Rule2024-09957
July 22, 2024 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 21, 2024
Effective
July 22, 2024
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
FRA is establishing regulations for the certification of dispatchers, pursuant to the authority granted in section 402 of the Rail Safety Improvement Act of 2008 (RSIA).
Full Text
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<title>Federal Register, Volume 89 Issue 99 (Tuesday, May 21, 2024)</title>
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[Federal Register Volume 89, Number 99 (Tuesday, May 21, 2024)]
[Rules and Regulations]
[Pages 44766-44827]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-09957]
[[Page 44765]]
Vol. 89
Tuesday,
No. 99
May 21, 2024
Part II
Department of Transportation
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Federal Railroad Administration
49 CFR Part 245
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Certification of Dispatchers; Final Rule
Federal Register / Vol. 89 , No. 99 / Tuesday, May 21, 2024 / Rules
and Regulations
[[Page 44766]]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 245
[Docket No. FRA-2022-0019, Notice No. 4]
RIN 2130-AC91
July 22, 2024 Certification of Dispatchers
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule.
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SUMMARY: FRA is establishing regulations for the certification of
dispatchers, pursuant to the authority granted in section 402 of the
Rail Safety Improvement Act of 2008 (RSIA).
DATES: This regulation is effective July 22, 2024.
ADDRESSES: 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> at any time.
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#6f0c1a1d1b061c410b00030e012f0b001b41080019"><span class="__cf_email__" data-cfemail="680b1d1a1c011b460c07040906280c071c460f071e">[email protected]</span></a>;
or Michael C. Spinnicchia, Attorney Adviser, Federal Railroad
Administration, telephone: (202) 713-7671, email:
<a href="/cdn-cgi/l/email-protection#7f12161c171e1a13510c0f161111161c1c17161e3f1b100b51181009"><span class="__cf_email__" data-cfemail="4c21252f242d2920623f3c252222252f2f24252d0c282338622b233a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Abbreviations and Terms Used in This Document
AANP--American Association of Nurse Practitioners
AAR--Association of American Railroads
ADA--Americans with Disabilities Act
ANSI--American National Standards Institute
APTA--American Public Transportation Association
ASLRRA--American Short Line and Regional Railroad Association
ATDA--American Train Dispatchers Association
BRS--Brotherhood of Railroad Signalmen
CAD--computer-aided dispatching
CE--categorical exclusion
CRB or Board--Certification Review Board
DAC--Drug and Alcohol Counselor
D.C. Circuit--U.S. Court of Appeals for the District of Columbia
Circuit
DOT--U.S. Department of Transportation
EA--environmental assessment
EIS--environmental impact statement
FRA--Federal Railroad Administration
Hz--hertz
IBEW--International Brotherhood of Electrical Workers
IMOU--implementing memorandum of understanding
mph--miles per hour
MTA--Metropolitan Transportation Authority
NEPA--National Environmental Policy Act
NPRM--Notice of Proposed Rulemaking
NRC--Network Rail Consulting
NS--Norfolk Southern Railway
OJT--On the job training
PTC--Positive Train Control
RIA--Regulatory Impact Analysis
RLO--Rail Labor Organization
RRP--Risk Reduction Program
RSAC--Railroad Safety Advisory Committee
RSIA--Rail Safety Improvement Act of 2008
RWIC--Roadway Worker In Charge
SAP--Substance Abuse Professional
SBA--Small Business Administration
Secretary--Secretary of Transportation
SEPTA--Southeastern Pennsylvania Transportation Authority
SMART-TD--International Association of Sheet Metal, Air, Rail and
Transportation Workers Transportation Division
SSP--System Safety Program
TTD--Transportation Trade Department, AFL-CIO
WLF--Washington Legal Foundation
Table of Contents for Supplementary Information
I. Executive Summary
II. Background
A. Roles and Responsibilities of Dispatchers
B. FRA History of Certification
C. Statutory Background for Dispatcher Certification
D. Report to Congress
E. RSAC Working Group
F. Stakeholder Outreach
G. Notice of Proposed Rulemaking
III. Discussion of Comments and FRA's Conclusions
A. Overview of Comments
B. Comments Supporting the NPRM
1. Labor Organizations and Consulting Company
2. Individual Commenters
C. Comments Opposing the NPRM
1. Comments Alleging There Is No Safety Justification for This
Rule as the Cost-Benefit Analysis Does Not Support Requiring
Dispatcher Certification
2. Comments Relating to RSIA Authority
3. Comments Stating That Contractors and Subcontractors Should
Be Responsible for Certifying Their Own Employees
4. Comments Related to Evidence That This Rule Would Limit Job
Hopping
5. Comments Relating to Evidence That New Dispatcher Duties
Necessitate Requiring Certification
6. Comments Asserting That the Rule Is Duplicative of Parts 243,
270, and 271
D. Miscellaneous Comments
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
1. Statement of the Need for, and Objectives of, the Rule
2. Significant Issues Raised by Public Comments
3. Response to Comments Filed by the Chief Counsel for Advocacy
of the Small Business Administration
4. Description and Estimate of the Number of Small Entities to
Which the Rule will Apply
5. Description of the Projected Reporting, Recordkeeping, and
Other Compliance Requirements of the Rule
6. A Description of the Steps the Agency Has Taken To Minimize
the Economic Impact on Small Entities
C. Paperwork Reduction Act
D. Federalism Implications
E. International Trade Impact Assessment
F. Environmental Assessment
G. Environmental Justice
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Executive Order 13175 (Tribal Consultation)
I. Executive Summary
Purpose of the Regulatory Action
FRA is requiring railroads to develop programs for certifying
individuals who perform dispatching tasks on their networks. Under this
rule, railroads are 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
are required to have formal processes for revoking certification for
dispatchers who violate specified minimum requirements.
FRA is promulgating this regulation in response to section 402 of
the RSIA, Public Law 110-432, 122 Stat. 4848, 4884 (Oct. 16, 2008),
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.'' Section 402 further
provides that the Secretary may prescribe regulations requiring the
certification of certain crafts or classes if the Secretary determined,
pursuant to the report to Congress, that such regulations are necessary
to reduce the number and rate of accidents and incidents or to improve
railroad safety.
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 due to
the complex safety-critical work dispatchers perform, the high turnover
among dispatchers which has led to a less experienced workforce, and
the need to prevent persons with active substance abuse disorders from
[[Page 44767]]
working as dispatchers.\1\ FRA subsequently performed outreach with
various stakeholders to compile a list of tasks performed by
dispatchers. Upon review of this task list, FRA found that the vast
majority of dispatcher tasks are critical to railroad safety with
potentially catastrophic consequences if they are not performed
properly. Certification addresses these safety concerns by creating
minimum training standards, establishing safety records for
dispatchers, and requiring certain safety and knowledge checks before a
person can become certified. 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 the number and rate of accidents and
incidents would be expected to decrease and railroad safety would be
expected to improve if dispatchers were required to satisfy certain
standards and be certified.
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\1\ FRA-2022-0019-0001.
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Summary of Major Provisions
This rule requires railroads to develop written programs for
certifying individuals who work as dispatchers on their territories; to
submit those written certification programs to FRA for approval; and,
once approved by FRA, to implement such programs. Subpart A of this
rule contains general provisions, including a formal statement of the
rule's purpose and scope.
Subpart B of this rule covers the review and approval process of
certification programs, the implementation schedule for this rule, the
certification program requirements, and the eligibility determinations
a railroad must make to certify a person as a dispatcher. Class I
railroads (including the National Railroad Passenger Corporation) and
railroads providing commuter service will have to submit their written
certification programs to FRA no later than 240 days after the
effective date of this rule. Class II and Class III railroads will be
required to submit their written certification plans 480 days after
this rule goes into effect. New railroads that begin dispatching
operations after this rule's effective date will be required to submit
their written certification programs to FRA and obtain FRA approval
before commencing dispatching operations. FRA will 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
FRA issues the approval letter. In addition, railroads seeking to
materially modify their FRA-approved certification programs must obtain
FRA approval prior to implementing such modifications.
Railroads are required to evaluate certification candidates in
multiple areas, including prior safety conduct as a motor vehicle
operator, prior safety conduct with other railroads, substance abuse
disorders and alcohol/drug rules compliance, and visual and hearing
acuity.
This rule also contains minimum requirements for the training
provided to prospective dispatchers. These requirements are intended to
confirm that certified dispatchers have received adequate and
sufficient training and testing to ensure that the prospective
dispatchers are able to safely perform assigned duties that ensure the
safety of train movement before they begin work as dispatchers on the
railroad. The requirements are also intended to ensure that certified
dispatchers periodically receive 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.
Subpart C of this rule addresses how railroads are to administer
their dispatcher certification programs. With the exception of
individuals designated as certified dispatchers prior to FRA approval
of the railroad's dispatcher certification program, this rule prohibits
railroads from certifying dispatchers for intervals longer than three
years. This three-year limitation, which is consistent with the maximum
period for certifying locomotive engineers in 49 CFR 240.217(c) and
conductors in 49 CFR 242.201(c), allows for periodic re-evaluation of
certified dispatchers to verify their continued compliance with FRA's
minimum safety requirements.
Subpart D of this rule addresses the process and criteria for
denying and revoking certification. The rule describes the process a
railroad must undergo before it denies an individual certification or
recertification. This process includes 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. The rule also requires that a railroad make any decision to
deny an individual certification or recertification in writing and that
written decision must meet certain requirements.
A railroad can only revoke a dispatcher's certification if one of
seven 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 will be revoked for 30 days. If an individual accumulates
more of these violations in the time period specified in the final
rule, the revocation period (period of ineligibility) becomes
increasingly longer.
If a railroad acquires reliable information that a certified
dispatcher has violated an operating rule or practice requiring
revocation under this rule, it shall suspend the dispatcher's
certificate immediately while it determines whether revocation of the
certificate is warranted. In such circumstances, dispatchers are
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 must satisfy certain requirements. Finally,
if an intervening cause prevents or materially impairs a dispatcher's
ability to comply with a railroad operating rule or practice, the
railroad must not revoke the dispatcher's certification.
Subpart E of this rule describes the dispute resolution process for
individuals wishing 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, this 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 the
individual's 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 rule does not revise 49 CFR part 241, United States Locational
Requirement for Dispatching of United States Rail Operations.
Furthermore, this rule does 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.' '' \2\
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\2\ 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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Benefits and Costs
FRA analyzed the economic impact of this final rule. The primary
benefit of this final rule, as presented in the Regulatory Impact
Analysis (RIA), is
[[Page 44768]]
that it will help ensure that railroads properly train and monitor
dispatcher performance to reduce the risk of accidents caused by
dispatcher error. This rule will allow railroads to revoke
certification of dispatchers who incur serious safety-related
violations. This includes failure to properly issue or apply a
mandatory directive when warranted or incorrectly granting permission
to proceed through a protected track segment.
This rule is expected to reduce the likelihood of an accident
occurring due to dispatcher error. FRA has analyzed accidents over the
past five years to categorize those where dispatcher training and
certification would have impacted the accident. FRA estimated that this
rule will prevent 30% of accidents that were caused or likely caused by
the dispatcher. FRA estimated that this rule will prevent 10% of
accidents where a dispatcher may have contributed to the accident.
The following table shows the estimated 10-year benefits of this
rule. The total 10-year estimated benefits would be $0.6 million (PV, 7
percent) and annualized benefits would be $0.1 million (PV, 7 percent).
Total 10-Year Discounted Benefits
[2020 dollars]
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Present value 3%
Present value 7% ($) ($) Annualized 7% ($) Annualized 3% ($)
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620,283............................................. 725,177 88,314 85,013
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FRA has quantified the monetary impact from accidents reported on
FRA accident forms. However, some accident costs are not required to be
reported on FRA accident forms (e.g., environmental impact). The cost
of FRA-reportable damage, such as the cost of direct labor and damage
to on-track equipment, track, track structures, and roadbed, only
represents a portion of the total cost of train accidents. Other direct
accident costs, such as accident clean up, third party property damage,
lost lading, environmental damage, loss of economic activity to the
community, and train delays are not included in FRA's accident/incident
reportable damages from the railroads. That impact may account for
additional benefits not quantified in this analysis. If these costs not
covered by FRA data were realized, accidents affected by this
rulemaking could have much greater economic impact than the
quantitative benefit estimates provided here.
The RIA also presents estimates of the costs likely to occur over
the first ten years of the final rule. The analysis includes estimates
of costs associated with development of certification programs, initial
and periodic training, knowledge testing, and monitoring of operational
performance. Additionally, costs are estimated for vision and hearing
tests, review of certification determinations made by other railroads,
and Government administrative costs.
FRA estimated 10-year costs of $5.4 million discounted at 7
percent. The annualized cost will be approximately $0.8 million
discounted at 7 percent. The following table shows the estimated 10-
year costs of the final rule.
Total 10-Year Discounted Costs
[2020 dollars]
----------------------------------------------------------------------------------------------------------------
Present value 7% Present value 3%
Category ($) ($) Annualized 7% ($) Annualized 3% ($)
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Development of Certification Program 982,914 1,010,875 139,945 118,505
Certification Eligibility 55,345 61,945 7,880 7,262
Requirements.......................
Recertification Eligibility 65,831 83,877 9,373 9,833
Requirements.......................
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.............. 38,667 46,209 5,505 5,417
Government Administrative Cost...... 1,192,651 1,342,668 169,807 157,402
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Total........................... 5,414,022 6,214,626 770,835 728,544
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Legal Authority
Pursuant to the RSIA, the 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.\4\ In response to the RSIA, the Secretary
submitted a report to Congress on November 4, 2015,\5\ stating that,
based on FRA's preliminary research, dispatchers and signal employees
were potentially the most viable candidate railroad crafts for
[[Page 44769]]
certification. Based on the analysis in Section II 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 issue orders for every area of
railroad safety'').
\4\ 49 CFR 1.89.
\5\ FRA-2022-0019-0001.
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II. Background
A. 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 in a dynamic context (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
\6\ 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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\6\ 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 five to ten years, the job of a railroad dispatcher
has become more complex and demanding. Railroads have decreased the
number of dispatchers over the years, and the territory for which an
individual dispatcher is responsible is expanding as a result. 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. Managing PTC failures over the
three years since PTC's full implementation has proven to be one of the
more challenging new responsibilities for dispatchers because
dispatchers must rapidly comprehend malfunctions in PTC systems and
implement alternate strategies to ensure continued safety. This
represents a significant shift from the traditional responsibilities of
dispatchers, positioning them as key figures in the management of
crises within railroad systems. To effectively address these
challenges, it is imperative that dispatchers undergo specialized
training concerning the functionalities of PTC systems and the
appropriate protocols for handling failures. The role of dispatchers in
coordinating with train crews is essential to secure a unified response
to incidents involving PTC failures. This evolution in the
responsibilities of dispatchers highlights their role in maintaining
safe railroad operations amid the challenges posed by the introduction
of sophisticated PTC technologies and the occurrence of system
failures.
In addition, 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 and
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-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.
B. 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.\7\
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\7\ 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 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.\8\ FRA
prescribed 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, performance
skills; and prior safety conduct.
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\8\ 56 FR 28227 (June 19, 1991).
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Seventeen years later, Congress passed the 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.\9\ 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
[[Page 44770]]
included some organizational improvements which made the regulation
more streamlined than part 240.
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\9\ 76 FR 69801 (Nov. 9, 2011).
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C. 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 of the RSIA
required 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 specifically
required the Secretary to consider dispatchers as one of the railroad
crafts for certification. Pursuant to the report to Congress, section
402 authorized 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.''
D. 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.\10\ 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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\10\ As noted in the NPRM, testing results submitted to FRA in
2020 and 2021 showed a 0.94-percent random violation rate (drug and
alcohol positives and refusals) 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 0.53-percent random positive drug
testing rate and a 1.06-percent pre-employment positive drug testing
rate for train and engine service employees. Testing results
submitted to FRA in 2022 showed a 0.86-percent random violation rate
(drug and alcohol positives and refusals) rate and a 5.45-percent
pre-employment violation rate for dispatch employees compared to a
1.10-percent random violation rate and a 0.46-percent pre-employment
violation rate for signal employees; and a 0.69-percent random
positive drug testing rate and a 1.48-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.\11\ 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.
