
(i) No two individuals have the same electronic identity; and
(ii) A record cannot be deleted or altered by any individual after
the record is certified by the employee who created the record;
(3) Any amendment to a record is either:
(i) Electronically stored apart from the record that it amends; or
(ii) Electronically attached to the record as information without
changing the original record;
(4) Each amendment to a record uniquely identifies the person
making the amendment; and
(5) The system employed by the railroad for data storage permits
reasonable access and retrieval of the information which can be easily
produced in an electronic or printed format that can be:
(i) Provided to FRA representatives in a timely manner; and
(ii) Authenticated by a designated representative of the railroad
as a true and accurate copy of the railroad's records if requested to
do so by an FRA representative.
Sec. 245.205 List of certified dispatchers and recordkeeping.
(a) After a railroad's certification program has received its
initial approval from FRA, pursuant to Sec. 245.103(f)(1), the
railroad must maintain a list of each person who is currently certified
as a dispatcher by the railroad. The list must include the date of the
railroad's certification decision and the date the person's
certification expires.
(b) The list shall:
(1) Be updated at least annually;
(2) Be made available, upon request, to FRA representatives in a
timely manner; and
(3) Be available either:
(i) In electronic format pursuant to paragraph (c) of this section;
or
(ii) At the divisional or regional headquarters of the railroad.
(c) If a railroad elects to maintain its list in an electronic
format, it must:
(1) Maintain an information technology security program adequate to
ensure the integrity of the electronic data storage system, including
the prevention of unauthorized access to the program logic or the list;
(2) Have its program and data storage system protected by a
security system that utilizes an employee identification number and
password, or a comparable method, to establish appropriate levels of
program access meeting all of the following standards:
(i) No two individuals have the same electronic identity; and
(ii) An entry on the list cannot be deleted or altered by any
individual
[[Page 35623]]
after the entry is certified by the employee who created the entry;
(3) Have any amendment to the list either:
(i) Electronically stored apart from the entry on the list that it
amends; or
(ii) Electronically attached to the entry on the list as
information without changing the original entry;
(4) Ensure that each amendment to the list uniquely identifies the
person making the amendment; and
(5) Ensure that the system employed for data storage permits
reasonable access and retrieval of the information which can be easily
produced in an electronic or printed format that can be:
(i) Provided to FRA representatives in a timely manner; and
(ii) Authenticated by a designated representative of the railroad
as a true and accurate copy of the railroad's records if requested to
do so by an FRA representative.
(d) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
(1) Make, cause to be made, or participate in the making of a false
entry on the list required by this section; or
(2) Otherwise falsify such list through material misstatement,
omission, or mutilation.
Sec. 245.207 Certificate requirements.
(a) Each person who becomes a certified dispatcher in accordance
with this part shall be issued a paper or electronic certificate that
must:
(1) Identify the railroad that is issuing the certificate;
(2) Indicate that it is a dispatcher certificate;
(3) Provide the following information about the certified person:
(i) Name;
(ii) Employee identification number;
(iii) Year of birth; and
(iv) Either a physical description or photograph of the person;
(4) Identify any conditions or limitations, including conditions to
ameliorate vision or hearing acuity deficiencies, that restrict, limit,
or alter the person's abilities to work as a dispatcher;
(5) Show the effective date of the certification;
(6) Show the expiration date of the certification except as
provided for in paragraph (b) of this section;
(7) Be signed by an individual designated in accordance with
paragraph (c) of this section; and
(8) Be electronic or be of sufficiently small size to permit being
carried in an ordinary pocket wallet.
(b) A certificate does not need to include an expiration date, as
required under paragraph (a)(6) of this section, if the person was
designated as a certified dispatcher under Sec. 245.105(c) or (d).
(c) Each railroad shall designate in writing any person it
authorizes to sign the certificates described in this section. The
designation shall identify such persons by name or job title.
(d) Nothing in this section shall prohibit any railroad from
including additional information on the certificate or supplementing
the certificate through other documents.
(e) It shall be unlawful for any railroad to knowingly or any
individual to willfully:
(1) Make, cause to be made, or participate in the making of a false
entry on a certificate; or
(2) Otherwise falsify a certificate through material misstatement,
omission, or mutilation.
(f) Except as provided for in paragraph (h) of this section, each
certified dispatcher shall:
(1) Have their certificate in their possession while on duty as a
dispatcher; and
(2) Display their certificate upon a request from:
(i) An FRA representative;
(ii) A state inspector authorized under part 212 of this chapter;
(iii) An officer of the issuing railroad; or
(iv) An officer of the dispatcher's employer if the dispatcher is
not employed by the issuing railroad.
(g) If a dispatcher's certificate is lost, stolen, or mutilated,
the railroad shall promptly replace the certificate at no cost to the
dispatcher.
(h) A certified dispatcher is exempt from the requirements of
paragraph (f) of this section if:
(1) The railroad made its certification or recertification decision
within the last 30 days and the dispatcher has not yet received their
certificate; or
(2) The dispatcher's certificate was lost, stolen, or mutilated,
and the railroad has not yet issued a replacement certificate to the
dispatcher.
(i) Any dispatcher who is notified or called to serve as a
dispatcher and such service would cause the dispatcher to exceed
certificate limitations, set forth in accordance with subpart B of this
part, shall immediately notify the railroad that they are not
authorized to perform that anticipated service and it shall be unlawful
for the railroad to require such service.
(j) Nothing in this section shall be deemed to alter a certified
dispatcher's duty to comply with other provisions of this chapter
concerning railroad safety.
Sec. 245.213 Multiple certifications.
(a) A person who holds a dispatcher certificate may also be
certified in other crafts, such as a locomotive engineer or conductor.
(b) A railroad that issues multiple certificates to a person,
shall, to the extent possible, coordinate the expiration date of those
certificates.
