Proposed Rule2023-10772
Certification of Dispatchers
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 31, 2023
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
FRA proposes regulations for the certification of dispatchers, pursuant to the authority granted in section 402 of the Rail Safety Improvement Act of 2008.
Full Text
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<title>Federal Register, Volume 88 Issue 104 (Wednesday, May 31, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>; 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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: <a href="/cdn-cgi/l/email-protection#45263037312c366b212a29242b05212a316b222a33"><span class="__cf_email__" data-cfemail="214254535548520f454e4d404f61454e550f464e57">[email protected]</span></a>;
or Michael C. Spinnicchia, Attorney Adviser, Federal Railroad
Administration, telephone: (202) 493-0109, email:
<a href="/cdn-cgi/l/email-protection#d4b9bdb7bcb5b1b8faa7a4bdbababdb7b7bcbdb594b0bba0fab3bba2"><span class="__cf_email__" data-cfemail="4c21252f242d2920623f3c252222252f2f24252d0c282338622b233a">[email protected]</span></a>.
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 $0.8 million discounted at 7 percent. The following table shows the
total costs of this proposed rule, over the 10-year analysis period.
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\2\ Numbers in this table and subsequent tables may not sum due
to rounding.
Total 10-Year Discounted Costs (2020 Dollars) \2\
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Present value 7% Present value 3% Annualized 7% Annualized 3%
Category ($) ($) ($) ($)
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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
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[[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 $0.1
million (PV, 7%).
Total 10-Year Discounted Benefits (2020 Dollars)
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Present value 3% Annualized 7% Annualized 3%
Present value 7% ($) ($) ($) ($)
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785,599................................................... 918,450 111,852 107,670
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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.
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\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\ <a href="http://www.regulations.gov/document/FRA-2022-0019-0001">www.regulations.gov/document/FRA-2022-0019-0001</a>.
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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).
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\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 <a href="https://railroads.dot.gov/elibrary/proceedings-human-factors-and-ergonomics-society-50th-annual-meeting-2006">https://railroads.dot.gov/elibrary/proceedings-human-factors-and-ergonomics-society-50th-annual-meeting-2006</a>.
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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\
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\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).
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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.
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\7\ 56 FR 28227 (June 19, 1991).
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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.
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\8\ 76 FR 69801 (Nov. 9, 2011).
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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.
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\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.
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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:
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\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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--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\
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\11\ A record of public contact summarizing this meeting has
been posted in the rulemaking docket at: <a href="https://www.regulations.gov/document/FRA-2022-0019-0002">https://www.regulations.gov/document/FRA-2022-0019-0002</a>.
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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\
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\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.
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\14\ See e.g., 49 CFR 270.5 (definition of ``risk-based hazard
management'') and 271.103(b)(3).
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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\
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\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 <a href="https://railroads.dot.gov/">https://railroads.dot.gov/</a>.
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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 (<a href="http://railroads.dot.gov">railroads.dot.gov</a>): (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.
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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.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Petitioners and their
representatives should save some form of proof of their filing in case
an error occurs in the <a href="http://Regulations.gov">Regulations.gov</a> 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
<a href="http://Regulations.gov">Regulations.gov</a> and all DOT dockets on <a href="http://Regulations.gov">Regulations.gov</a> 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.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>. 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
[…truncated; see source link]Indexed from Federal Register on May 31, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.