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\11\ Train dispatchers bear a substantial responsibility for the
safety of roadway workers who perform maintenance and repair
operations on or near railroad tracks. They engage in detailed
coordination with work crews to establish protected work zones and
regulate train movements accordingly. Dispatchers issue
authorizations granting roadway workers exclusive access to tracks
within designated zones and they maintain continuous communication
with workers, providing updates on train locations and potential
risks.
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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, except for 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 dispatchers, along with signal repair employees, were
the most viable candidates for certification due to their safety-
critical roles.
E. RSAC Working Group
In March 1996, FRA established the Railroad Safety Advisory
Committee (RSAC), which provides a forum for collaborative analysis to
inform FRA's rulemaking and program development activities. 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 RSAC by email, but no vote was taken. On
April 24, 2019, RSAC accepted a task (No. 19-02) entitled
``Certification of Train Dispatchers.'' \12\ 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:
---------------------------------------------------------------------------
\12\ At the same meeting, 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 final rule that would establish certification
requirements for signal employees.
--Review critical tasks performed by dispatching employees for safe
train operations, particularly with the introduction of PTC technology.
--Review training, duration, content, and methodology for new hire and
continuing education.
--Review background checks designed to prevent dispatching employees
with active substance abuse disorders from ``job-hopping'' from one
employer to another.
The task statement also asked the Working Group to address the
following issues, if appropriate:
--What requirements for training and experience are appropriate?
--What classifications of dispatchers should be recognized, if any?
--To what extent do existing requirements and procedures for
[[Page 44771]]
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), the American Public
Transportation Association (APTA), the American Short Line and Regional
Railroad Association (ASLRRA), the American Train Dispatchers
Association (ATDA), the Brotherhood of Railroad Signalmen (BRS), 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 ATDA, BRS, and the
International Brotherhood of Electrical Workers (IBEW) 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 RSAC, and the Working Group became inactive.
F. Stakeholder Outreach
In 2021, FRA revisited the issue of establishing certification
requirements for dispatchers. The agency assembled subject matter
experts from FRA, ATDA, IBEW, and BRS to exchange facts and information
regarding the tasks performed by dispatchers. These parties met
virtually several times between May 5, 2021 and June 30, 2021.
As part of FRA's outreach to these labor organizations, 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 these virtual meetings, 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 labor unions 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.
Following this initial outreach, FRA held a follow-up conversation
with ATDA and IBEW, on March 3, 2022, and ATDA and IBEW informed FRA of
elements that they believed 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 Norfolk Southern Railway (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
[[Page 44772]]
copy of which has been placed in the docket.\13\
---------------------------------------------------------------------------
\13\ FRA-2022-0019-0002.
---------------------------------------------------------------------------
On March 10, 2022, FRA staff had a follow-up conversation with ATDA
and IBEW to receive information on the types of errors and operating
practice violations that should result in a railroad revoking a
dispatcher's certification. During this conversation, which was
conducted in videoconference 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.
G. Notice of Proposed Rulemaking
On May 31, 2023, FRA published the Notice of Proposed Rulemaking
(NPRM) proposing the establishment of dispatcher certification and
provided commenters 60 days to file comments.\14\ On July 5, 2023, FRA
extended the comment period by an additional 30 days.\15\ On August 22,
2023, FRA extended the comment period again, this time by an additional
15 days, until September 14, 2023.\16\
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\14\ 88 FR 35574 (May 31, 2023).
\15\ 88 FR 42907 (July 5, 2023).
\16\ 88 FR 57043 (Aug. 22, 2023).
---------------------------------------------------------------------------
III. Discussion of Comments and FRA's Conclusions
A. Overview of Comments
FRA received a total of 33 comments from railroads, labor
organizations, trade associations, a consulting company, and individual
commenters. Of the commenters who stated a clear position either in
support of or in opposition to this rule, nine commenters expressed
their support for this rule and seven commenters stated their
opposition to this rule. The order of the topics or comments discussed
in this document is not intended to reflect the significance of the
comment raised or the standing of the commenter. Additionally, this
summary of comments is intended to provide both a general understanding
of the overall scope and themes raised by the commenters, as well as
give some specific descriptions to provide context. Not every comment
is described in this summary. Comments addressing specific sections of
this rule are discussed in the Section-by-Section Analysis. Comments
regarding the proposed RIA are addressed in the RIA to the final rule.
B. Comments Supporting the NPRM
FRA received several comments that were generally supportive of
requiring dispatcher certification. These comments came from labor
organizations, a consulting company, and individual commenters.
1. Labor Organizations and Consulting Company
In stating its support for the proposed rule, the Transportation
Trades Department, AFL-CIO (TTD) asserted that safety improvements have
occurred as a result of locomotive engineer and conductor
certification. TTD also noted that PTC and other technological
advancements have increased the complexity of train dispatching, but
the training standards applied across railroads are not adequately
meeting this challenge. TTD stated that Class I railroads in particular
``are not providing a sufficient quality or amount of training for new
train dispatchers to learn how to do their jobs'' and the end result is
that many new dispatchers are having to train themselves.\17\
---------------------------------------------------------------------------
\17\ FRA-2022-0019-0037.
---------------------------------------------------------------------------
The International Association of Sheet Metal, Air, Rail and
Transportation Workers Transportation Division (SMART-TD) also
referenced the success of locomotive engineer and conductor
certification in its comment. Specifically, it noted that certification
has had a positive effect on how engineers and conductors view
continuing education. According to SMART-TD, what was previously
considered an inconvenience by crew members is now taken seriously as a
necessity to maintain their certification status. Additionally, this
time spent focusing on continuing education has helped ensure crew
members perform their duties as safely as possible.\18\
---------------------------------------------------------------------------
\18\ FRA-2022-0019-0035.
---------------------------------------------------------------------------
In ATDA's comment, the union acknowledged its long support for
dispatcher certification. In doing so, the union noted the safety-
critical nature of the dispatcher position that has only increased in
recent years with the consolidation of railroad operations, the
elimination of certain positions, and expanding use of new technologies
such as PTC and wayside equipment defect detectors. These factors have
led to dispatchers being assigned larger territories than ever before.
ATDA has noted that, despite the increased complexity of the train
dispatcher position, there has been ``a dramatic de-emphasis by
carriers on the importance of these roles and the fundamental training
and qualifications necessary to carry out the required duties and
responsibilities in a safe and efficient manner.'' \19\ ATDA indicated
new dispatchers typically receive abbreviated training and are rushed
into their positions due to staffing shortages. According to ATDA,
``[n]owhere has the inadequacy of proper training and qualifications
been more apparent than in the lack of value placed on territory
specific qualifications or knowledge of the physical characteristics of
the territory the dispatcher is responsible for.'' \20\ This was shown
by a recent FRA audit of NS that found that NS dispatchers were not
familiar with the locations and types of wayside defect detectors on
their territory and that NS's dispatcher training program did not have
any territory-specific familiarization requirements.\21\ ATDA stated
this problem is not confined to NS, as it has received many reports
from its members of having to work on territories they were either not
trained on or had not worked on in years. ATDA asserts that dispatcher
certification will address these concerns by ensuring that railroads
place a greater emphasis on training dispatchers especially with
respect to physical characteristics knowledge and familiarization.
---------------------------------------------------------------------------
\19\ FRA-2022-0019-0038.
\20\ FRA-2022-0019-0038.
\21\ FRA, Norfolk Southern Safety Assessment (2023), available
at <a href="http://railroads.dot.gov/elibrary/norfolk-southern-safety-assessment">railroads.dot.gov/elibrary/norfolk-southern-safety-assessment</a>.
---------------------------------------------------------------------------
TTD also referred to the deficiencies found during the NS audit as
further support for this rulemaking. TTD noted that dispatcher
certification would help address these deficiencies by improving the
training dispatchers receive, which would have an overall positive
effect on railroad safety.\22\ IBEW continued the theme of concern
expressed by other labor organizations about the current state of
dispatcher training. IBEW mentioned that dispatchers perform safety-
sensitive work, and an untrained or undertrained dispatcher is more
prone to commit an error which could have grave safety implications.
IBEW stated that this rule would provide administrative oversight to
dispatchers, to make sure they are trained effectively, practically,
and consistently across the industry. In doing so, IBEW contends this
rule will provide for a safer rail network.\23\ Network Rail Consulting
(NRC) commented that it agreed with the approach FRA took for this rule
and it welcomed FRA's development of
[[Page 44773]]
minimum standards for training, qualification, and testing of
dispatchers.\24\
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\22\ FRA-2022-0019-0029.
\23\ FRA-2022-0019-0039.
\24\ FRA-2022-0019-0033.
---------------------------------------------------------------------------
2. Individual Commenters
One commenter stated that certification will ensure the integrity
of train dispatching as a profession, and that dispatchers meet a high
standard of knowledge and performance through the training requirements
in this rule. This commenter also suggested this rule will encourage
the mentorship of younger, less experienced dispatchers by more
experienced dispatchers.\25\ Another commenter expressed their support
for this rule calling dispatcher certification an ``excellent idea''
that will help prevent accidents like the 2016 accident in Germany
where 11 people died and 80 people were injured when two trains
collided because a dispatcher had been playing a game on their cell
phone.\26\ One individual supported certification because it enhances
public safety by ensuring ``that dispatchers are competent in their
role and function through standard hiring practices, periodic
evaluations, health and safety requirements and exhibited
performance.'' \27\ This is particularly important given that
dispatching is a complex job that is ``multi-faceted, mentally
demanding, and challenging to perform.'' \28\ Another commenter simply
stated that dispatchers should be certified.\29\
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\25\ FRA-2022-0019-0007.
\26\ FRA-2022-0019-0032.
\27\ FRA-2022-0019-0034.
\28\ FRA-2022-0019-0034.
\29\ FRA-2022-0019-0011.
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FRA's Response
FRA appreciates the comments received from labor organizations,
NRC, and individuals expressing their support for this rule. These
comments largely corroborate FRA's background, provided above and in
the NPRM, describing the issues dispatchers are facing in the field and
why dispatcher certification would be beneficial to railroad safety. In
particular, the increasing complexities of railroad dispatching
combined with the expressed concerns about the current state of
dispatcher training warrant greater oversight. By placing more
stringent requirements on the training dispatchers receive and by
ensuring that dispatchers are properly qualified on the territories
they work on, this rule promotes railroad safety. Also, as TTD and
SMART-TD specifically noted, the safety benefits of certification have
already been established through the success of locomotive engineer and
conductor certification. Therefore, FRA agrees with these commenters
that this rule will be beneficial to rail safety.
C. Comments Opposing the NPRM
FRA received various comments from trade associations, a policy
center, and individuals opposing the NPRM. These comments address a
range of categories that are discussed below.
1. Comments Alleging That There Is No Safety Justification for This
Rule as the Cost-Benefit Analysis Does Not Support Requiring Dispatcher
Certification
FRA received several comments related to the costs and benefits of
the proposed rule. Comments were received from AAR, ASLRRA, and the
Washington Legal Foundation (WLF) who each commented that the costs of
this rule outweighed the benefits. A more detailed response to these
comments is provided in the RIA. An individual commenter added that
railroad dispatchers are already highly qualified and there is no need
for additional costly regulations as he only experienced two incidents
in his career where a dispatcher made a mistake that resulted in an
investigation.\30\
---------------------------------------------------------------------------
\30\ FRA-2022-0019-0006.
---------------------------------------------------------------------------
AAR and ASLRRA commented on several of FRA's cost estimates for
provisions of the rule. ASLRRA commented that FRA's estimates for the
time to develop the certification programs were low. They suggested
that it would take 550 hours for ASLRRA to develop a model program and
19 hours per small railroad to implement. For unannounced compliance
tests (monitoring operational performance), AAR and ASLRRA estimated
that the time per supervisor would be much more than the two hours per
year that FRA estimated. Regarding dispute resolution hearings, AAR and
ASLRRA noted that the cost assessments for hearings are underestimated,
and the actual cost would amount to 22 percent of the total estimated
costs of the proposed rule.
AAR and ASLRRA also alleged that FRA underestimated wage-related
costs by using the 2020 railroad wage rates which ``do not take into
account the 24% wage increase that railroad employees received as part
of the 2022 collective bargaining process or the 10.7% increase in
Federal government employee pay rates.'' \31\
---------------------------------------------------------------------------
\31\ FRA-2022-0019-0041.
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ASLRRA stated that the rule fails to assess how this rule would
impact short lines and failed to include an Initial Regulatory
Flexibility Assessment which discussed the burden on small entities.
ASLRRA also stated that the rule would have a significant economic
impact on a substantial number of small entities.
FRA also received comments pertaining to the estimated benefits
from the RIA associated with the proposed rule. AAR and ASLRRA
commented that most of the accidents FRA claimed dispatchers may have
contributed to in the NPRM RIA either had no dispatcher involvement or
were not caused by dispatcher error resulting in an overestimate of the
benefit assessment.
AAR and ASLRRA alleged in their joint comment that there was no
safety justification for this rulemaking. In support of this
contention, they claimed that ``[t]he last decade was the safest on
record for railroads.'' \32\ The associations cited to various
statistics showing a reduction in rail accidents since 2000.
---------------------------------------------------------------------------
\32\ FRA-2022-0019-0041.
---------------------------------------------------------------------------
Lastly, APTA stated in their comment that FRA failed to account for
additional pay that dispatchers may receive once certified.
FRA's Response
FRA received several comments regarding cost estimates of certain
provisions of the rule. Based on ASLRRA's comment regarding the time to
develop a certification program, FRA has revised the estimated time for
ASLRRA to develop a model program to 550 hours and increased the
estimate for small railroads to implement from 8 hours to 15 hours. FRA
has now only accounted for one template program produced by ASLRRA.
Holding companies will likely use the template program developed by
ASLRRA, instead of producing their own template, as discussed in the
RIA associated with the NPRM. In addition, FRA has reassessed the costs
for petitions and hearings based on comments from AAR and ASLRRA. The
categories of employees have been revised and estimates have been
increased. FRA has determined these estimates by looking at the number
of petitions and hearings associated with the conductor and engineer
certification programs. This baseline was then adjusted for the
population size of dispatcher employment. Additionally, government
costs for petitions and hearings have been increased, and now include
more categories of employees involved in the process.
With respect to AAR and ASLRRA's comment that the time estimate for
supervisors on unannounced compliance tests is too low, FRA is
maintaining its estimate as supervisors
[[Page 44774]]
should already be doing this as part of their regular duties, and to
comply with other FRA regulations. The two hours per year is the
additional time for paperwork or to organize this monitoring throughout
the year. Since the supervisor currently does this monitoring and the
dispatcher will be performing their normal duties, no additional time
will be required due to this regulation.
In response to AAR and ASLRRA's comments on the 2020 wage rates
used in the NPRM, FRA notes that the wage rates used during NPRM
drafting were the most recent available data, as provided by the
Surface Transportation Board's wage data series and General Schedule
pay scales. Regarding ASLRRA's comment on an Initial Regulatory
Flexibility Assessment, FRA, in the proposed rule, conducted an Initial
Regulatory Flexibility Assessment and estimated the percentage of
average annual revenue that the rule would impose on small entities.
FRA estimated that 140 railroads would be impacted by this regulation,
which may be considered a substantial number, but the impact will not
be significant. As stated in the Final Regulatory Flexibility
Assessment and Certification, in the final rule, FRA has estimated the
costs to be only 0.02% of average annual revenue for Class III
railroads. Therefore, FRA is certifying that this final rule will not
have a significant economic impact on a substantial number of small
entities. On the issue of FRA's estimate of benefits, FRA has decreased
the number of accidents/incidents from ten (in the NPRM RIA) to one
accident/incident under the ``May Have Contributed'' category in the
RIA associated with this final rule based on the comments received from
AAR and ASLRRA.
Turning to the contention from AAR and ASLRRA that there is no
safety justification for this rule, FRA disagrees with the premise that
because railroad safety has improved over the last 20 years, the agency
does not need to take actions that could further improve safety.
Moreover, the associations neglected to mention in their comment that
one of the changes in the railroad industry over the past few decades
has been the introduction of certification requirements. The locomotive
engineer certification requirements in part 240 went into effect in
1991,\33\ and the conductor certification requirements in part 242
became effective just over a decade ago in 2012.\34\ Thus, it stands to
reason that certification has been one of the factors that has improved
railroad safety in recent decades and instituting such requirements for
dispatchers could lead to similar improvements in the future.