(c)(1) A person who holds a current dispatcher certificate from
more than one railroad shall immediately notify the other certifying
railroad(s) if they are denied dispatcher certification or
recertification under Sec. 245.301 by another railroad or has their
dispatcher certification suspended or revoked under Sec. 245.307 by
another railroad.
(2) If a person has their dispatcher certification suspended or
revoked by a railroad under Sec. 245.307, they may not work as a
dispatcher for any other railroad during the period that their
certification is suspended or revoked.
(3) If a person has their dispatcher certification suspended or
revoked by a railroad under Sec. 245.307, they must notify any
railroad that they are seeking certification from that their dispatcher
certification is currently suspended or revoked by another railroad.
(d) Paragraphs (d)(1) through (4) apply to people who are currently
certified as a dispatcher and also currently certified in another
craft, such as a locomotive engineer or conductor:
(1) If a person's dispatcher certification is revoked under Sec.
245.307 for a violation of Sec. 245.303(e)(8), they may not work in
another certified craft, such as a locomotive engineer or conductor,
for any railroad during the period of revocation.
(2) If a person's dispatcher certification is revoked under Sec.
245.307 for a violation of Sec. 245.303(e)(1) through (7), they may
work in another certified craft, such as a locomotive engineer or
conductor, during the period of revocation.
(3) If any of a person's non-dispatcher certifications are revoked
for failure to comply with Sec. 219.101 of this chapter, they may not
work as a dispatcher for any railroad during the period of revocation.
(4) If any of a person's non-dispatcher certifications are revoked
for any reason other than a failure to comply with Sec. 219.101 of
this chapter, they may work as a dispatcher during the period of
revocation.
(e) A person who has had their dispatcher certification revoked for
failure to comply with Sec. 219.101 of this chapter, may not obtain
any other certification pursuant to this chapter from any railroad
during the period of revocation.
[[Page 35624]]
(f) A person who has had any of their non-dispatcher certifications
revoked for failure to comply with Sec. 219.101 of this chapter, may
not obtain a dispatcher certificate pursuant to this part from any
railroad during the period of revocation.
(g) A railroad that denies a person dispatcher certification or
recertification under Sec. 245.301 shall not, solely on the basis of
that denial, deny or revoke that person's non-dispatcher certifications
or recertifications.
(h) A railroad that denies a person any non-dispatcher
certification pursuant to this chapter shall not, solely on the basis
of that denial, deny or revoke that person's dispatcher certification
or recertification.
(i) In lieu of issuing multiple certificates, a railroad may issue
one certificate to a person who is certified in multiple crafts as long
as the single certificate complies with all of the certificate
requirements for those crafts.
(j) A person who is certified in multiple crafts and who is
involved in a revocable event, as described in this chapter, may only
have one certificate revoked for that event. The determination by the
railroad as to which certificate to revoke must be based on the work
the person was performing at the time the revocable event occurred.
Sec. 245.215 Railroad oversight responsibilities.
(a) No later than March 31 of each year (beginning in calendar year
[DATE THREE YEARS AFTER EFFECTIVE DATE OF FINAL RULE], each Class I
railroad (including the National Railroad Passenger Corporation), each
railroad providing commuter service, and each Class II railroad shall
conduct a formal annual review and analysis concerning the
administration of its program for responding to detected instances of
poor safety conduct by certified dispatchers during the prior calendar
year.
(b) Each review and analysis shall involve:
(1) The number and nature of the instances of detected poor safety
conduct including the nature of the remedial action taken in response
thereto;
(2) The number and nature of FRA reported train accidents
attributed to poor safety performance by dispatchers; and
(3) The number and type of operational monitoring test failures
recorded by railroad officers who meet the requirements of Sec.
217.9(b)(1) of this chapter.
(c) Based on that review and analysis, each railroad shall
determine what action(s) it will take to improve the safety of railroad
operations to reduce or eliminate future incidents of that nature.
(d) If requested in writing by FRA, the railroad shall provide a
report of the findings and conclusions reached during such annual
review and analysis effort.
(e) For reporting purposes, information about the nature of
detected poor safety conduct shall be capable of segregation for study
and evaluation purposes into the following categories:
(1) Incidents involving failure to provide proper protection of a
reported inoperable or malfunctioning highway-rail grade crossing.
(2) Incidents involving granting permission for a train or on-track
equipment to enter into an out-of-service or blue flag protected track.
(3) Incidents involving granting permission for a train or on-track
equipment to enter into established RWIC limits without authority or
permission from the RWIC.
(4) Incidents involving removal of blocking devices or established
protection of RWIC working limits prior to the RWIC releasing the
limits.
(5) Incidents involving failure to properly apply blocking devices
or failure to establish proper protection for specified working limits
or movements of trains or on-track equipment.
(6) Incidents involving failure to properly issue or apply
mandatory directives when warranted.
(7) Incidents involving granting permission for a train to enter
Positive Train Control (PTC) or Cab Signal limits with inoperative or
malfunctioning PTC or Cab Signal equipment without proper approval.
(8) Incidents involving noncompliance with part 219 of this
chapter.
(f) For reporting purposes, each category of detected poor safety
conduct identified in paragraph (e) of this section shall be capable of
being annotated to reflect the following:
(1) The total number of incidents in that category;
(2) The number of incidents within that total which reflect
incidents requiring an FRA accident/incident report under part 225 of
this chapter; and
(3) The number of incidents within that total which were detected
as a result of a scheduled operational monitoring effort.
(g) For reporting purposes, each instance of detected poor safety
conduct identified in paragraph (b) of this section shall be capable of
being annotated to reflect the following:
(1) The nature of the remedial action taken, and the number of
events subdivided, so as to reflect which of the following actions was
selected:
(i) Imposition of informal discipline;
(ii) Imposition of formal discipline;
(iii) Provision of informal training; or
(iv) Provision of formal training; and
(2) If the nature of the remedial action taken was formal
discipline, the number of events further subdivided so as to reflect
which of the following punishments was imposed by the railroad:
(i) The person was withheld from service;
(ii) The person was dismissed from employment; or
(iii) The person was issued demerits. If more than one form of
punishment was imposed, only the punishment deemed the most severe
shall be shown.
(h) For reporting purposes, each instance of detected poor safety
conduct identified in paragraph (b) of this section which resulted in
the imposition of formal or informal discipline shall be annotated to
reflect the following:
(1) The number of instances in which the railroad's internal
appeals process reduced the punishment initially imposed at the
conclusion of its hearing; and
(2) The number of instances in which the punishment imposed by the
railroad was reduced by any of the following entities: The National
Railroad Adjustment Board, a Public Law Board, a Special Board of
Adjustment, or other body for the resolution of disputes duly
constituted under the provisions of the Railway Labor Act.
(i) For reporting purposes, an instance of poor safety conduct
involving a person who is a certified dispatcher and is certified in
another craft, such as a locomotive engineer or conductor, need only be
reported once (e.g., either under this section or Sec. 240.309 or
Sec. 242.215 of this chapter). The determination as to where to report
the instance of poor safety conduct should be based on the work the
person was performing at the time the conduct occurred.
Subpart D--Denial and Revocation of Certification
Sec. 245.301 Process for denying certification.
(a) A railroad shall notify a candidate for certification or
recertification of information known to the railroad that forms the
basis for denying the person certification and provide the person a
reasonable opportunity to explain or rebut that adverse information in
[[Page 35625]]
writing prior to denying certification. A railroad shall provide the
dispatcher candidate with any documents or records, including written
statements, related to failure to meet a requirement of this part which
support its pending denial decision.
(b) If a railroad denies a person certification or recertification,
it shall issue a decision that complies with all of the following
requirements:
(1) It must be in writing.
(2) It must explain the basis for the railroad's denial decision.
(3) It must address any explanation or rebuttal information that
the certification candidate provided pursuant to paragraph (a) of this
section.
(4) It must include the date of the railroad's decision.
(5) It must be served on the candidate no later than 10 days after
the railroad's decision.
(c) A railroad shall not deny the person's certification for
failing to comply with a railroad operating rule or practice which
constitutes a violation under Sec. 245.303(e)(1) through (7) if
sufficient evidence exists to establish that an intervening cause
prevented or materially impaired the dispatcher's ability to comply
with that railroad operating rule or practice.
Sec. 245.303 Criteria for revoking certification.
(a) It shall be unlawful to fail to comply with any of the railroad
rules or practices described in paragraph (e) of this section.
(b) A certified dispatcher who has demonstrated a failure to comply
with a railroad rule or practice described in paragraph (e) of this
section shall have their certification revoked.
(c) A certified dispatcher who is monitoring, piloting, or
instructing a dispatcher and fails to take appropriate action to
prevent a violation of a railroad rule or practice described in
paragraph (e) of this section shall have their certification revoked.
Appropriate action does not mean that a supervisor, pilot, or
instructor must prevent a violation from occurring at all costs; the
duty may be met by warning the dispatcher of a potential or foreseeable
violation.
(d) A certified dispatcher who is called by a railroad to perform a
duty other than that of a dispatcher shall not have their dispatcher
certification revoked based on actions taken or not taken while
performing that duty except for violations described in paragraph
(e)(8) of this section.
(e) When determining whether to revoke a dispatcher's
certification, a railroad shall only consider violations of its
operating rules or practices that involve:
(1) Failure to provide proper protection of a reported inoperable
or malfunctioning highway-rail grade crossing.
(2) Granting permission for a train or on-track equipment to enter
into an out-of-service or blue flag protected track.
(3) Granting permission for a train or on-track equipment to enter
into established RWIC limits without authority or permission from the
RWIC.
(4) Removal of blocking devices or established protection of RWIC
working limits prior to the RWIC releasing the limits.
(5) Failure to properly apply blocking devices or establish proper
protection for specified working limits or movements of trains or on-
track equipment.
(6) Failure to properly issue or apply mandatory directives when
warranted.
(7) Granting permission, without prior approval, for a train to
enter Positive Train Control (PTC) or Cab Signal limits with
inoperative or malfunctioning PTC or Cab Signal equipment.
(8) Failure to comply with Sec. 219.101 of this chapter. However,
such incidents shall be considered as a violation only for the purposes
of Sec. 245.305(a)(2) and (b).
(f) In making the determination as to whether to revoke a
dispatcher's certification, a railroad shall only consider conduct
described in paragraphs (e)(1) through (7) of this section that
occurred within the three years prior to the determination.
(g) If in any single incident the person's conduct contravened more
than one operating rule or practice, that event shall be treated as a
single violation for the purposes of this section.
(h) A violation of one or more operating rules or practices
described in paragraphs (e)(1) through (7) of this section that occurs
during a properly conducted operational compliance test subject to the
provisions of this chapter shall be counted in determining the periods
of ineligibility described in Sec. 245.305.
(i) An operational test that is not conducted in compliance with
this part, a railroad's operating rules, or a railroad's program under
Sec. 217.9 of this chapter, will not be considered a legitimate test
of operational skill or knowledge, and will not be considered for
revocation purposes.
(j) Each railroad shall adopt and comply with a program meeting the
requirements of this section. When any person (including, but not
limited to, each railroad, railroad officer, supervisor, and employee)
violates any requirement of a program which complies with the
requirements of this section, that person shall be considered to have
violated the requirements of this section.
Sec. 245.305 Periods of ineligibility.