---------------------------------------------------------------------------
\33\ 56 FR 28227, 28228 (June 19, 1991).
\34\ 76 FR 69802 (Nov. 9, 2011).
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Finally, in response to APTA's comment on certification pay, FRA
does not think that pay will increase solely due to certification.
Salary negotiations are based on many factors and are typically long-
term agreements that would not be impacted by one individual
regulation.
2. Comments Relating to RSIA Authority
In their joint comments on the proposed rule, AAR and ASLRRA
challenge FRA's assertion that section 402 of the RSIA authorized the
Secretary to prescribe regulations requiring the certification of
dispatchers. AAR and ASLRRA assert that Congress only authorized DOT to
issue regulations requiring certification if the Secretary determined
in a report to Congress that regulations are ``necessary to reduce the
number and rate of accidents and incidents or to improve railroad
safety.'' \35\ AAR and ASLRRA contend the Secretary failed to make such
a determination in the 2015 report to Congress.
---------------------------------------------------------------------------
\35\ Rail Safety Improvement Act of 2008, Public Law 110-432,
section 402, 122 Stat. 4848, 4884 (2008).
---------------------------------------------------------------------------
FRA's Response
While section 402 of the RSIA required the Secretary to 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,'' it did not
require the Secretary to make an official determination in this report
that the issuance of dispatcher certification regulations was necessary
to reduce the number and rate of accidents and incidents or to improve
railroad safety, as a necessary precondition to the initiation of this
rulemaking.
Section 402 of the RSIA authorizes the Secretary (and by
delegation, FRA) to prescribe regulations requiring the certification
of certain crafts or classes of railroad carrier employees (or railroad
carrier contractor or subcontractor employees) ``pursuant to'' the
report to Congress that was required by section 402(b) of the RSIA. The
phrase, ``pursuant to,'' is defined to mean ``in a way that agrees with
or follows (something).'' \36\ Thus, in section 402 of the RSIA,
Congress authorized FRA to prescribe regulations that are consistent
with the 2015 report to Congress. In the 2015 report, the Secretary
stated that dispatchers were potentially the most viable candidates for
certification due to the complex safety-critical work they perform and
the high turnover in the dispatching force which was contributing to a
less experienced workforce. The report also noted that dispatcher
certification could improve safety by preventing individuals with
active substance abuse disorders from working as dispatchers.\37\ Based
on the report's findings and the agency's outreach to stakeholders,\38\
FRA determined that the number and rate of accidents and incidents
would be expected to decrease and railroad safety would be expected to
improve if it required certification of dispatchers.
---------------------------------------------------------------------------
\36\ <a href="http://www.britannica.com">www.britannica.com</a>.
\37\ FRA-2022-0019-0001.
\38\ See Section II.F for a discussion of FRA's outreach to
stakeholders.
---------------------------------------------------------------------------
Moreover, FRA notes that it has broad authority to ``prescribe
regulations and issue orders for every area of railroad safety,''
including this regulation.\39\
---------------------------------------------------------------------------
\39\ 49 U.S.C. 20103(a). The Secretary has delegated this
authority to the Federal Railroad Administrator. 49 CFR 1.89.
---------------------------------------------------------------------------
3. Comments Stating That Contractors and Subcontractors Should Be
Responsible for Certifying Their Own Employees
In AAR and ASLRRA's joint comment, they state that contractors
should be responsible for certifying their own employees, as they are
in the best position to implement and manage a certification program of
their employees, and other parts of FRA's regulations allow for
contractors to have their own programs. They further note that
dispatching is highly specialized work and that many short line
railroads do not have the requisite expertise to oversee a dispatcher
certification program. They also contend it would be ``an inefficient
waste of resources for dozens of railroads to certify the same
individual in any given period.'' \40\ Lastly, AAR and ASLRRA state
that ``[r]ailroads are equally incentivized to ensure safety of
dispatcher operations no matter which party is responsible for
implementing and managing the dispatcher certification program.'' \41\
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\40\ FRA-2022-0019-0041.
\41\ FRA-2022-0019-0041.
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In a separate comment, ASLRRA noted that no other part of FRA's
regulations requires a railroad to determine whether a non-employee has
the necessary qualifications to perform a task. ASLRRA also criticized
the NPRM for not providing guidance on how a small railroad should
coordinate
[[Page 44775]]
with other railroads if a contractor dispatcher gets decertified on
their railroad.\42\
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\42\ FRA-2022-0019-0042.
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FRA also received comments regarding this issue that did not
express support for or opposition to the NPRM, but requested
clarification on how this rule would work in practice. One individual
asked why this rule did not apply to training organizations,
contractors, and learning institutions. This person also asked whether
railroads would be responsible for keeping the performance records of
dispatchers who are contractors.\43\ Atlantic Railways submitted a
comment asking whether a dispatch center that dispatches for several
railroads can create a model program that can be adopted by all the
railroads that use that dispatch center and whether such a model
program has been proposed.\44\
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\43\ FRA-2022-0019-0008.
\44\ FRA-2022-0019-0043.
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FRA's Response
After giving this issue careful consideration, consistent with the
NPRM, and consistent with FRA's certification regulations for
locomotive engineers and conductors in parts 240 and 242, FRA maintains
that railroads are in the best position to be held responsible for
establishing and implementing a dispatcher certification program. If a
railroad has dispatch tasks being performed over its track, then it
should be held responsible for ensuring those tasks are being performed
by individuals who meet the necessary qualifications, even if such
persons are not employees of the railroad. Even though AAR and ASLRRA
stated in their joint comment that railroads would be equally
incentivized to make sure their dispatching operations are safe
regardless of who is responsible for the certification program, the
associations offer no support for this position. To the contrary, it
seems that a railroad would make a greater effort to ensure the safety
of its dispatching operations if it would be held accountable for any
failures to comply with this rule.
With respect to the associations' concern that some railroads,
especially short line railroads, do not have the expertise to oversee a
dispatcher certification program, part 245 specifically allows for the
involvement of third parties in this process. Sections
245.107(b)(1)(iii) and 245.119(b) explicitly note that third parties
may perform the training required in a certification program. In fact,
there is nothing in this rule that prevents a contractor or other third
party from drafting, implementing, and managing a railroad's dispatcher
certification program. Therefore, railroads that do not have the
requisite internal expertise are allowed to hire a contractor to
perform these duties. These contractors can be as actively involved in
the railroad's day-to-day compliance with this rule as the railroad
desires, but because FRA is in the business of regulating railroads,
the agency feels that the responsibility for this compliance should
ultimately lie with the railroad. Even though FRA allows for
contractors to have their own training programs under 49 CFR part 243
(part 243), certification is different, as will be discussed below, and
FRA's other certification regulations in parts 240 and 242 only provide
for railroads to have certification programs. Thus, FRA intends to
maintain this consistency across its certification regulations.
AAR and ASLRRA also allege that this rule would result in an
inefficient waste of resources as dozens of railroads would have to
certify the same individual. However, this comment ignores the
streamlined process for certifying dispatchers provided by Sec.
245.125 which allows a railroad to rely on certain certification
determinations made by another railroad. In such situations, the only
determinations that the certifying railroad would be required to make
under Sec. 245.125(b) are that the other railroad's certification is
still valid; that the dispatcher received training on the physical
characteristics of the territory; and that the dispatcher has
demonstrated the necessary knowledge of the railroad's operating rules,
territory, dispatch systems, and technology. Thus, for many contractor
dispatchers who dispatch for dozens of railroads, it should be an
expedited process for them to obtain the necessary certifications from
other railroads. Furthermore, since many of these contractors dispatch
for several railroads from a single facility, it should further
expedite the process since most, if not all, of their relevant
certification files should be in a central location. Despite the
associations' critique of this process, the alternative would be to
risk having dispatchers working on territories they have not been
trained on and do not have the requisite knowledge to dispatch over.
In response to ASLRRA's comment that no other part of FRA's
regulations require railroads to make determinations about a non-
employee's qualifications, FRA notes that is inaccurate. FRA
acknowledges that while it is more common for railroads to use
contractors for dispatching, some railroads hire contractors to serve
as locomotive engineers and conductors on their trains. In such
situations, the railroad would still have to certify these non-
employees under part 240 or part 242. With respect to ASLRRA's comment
seeking guidance on how small business railroads should coordinate with
other railroads when a contractor dispatcher is decertified, FRA does
not see a need to issue such guidance. When a dispatcher's
certification is revoked, Sec. 245.213(c)(1) places the onus on the
dispatcher, not the revoking railroad, to notify any other railroad the
person has a dispatcher certificate with, of the revocation. The only
instance where this rule would require a railroad to share information
about a dispatcher's revocation with another railroad is if the
railroad received a written request pursuant to Sec. 245.113(c).
However, in such circumstances, the railroad would be notified in
writing of the need to share this information with another railroad, so
further guidance from FRA is unnecessary.
Turning to the questions FRA received from other commenters on this
topic, a railroad is required to retain all information required under
Sec. 245.203 even if a dispatcher is a contractor. As for Atlantic
Railways' question, a dispatch center would be allowed to create a
model program that could be used by several railroads. FRA is not aware
of any model programs currently in development, but FRA imagines that
several entities will be creating such programs once this rule goes
into effect.
4. Comments Related to Evidence That This Rule Would Limit Job Hopping
In their comments on the proposed rule, AAR and ASLRRA challenged
the assertion that dispatchers switch jobs more frequently than other
crafts and stated that FRA presented no evidence in support of this
claim. They also contended that because dispatchers become experts on
the safe movement of trains through a specific territory, there is a
strong disincentive for them to change jobs and have to learn a new
territory. Lastly, in addition to questioning the accuracy of the
positive alcohol and drug test rates for dispatchers referenced in the
2015 report to Congress, AAR and ALSRRA argue that dispatchers with
substance abuse disorders are already screened through pre-employment
drug and alcohol testing and the railroads' continuous monitoring of
dispatchers.
[[Page 44776]]
FRA's Response
This final rule is designed to take a proactive approach to
minimize (and hopefully eliminate) job hopping among dispatchers. While
FRA does not have data showing the frequency of job hopping among
dispatchers, it is known throughout the industry that it does occur.
AAR and ASLRRA suggest dispatchers are disincentivized to change jobs
because it would require them to gain expertise on a new territory.
However, FRA is not concerned about dispatchers who voluntarily change
jobs; rather this rule is intended to curtail job hopping when a
dispatcher loses their job with one railroad due to a substance abuse
problem or a rules violation. Given the current lack of regulations
requiring previous employment background checks, it is relatively easy
for dispatchers to leave their current employer after committing a
rules violation and find work on another railroad. Furthermore, while
AAR and ASLRRA assert that railroads are well positioned to identify
dispatchers with substance abuse problems, there is no guarantee that a
person with a substance abuse problem will test positive during a pre-
employment test. Additionally, dispatcher certification, through the
safety checks required by Sec. Sec. 245.113 and 245.115, will make it
difficult for dispatchers who commit certain safety violations to
continue performing safety-sensitive work for another railroad.
5. Comments Relating to Evidence That New Dispatcher Duties Necessitate
Requiring Certification
AAR and ASLRRA are critical of FRA's assertion that dispatching has
become more complex over the last five to ten years. Specifically, they
allege that in making this claim, FRA cites to a report by Foster-
Miller, Inc., that was written more than 17 years ago. They also assert
that FRA did not provide any data or analysis to show that a
dispatcher's job is made more complex by PTC.
FRA's Response
In criticizing FRA's reliance on the 2006 Foster-Miller report, AAR
and ALSRRA misconstrue the NPRM. While FRA cited to the Foster-Miller
report to provide an overview of some of the tasks dispatchers perform,
FRA does not reference the 2006 report as support for its position that
dispatching has become more complex over the past five to ten years. In
fact, after the NPRM states that ``[o]ver the past 5 to 10 years, the
job of a railroad dispatcher has become more complex and demanding[,]''
there is no further reference to the Foster-Miller report.\45\ Instead,
FRA cited to a decrease in the number of dispatchers which has caused
an increase in the size of the territories dispatchers are responsible
for, as support for its assertion; a point that AAR and ALSRRA do not
dispute.
---------------------------------------------------------------------------
\45\ 88 FR 35574, 35576 (May 31, 2023).
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AAR and ASLRRA also disagree with FRA's characterization that PTC
has made dispatching more complex. They argue that it has made
dispatching easier because PTC serves as a back-up system to prevent
human factor accidents. FRA agrees that PTC has improved railroad
safety, but that does not mean it has made dispatching easier. In
recent years, dispatchers have had to learn the complexities of
implementing numerous new technologies that have been introduced into
the industry such as PTC. Today's dispatcher is in a constant state of
learning based on the rapid evolution of technologies and processes
which makes the dispatcher's job more challenging even if the end
result is a safer railroad network.
6. Comments Asserting That the Rule Is Duplicative of Parts 243, 270,
and 271
AAR and ASLRRA contend that the gaps in FRA's regulations that this
rule is trying to fill are either non-existent or immaterial. They
argue that by adding these new certification requirements, FRA is
harming railroad safety ``by causing confusion and diverting resources
from higher priority safety risks.'' \46\ They further state that there
is significant overlap between this rule and part 243 and that in the
NPRM, FRA incorrectly stated that part 243 does not require dispatchers
to undergo a performance skill evaluation conducted by a qualified
instructor. They cite to 49 CFR 243.201(c)(2) as evidence that
performance skill evaluations are required under part 243 to
demonstrate on-the-job training (OJT) proficiency. They also note that
experienced employees are required to undergo refresher training in
accordance with 49 CFR 243.201(e).
---------------------------------------------------------------------------
\46\ FRA-2022-0019-0041.
---------------------------------------------------------------------------
With respect to the System Safety Program (SSP)/Risk Reduction
Program (RRP) requirements in 49 CFR parts 270 and 271 (parts 270 and
271), AAR and ASLRRA take the position that requiring dispatcher
certification casts aside the risk analysis performed under parts 270
and 271 and could lead to railroads focusing on lower priority risks
associated with dispatchers. In response to FRA's assertion that not
all railroads have to comply with parts 270 and 271, they allege that
the SSP/RRP requirements apply to more than 83% of the line-haul
mileage and 95% of the workers in the industry, making this distinction
immaterial.
FRA's Response
As an initial matter, AAR and ASLRRA's narrative that this rule is
duplicative of parts 243, 270, and 271 appears to be contradicted by
congressional direction. As they note in their joint comment, FRA
issued the training regulations in part 243, the SSP regulations in
part 270, and the RRP regulations in part 271 because of a statutory
mandate in the RSIA.\47\ However, in the same law, Congress explicitly
permitted requiring the certification of certain crafts if the
Secretary determined it was necessary to improve railroad safety.\48\
Had Congress determined that certification requirements were
duplicative of what was already mandated by the RSIA, it would not have
required the Secretary to study whether other crafts or classes of
employees could benefit from certification, or given the Secretary the
statutory authority to issue additional certification regulations.
---------------------------------------------------------------------------
\47\ Rail Safety Improvement Act of 2008, Public Law 110-432,
sections 103, 109, 401(a), 122 Stat. 4848, 4853-56, 4866-67, 4883
(2008).
\48\ Rail Safety Improvement Act of 2008, Public Law 110-432,
section 402, 122 Stat. 4848, 4884 (2008).
---------------------------------------------------------------------------
Turning to any overlap between this rule and part 243, FRA stands
by its position proffered in the NPRM that this rule complements, not
duplicates, part 243. FRA concedes that the NPRM statement that part
243 does not require dispatchers to undergo performance skill
evaluations is incorrect. However, these skill evaluations required
under part 243 only apply to newly hired employees or persons who have
been assigned a new safety-related task. Part 245 builds off the
initial performance skill evaluations required in part 243 by mandating
that dispatchers also receive an unannounced compliance test each
calendar year to ensure that dispatchers continue to safely perform
their duties after their initial certification. Part 243 has no such
continuing compliance testing requirement. While 49 CFR 243.205
requires employers to perform periodic oversight tests and inspections
to determine whether their employees are complying with Federal
railroad safety laws and regulations, the rule does not require that
all employees receive such tests and inspections. In fact, under part
243, an employee could work for decades without being tested
[[Page 44777]]
or inspected. Therefore, Sec. 245.123 fills a significant gap in FRA's
training rule.