(a) The starting date for a period of ineligibility described in
this section shall be:
(1) For a person not currently certified, the date of the
railroad's written determination that the most recent incident has
occurred; or
(2) For a person currently certified, the date of the railroad's
notification to the person that recertification has been denied or
certification has been suspended.
(b) A period of ineligibility shall be determined according to the
following standards:
(1) In the case of a single incident involving a violation of one
or more of the operating rules or practices described in Sec.
245.303(e)(1) through (7), the person shall have their certificate
revoked for a period of 30 calendar days.
(2) In the case of two separate incidents involving a violation of
one or more of the operating rules or practices described in Sec.
245.303(e)(1) through (7), that occurred within 24 months of each
other, the person shall have their certificate revoked for a period of
6 months.
(3) In the case of three separate incidents involving violations of
one or more of the operating rules or practices, described in Sec.
245.303(e)(1) through (8), that occurred within 36 months of each
other, the person shall have their certificate revoked for a period of
1 year.
(4) In the case of four separate incidents involving violations of
one or more of the operating rules or practices, described in Sec.
245.303(e)(1) through (8), that occurred within 36 months of each
other, the person shall have their certificate revoked for a period of
3 years.
(5) Where, based on the occurrence of violations described in Sec.
245.303(e)(8), different periods of ineligibility may result under the
provisions of this section and Sec. 245.115, the longest period of
revocation shall control.
(c) Any or all periods of revocation provided in paragraph (b) of
this section may consist of training.
(d) A person whose certification is denied or revoked shall be
eligible for grant or reinstatement of the certificate prior to the
expiration of the initial period of ineligibility only if:
(1) The denial or revocation of certification in accordance with
the
[[Page 35626]]
provisions of paragraph (b) of this section is for a period of one year
or less;
(2) Certification is denied or revoked for reasons other than
noncompliance with Sec. 219.101 of this chapter;
(3) The person is evaluated by a railroad officer and determined to
have received adequate remedial training;
(4) The person successfully completes any mandatory program of
training or retraining, if that is determined to be necessary by the
railroad prior to return to service; and
(5) At least one half the pertinent period of ineligibility
specified in paragraph (b) of this section has elapsed.
Sec. 245.307 Process for revoking certification.
(a) If a railroad determines that a dispatcher, who is currently
certified by the railroad, has violated a railroad operating rule or
practice described in Sec. 245.303(e), the railroad shall revoke the
dispatcher's certification in accordance with the procedures and
requirements of this section.
(b) Except as providing for in Sec. 245.115(f), if a railroad
acquires reliable information that a dispatcher, who is currently
certified by the railroad, has violated a railroad operating rule or
practice described in Sec. Sec. 245.303(e) or 245.115(d), the railroad
shall undergo the following process to determine whether revocation of
the dispatcher's certification is warranted:
(1) The dispatcher's certification shall be suspended immediately.
(2) Prior to or upon suspending the dispatcher's certification, the
railroad shall provide the dispatcher with notice of: the reason for
the suspension; the pending revocation; and an opportunity for a
hearing before a presiding officer other than the investigating
officer. This notice may initially be given either orally or in
writing. If given orally, the notice must be subsequently confirmed in
writing in a manner that conforms with the notification provisions of
the applicable collective bargaining agreement. If there is no
applicable collective bargaining agreement notification provision, the
written notice must be made within four days of the date the
certification was suspended.
(3) The railroad must convene the hearing within the time frame
required under the applicable collective bargaining agreement. If there
is no applicable collective bargaining agreement or the applicable
collective bargaining agreement does not include such a requirement,
the hearing shall be convened within 10 days of the date the
certification is suspended unless the dispatcher requests or consents
to a delay to the start of the hearing.
(4) No later than the start of the hearing, the railroad shall
provide the dispatcher with a copy of the written information and a
list of witnesses the railroad will present at the hearing. If this
information was provided just prior to the start of the hearing and the
dispatcher requests a recess to the start of the hearing, such request
must be granted. If this information was provided by an employee of the
railroad, the railroad shall make that employee available for
examination during the hearing.
(5) Following the hearing, the railroad must determine, based on
the record of the hearing, whether revocation of the certification is
warranted. The railroad shall have the burden of proving that
revocation of the dispatcher's certification is warranted under Sec.
245.303.
(6) If the railroad determines that revocation of the dispatcher's
certification is warranted, the railroad shall impose the proper period
of revocation provided for in Sec. 245.305 or Sec. 245.115.
(7) The railroad shall retain the record of the hearing for three
years after the date the decision is rendered.
(c) A hearing required by this section which is conducted in a
manner that conforms procedurally to the applicable collective
bargaining agreement shall satisfy the procedural requirements of this
section.
(d) Except as provided for in paragraph (c) of this section, a
hearing required under this section shall be conducted in accordance
with the following procedures:
(1) The hearing shall be conducted by a presiding officer who can
be any proficient person authorized by the railroad other than the
investigating officer.
(2) The presiding officer shall convene and preside over the
hearing and exercise the powers necessary to regulate the conduct of
the hearing for the purpose of achieving a prompt and fair
determination of all material issues in dispute.
(3) The presiding officer may:
(i) Adopt any needed procedures for the submission of evidence in
written form;
(ii) Examine witnesses at the hearing; and
(iii) Take any other action authorized by or consistent with the
provisions of this part and permitted by law that may assist in
achieving a prompt and fair determination of all material issues in
dispute.
(4) All relevant and probative evidence shall be received into the
record unless the presiding officer determines the evidence to be
unduly repetitive or have such minimal relevance that its admission
would impair the prompt, orderly, and fair resolution of the
proceeding.
(5) Parties may appear at the hearing and be heard on their own
behalf or through designated representatives. Parties may offer
relevant evidence including testimony and may conduct such examination
of witnesses as may be required for a full disclosure of the relevant
facts.
(6) Testimony by witnesses at the hearing shall be recorded
verbatim. Witnesses can testify in person, over the phone, or
virtually.
(7) The record in the proceeding shall be closed at the conclusion
of the hearing unless the presiding officer allows additional time for
the submission of evidence.
(8) A hearing required under this section may be consolidated with
any disciplinary action or other hearing arising from the same facts.
(9) A person may waive their right to a hearing. That waiver shall:
(i) Be in writing;
(ii) Reflect the fact that the person has knowledge and
understanding of these rights and voluntarily surrenders them; and
(iii) Be signed by the person making the waiver.
(e) Except as provided for in paragraph (c) of this section, a
decision, required by this section, on whether to revoke a dispatcher's
certification shall comply with the following requirements:
(1) No later than 10 days after the close of the record, a railroad
official, other than the investigating officer, shall prepare and sign
a written decision as to whether the railroad is revoking the
dispatcher's certification.
(2) The decision shall:
(i) Contain the findings of fact on all material issues as well as
an explanation for those findings with citations to all applicable
railroad operating rules and practices;
(ii) State whether the railroad official found that the
dispatcher's certification should be revoked;
(iii) State the period of revocation under Sec. 245.305 (if the
railroad official concludes that the dispatcher's certification should
be revoked); and
(iv) Be served on the employee and the employee's representative,
if any, with the railroad retaining proof of service for three years
after the date the decision is rendered.
(f) The period that a dispatcher's certification is suspended in
accordance
[[Page 35627]]
with paragraph (b)(1) of this section shall be credited towards any
period of revocation that the railroad assesses in accordance with
Sec. 245.305.
(g) A railroad shall revoke a dispatcher's certification if, during
the period that certification is valid, the railroad acquires
information which convinces it that another railroad has revoked the
person's dispatcher certification in accordance with the provisions of
this section. Such revocation shall end on the same date that the
revocation period ends for the railroad that initially revoked the
person's certification. The requirement to provide a hearing under this
section is satisfied when any single railroad holds a hearing. No
additional hearing is required prior to a revocation by more than one
railroad arising from the same facts.
(h) A railroad shall not revoke a dispatcher's certification if
sufficient evidence exists to establish that an intervening cause
prevented or materially impaired the dispatcher's ability to comply
with the railroad operating rule or practice which constitutes a
violation under Sec. 245.303.
(i) A railroad may decide not to revoke a dispatcher's
certification if sufficient evidence exists to establish that the
violation of the railroad operating rule or practice described in Sec.
245.303(e) was of a minimal nature and had no direct or potential
effect on rail safety.
(j) If sufficient evidence meeting the criteria in paragraph (h) or
(i) of this section becomes available, the railroad shall place the
relevant information in the records maintained in compliance with:
(1) Section 245.215 for Class I railroads (including that National
Railroad Passenger Corporation), railroads providing commuter service,
and Class II railroads; and
(2) Section 245.203 for Class III railroads.
(k) If a railroad makes a good faith determination, after
performing a reasonable inquiry, that the course of conduct provided
for in paragraph (h) or (i) of this section is warranted, the railroad
will not be in violation of paragraph (b)(1) of this section if it
decides not to suspend the dispatcher's certification.
Subpart E--Dispute Resolution Procedures
Sec. 245.401 Review board established.
(a) Any person who has been denied certification, denied
recertification, or has had their certification revoked and believes
that a railroad incorrectly determined that they failed to meet the
certification requirements of this part when making the decision to
deny or revoke certification, may petition the Administrator to review
the railroad's decision.
(b) The Administrator has delegated initial responsibility for
adjudicating such disputes to the Certification Review Board (Board).
The Board shall be composed of FRA employees.
Sec. 245.403 Petition requirements.
(a) To obtain review of a railroad's decision to deny
certification, deny recertification, or revoke certification, a person
shall file a petition for review that complies with this section.
(b) Each petition shall:
(1) Be in writing;
(2) Be filed no more than 120 days after the date the railroad's
denial or revocation decision was served on the petitioner, except as
provided for in paragraph (d) of this section;
(3) Be filed on https://www.regulations.gov.
(4) Include the following contact information for the petitioner
and petitioner's representative (if petitioner is represented):
(i) Full name;
(ii) Daytime telephone number; and
(iii) Email address;
(5) Include the name of the railroad;
(6) Contain the facts that the petitioner believes constitute the
improper action by the railroad and the arguments in support of the
petition; and
(7) Include all written documents in the petitioner's possession or
reasonably available to the petitioner that document the railroad's
decision.
(c) If requested by the Board, the petitioner must provide a copy
of the information under 49 CFR 40.329 that laboratories, medical
review officers, and other service agents are required to release to
employees. The petitioner must provide a written explanation in
response to a Board request if written documents, that should be
reasonably available to the petitioner, are not supplied.
(d) The Board may extend the petition filing period in its
discretion provided that the petitioner provides good cause for the
extension and:
(1) The request for an extension is filed before the expiration of
the period provided for in paragraph (b)(2) of this section; or
(2) The failure to timely file was the result of excusable neglect.
(e) A party aggrieved by a Board decision to deny a petition as
untimely or not in compliance with the requirements of this section may
file an appeal with the Administrator in accordance with Sec. 245.411.
Sec. 245.405 Processing certification review petitions.
(a) Each petition shall be acknowledged in writing by FRA. The
acknowledgment shall be sent to the petitioner (if an email address is
provided), petitioner's representative (if any), and the railroad. The
acknowledgment shall contain the docket number assigned to the petition
and will notify the parties where the petition can be accessed.