Also, as noted in the NPRM, part 243 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. AAR and ALSRRA failed to address this fact in their
comment. Part 245 complements part 243 by mandating that railroads
remove dispatchers from service if they commit one of the egregious
safety violations enumerated in Sec. 245.303(e). This rule also
requires railroads to perform certain safety checks before certifying a
person as a dispatcher. These safety checks pertain to a person's prior
safety conduct, both working on railroads and as a motor vehicle
operator; their history of substance abuse disorders; and their visual
and hearing acuity. These are basic safety requirements that are not
addressed in part 243. Thus, FRA does not find this new rule
duplicative of FRA's training rule.
FRA is also unconvinced by AAR and ALSRRA's argument that this rule
is duplicative of parts 270 and 271. As stated in the NPRM and as
implicitly acknowledged in their joint comment, there is no guarantee
in parts 270 and 271 that railroads will address risks associated with
dispatching. Parts 270 and 271 permit railroads to prioritize
risks,\49\ thus even if a railroad identifies aspects of dispatching as
a risk, the railroad may not implement any mitigation efforts to reduce
that risk if it determines other risks are higher priorities. Given
this possibility, it is unclear how part 245 can be viewed as
duplicative of parts 270 and 271. Moreover, FRA disputes the assertion
from the associations that this rule casts aside the risk analysis
railroads are required to perform under the parts 270 and 271. Nothing
in this rule changes a railroad's responsibilities under those rules.
They can continue to perform the risk analysis and the necessary
mitigations to comply with parts 270 and 271 while also implementing a
dispatcher certification program.
---------------------------------------------------------------------------
\49\ See e.g., 49 CFR 270.5 (definition of ``risk-based hazard
management'') and 271.103(b)(3).
---------------------------------------------------------------------------
In conclusion, FRA does not see this new rule as duplicative or a
hindrance to other existing regulations. As stated in the 2015 report
to Congress, the purpose of certification is to document and verify
that the holder of the certificate has achieved certain training and
proficiency and to create a record of safety compliance infractions
that can be reviewed when hiring experienced individuals. While
developing this rule, FRA has been mindful of other regulations that
may touch upon topics covered in this rule, including FRA's training,
qualification, and oversight regulations in part 243; SSPs and RRPs in
parts 270 and 271; and fatigue risk management programs in parts 270
and 271. However, FRA finds that this rule would complement, rather
than duplicate, those regulations.
D. Miscellaneous Comments
FRA received a couple of comments that raised miscellaneous issues.
Some commenters felt that FRA should require that certain programs be
certified either in addition to or instead of dispatchers. One
commenter listed Unified Train Control System, Movement Planner, Trip
Optimizer, and PTC as programs that should have to be certified.\50\
Another commenter added that many of the errors that occur in the
dispatching field are due to failures in technology, yet there are no
requirements ``for such programs to be monitored, certified, and
overseen to ensure they aren't providing inaccurate information to the
train dispatcher.'' \51\ FRA appreciates these comments and
acknowledges that this is an issue that may warrant consideration by
FRA in the future. However, requiring that certain programs be
certified is beyond the scope of this rulemaking.
---------------------------------------------------------------------------
\50\ FRA-2022-0019-0010.
\51\ FRA-2022-0019-0015.
---------------------------------------------------------------------------
One individual suggested that screening dispatchers for diabetes
had merit, but they also expressed concern that dispatchers would be
held out of service for failing a physical.\52\ This commenter did not
elaborate on why dispatchers should be screened for diabetes. Since FRA
is unaware of any reason why a person's diabetes diagnosis would affect
their ability to safely perform the job of a dispatcher, FRA sees no
reason to add such a requirement to this rule.
---------------------------------------------------------------------------
\52\ FRA-2022-0019-0020.
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IV. Section-by-Section Analysis
This section responds to public comments and identifies any changes
made from the provisions as proposed in the NPRM. Provisions that
received no comment, and are otherwise being finalized as proposed, are
not discussed again here.
Section 245.3 Application and Responsibility for Compliance
This section specifies that this rule applies to all railroads
except for those railroads described in paragraph (a). Paragraph (a)(1)
of this section exempts those railroads that do not have any dispatch
tasks from the requirements of this part. FRA revised this paragraph
from what appeared in the NPRM to clarify that ``dispatch'' is the term
defined in Sec. 245.7, not ``dispatch tasks.''
Section 245.5 Effect and Construction
This section addresses several legal issues including that FRA does
not intend to alter the terms, conditions, or interpretations of
existing collective bargaining agreements that use job classification
titles other than dispatcher for a person who dispatches a train. AAR
and ASLRRA allege that FRA fails to understand that this new rule will
require the altering of collective bargaining agreements to satisfy the
requirements of this new rule. Based on this comment, it appears the
associations are misconstruing paragraph (a) in this section. Paragraph
(a) does not state that collective bargaining agreements will not have
to be altered as a result of this new rule. To the contrary, FRA
understands that, due to the new requirements in this rule, collective
bargaining agreements may need to be modified. Paragraph (a) simply
states that the rule does not affect the use of job classification
titles other than dispatcher in collective bargaining agreements for
persons who dispatch trains.
Section 245.7 Definitions
This section defines a number of terms that have specific meaning
in this part. As an initial matter, FRA has removed the definition of
``controlled track'' from this section as that term does not appear in
the final rule.
FRA received a number of comments regarding its proposed definition
of ``dispatch.'' TTD, ATDA, and IBEW all requested that FRA provide
more specificity to the definition. In particular, all three labor
organizations appeared to support ATDA's suggestion that paragraph
(1)(iii) of this definition be revised to ``[i]ssuing a mandatory
directive, including, but not limited to, speed restrictions, highway-
rail grade crossing protections, or those which establish working
limits for roadway workers.'' \53\ FRA agrees with the labor
organizations that this proposed revision is an improvement on the NPRM
definition, as it more accurately reflects what FRA is trying to
convey. FRA therefore adopts this change in the final rule.
---------------------------------------------------------------------------
\53\ FRA-2022-0019-0038.
---------------------------------------------------------------------------
AAR and ASLRRA submitted a comment requesting that FRA clarify that
the definition of ``dispatch'' only applies to persons covered by the
[[Page 44778]]
definition of ``dispatching service employee'' found in 49 U.S.C.
21101(2), and it does not apply to persons performing de minimis
dispatching functions. In particular, AAR and ASLRRA wanted to ensure
the definition did not apply to positions such as bridge tenders, tower
operators, control operators, and yardmasters who have traditionally
not been treated as dispatchers, but who sometimes perform de minimis
dispatching functions. They also expressed concern that FRA was
attempting to include certain roadway workers in the definition of
``dispatch'' without a valid safety justification. They contend that
expanding the definition would require railroads to alter their
collective bargaining agreements and ``would create an expensive,
unworkable administrative mess.'' \54\ Lastly, AAR and ASLRRA discussed
back-office employees who manage and analyze data that is used by
dispatchers. They stated that there was no basis for FRA to expand the
definition of ``dispatch'' to these employees. An individual commenter
also sought clarification from FRA on what type of work would require
certification under this rule. Specifically, would the definition of
``dispatch'' apply to ``Terminal/Supervisors'' and trainmasters.\55\
Another commenter asked whether it was a person's job title that
determined whether they had to be certified or did it depend on the
territory they worked on.\56\
---------------------------------------------------------------------------
\54\ FRA-2022-0019-0041.
\55\ FRA-2022-0019-0023.
\56\ FRA-2022-0019-0012.
---------------------------------------------------------------------------
As a general rule, FRA did not intend for this rule to apply to
yardmasters, bridge tenders, tower operators, control operators,
terminal supervisors, trainmasters, roadway workers, or back-office
employees. FRA believes the vast majority of workers with these titles
will be excluded from the definition of ``dispatch'' as it appears in
this final rule. As the commenters expressed, these workers typically
would not be encompassed in the definition of ``dispatch'' because
either: (1) they do not meet the definition of a ``dispatching service
employee'' as defined by 49 U.S.C. 21101(2); or (2) paragraph (2) of
this definition applies to the work they perform. Paragraph (2) of this
definition excludes from the definition of ``dispatch'' actions of
personnel in the field: (i) effecting implementation of a written or
verbal authority or permission for a railroad operation, including an
authority for working limits granted to a roadway worker; \57\ (ii)
operating a function of a signal system designed for use by those
personnel; or (iii) sorting and grouping rail cars inside a railroad
yard to assemble or disassemble a train.
---------------------------------------------------------------------------
\57\ In this final rule, FRA revised paragraph (2)(i) of this
definition to remove a redundancy that appeared in the NPRM, but the
substance of the definition is unchanged.
---------------------------------------------------------------------------
While most workers with the job titles listed above will be
excluded from this rule under paragraph (2) or because they do not meet
the definition of ``dispatching service employee'' in 49 U.S.C.
21101(2), a person's job title is irrelevant to the determination of
whether they must be certified under this rule. Instead, it is the work
function being performed that determines whether an individual must be
certified. For example, a person could have the job title of
``yardmaster'' but if they perform functions that meet the definition
of ``dispatch'' in this section, they would have to be certified
despite their job title.
The American Association of Nurse Practitioners (AANP) submitted a
comment on the definition of ``medical examiner'' in the proposed rule.
Noting that approximately 70% of all nurse practitioner graduates
deliver primary care, AANP requested that FRA revise the definition of
``medical examiner'' to include nurse practitioners and thereby
authorize them to make determinations in accordance with this rule.
AANP asserted that the definition of ``medical examiner'' in the
proposed rule was based on FRA's locomotive engineer certification
regulations in 49 CFR part 240, which are now 32 years old and not
reflective of the current practice environment where nurse
practitioners provide a substantial portion of care. While FRA has not
revised the definition of ``medical examiner'' to specifically include
nurse practitioners, FRA clarifies that if a nurse practitioner is a
licensed or certified technician, FRA's regulations in 49 CFR parts 240
and 242 (and this final rule) allow the nurse practitioner to perform
the vision and hearing examinations required in those parts (and in
this rule). However, given the complex nature of this issue and FRA's
lack of regulatory requirements for medical examiners, the question of
whether nurse practitioners should be allowed to serve as medical
examiners (and if so, whether they should be required to comply with
specific regulatory or industry standards) is best addressed in a
future rulemaking during which comments can be solicited specifically
on this issue. Accordingly, only a doctor of medicine or doctor of
osteopathy is authorized by this final rule to conduct a medical
evaluation to determine whether a person can safely work as a certified
dispatcher if the person fails the visual or hearing acuity
examination. FRA did revise the last sentence of this definition
changing ``employee'' to ``individual'' since not all persons examined
by a railroad medical examiner will be railroad employees.
FRA also received several comments on the proposed definition of
``qualified instructor.'' TTD, ATDA, and IBEW submitted similar
comments addressing paragraph (4) of the proposed definition
(paragraphs (2) and (3) of the definition in the final rule) which
states that if a railroad has designated employee representation, a
qualified instructor must either be selected in concurrence with the
designated employee representative or have at least one year of
experience as a certified dispatcher. The labor organizations propose
to change the ``or'' in paragraph (4) to an ``and'' and that the
definition require a minimum of two years experience as a certified
dispatcher. Therefore, under the organizations' proposal, a qualified
instructor for a railroad that had designated employee representation
would have to be selected in concurrence with the designated employee
representative and have at least two years service as a certified
dispatcher. In support of its position, ATDA stated that requiring
concurrence from a union representative would be beneficial because its
``representatives are typically working train dispatchers themselves,
making them some of the best individuals suited to determine a train
dispatcher's proficiency and have a vested interest in ensuring that
candidates receive the best training and instruction possible.'' \58\
The unions also agreed that one year of dispatching experience was
insufficient for someone to be a qualified instructor, and pointed to
the fact that many railroads do not consider a dispatcher to be fully
proficient until they have five years of experience. TTD alleged that
some Class I railroads are having newly certified conductors train
conductor candidates, and this is creating dangerous conditions that
this rule should aim to avoid with respect to dispatchers by requiring
two years of dispatching experience.
---------------------------------------------------------------------------
\58\ FRA-2022-0019-0038.
---------------------------------------------------------------------------
In contrast, APTA submitted a comment requesting that paragraph (4)
of this definition be deleted altogether. APTA contends selecting a
qualified instructor is inherently the responsibility of the railroad
and should not be subject to another party's
[[Page 44779]]
consent. Alternatively, APTA suggests a railroad could list its minimum
standards to become a qualified instructor in its certification
program.
After review of these comments, FRA has decided not to adopt these
proposals. FRA disagrees with APTA that railroads with designated
employee representation should not have to obtain concurrence from
labor. The required concurrence of the designated employee
representative has been retained to facilitate input by labor,
specifically in situations involving qualified instructor candidates
with minimal experience (i.e., less than 12 months experience working
as a dispatcher).
While FRA agrees with the labor organizations that it would be
beneficial for qualified instructors to have more than one year of
dispatching experience and FRA encourages railroads to select qualified
instructors with more than one year of dispatching experience, FRA is
concerned that requiring two years of experience would be too
burdensome for some railroads especially given the high turnover rate
among dispatchers. Furthermore, FRA does not have sufficient support to
justify imposing a two-year requirement. FRA also does not concur with
requiring that all qualified instructors on railroads with designated
employee representation have both concurrence from labor and at least
one year of dispatcher experience. This revision would essentially give
a designated employee representative veto power over any person the
railroad chooses as a qualified instructor. The goal of this definition
is to provide for the involvement and consultation of labor in the
selection of qualified instructors while also maintaining the
railroad's autonomy. The proposal by the organizations would fail to
strike that balance.
Even though FRA is not instituting any of the proposed changes to
this definition suggested by APTA and the labor organizations, it is
revising the definition that was in the proposed rule. The definition
in the NPRM had some redundancies, and after careful consideration, FRA
has decided to change the format of this definition so that it mirrors
the definition of qualified instructor in part 242. FRA has determined
that this version of the definition is more comprehensible and it
clarifies that when a railroad has designated employee representation,
the railroad must first attempt to obtain labor's concurrence of the
railroad's selection of a qualified instructor. Only if the railroad is
unable to obtain labor's concurrence, may it move to paragraph (3) of
the definition and select a person, without such concurrence, who has
at least one year of service working as a dispatcher.
Section 245.11 Penalties and Consequences for Noncompliance
This section acknowledges FRA's authority to issue civil penalties
for any violations of this part. IBEW expressed its support for the
proposed language in this section and its agreement that individuals
should only receive penalties for willful violations.
Section 245.103 FRA Review of Certification Programs
This section covers FRA's process for reviewing and approving
certification programs. ATDA and TTD submitted comments contending that
paragraph (a) of this section should be revised so that Class II
railroads must submit their certification programs to FRA within eight
months of the effective date of the final rule instead of 16 months as
stated in the NPRM. These labor organizations contend that Class II
railroads have sufficient resources to complete their programs within
this reduced timeframe, and that the 16-month timeframe is excessive
and would delay the implementation of this important safety
requirement. IBEW submitted a similar comment stating that those Class
II railroads who have the resources to complete their programs within
eight months should do so to avoid unnecessary delays in implementing
this rule.
Despite these comments, FRA has decided not to make any changes to
the program submission schedule from the proposed rule. In the 240 days
between the deadlines referenced in paragraphs (a)(1) and (2) of this
section, FRA will be devoting its resources to reviewing approximately
41 certification programs from Class I and commuter railroads \59\ and
is unlikely to have the capacity to begin its review of Class II
programs until after the date referenced in paragraph (a)(2). Also, FRA
is concerned that the eight-month deadline proposed by the labor
organizations may put too much of a strain on some Class II railroads.
Thus, while FRA shares the organizations' desire for a speedy
implementation of this rule, FRA does not believe that giving Class II
railroads this additional time to submit their certification programs
will delay implementation.
---------------------------------------------------------------------------
\59\ Federal Railroad Administration, ``Certification of
Dispatchers Final Rule Regulatory Impact Analysis.''
---------------------------------------------------------------------------
Paragraph (b) of this section states that railroads that begin
dispatching operations after this rule goes into effect, cannot
commence such dispatching operations until FRA has reviewed and
approved the railroad's certification program. FRA made some minor
revisions to this paragraph from the proposed rule to make it clearer,
but these changes did not affect the substance of the paragraph.