(b) Within 60 days from the date of the acknowledgment provided in
paragraph (a) of this section, the railroad may submit to FRA any
information that the railroad considers pertinent to the petition, and
shall supplement the record with any relevant documents in its
possession, such as hearing transcripts and exhibits, that were not
submitted by the petitioner. Late filings will only be considered to
the extent practicable. A railroad that submits such information shall:
(1) Identify the petitioner by name and the docket number for the
petition;
(2) Provide the railroad's email address;
(3) Serve a copy of the information being submitted to the
petitioner and petitioner's representative, if any; and
(4) Be filed on https://www.regulations.gov.
(c) The petition will be referred to the Board for a decision after
a railroad's response is received or 60 days from the date of the
acknowledgment provided in paragraph (a) of this section, whichever is
earlier. Based on the record, the Board shall have the authority to
grant, deny, dismiss, or remand the petition. If the Board finds that
there is insufficient basis for granting or denying the petition, the
Board may issue an order affording the parties an opportunity to
provide additional information or argument consistent with its
findings.
(d) When considering procedural issues, the Board will grant the
petition if the petitioner shows:
(1) That a procedural error occurred; and
(2) The procedural error caused substantial harm to the petitioner.
(e) When considering factual issues, the Board will grant the
petition if the petitioner shows that the railroad did not provide
substantial evidence to support its decision.
(f) When considering legal issues, the Board will determine whether
the railroad's legal interpretations are correct based on a de novo
review.
(g) The Board will only consider whether the denial or revocation
of
[[Page 35628]]
certification or recertification was improper under this part and will
grant or deny the petition accordingly. The Board will not otherwise
consider the propriety of a railroad's decision. For example,the Board
will not consider whether the railroad properly applied its own more
stringent requirements.
(h) The Board's written decision shall be served on the petitioner
and/or petitioner's representative (if any), and the railroad.
Sec. 245.407 Request for a hearing.
(a) If adversely affected by the Board's decision, either the
petitioner before the Board or the railroad involved shall have a right
to an administrative proceeding as prescribed by Sec. 245.409.
(b) To exercise that right, the adversely affected party shall file
a written request for a hearing within 20 days of service of the
Board's decision on that party. The request must be filed in the docket
on https://www.regulations.gov that was used when the case was before
the Board.
(c) A written request for a hearing must contain the following:
(1) The name, telephone number, and email address of the requesting
party and the requesting party's designated representative (if any);
(2) The name, telephone number, and email address of the
respondent;
(3) The docket number for the case while it was before the Board;
(4) The specific factual issues, industry rules, regulations, or
laws that the requesting party alleges need to be examined in
connection with the certification decision in question; and
(5) The signature of the requesting party or the requesting party's
representative (if any).
(d) Upon receipt of a hearing request complying with paragraph (c)
of this section, FRA shall arrange for the appointment of a presiding
officer who shall schedule the hearing for the earliest practicable
date.
(e) If a party fails to request a hearing within the period
provided in paragraph (b) of this section, the Board's decision will
constitute final agency action.
Sec. 245.409 Hearings.
(a) An administrative hearing for a dispatcher certification
petition shall be conducted by a presiding officer, who can be any
person authorized by the Administrator.
(b) The presiding officer shall convene and preside over the
hearing. The hearing shall be a de novo hearing to find the relevant
facts and determine the correct application of this part to those
facts. The presiding officer may determine that there is no genuine
issue covering some or all material facts and limit evidentiary
proceedings to any issues of material fact as to which there is a
genuine dispute.
(c) The presiding officer may exercise the powers of the
Administrator to regulate the conduct of the hearing for the purpose of
achieving a prompt and fair determination of all material issues in
controversy.
(d) The presiding officer may authorize discovery of the types and
quantities which in the presiding officer's discretion will contribute
to a fair hearing without unduly burdening the parties. The presiding
officer may impose appropriate non-monetary sanctions, including
limitations as to the presentation of evidence and issues, for any
party's willful failure or refusal to comply with approved discovery
requests.
(e) Every petition, motion, response, or other authorized or
required document shall be signed by the party filing the same, or by a
duly authorized officer or representative of record, or by any other
person. If signed by such other person, the reason therefor must be
stated and the power of attorney or other authority authorizing such
other person to subscribe the document must be filed with the document.
The signature of the person subscribing any document constitutes a
certification that they have read the document; that to the best of
their knowledge, information, and belief every statement contained in
the document is true and no such statements are misleading; and that it
is not interposed for delay or to be vexatious.
(f) After the request for a hearing is filed, all documents filed
or served upon one party must be served upon all parties. Each party
may designate a person upon whom service is to be made when not
specified by law, regulation, or directive of the presiding officer. If
a party does not designate a person upon whom service is to be made,
then service may be made upon any person having subscribed to a
submission of the party being served, unless otherwise specified by
law, regulation, or directive of the presiding officer. Proof of
service shall accompany all documents when they are tendered for
filing.
(g) If any document initiating, filed in, or served in, a
proceeding is not in substantial compliance with the applicable law,
regulation, or directive of the presiding officer, the presiding
officer may strike or dismiss all or part of such document, or require
its amendment.
(h) Any party to a proceeding may appear and be heard in person or
by an authorized representative.
(i) Any person testifying at a hearing or deposition may be
accompanied, represented, and advised by an attorney or other
representative, and may be examined by that person.
(j) Any party may request to consolidate or separate the hearing of
two or more petitions by motion to the presiding officer, when they
arise from the same or similar facts or when the matters are for any
reason deemed more efficiently heard together.
(k) Except as provided in Sec. 245.407(e) and paragraph (s)(4) of
this section, whenever a party has the right or is required to take
action within a period prescribed by this part, or by law, regulation,
or directive of the presiding officer, the presiding officer may extend
such period, with or without notice, for good cause, provided another
party is not substantially prejudiced by such extension. A request to
extend a period which has already expired may be denied as untimely.
(l) An application to the presiding officer for an order or ruling
not otherwise specifically provided for in this part shall be by
motion. The motion shall be filed with the presiding officer and, if
written, served upon all parties. All motions, unless made during the
hearing, shall be written. Motions made during hearings may be made
orally on the record, except that the presiding officer may direct that
any oral motion be reduced to writing. Any motion shall state with
particularity the grounds therefor and the relief or order sought and
shall be accompanied by any affidavits or other evidence desired to be
relied upon which is not already part of the record. Any matter
submitted in response to a written motion must be filed and served
within 14 days of the motion, or within such other period as directed
by the presiding officer.
(m) Testimony by witnesses at the hearing shall be given under oath
and the hearing shall be recorded verbatim. The presiding officer shall
give the parties to the proceeding adequate opportunity during the
course of the hearing for the presentation of arguments in support of
or in opposition to motions, and objections and exceptions to rulings
of the presiding officer. The presiding officer may permit oral
argument on any issues for which the presiding officer deems it
appropriate and beneficial. Any evidence or argument received or
proffered orally shall be transcribed and made a part of the record.
Any physical evidence or written argument received or proffered shall
be made a part of the
[[Page 35629]]
record, except that the presiding officer may authorize the
substitution of copies, photographs, or descriptions, when deemed to be
appropriate.
(n) The presiding officer shall employ the Federal Rules of
Evidence for United States Courts and Magistrates as general guidelines
for the introduction of evidence. Notwithstanding paragraph (m) of this
section, all relevant and probative evidence shall be received unless
the presiding officer determines the evidence to be unduly repetitive
or so extensive and lacking in relevancy that its admission would
impair the prompt, orderly, and fair resolution of the proceeding.
(o) The presiding officer may:
(1) Administer oaths and affirmations;
(2) Issue subpoenas as provided for in Sec. 209.7 of this chapter;
(3) Adopt any needed procedures for the submission of evidence in
written form;
(4) Examine witnesses at the hearing;
(5) Convene, recess, adjourn, or otherwise regulate the course of
the hearing; and
(6) Take any other action authorized by or consistent with the
provisions of this part and permitted by law that may expedite the
hearing or aid in the disposition of the proceeding.
(p) The petitioner before the Board, the railroad involved in
taking the certification action, and FRA shall be parties at the
hearing. All parties may participate in the hearing and may appear and
be heard on their own behalf or through designated representatives. All
parties may offer relevant evidence, including testimony, and may
conduct such cross-examination of witnesses as may be required to make
a record of the relevant facts.
(q) The party requesting the administrative hearing shall be the
``hearing petitioner.'' The party that the Board issued its decision in
favor of will be a respondent. At the start of each proceeding, FRA
will be a respondent as well. The hearing petitioner shall have the
burden of proving its case by a preponderance of the evidence.
(r) The record in the proceeding shall be closed at the conclusion
of the evidentiary hearing unless the presiding officer allows
additional time for the submission of additional evidence. In such
instances the record shall be left open for such time as the presiding
officer grants for that purpose.
(s) At the close of the record, the presiding officer shall prepare
a written decision in the proceeding. The decision:
(1) Shall contain the findings of fact and conclusions of law, as
well as the basis for each, concerning all material issues of fact or
law presented on the record;
(2) Shall be served on all parties to the proceeding;
(3) Shall not become final for 35 days after issuance;
(4) Constitutes final agency action unless an aggrieved party files
an appeal within 35 days after issuance; and
(5) Is not precedential.
Sec. 245.411 Appeals.
(a) Any party aggrieved by the presiding officer's decision may
file an appeal in the presiding officer's docket. The appeal must be
filed within 35 days of issuance of the decision. A copy of the appeal
shall be served on each party. The appeal shall set forth objections to
the presiding officer's decision, supported by reference to applicable
laws and regulations and with specific reference to the record. If no
appeal is timely filed, the presiding officer's decision constitutes
final agency action.
(b) A party may file a reply to the appeal within 25 days of
service of the appeal. The reply shall be supported by reference to
applicable laws and regulations and with specific reference to the
record, if the party relies on evidence contained in the record.
(c) The Administrator may extend the period for filing an appeal or
a response for good cause shown, provided that the written request for
extension is served before expiration of the applicable period provided
in this section.
(d) The Administrator has sole discretion to permit oral argument
on the appeal. On the Administrator's own initiative or written motion
by any party, the Administrator may grant the parties an opportunity
for oral argument.
(e) The Administrator may remand, vacate, affirm, reverse, alter,
or modify the decision of the presiding officer and the Administrator's
decision constitutes final agency action except where the terms of the
Administrator's decision (for example, remanding a case to the
presiding officer) show that the parties' administrative remedies have
not been exhausted.
(f) An appeal from a Board decision pursuant to Sec. 245.403(e)
must be filed in the Board's docket within 35 days of issuance of the
decision. A copy of the appeal shall be served on each party. The
Administrator may affirm or vacate the Board's decision, and may remand
the petition to the Board for further proceedings. An Administrator's
decision to affirm the Board's decision constitutes final agency
action.
Appendix A to Part 245--Procedures for Obtaining and Evaluating Motor
Vehicle Driving Record Data
(1) The purpose of this appendix is to outline the procedures
available to individuals and railroads for complying with the
proposed requirements of Sec. 245.111 of this chapter. This
provision requires that railroads consider the motor vehicle driving
record of each person prior to issuing him or her certification or
recertification as a dispatcher.
(2) To fulfill that obligation, a railroad is required to review
a certification candidate's recent motor vehicle driving record.
Generally, that will be a single record on file with the State
agency that issued the candidate's current motor vehicle driver's
license. However, a motor vehicle driving record can include
multiple documents if the candidate has been issued a motor vehicle
driver's license by more than one State agency or a foreign country.