Paragraph (c) of this section provides the method railroads must use to
submit their certification programs to FRA. In the NPRM, this paragraph
stated that dispatcher certification programs should be uploaded to a
secure document submission site. However, after further consideration,
FRA determined it would be easier for both railroads and the agency if
programs were submitted by email. Paragraph (c) has been revised
accordingly in this final rule.
With respect to paragraph (d) of this section, which requires
railroads to notify certain parties when it submits its certification
program to FRA, AAR and ASLRRA commented that railroads should not have
to have their certification programs approved by the labor union
president and all of the railroad's dispatcher employees. AAR and
ASLRRA claim such a requirement would be a substantial change from what
is required in the locomotive engineer and conductor certification
rules and is arbitrary and capricious. Specifically, they are concerned
that a labor union president could hold up their approval causing the
railroad to miss the deadline for submitting the certification program
to FRA.
AAR's and ASLRRA's concern with respect to paragraph (d) of this
section is unwarranted as this rule does not require railroads to
obtain approval of their programs from labor union presidents or their
dispatching employees. This rule only provides these individuals with
the opportunity to review and comment on these programs. FRA believes
the source of AAR and ASLRRA's confusion is the reference to a
``request for approval'' in paragraph (d)(1). However, this document,
which is described in greater detail in Sec. 245.107(a), is a request
for approval from FRA, not from a labor union president or dispatching
employee. In an effort to avoid further confusion, FRA is adding a
reference to Sec. 245.107(a) in paragraph (d)(1).
Several labor organizations, including ATDA, IBEW, and TTD,
expressed concerns about the comment period in paragraph (e) only being
45 days. They are particularly concerned about the initial influx of
programs they will have to review after this rule first goes into
effect, and that 45 days will not be enough time to review these
programs and provide comments. Therefore, the unions are requesting
that the comment
[[Page 44780]]
period be extended to 90 days. TTD also noted that unions would likely
receive these certification programs shortly after they receive
Positive Train Control Safety Plan Requests for Information to review.
This would put a strain on their resources and rushed feedback from
stakeholders will not be as beneficial to FRA.
Based on these comments from the labor organizations, FRA has
extended the comment period from 45 days to 60 days. This change will
provide commenters with additional time to draft and submit meaningful
comments that will assist FRA in its review of these programs. However,
in an effort to avoid further delays to the implementation of this
rule, FRA is declining to extend the comment period to 90 days. FRA
understands that labor organizations are particularly concerned about
the initial influx of programs they will need to review when this rule
first goes into effect, but once the effective date of this rule is
established, the unions will have several months to plan how to
efficiently allocate their resources during the timeframes when they
can expect to receive a large number of programs to review. Also, FRA
will consider late-filed comments to the extent practicable and will
extend comment periods on a case-by-case basis if circumstances warrant
(especially during these initial periods where there is a high volume
of programs to review).
AAR and ASLRRA are also opposed to the FRA review and approval
process that is described in paragraph (f). Specifically, they contend
that the proposed process allows for FRA ``to arbitrarily hold
railroads in limbo for an indefinite time period even if their programs
are fully compliant'' \60\ and does nothing to ensure that FRA's review
process is handled expeditiously. Instead, AAR and ASLRRA contend that
FRA should implement the same review and approval process found in
parts 240 and 242 where a certification program or material
modification is considered approved 30 days after it is submitted
unless FRA notifies the railroad in writing that its program has been
disapproved.
---------------------------------------------------------------------------
\60\ FRA-2022-0019-0041.
---------------------------------------------------------------------------
FRA is declining to adopt this suggestion as it is untenable
following a 2020 decision from the U.S. Court of Appeals for the
District of Columbia Circuit (D.C. Circuit). In Brotherhood of
Locomotive Engineers and Trainmen v. Federal Railroad Administration,
the D.C. Circuit invalidated FRA's passive approval of a modification
to Kansas City Southern Railway's locomotive engineer certification
program. In its decision, the court noted that the Administrative
Procedure Act ``requires agencies to reasonably explain to reviewing
courts the bases for the actions they take and the conclusions they
reach.'' \61\ The court found FRA's passive approval system allowed for
a ``complete absence of any accompanying explanation for the agency's
approval'' of the certification program.\62\ Since the administrative
record did not contain any explanation or reasoning for the
determinations made by FRA in approving the program, the court vacated
and remanded the case for FRA to provide a more complete explanation of
the agency's action or to take new agency action altogether.\63\
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\61\ Brotherhood of Locomotive Engineers & Trainmen v. Fed. R.R.
Admin., 972 F.3d 82, 115 (D.C. Cir. 2020).
\62\ Brotherhood of Locomotive Engineers & Trainmen, 972 F.3d at
116-17.
\63\ Brotherhood of Locomotive Engineers & Trainmen, 972 F.3d at
117.
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Given the D.C. Circuit's criticism of the passive approval system
in part 240, FRA will not include a similar system in this rule.
Therefore, paragraph (f) of this section creates a new system where a
program is not considered approved by FRA until the agency issues an
approval letter to the railroad. Contrary to AAR and ASLRRA's comment,
FRA will not arbitrarily hold railroads in limbo for an indefinite
period of time. FRA will make every effort to meet its goal of issuing
a decision on a program within 120 days of submission. This goal was 90
days in the NPRM but because FRA extended the comment period in
paragraph (e) of this section, it felt that 120 days was a more
realistic goal to complete its review of these programs. However, FRA
acknowledges that meeting this goal will not always be feasible and
will be especially difficult during the initial implementation of this
rule when FRA receives several programs to review at the same time.
During this time, railroads will be able to continue to operate as they
did prior to this rule going into effect so it is unclear how railroads
will be harmed by such delays.
AAR and ASLRRA also commented that FRA should provide more clarity
to its definition of ``material modification'' found in paragraph
(g)(1) as they allege the vagueness of the proposed definition could
result in stifling innovations in safety systems. In particular, they
want FRA to ``allow railroads to use different delivery methods and to
incorporate new technology without treating those changes as material
modifications. Likewise, they state that FRA should limit material
modifications to significant content-based changes that are likely to
impact safety and not treat edits to test questions, structure, and
timelines as material modifications.'' \64\
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\64\ FRA-2022-0019-0041.
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FRA disagrees with the AAR and ASLRRA suggestion to limit what is
considered a material modification under this rule. The term ``material
modification'' is specifically triggered when there is a change in an
approved certification program that significantly affects the
certification process. This can include alterations in the training
curriculum, modifications to the testing or assessment methods, changes
to the duration of the program or program components such as training,
changes in the number of test questions or the scoring system, or any
other changes that would substantially impact the way dispatchers are
trained, evaluated, and certified. It is vital that FRA have the
opportunity to review these proposed changes to a certification program
to ensure they align with the overall goals of maintaining safety and
compliance.
AAR's and ASLRRA's desire to not include the incorporation of new
technologies as material modifications is unworkable. There are
significant safety concerns at play when incorporating new
technologies, and if these new technologies do not receive the proper
level of regulatory oversight, that could lead to safety risks being
introduced into the system which could undermine public confidence in
railroad safety. New technologies also have the potential to affect
working conditions and the environment which is why it is vital that
stakeholders are engaged in the process of modifying a certification
program based on new technologies as is provided for in paragraph (e)
of this section. Therefore, FRA determined it would be inappropriate to
allow railroads to introduce new technologies into their previously
approved certification programs without considering them to be material
modifications to such programs.
NRC commented that there should be a standard process for
submitting material modifications where railroads explain the reason
for the modification and discuss the dynamic risk assessments, training
impact, desired outcomes, and mitigations resulting from the
modification. Railroads are welcome to include this information in
their request for approval (described in Sec. 245.107(a)(3)), but it
is not required. FRA is concerned that NRC's proposal would be unduly
burdensome and
[[Page 44781]]
could stifle innovation and hinder a railroad's freedom to make
business decisions that are in its best interest by creating a new
requirement that the railroad justify its decision to modify its
program. While railroads are encouraged to make modifications to their
programs that will optimize railroad safety, ultimately the only
requirement for a modification is that it complies with part 245. FRA
is, however, amending paragraph (g) of this section to include a
reference to the request for approval discussed in Sec. 245.107(a)(3).
Lastly, TTD expressed its support for paragraph (h)(3) of this
section, which requires that railroads with current dispatching
operations, as of the effective date of this final rule, resubmit their
certification program within 30 days of being notified by FRA that
their program has been disapproved. TTD cited to instances of railroads
not bringing their certification programs into compliance with parts
240 and 242, and specifically referenced recent accidents involving NS
as support for their position. TTD recommended that FRA ``amend this
section to propose fines for railroads that repeatedly are not
compliant with the certification requirements'' \65\ in this rule. FRA
appreciates TTD's comment; however, such an amendment is unnecessary as
Sec. 245.11 already provides for FRA to issue civil penalties for
violations of this part. FRA will publish a civil penalty schedule for
this part on its website. FRA is revising paragraph (h)(3)(iii) of this
section to refer to ``paragraph (g)(4) of this section'' as the
proposed rule incorrectly referenced paragraph (g)(3) instead.
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\65\ FRA-2022-0019-0037.
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Section 245.105 Implementation Schedule for Certification Programs
This section contains the timetable for the implementation of this
final rule. APTA submitted a comment that railroads should be allowed
to designate those individuals who are in an initial training program
when this rule goes into effect so that they can become certified
dispatchers upon completion of the training program, pursuant to
paragraph (c)(1) of this section. APTA contends that implementing
certification requirements in the middle of a training program would be
disruptive to the participants and instructors.
In response to APTA's comment, paragraph (d) of this section allows
railroads to continue to designate as certified dispatchers, those
individuals who have been authorized by the railroad to perform the
duties of a dispatcher, until the date that FRA approves the railroad's
certification program. Therefore, all railroads will be able to
continue to designate individuals as certified dispatchers for several
months after the effective date of this rule which should include any
person who is in a dispatcher training program on the effective date of
this rule. Railroads will no longer be able to designate persons as
certified dispatchers under paragraph (d) once FRA approves the
railroad's program. FRA understands that some individuals will likely
be in the middle of a training program when this occurs, but railroads
will have several months to prepare for this occurrence and to figure
out the best way to minimize any disruption.
FRA is revising paragraph (d) from the proposed rule to clarify
that railroads are only allowed to ``designate'' persons as certified
dispatchers in accordance with paragraph (d) between March 17, 2025 and
the date FRA approves the railroad's certification program. Once FRA
approves a railroad's certification program, the designation system
described in paragraph (d) is terminated, and a person must go through
the full certification process described in subpart B of this rule.
Paragraph (d)(1) has also been revised from the proposed rule because
the NPRM stated that paragraph (d) applied to persons authorized by a
railroad to perform the duties of a dispatcher between the effective
date of the final rule and the date FRA approves the railroad's
certification program. However, paragraph (d) only applies to persons
authorized by a railroad to perform the duties of a dispatcher between
March 17, 2025 and the date FRA approves the railroad's certification
program.\66\
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\66\ Paragraph (c) of this section applies to all persons who
have been authorized to perform dispatcher duties on or before March
17, 2025.
---------------------------------------------------------------------------
NRC's comment on paragraph (f) of this section is that all
dispatchers should be certified within 6 to 12 months after FRA
approves a railroad's program. FRA interprets this comment to mean that
NRC thinks an individual should have to get recertified in accordance
with the requirements of subpart B of part 245 within 6 to 12 months
after FRA approves the railroad's program. FRA is electing not to adopt
this suggestion as it thinks NRC's proposal would place too great a
burden on large railroads in particular and may not be administratively
feasible. As was stated in the NPRM, FRA sees a benefit to railroads
(especially large railroads) spacing out the recertification process
for its dispatchers so they recertify approximately one-third of their
dispatchers each year.\67\ This suggested approach would not be allowed
under NRC's proposal as all dispatchers would have to be recertified
within that first year after FRA approves the railroad's program. This
would create a cycle where every three years, the majority of the
railroad's dispatchers would be due for recertification and the
railroad would have to complete the recertification process in a short
period of time. Such a system would likely have a deleterious effect on
the quality of the recertification process and thus, would be harmful
to railroad safety.
---------------------------------------------------------------------------
\67\ See 88 FR 35574, 35585 (May 31, 2023).
---------------------------------------------------------------------------
Finally, AAR and ASLRRA think FRA should eliminate paragraphs
(f)(1) through (3) which allow dispatchers who are approaching
retirement age to submit a request to their railroad that they not be
recertified, in accordance with subpart B of part 245, until three
years from the date the railroad's program is approved by FRA. They
contend this provision is contrary to FRA's safety rationale for this
rule and would allow a dispatcher to forego the full certification
process for up to six years. They also argue this would be more
burdensome on the railroads as they would have to keep track of a
special category of employees and establish special protocols for them.
FRA is choosing to keep paragraphs (f)(1) through (3) in this final
rule. These paragraphs simply allow dispatchers who meet the
requirements of paragraph (f)(1) to make a request that the railroad
not make them go through the full recertification process until their
initial certification expires (three years after FRA approves the
railroad's certification program). FRA included these paragraphs under
the assumption that it would not be an efficient use of a railroad's
resources to perform the full recertification process on a designated
dispatcher who is going to retire before the end of their designation
period. However, if, as AAR and ASLRRA suggest, a railroad finds that
it would be more burdensome to keep track of this special category of
employees, the railroad may deny these requests. The only obligation
these paragraphs put on a railroad to grant these requests is found in
paragraph (f)(2) which states that if a railroad grants any such
request, it must grant all other requests ``to every extent possible.''
In addition, this paragraph does not create a loophole where a
dispatcher could go six years without having to go through the full
recertification process. Paragraph (f)
[[Page 44782]]
plainly states, with no exceptions, that no person shall be allowed to
serve as a dispatcher more than three years after their railroad's
program is approved without going through the full recertification
process described in subpart B of part 245. Nothing in paragraphs
(f)(1) through (3) contradicts this language in paragraph (f).
Section 245.107 Requirements for Certification Programs
This section provides the organizational requirements and a
narrative description of what must be included in a railroad's
certification program. After further review of the proposed rule, FRA
determined more guidance was needed on material modifications to a
previously approved program and on the request for approval that must
accompany a railroad's submission to FRA. In paragraph (a)(1) in this
final rule, FRA clarified that when a railroad submits a material
modification to its program, it must provide FRA with a copy of the
complete certification program with all the material modifications
incorporated. This will assist FRA's review in determining whether the
program as a whole (with the incorporated material modifications)
satisfies the requirements of this part. In paragraph (a)(2), FRA added
language stating that a railroad's request for approval of an initial
program submission shall include a statement that the railroad is
seeking approval of its program. FRA also added a paragraph describing
what a railroad must include in its request for approval when making a
material modification. Paragraph (a)(3) in the final rule states that
such request for approval must include an explanation of all the
material modifications the railroad wants to make to its program. This
requirement will ease FRA's burden in identifying the changes the
railroad is making to its previously approved program.
With respect to paragraph (b)(2)(ii), FRA mistakenly referred to
Sec. 245.119(g) in the NPRM. For the final rule, FRA has changed this
reference to Sec. 245.119(i) which contains the continuing education
requirements for a training program. Lastly, FRA moved what was Sec.
245.125(b) in the NPRM into this section by adding paragraphs
(b)(2)(vi) and (b)(4)(iv). Paragraph (b)(2)(vi) of this section states
that Section 2 of a railroad's program shall address how it will
administer the training of previously certified dispatchers who have
had their certification expire. Paragraph (b)(4)(iv) of this section
states that Section 4 of the program must address how the railroad will
administer the training of previously uncertified persons with
extensive dispatching experience. If Sections 2 and 4 of a program do
not address these issues, such persons will be required to undergo the
railroad's entire training program.
Section 245.111 Prior Safety Conduct as Motor Vehicle Operator
This section contains the requirements and procedures that
railroads are required to follow when evaluating the motor vehicle
records of a candidate for dispatcher certification or recertification.
TTD, ATDA, and IBEW submitted comments on this section expressing
concern that a 60-day time period may not allow enough time to request
and obtain driving records as part of the recertification process, due
to administrative delays outside the recertification candidate's
control. However, paragraph (c) requires candidates for dispatcher
recertification to request their driving records at least 60 days prior
to the date on which their certification expires. Therefore, at least
120 days will elapse between the date on which candidates for
recertification requests their driving records and the end of the 60-
day ``grace period'' authorized by paragraph (c). However, if a
candidate for certification or recertification is unable to obtain
their driving records, despite the grace period provided in paragraphs
(b) and (c), paragraph (e) authorizes either the railroad or the
candidate to submit a waiver petition for regulatory relief.
FRA also received comments from IBEW and NRC expressing concern
that requiring railroads to include a review of driving records in
their certification programs may inadvertently result in barring
candidates who have unsatisfactory driving records from obtaining
dispatcher certification and recertification. An individual commenter
added that reviewing driving records to discover substance abuse issues
is warranted but railroads should not review such records for speeding
violations.\68\
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\68\ FRA-2022-0019-0020.
---------------------------------------------------------------------------
The intent of this section is to obtain and review motor vehicle
records to identify candidates for dispatcher certification and
recertification who may have an active substance abuse disorder so they
can be referred for evaluation and any necessary treatment before they
are allowed to perform safety sensitive service. As explained in
paragraph (m) of this section, the only motor vehicle incidents
railroads may consider are related to being under the influence of, or
impaired by, alcohol or a controlled substance. Railroads may not
consider a person's speeding violations or other aspects of their motor
vehicle driving record that are not related to alcohol or drug use when
making a determination on dispatcher certification.
In the NPRM, paragraph (h)(2) of this section required all persons
seeking certification or recertification to request driving records
from the chief of the driver licensing agency of any jurisdiction,
including states or foreign countries, that issued or reissued that
person a driver's license in the past five years. This paragraph
mirrored 49 CFR 240.111(c)(2).\69\ However, FRA determined that a five-
year lookback period was unnecessary in this final rule since paragraph
(l)(2) of this section only allows railroads to consider motor vehicle
driving incidents that occurred within the three years prior to the
date of the railroad's certification decision. Thus, FRA changed the
lookback period to three years. Furthermore, rather than focusing on
when a jurisdiction issued or reissued a driver's license, FRA thought
the more appropriate inquiry was whether a person held a driver's
license from a jurisdiction within the previous three years. This
paragraph has been revised in accordance with these changes.
---------------------------------------------------------------------------
\69\ The Rail Safety Improvement Act of 1988 required the five-
year lookback period for persons seeking locomotive engineer
certification. Public Law 100-342, 4, 102 Stat. 624, 625 (1988).
However, no such requirement applies to this rule.
---------------------------------------------------------------------------
Paragraph (k) of this section requires certified dispatchers and
candidates seeking dispatcher certification to notify their certifying
railroad \70\ of any drug or alcohol related motor vehicle incidents
described in paragraph (m) of this section within 48 hours of
conviction or completed state action to cancel, revoke, suspend, or
deny a motor vehicle driver's license for operating a motor vehicle
while under the influence of, or impaired by, alcohol or a controlled
substance or refusal to undergo such testing. Paragraph (k) also
provides that, for purposes of dispatcher certification, a railroad
cannot have a more restrictive company rule requiring a dispatcher to
report a conviction or completed state action to cancel, revoke, or
deny a motor vehicle driver's license in less than 48 hours.
---------------------------------------------------------------------------
\70\ In the NPRM, paragraph (k) of this section said certified
dispatchers and candidates seeking certification must notify their
``employing railroad'' of any motor vehicle incident described in
paragraph (m) of this section. However, because not all dispatchers
are employed by a railroad, FRA is revising paragraph (k) in this
final rule so that such incidents must be reported to the
``certifying railroad.''
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[[Page 44783]]
AAR and ASLRRA criticized this provision for precluding railroads
from having more restrictive company rules requiring 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. AAR and
ASLRRA asserted that, as a practical matter, railroads should be able
to request notification in less than 48 hours as a matter of company
policy if they determine notification is in the safety interest of the
railroad. The associations further asserted that they could easily
envision a scenario where safety would be decreased because a person
takes advantage of the 48-hour grace period after being convicted to
delay notification. After considering these concerns from AAR and
ASLRRA, FRA is declining to adopt this requested change. By keeping
this requirement in paragraph (k), a railroad cannot revoke, deny, or
otherwise make a person ineligible for certification until that person
has received due process from the state agency taking the action
against their motor vehicle license. This aligns with a central tenet
of the U.S. judicial system that a person is considered innocent until
proven guilty. Furthermore, this restriction only applies to actions
taken against a person's certificate and has no effect on a person's
right to be employed by a railroad. Also, by keeping this language,
this paragraph maintains its consistency with 49 CFR 240.111(h) and
242.111(l).\71\
---------------------------------------------------------------------------
\71\ This issue was also addressed and discussed 25 years ago
when FRA was amending its locomotive engineer certification rule.
See 63 FR 50626, 50639 (Sept. 22, 1998).
---------------------------------------------------------------------------
Paragraph (l) of this section prohibits railroads from considering
motor vehicle driving incidents that occurred prior to the effective
date of this rule or more than three years before the date of the
railroad's certification decision. AAR and ASLRRA commented that there
is no safety reason for these restrictions as they make it difficult to
establish a pattern of safety abuses. However, the three-year limit on
motor vehicle driving records that can be reviewed for purposes of this
rule is based on practical considerations. The three-year limit in
paragraph (l) is intended to be consistent with minimum record
retention practices of state driver licensing agencies. The three-year
limit is also consistent with 49 CFR parts 240 and 242.
With respect to FRA's decision not to allow railroads to consider
safety conduct that occurred prior to the effective date of this rule,
FRA is guided both by fairness and by the law. While retroactive
effects are not completely prohibited by the Administrative Procedure
Act, the U.S. Supreme Court has stated that ``[r]etroactivity is not
favored in the law.'' \72\ Moreover, even if there were a substantial
justification for the retroactive application of a rulemaking, ``courts
should be reluctant to find such authority absent an express statutory
grant.'' \73\ Given that there is no such express statutory grant of
authority for this rule to have retroactive effects, FRA has decided
not to allow railroads to consider safety conduct that occurred prior
to the effective date of this rule.
---------------------------------------------------------------------------
\72\ Bowen v. Georgetown University Hosp., 488 U.S. 204, 208
(1988).
\73\ Bowen, 488 U.S. at 208-09.
---------------------------------------------------------------------------
Section 245.115 Substance Abuse Disorders and Alcohol Drug Rules
Compliance
This section addresses active substance abuse disorders and
specific alcohol/drug regulatory violations. FRA is making a minor
revision to paragraph (f) of this section from what appeared in the
proposed rule. FRA is removing the reference to 49 CFR 219.1003(j)
because that provision only applies to locomotive engineers and
conductors.
Section 245.117 Visual Acuity
This section contains the requirements for visual acuity testing
that a railroad must incorporate into its dispatcher certification
program. As an initial matter, in the NPRM, FRA used the terms ``visual
acuity'' and ``vision acuity.'' In the interest of consistency, FRA is
using the term ``visual acuity'' throughout this final rule including
changing the name of this section's title to ``visual acuity.'' \74\
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\74\ ``Visual acuity'' appears to be the term used in the
medical field. See Visual Acuity, American Optometric Association,
found at <a href="https://www.aoa.org/healthy-eyes/vision-and-vision-correction/visual-acuity?sso=y">https://www.aoa.org/healthy-eyes/vision-and-vision-correction/visual-acuity?sso=y</a>.
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FRA solicited comments in the NPRM on whether visual acuity
standards are necessary for dispatchers and if so, whether they should
be as stringent as the existing standards for locomotive engineers and
conductors. FRA received comments in support and opposition to the
proposed rule's visual acuity standards. Some commenters also suggested
revisions to the proposed standards.
NRC supported this section and contended that vision is critical to
a dispatcher's job performance. In contrast, an individual commenter
opposed this section, stating that over the course of his railroad
career, he was not aware of any accident being caused by poor vision.
APTA, ATDA, and IBEW also recommended removing the visual acuity
requirements from this rule. These commenters felt that visual acuity
requirements are unnecessary based on a dispatcher's job duties and the
office setting they work in, where they primarily interact with
computer screens, books, and other written materials.
Specifically, APTA argued that the distance and color vision tests
described in paragraphs (c)(1) and (3) of this section are unnecessary
and that the ``[a]llowance provided by the proposed [Sec. ]
245.117(d)(3) should be maintained if dispatchers are able to reliably
distinguish the different indications presented on the computer-aided
dispatch system or other control systems used by their railroad.'' \75\
APTA also noted that dispatchers who are nearsighted, but not
farsighted, may prefer not to use their corrective lenses when they are
reading a computer screen or written materials up close. However, such
action would render them non-compliant with paragraph (f) of this
section. Thus, APTA is suggested that paragraph (f) be revised, so that
dispatchers are only required to have their corrective lenses
available, instead of in use, while on duty.
---------------------------------------------------------------------------
\75\ FRA-2022-0019-0036.
---------------------------------------------------------------------------
In its opposition to this section, IBEW noted that vision
impairment can be corrected with corrective lenses or by adjusting
computer monitors. IBEW also expressed concern that this section gives
too much discretion to railroad medical examiners.
ATDA suggested that if FRA does not remove this requirement
altogether, it should revise paragraph (c)(1) ``to measure intermediate
vision acuity--measured at approximately 24 to 40 inches, or the
typical distance between a user and a computer monitor--of 20/40 in at
least one eye, with or without corrective lenses.'' \76\ TTD agreed
with ATDA's suggestion that visual acuity be measured at a distance of
24 to 40 inches, to ensure that no person is excluded by ``a vision
requirement that is not necessary to perform the associated job
duties.'' \77\
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\76\ FRA-2022-0019-0038.
\77\ FRA-2022-0019-0037.
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AAR and ASLRRA did not state any opposition to FRA's inclusion of
visual acuity requirements in this rule, but they criticized FRA's use
of the same visual acuity standards found in parts 240 and 242. They
noted that dispatchers have different responsibilities, perform
different tasks, and work in a different environment than engineers and
conductors. Thus, FRA should not ``pluck'' the visual acuity
requirements from parts 240 and
[[Page 44784]]
242 and place them into this rule. Instead, ``FRA needs to analyze the
components of a dispatcher's duties,'' address how visual acuity
impacts a dispatcher's ability to safely perform their job, and then
specifically tailor the vision requirements in part 245 to the work
performed by dispatchers.\78\
---------------------------------------------------------------------------
\78\ FRA-2022-0019-0041.
---------------------------------------------------------------------------
The Southeastern Pennsylvania Transportation Authority (SEPTA)
agreed with AAR and ASLRRA that the visual acuity requirements in this
rule should not be identical to the standards in parts 240 and 242, due
to the nature of a dispatcher's work being different than that of an
operating crew member. In particular, SEPTA noted that vision issues
due to digital eye strain or prolonged computer use are more relevant
to determining whether a person can perform the job of a dispatcher
than distance vision.
In response to these comments, FRA closely reviewed the tasks
performed by dispatchers and determined that a dispatcher's visual
acuity is a critical component of a dispatcher's roles and
responsibilities. In recent years, CAD systems have evolved
significantly, and are heavily reliant on visual cues and prompts
presented to the dispatcher requiring acknowledgement or action.
Historically, dispatchers utilized manual techniques such as paper
train sheets with handwritten entries, time, distance, and
communications to determine the status of and monitor trains,
equipment, and employees in their purview. Dispatchers were required to
interpret timetables, manuals, railroad standards, and basic track
circuitry in their centers with minimal color variations on the older
boards. Current systems provide visual alarms, electronic logging and
status updates of equipment, track, and safety appliances. The visual
references range from computer text in pop-ups to a plethora of color
indications with sometimes minute variations and visual cues requiring
immediate action or acknowledgement. Therefore, it is critical that
today's dispatchers meet certain visual acuity standards and can
distinguish between any variation of colors and text prompts presented.
After closely reviewing the safety-sensitive tasks performed by
dispatchers, FRA has decided to retain the visual acuity standards
proposed in the NPRM. Such visual acuity standards are consistent with
requirements for other modal professionals throughout the
transportation industry. In fact, air traffic controllers, who perform
a similar function in the air travel industry that train dispatchers
perform in the railroad industry, have even more strict visual acuity
requirements than are included in this rule.\79\
---------------------------------------------------------------------------
\79\ See Federal Aviation Administration, Order 3930.3C,
available at <a href="https://www.faa.gov/documentLibrary/media/Order/Order_3930.3C_withCHG1.pdf">https://www.faa.gov/documentLibrary/media/Order/Order_3930.3C_withCHG1.pdf</a>.
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With respect to APTA's concern that dispatchers who are nearsighted
may prefer not to wear corrective lenses while reading written
materials or a computer screen up close but would be prevented from
doing so under paragraph (f), this concern is misplaced, as dispatchers
in such a scenario have an available remedy. These dispatchers can seek
an opinion from the railroad's medical examiner, as provided for by
paragraph (f), stating they can safely perform the work of a dispatcher
without corrective lenses.
FRA disagrees with IBEW's comment that this section provides too
much discretion to railroad medical examiners. First, since whether an
individual has the proper visual acuity to safely perform as a
dispatcher is a medical determination, it is appropriate for the
decision to be made by a medical professional. Second, a medical
examiner only exercises discretion if a person does not satisfy the
objective vision criteria in paragraph (c) of this section. Finally,
railroad medical examiners have been handling these issues for over 30
years for locomotive engineer certification and for over 10 years for
conductor certification. To date, FRA is unaware of any significant
problems involving their exercise of this discretion.
Section 245.118 Hearing Acuity
FRA received two comments in support of the hearing acuity
requirements in the proposed rule, two comments opposing these
requirements, and one comment suggesting the hearing acuity
requirements should be revised. SEPTA and NRC both voiced their support
for this section. SEPTA described the hearing requirements in the
proposed rule as ``sufficient'' \80\ while NRC stated it agreed with
this section as it appeared in the NPRM and noted that hearing is
critical to the job of a dispatcher and the standards should be
identical to those in parts 240 and 242.\81\
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\80\ FRA-2022-0019-0025.
\81\ FRA-2022-0019-0033.
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In contrast, IBEW expressed its opposition to part 245 containing
any hearing acuity requirements. The labor organization felt such
requirements were unnecessary as a dispatcher's hearing could be
corrected with hearing aids and/or volume controls. IBEW also stated it
was concerned this section gave too much discretion to a railroad's
medical examiner.\82\ An individual commenter also opposed these
requirements claiming that in his 18 years of railroading, he was not
aware of any accident caused by poor hearing. He said this section
imposes an unnecessary burden on dispatchers and railroads.\83\ Lastly,
AAR and ASLRRA's comments on revising Sec. 245.117 also apply to this
section.
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\82\ FRA-2022-0019-0039.
\83\ FRA-2022-0019-0020.
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In response to these comments, FRA closely reviewed the tasks
performed by dispatchers and determined that a dispatcher's hearing
acuity is critical to their job of protecting the safety of the
railroad and its employees. A dispatcher must be able to communicate
clearly with peer dispatchers and field personnel to ensure on-track
safety has been properly established, making a dispatcher's ability to
hear a vital part of these clear and concise communications.
Dispatchers rely heavily on communications from field employees in the
performance of their tasks and often have to discern between relevant
information and distracting background noises.
Dispatchers communicate safety sensitive instructions to countless
entities in their day-to-day functions. As an example, providing
protection for field employees often requires listening to read backs
and repeats of instructions. The accuracy and proper understanding of
these communications is vital to railroad safety, and thus, FRA
concludes that dispatchers should have to satisfy certain hearing
acuity standards.
Furthermore, removing the hearing acuity requirements would
introduce several potential issues. First, a person may need a hearing
aid to safely work as a dispatcher, but without a regulation requiring
them to wear such hearing aid, they could choose not to wear one for
various reasons. Second, a hearing aid amplifies all sounds; however,
if a person has lost the ability to discern sounds at certain
frequencies, no hearing aid, no matter how sophisticated, can restore
that ability. Thus, it would be possible for a dispatcher to miss
critical information that was conveyed at a frequency that they had
lost the ability to hear. Third, railroad radios are notoriously noisy
making it difficult to detect critical information and ignore other
sounds such as radio feedback.
Therefore, after close review of the safety-sensitive tasks
performed by dispatchers, FRA decided to retain the hearing acuity
standards proposed in
[[Page 44785]]
the NPRM. For the reasons explained in the Section-by-Section Analysis
for Sec. 245.117 above, FRA does not share IBEW's concern that this
section gives too much discretion to a railroad medical examiner.