Access to State Motor Vehicle Driving Record Data
(3) The right of railroad workers, their employers, or
prospective employers to have access to a State motor vehicle
licensing agency's data concerning an individual's driving record is
controlled by state law. Although many States have mechanisms
through which employers and prospective employers, such as
railroads, can obtain such data, there are some states where privacy
concerns make such access very difficult or impossible. Since
individuals are generally entitled to obtain access to their driving
record data that will be relied on by a State motor vehicle
licensing agency when that agency is taking action concerning their
driving privileges, FRA places the responsibility on individuals who
want to serve as dispatchers to request that their current state
motor vehicle licensing agency (or agencies) furnish such data
directly to the railroad that is considering certification (or
recertification) of the individual as a dispatcher. Depending on the
procedures established by the state motor vehicle licensing agency,
the individual may be asked to send the State agency a brief letter
requesting such action or to execute a state agency form that
accomplishes the same effect. Requests for an individual's motor
vehicle driving record normally involve payment of a nominal fee
established by the State agency as well. In rare instances, when a
certification (or recertification) candidate has been issued
multiple licenses, an individual may be required to submit multiple
requests.
(4) Once the railroad has obtained the individual's motor
vehicle driving record(s), the railroad is required to afford the
certification (or recertification) candidate an opportunity to
review and comment on the record(s) in writing pursuant to Sec.
245.301. The railroad is also required to provide this review
opportunity before the railroad renders a decision based on
information in the record(s). The railroad is required to evaluate
the information in the certification (or recertification)
candidate's motor vehicle driving record(s) pursuant to the
provisions of this part.
[[Page 35630]]
Appendix B to Part 245--Medical Standards Guidelines
(1) The purpose of this appendix is to provide greater guidance
on the procedures that should be employed in administering the
vision and hearing requirements of Sec. Sec. 245.117 and 245.118.
(2) For any examination performed to determine whether a person
meets the vision acuity requirements in Sec. 245.117, it is
recommended that such examination be performed by a licensed
optometrist or a technician who reports to a licensed optometrist.
It is also recommended that any test conducted pursuant to Sec.
245.117 be performed according to any directions supplied by the
test's manufacturer and any ANSI standards that are applicable.
(3) For any examination performed to determine whether a person
meets the hearing acuity requirements in Sec. 245.118, it is
recommended that such examination be performed by a licensed or
certified audiologist or a technician who reports to a licensed or
certified audiologist. It is also recommended that any test
conducted pursuant to Sec. 245.118 be performed according to any
directions supplied by the test's manufacturer and any ANSI
standards that are applicable.
(4) In determining whether a person has the visual acuity that
meets or exceeds the requirements of this part, the following
testing protocols are deemed acceptable testing methods for
determining whether a person has the ability to recognize and
distinguish among the colors used as signals in the railroad
industry. The acceptable test methods are shown in the left-hand
column and the criteria that should be employed to determine whether
a person has failed the particular testing protocol are shown in the
right-hand column.
Table 1 to Appendix B of Part 245
------------------------------------------------------------------------
Accepted tests Failure criteria
------------------------------------------------------------------------
Pseudoisochromatic Plate Tests
------------------------------------------------------------------------
American Optical Company 1965.......... 5 or more errors on plates 1-
15.
AOC--Hardy-Rand-Ritter plates--second Any error on plates 1-6 (plates
edition. 1-4 are for demonstration--
test plate 1 is actually plate
5 in book).
Dvorine--Second edition................ 3 or more errors on plates 1-
15.
Ishihara (14 plate).................... 2 or more errors on plates 1-
11.
Ishihara (16 plate).................... 2 or more errors on plates 1-8.
Ishihara (24 plate).................... 3 or more errors on plates 1-
15.
Ishihara (38 plate).................... 4 or more errors on plates 1-
21.
Richmond Plates 1983................... 5 or more errors on plates 1-
15.
------------------------------------------------------------------------
Multifunction Vision Tester
------------------------------------------------------------------------
Keystone Orthoscope.................... Any error.
OPTEC 2000............................. Any error.
Titmus Vision Tester................... Any error.
Titmus II Vision Tester................ Any error.
------------------------------------------------------------------------
(5) In administering any of these protocols, the person
conducting the examination should be aware that railroad signals do
not always occur in the same sequence and that ``yellow signals'' do
not always appear to be the same. It is not acceptable to use
``yarn'' or other materials to conduct a simple test to determine
whether the certification candidate has the requisite vision. No
person shall be allowed to wear chromatic lenses during an initial
test of the person's color vision; the initial test is one conducted
in accordance with one of the accepted tests in the chart and Sec.
245.117(c)(3).
(6) An examinee who fails to meet the criteria in the chart may
be further evaluated as determined by the railroad's medical
examiner. Ophthalmologic referral, field testing, or other practical
color testing may be utilized depending on the experience of the
examinee. The railroad's medical examiner will review all pertinent
information and, under some circumstances, may restrict an examinee
who does not meet the criteria for serving as a dispatcher. The
intent of Sec. Sec. 245.117(d) and 245.118(d) is not to provide an
examinee with the right to make an infinite number of requests for
further evaluation, but to provide an examinee with at least one
opportunity to prove that a hearing or vision test failure does not
mean the examinee cannot safely perform as a dispatcher. Appropriate
further medical evaluation could include providing another approved
scientific screening test or a field test. All railroads should
retain the discretion to limit the number of retests that an
examinee can request, but any cap placed on the number of retests
should not limit retesting when changed circumstances would make
such retesting appropriate. Changed circumstances would most likely
occur if the examinee's medical condition has improved in some way
or if technology has advanced to the extent that it arguably could
compensate for a hearing or vision deficiency.
(7) Dispatchers who wear contact lenses should have good
tolerance to the lenses and should be instructed to have a pair of
corrective glasses available when on duty.
Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2023-10772 Filed 5-30-23; 8:45 am]
BILLING CODE 4910-06-P