Section 245.119 Training Requirements
This section requires railroads to provide initial and periodic
training to dispatchers. As an initial matter, FRA deleted paragraph
(b) of this section in the NPRM. In the NPRM, paragraph (b) noted that
a railroad's certification program must state whether the railroad
elects to obtain authority for initially certifying a person as a
dispatcher or to only recertify those persons who have been previously
certified by other railroads. FRA removed this language from this
section as it is duplicative of what is already required under Sec.
245.107(b)(1)(i).
Several commenters requested that FRA incorporate more specific
details into the requirements for this section. For example, ATDA and
TTD submitted similar comments requesting FRA more clearly define a
minimum standard training curriculum to include classroom instruction
and training with field personnel. These labor organizations feel such
training should entail time spent with roadway workers from signal and
maintenance of way departments, train crews, and terminal personnel
such as yardmasters and car inspectors, for prospective dispatchers to
gain a proper understanding of the duties and responsibilities of these
workers.
ATDA, IBEW, TTD, and SMART-TD all commented that FRA should
require, in paragraph (c)(2) of this section in the final rule
(paragraph (d)(2) in the proposed rule), a minimum of 160 hours of OJT
for all candidates seeking initial certification. TTD, ATDA, and IBEW
also contended that OJT should include requiring dispatchers to perform
a physical, in-person review of a territory before they can become
qualified on the territory. Their rationale is that an in-person review
provides dispatchers with a better understanding of the territory that
they will be dispatching over that cannot be achieved by other means
such as maps, videos, and simulators. TTD and ATDA also believe
physical reviews should be required once every two years for a
dispatcher to maintain their qualification on a territory. An
individual commenter made a similar suggestion, that a person should
have a mandatory week of ``road days'' before they can qualify on a new
territory, and they should have five road days per year to maintain
their qualification on the territory.\84\
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\84\ FRA-2022-0019-0020.
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After reviewing these comments, FRA acknowledges the commenters'
concerns and suggestions and is taking this opportunity to clarify the
requirements of this section. FRA agrees that recent industry trends
have resulted in declining quality and/or quantity of training and
testing, a concern FRA has voiced to the industry on multiple occasions
including recent disapproval of conductor certification programs. These
instances reveal that some railroads have misinterpreted the discretion
provided to them in parts 240 and 242 as permission to submit
certification programs that are sparse on details. Such railroads are
mistaken as to what is required under parts 240 and 242, and FRA audits
have highlighted the significant issues with these programs and
underscored the critical need for railroads to provide detailed and
comprehensive submissions.
While FRA believes that railroads should be provided some
flexibility in their program design to address their specific
operational risks and unique needs, FRA's review and approval process
outlined in Sec. 245.103 is meant to ensure that railroads do not
abuse this discretion with respect to their dispatcher certification
programs. This rule requires a railroad to document the details of its
training and testing program, including a determination as to how the
program will ensure that prospective dispatchers are able to safely
perform their assigned duties. Specifically, Sec. 245.107 mandates
that each railroad submission include sufficient detail for FRA
evaluation. FRA will disapprove programs that are vague or
insufficiently detailed, in accordance with Sec. 245.103(f)(2).
In addition, this section codifies rigorous training requirements
for dispatchers to ensure safe operations. Railroads must develop
programs that include comprehensive training and continuous education,
with detailed documentation of the methods of dispatcher training, the
level of proficiency, and the frequency of refresher training.
While every railroad is different and the training needed to be a
dispatcher for a Class I railroad may vary significantly from what is
needed to dispatch for a short line railroad, FRA will review each
railroad's program and determine on a case-by-case basis whether the
program contains sufficient OJT. Thus, in accordance with Sec.
245.107(b)(4) and paragraph (c) of this section, the burden will be on
the railroad to state how many hours of OJT is required in its training
program and to justify why that amount of OJT is sufficient to certify
that their dispatchers are adequately trained to safely perform their
dispatching duties. Pursuant to Sec. 245.103, FRA will then determine
whether the railroad has provided enough detail and support for its
position on how much OJT it will require. Likewise, with respect to in-
person territory reviews, some railroads may have territories where
such in-person reviews would be greatly beneficial to the trainee while
other railroads have territories where such reviews would be
superfluous. Regardless, railroads will have to provide enough detail
in their programs to show that the training they are requiring
satisfies the requirements of this part and will ensure that their
certified dispatchers are sufficiently trained.
Paragraph (b) of this section (paragraph (c) in the proposed rule)
allows for third parties to conduct a training program on behalf of the
certifying railroad. NRC requested that this rule require any third
party instructor to be certified and to ``have met the same
certification standards as the railroad for which he or she is
delivering training.'' \85\ If a third party is overseeing the OJT
portion of a railroad's training program, then any person the third
party provides as a qualified instructor would have to be a certified
dispatcher as required by Sec. 245.7. However, FRA does not see a need
to expand the certification requirement beyond qualified instructors,
such as to classroom instructors. Furthermore, since NRC did not
provide a supporting rationale for its position, FRA is unpersuaded to
make any such change.
---------------------------------------------------------------------------
\85\ FRA-2022-0019-0033.
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NRC also commented that it agrees with the approach FRA took to the
training requirements in paragraph (c) of this section (paragraph (d)
in the proposed rule), and it recommends that FRA issue a circular or
appendix that assists the industry with meeting these minimum
standards. FRA does not plan to issue a separate circular or appendix
at this time because Sec. 245.107 addresses NRC's concern. Section
245.107, which is derived from Appendix B to part 240 and Appendix B to
part 242, provides railroads with more information on how to design and
structure their programs. This includes a description of what
information should be included in each section of the program. FRA has
found through its experience with locomotive engineer and conductor
certification
[[Page 44786]]
that issuing a separate circular or appendix is unnecessary as
railroads can instead look to the appendices in parts 240 and 242 for
guidance on how to satisfy the requirements of those rules. Thus, FRA
does not see a need for issuing a separate circular or appendix with
respect to dispatcher certification. However, FRA is revising paragraph
(c)(2)(i) of this section to change the reference to an ``employee'' in
the NPRM to a ``person'' in this final rule since not all dispatchers
are employees of the certifying railroad.
FRA received several comments on paragraph (e)(2) (paragraph (f)(2)
in the NPRM) which provided that a certification candidate who is
demonstrating OJT proficiency may perform such tasks under the
supervision of a person with at least one year of experience as a
dispatcher. Some commenters, such as TTD, ATDA, IBEW, NRC, and SMART-
TD, stated this requirement should be increased to two years of
experience. NRC added that the person providing the supervision should
have no safety-related incidents in the previous two years. In
contrast, APTA and SEPTA think FRA should remove the ``one year of
experience'' requirement altogether. They argue that it should be left
to the railroad to determine the minimum requirements for a dispatcher
to perform the supervision described in this paragraph, since each
railroad is unique and has different dynamics within its workforce.
SEPTA also noted that ``[m]ost railroads are in transition and may have
inexperienced dispatchers that may not have the railroad experience to
sufficiently train a student on OJT.'' \86\
---------------------------------------------------------------------------
\86\ FRA-2022-0019-0025.
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FRA has decided to revise this paragraph so that certification
candidates may only perform OJT tasks under the direct onsite
supervision of a qualified instructor. This also represents a change
from the analogous provision in 49 CFR 242.119(e)(2) which allows
candidates for conductor certification to perform OJT tasks under the
supervision of a person with ``the necessary operating experience.'' In
this rule, FRA wanted to provide railroads with more guidance about
what would constitute ``necessary dispatching experience'' as the
agency was concerned that the vagueness of such term could have
negative safety implications. Thus, the proposed rule included a one
year of experience requirement. However, after further consideration,
FRA determined that the safety purposes of this rule would be best
served if only qualified instructors were allowed to supervise OJT
tasks. While a qualified instructor is not required to have two years
of experience, many qualified instructors will have at least two years
of experience and even those who do not, still must have demonstrated
adequate knowledge and the necessary dispatching experience to
effectively instruct in the field. Likewise, while FRA is not adopting
NRC's suggestion that a person performing this supervision must not
have any safety-related incidents in the previous two years, FRA
believes that requiring that OJT tasks be supervised by a qualified
instructor addresses NRC's concern about the safety record of the
person doing the supervision. FRA disagrees with APTA and SEPTA that
this requirement should be removed altogether. FRA thinks it is
important to place restrictions on who can supervise certification
candidates performing their OJT. Otherwise, a railroad could allow a
dispatcher with very little experience (for example, two weeks on the
job or even less) to supervise a dispatcher candidate during OJT. This
would present a significant safety concern.
Finally, with respect to paragraph (h) of this section (paragraph
(i) in the proposed rule) which addresses transfers of railroad
ownership, NRC suggests that instead of saying that the acquiring
company's dispatchers ``may receive familiarization training'' from the
selling company, the rule should say they ``will receive training from
the selling company.'' \87\ Whether a selling company will provide
familiarization training to the acquiring company's dispatchers is a
decision that should be made between the two parties. If FRA were to
make the permissive language in this paragraph mandatory, it would
essentially be entangling itself in the contract negotiations between
the two parties which is not FRA's role. FRA's main concern with
respect to this issue is that the training is performed properly, not
who performs the training. FRA does not see a compelling reason for
mandating that the selling company provide this training and since NRC
did not provide a rationale for this requested change, FRA is not
adopting this suggestion.
---------------------------------------------------------------------------
\87\ FRA-2022-0019-0033.
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NRC also contends paragraph (h) should apply when there is a change
in the private operator of a commuter railroad. Since NRC did not
provide a rationale for why such a change would be necessary or
beneficial, FRA does not see a justification for making such change to
the final rule. However, FRA notes that in situations involving a
change in the operator of a commuter railroad, there is nothing in part
245 that would prohibit the prior operator from providing
familiarization training to the new operator.
Section 245.120 Requirements for Territorial Qualification
This section explains the requirements for territorial
qualifications. TTD and ATDA requested that this section be revised to
require that a dispatcher have 80 hours of OJT on a territory before
they can become qualified on that territory. The provided rationale for
this proposal is that OJT is essential to ensuring dispatchers are
properly trained on their territories. TTD, ATDA, and IBEW also
commented that FRA should revise paragraph (c) of this section, which
stated that to retain their qualification on a territory, a dispatcher
could not be absent from that territory for more than 12 months. The
unions believe this should be reduced to six months, as they contend
that absences of six months or more lead to a ``loss of familiarity
with the specifics of a territory such as locations of crossing,
wayside defect detectors, and emergency response access points.'' \88\
Additionally, these labor organizations requested that FRA set minimum
OJT requirements for requalification on a territory, of at least 16
hours of OJT if a dispatcher is absent from a territory for 6-12
months; at least 24 hours of OJT if a dispatcher is absent from a
territory for 12-24 months; and if a dispatcher is absent from a
territory for 24 months or more, he or she should have to go through
the same process as a dispatcher seeking their initial qualification on
the territory.
---------------------------------------------------------------------------
\88\ FRA-2022-0019-0038.
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FRA is declining to adopt the suggested change by the labor
organizations to require a minimum of 80 hours of OJT to become
qualified on a territory for reasons similar to its decision not to add
more specific requirements to Sec. 245.119. Just as every railroad is
different, every territory is different, and railroads, not FRA, are in
the best position to determine what requirements must be met to become
qualified on a particular territory. In certain situations, requiring
80 hours of OJT on a particular territory may be unnecessary. For
example, some territories may be relatively small or uncomplex so
requiring 80 hours of OJT would be excessive, especially for an
experienced dispatcher. Therefore, FRA thinks it would be unwise to add
such a requirement to this rule, especially since the labor
organizations have not provided any data or analysis to support their
position that a minimum of 80
[[Page 44787]]
hours of OJT is necessary to become qualified on a territory. Likewise,
FRA is also not adopting the suggestion from the labor organizations
that the rule set minimum amounts of OJT for a dispatcher to get
requalified on a territory. FRA thinks these decisions should be left
with the railroads and that this dispatcher certification system will
work best if FRA creates the regulatory framework and the railroads
have the discretion to determine how its dispatchers can become
qualified on a territory within that framework. In addition, railroads
are required to submit their dispatcher certification programs to FRA
for approval. Therefore, FRA will evaluate railroad plans to provide
OJT as part of their dispatcher certification programs on a railroad-
by-railroad basis. This rule also requires railroads to provide a copy
of the programs and the request for FRA 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.
Therefore, impacted labor unions and dispatchers who are not
represented by a labor union will also have the opportunity to comment
on the program.
FRA also received a comment from an individual requesting that this
rule include restrictions on territory size and traffic. According to
the commenter, technological advances have led railroads to
``consolidate and expand territory sizes beyond what is manageable.''
\89\ The commenter expressed concern about more mistakes occurring on
these large and busy territories especially among new, inexperienced
dispatchers. Setting restrictions on the size of, and traffic on, a
railroad's territories is beyond the scope of this rulemaking. Whether
current railroad territory size and traffic is posing a significant
safety threat is a subject that would require substantial review and
analysis by FRA before proceeding with a rulemaking. Such analysis has
not taken place, and thus, it would be improper for FRA to include any
such restrictions in this rule.
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\89\ FRA-2022-0019-0020.
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Section 245.121 Knowledge Testing
This section requires railroads to provide for the initial and
periodic testing of dispatchers. Paragraph (b)(4) of this section lists
the subjects that a railroad's test must cover to determine whether an
individual has the requisite knowledge to be a certified dispatcher.
Both TTD and ATDA recommended revising the language in proposed
paragraph (b)(4)(iv) as they alleged it would allow railroads to test
dispatchers and dispatcher candidates on the physical characteristics
of territories that they have not received training on and have no
familiarity with. In this final rule, FRA has removed the reference to
territories the person ``will be'' working on and instead states the
test must cover the physical characteristics of the territory or
territories that the person is currently working on or is receiving
training to become qualified on, to address the organizations' concern.
FRA also added ``or territories'' to this paragraph to acknowledge that
a test may cover more than one territory.
AAR and ASLRRA recommended that FRA revise paragraph (b)(6) of this
section to allow for greater use of open reference books and other
materials. The associations noted that ``[r]ailroads currently train,
teach, and encourage their employees to use reference materials in
their daily activities. Railroad safety would be better served if FRA
adopted the same approach for knowledge testing.'' \90\ FRA agrees that
reference materials play an important role in the work dispatchers
perform, however, no changes to this paragraph are needed to address
the issue. The regulation allows for the use of reference materials if
a person is being tested on their ability to use such materials.
Whether a test question is testing a person's ability to use reference
materials is a determination made by the railroad, and the railroad is
given some flexibility on this issue. For example, if a test question
involves a scenario where a dispatcher may consult with reference
materials if faced with the situation in the field, paragraph (b)(6)
gives the railroad the discretion to allow the person seeking
certification to use reference materials. Therefore, a railroad could
make a substantial portion of its test ``open book.'' However, FRA
thinks some dispatching principles and concepts are so essential that
they should be memorized by the dispatcher and not require reference
materials. Thus, FRA sees a benefit to having at least a portion of
these knowledge tests be ``closed book.''
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\90\ FRA-2022-0019-0041.
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FRA also received comments requesting that the agency establish
minimum passing scores for tests given in association with a railroad's
training program. ATDA and IBEW recommended that FRA set 80% as a
passing score. NRC suggested that 100% be the passing score for the
physical characteristics portion of the exam and 90% be the passing
score for the rest of the exam. TTD did not opine on what a passing
score should be, but stated FRA should set a standard passing score so
there are not many instances where a person's test score would
constitute a passing grade for one railroad, but a failing grade for
another railroad.
Despite these comments, FRA declines to set a minimum passing score
for knowledge testing. The railroads are in the best position to
determine what is an appropriate passing score for the tests they
administer since they are more familiar with their dispatching
operations, operating rules, and the physical characteristics of their
territories. Furthermore, it is unclear what safety benefit would
derive from FRA setting a minimum passing score for railroads. If a
railroad felt the passing score FRA set was too high, it could make
easier test questions to increase the likelihood that individuals will
pass. This could have a negative safety effect if railroads make their
knowledge tests too easy because they could certify individuals who do
not have sufficient knowledge to safely perform the job. Thus, FRA's
position is that the decisions about what constitutes a passing score
are best left to the railroads. FRA also finds that the concern
expressed by some commenters that a standard passing score is needed
because railroads can rely on the determinations of other railroads is
also misplaced. Under Sec. 245.125(b)(3), when a railroad relies on
certification determinations made by another railroad, it is still
responsible for determining that the dispatcher has ``demonstrated the
necessary knowledge concerning the railroad's operating rules,
territory, dispatch systems and technology.'' Therefore, in most cases,
the certifying railroad will have to give the dispatcher its own
knowledge test.
NRC also commented that FRA should regulate how many times a person
is allowed to take a knowledge test and suggested that it be no more
than two attempts, with a third attempt at the manager's
discretion.\91\ FRA is deferring to the railroads on whether they wish
to impose a limit on the number of times a person may take a knowledge
test. The purpose of this section is to ensure all dispatchers have the
requisite knowledge to safely perform their duties, not whether they
demonstrate that knowledge on the first attempt or the fifth attempt.
FRA can also envision a scenario where an FRA-imposed limit on the
number of test attempts could have a deleterious effect on safety. A
railroad could purposely make its knowledge tests easier out of fear
that some dispatcher candidates
[[Page 44788]]
would not otherwise be able to pass the test on the first two attempts
and would be prohibited from becoming certified, resulting in a waste
of the railroad's time and resources spent on training such
individuals. Easier knowledge tests could lead to railroads certifying
dispatchers who lack the requisite knowledge to safely perform their
duties.
---------------------------------------------------------------------------
\91\ FRA-2022-0019-0033.
---------------------------------------------------------------------------
Lastly, ATDA and IBEW were both concerned that the proposed rule
did not explicitly mention individuals with disabilities who may
require special accommodations in testing situations. These labor
organizations requested that FRA add language to the final rule to
state that all persons subject to knowledge tests under part 245 are
``covered by all applicable facets of the Americans with Disabilities
Act (ADA).'' \92\ In this subpart, FRA is establishing general
parameters for the testing that must be conducted to determine whether
candidates for certification have the skills and knowledge necessary to
perform the tasks that are assigned to certified dispatchers by the
certifying railroad. However, FRA is not creating or administering the
tests required by this part. Railroads continue to have the flexibility
to determine how to develop and administer testing in accordance with
Federal anti-discrimination laws, including Title I of the ADA. FRA
finds it unnecessary to include language in this final rule to remind
railroads that they need to comply with Federal anti-discrimination
laws.
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\92\ FRA-2022-0019-0038; FRA-2022-0019-0039.
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Section 245.123 Monitoring Operational Performance
This section requires railroads to provide each certified
dispatcher with at least one unannounced compliance test each year. In
response to this requirement, NRC requested that FRA define the
parameters of an unannounced compliance test in a competency management
plan. FRA is opting not to add more specific requirements to what
constitutes an unannounced compliance test. As stated in the rule, this
test shall cover railroad and Federal rules as well as territorial and
dispatch systems. Beyond those basic requisites, FRA finds that the
railroads are best positioned to determine the specific details about
the contents of the test and how the test is administered. Since
railroads are required under Sec. 245.107(b)(5) to discuss their
processes for unannounced compliance tests in their certification
programs, these processes are subject to FRA review and approval under
Sec. 245.103. This system allows FRA to ensure that railroads are
establishing sufficient processes for these tests without having to
impose the more stringent guidelines requested by NRC.
FRA received several comments from labor unions requesting that
language be added to this section prohibiting railroads from taking any
disciplinary action against dispatchers for deficiencies noted during
an unannounced compliance test unless such deficiency was related to a
revocable event described in Sec. 245.303(e). The unions suggested
that railroads should instead address such deficiencies through
coaching, counseling, and additional training. The purpose of this
rule, as stated in Sec. 245.1, is to establish minimum Federal safety
standards for dispatchers and to ensure that only those persons who
meet such standards work as dispatchers. Moreover, Sec. 245.5(b)
states that it is not FRA's intention to alter a railroad's authority
to initiate disciplinary sanctions against its employees. Adding the
language requested by the unions would be unrelated to this rule's
purpose and would contravene Sec. 245.5(b). Like the engineer and
conductor certification rules, the only ``discipline'' this rule
regulates pertains to a railroad's denial or revocation of a person's
dispatcher certification. As was stated in the NPRM,\93\ FRA believes
it is up to each railroad to decide the appropriate action to take in
such circumstances in light of various factors, including collective
bargaining agreements.
---------------------------------------------------------------------------
\93\ 88 FR 35574, 35591 (May 31, 2023).
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To avoid restricting the options available to the railroads and
employee representatives to develop processes for handling test
failures, FRA designed this rule to be flexible. 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 unnecessarily limit a
railroad's ability to adopt an approach that is best for its
organization. While FRA encourages the railroads and unions to work
together to resolve these issues, such matters are best addressed in
collective bargaining agreements and a railroad's internal discipline
system, not in this rule.
Paragraph (c) of this section creates an exception where a railroad
does not have to give a certified dispatcher an unannounced compliance
test if that person is not performing service that requires
certification. However, if a certified dispatcher returns to service
requiring certification, the railroad will need to perform an
unannounced compliance test within 30 days of the dispatcher's return
to service. In this final rule, FRA is adding language to paragraph (c)
to clarify when railroads are required to give a dispatcher an
unannounced compliance test within 30 days of their return to service.
Specifically, FRA is adding language that states the requirements in
paragraph (c) apply if the person is returning to dispatcher service
``after not being given an unannounced compliance test in a calendar
year.''
This distinction is best illustrated through an example. A
dispatcher performs service requiring certification from January 2025
to June 2025 and during that time, they do not receive their
unannounced compliance test for calendar year 2025. Starting on July 1,
2025, the dispatcher moves into a position that does not require
certification and works in that position for the rest the year. On
January 1, 2026, the dispatcher returns to service requiring
certification. Under paragraph (c), the railroad would have to give the
dispatcher an unannounced compliance test by January 31, 2026 (within
30 days of their return to service), because they were not given a test
in calendar year 2025. Alternatively, if the railroad had given the
dispatcher an unannounced compliance test during the first six months
of 2025, paragraph (c) would not apply because the dispatcher would not
have missed their unannounced compliance test for calendar year 2025.
Thus, upon the dispatcher's return to service requiring certification,
the railroad would not need to give the dispatcher an unannounced
compliance test within 30 days.
ATDA and IBEW both expressed concerns that paragraph (c) would
allow a railroad to test a dispatcher immediately upon their return to
service, which could be unfair to the dispatcher. ATDA requested that
FRA add language to the final rule stating that such test can only be
conducted after the dispatcher received any
[[Page 44789]]
necessary retraining or familiarization required by Sec. Sec. 245.119,
245.120, and 245.121. IBEW stated that FRA should not allow these
unannounced compliance tests to occur until at least 15 days after the
dispatcher has returned to service requiring certification.
FRA is declining to make these requested changes. Regarding ATDA's
comment, FRA finds that adding language referencing Sec. Sec. 245.119,
245.120, and 245.121 is unnecessary. As discussed in Sec.
245.107(b)(2)(i), a railroad's certification program must contain a
continuing education component and the railroad is obligated to abide
by the requirements in its program. Therefore, if any retraining is
required under the railroad's program upon a dispatcher's return to
service requiring certification, then the railroad is already obligated
to provide such training, without FRA adding any such language to
paragraph (c). With respect to refamiliarization, if a dispatcher has
been away from a territory long enough that they are no longer
qualified, they would be unable to dispatch over that territory without
the assistance of a Dispatcher Pilot until they were refamiliarized as
required by Sec. 245.120(a)(2). Thus, it logically follows that even
without revising paragraph (c) of this section, a railroad would not
provide a returning dispatcher with an unannounced compliance test
until any necessary refamiliarization training was performed, as the
dispatcher would not perform such test on a territory where they were
unqualified.
In response to IBEW's comment, FRA does not see a safety benefit to
prohibiting railroads from giving an unannounced compliance test within
15 days after a dispatcher has returned to service requiring
certification. To the contrary, if a person has been away from
dispatching for so long that they did not receive an unannounced
compliance test in a calendar year, it would behoove the railroad to
give such a test as soon as possible. If a person is a certified
dispatcher, they are expected to perform their job functions safely,
regardless of whether they last dispatched two days ago or two years
ago. Part 245 does not include a moratorium that prohibits a railroad
from revoking a dispatcher's certification for any events that occur
within the first 15 days of their return to service. Likewise, FRA does
not see a reason to institute such a moratorium on giving an
unannounced compliance test during this period. Lastly, this paragraph
was modeled after Sec. Sec. 240.129(b)(1) and 242.123(b)(1) which
allow for an unannounced compliance test to occur at any point within a
locomotive engineer or conductor's first 30 days returning to service
requiring certification. FRA is not aware of any issues that have
arisen in locomotive engineer or conductor certification as a result of
these requirements. Thus, FRA does not see an adequate rationale for
changing this requirement in dispatcher certification.
Section 245.125 Certification Determinations Made by Other Railroads
In this final rule, FRA has moved what was paragraph (b) of this
section in the proposed rule to Sec. 245.107(b)(2)(vi) and (b)(4)(iv).
FRA determined that it was more appropriate to put proposed paragraph
(b) in the section of this rule that contained the specific
requirements for a railroad's certification program.
Section 245.201 Time Limitations for Certification
This section contains various time constraints to preclude
railroads from relying on stale information when evaluating candidates
for certification or recertification. Paragraph (a)(3) in the NPRM
stated that railroads could not rely on knowledge tests there were
conducted more than one year before the date of the railroad's
certification decision and paragraph (a)(4) stated that the knowledge
test must be within two years prior to the certification decision if
the railroad administers knowledge tests at intervals that do not
exceed two years. For the final rule, FRA decided to combine these two
paragraphs into paragraph (a)(3).
Section 245.205 List of Certified Dispatchers and Recordkeeping
This section requires railroads to maintain a list of its certified
dispatchers. Several labor organizations, including TTD, ATDA, and
IBEW, requested that this section be revised to compel railroads to
provide their list of certified dispatchers to their dispatcher
employees and the relevant labor organization presidents. TTD and ATDA
also stated the rule should include a 60-day period for unions and
employees to review and confirm the accuracy of the list. While FRA has
no opposition to railroads providing these lists to their dispatchers
and labor organization presidents, FRA declines to impose this
requirement because sharing such lists is an internal matter that
should be resolved between the railroads and the labor organizations
and FRA does not see a compelling safety reason to mandate a particular
approach.
Section 245.207 Certificate Requirements
This section contains the requirements for the certificate that
railroads will be required to issue to each certified dispatcher. FRA
is making a minor change to paragraph (a)(1) in the proposed rule, by
allowing the certificate to identify the parent company that is issuing
the certificate. This change acknowledges that in some cases, a parent
company may have a single certification program for all of the
railroads under its control. This change also brings this paragraph
into conformity with parts 240 and 242.
AAR and ASLRRA commented that railroads should not be required to
include a dispatcher's year of birth on a dispatcher's certificate.
After consideration of this comment, FRA agrees that including the year
of birth on the dispatcher certificate is unnecessary and is removing
this requirement in the final rule. The purpose of the requirements in
paragraph (a)(3) is to identify an individual dispatcher, and, as AAR
and ASLRRA stated, the birth year provides little to no assistance in
confirming a person's identity, and there are other ways, such as a
physical description or photograph of the dispatcher, which is already
included in paragraph (a)(3), that better serve this goal. They added
that instead of the birth year, FRA could require a person's hire date
on the certificate. However, the hire date provides even less relevant
information than the birth year in terms of identification. Thus, FRA
sees no reason to require the hire date on a dispatcher's certificate.
APTA recommended that the requirement in paragraph (a)(6) of this
section that the certificate include the expiration date be removed in
the final rule, because it is not required in parts 240 and 242, and
``because there are other annual requirements that an expiration date
greater than annually could cause confusion.'' \94\ FRA concedes that
an expiration date is not currently required on a locomotive engineer
or conductor certificate,\95\ however, FRA is unclear why such a
requirement would cause confusion. Also, a certificate can last for up
to three years under Sec. 245.201(c), so the expiration date would not
be ``greater than annual'' as APTA suggests. Thus, FRA is unpersuaded
by APTA's argument. FRA sees no basis for removing this requirement, as
the expiration date provides a key piece of information that is equal
in importance
[[Page 44790]]
to the effective date of the certificate, as it tells when a
certificate is no longer valid.
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\94\ FRA-2022-0019-0036.
\95\ 49 CFR 240.223(a) and 242.207(a).
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FRA is making a stylistic change to paragraph (a)(6) in this final
rule. In the NPRM, paragraph (a)(6) referenced paragraph (b) of this
section, which stated that if a person was designated as a dispatcher
under Sec. 245.105(c) or (d), then their certificate did not need to
include an expiration date.\96\ The rationale for this exception is
that the expiration date of a designated dispatcher's certificate is
three years after FRA approves the railroad's certification
program.\97\ Thus, the expiration date of a designated dispatcher's
certificate will not be known until FRA approves the railroad's
certification program. In this final rule, FRA deleted proposed
paragraph (b) and instead incorporated this exception directly into
paragraph (a)(6), by stating that a certificate must include the
expiration date ``unless the certificate was issued pursuant to Sec.
245.105(c) or (d).''
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\96\ 88 FR 35623.
\97\ See 49 CFR 245.105(f).
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Section 245.213 Multiple Certifications
This section addresses various issues involving persons who have,
or are seeking to obtain, multiple certifications. In this final rule,
FRA added a standalone paragraph (c) to this section which states that
paragraphs (c)(1) through (3) apply to persons who are currently
certified dispatchers for multiple railroads or are seeking to become
certified dispatchers for multiple railroads.
Paragraph (d) discusses how the revocation of a dispatcher's
certification would affect an individual's ability to work in another
railroad craft that requires certification, and vice versa. The general
rule articulated in paragraph (d) is that if a dispatcher's
certification is revoked for an alcohol or drug violation, they may not
work in another certified craft during the period of revocation, and
vice versa. However, if a dispatcher's certification is revoked for a
violation that does not involve alcohol or drugs, the person may work
in another certified craft during the revocation period, and vice
versa.
NRC commented that it agreed with this approach. In contrast, AAR
and ASLRRA expressed their view that if a dispatcher's certificate is
revoked for any reason, that person should not be allowed to work in
another certified craft during the period of revocation, and vice
versa. Their explanation is that if a person commits a safety violation
in one craft, that shows ``a disregard for process, and there should
not be an assumption that the employee's disregard is function or craft
specific.'' \98\ The associations also contend that 49 CFR 240.308(f)
and 242.213(h) do not allow a decertified conductor to work as a
locomotive engineer or vice versa.
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\98\ FRA-2022-0019-0041.
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As an initial matter, the assertion by AAR and ASLRRA that parts
240 and 242 do not allow a decertified conductor to work as a
locomotive engineer is not accurate. Under 49 CFR 240.308(f) and
242.213(h), if a person's conductor certification is revoked for a
violation described in 49 CFR 242.403(e)(6) through (11), they may
still work as a locomotive engineer during the revocation period. FRA's
rationale for this distinction is that 49 CFR 242.403(e)(6) through
(11) involve violations of 49 CFR part 218, subpart F, and since
locomotive engineers cannot have their certifications revoked for such
violations, ``it would be unfair to prohibit a person from working as
an engineer for a violation that currently would not result in the
revocation of his or her engineer certificate.'' \99\ For similar
reasons, FRA finds that it would be unfair to prohibit a person from
working as a dispatcher because they passed a stop signal while working
as a locomotive engineer, or because they committed some other
violation that would not otherwise result in the revocation of their
dispatcher certificate. However, AAR and ASLRRA's proposal would lead
to such unfair treatment between persons with a single certification
and persons who are certified in multiple crafts. AAR and ASLRRA
requested that FRA adopt the same approach in part 245 that it did in
parts 240 and 242. For the reasons stated above, FRA believes that the
proposed rule did adopt the same approach taken in parts 240 and 242
and does not see a reason to make any changes to this section in the
final rule.
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\99\ 76 FR 69802, 69825 (Nov. 9, 2011).
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Furthermore, as noted in the NPRM,\100\ the tasks performed by a
dispatcher are so inherently different from the tasks performed by
persons in other certified crafts that it does not automatically follow
that a person's revocable event as a dispatcher indicates they are more
likely to have a revocable event while performing another certified
craft, and vice versa. Therefore, under this final rule, a dispatcher
may continue to work as a dispatcher if their certification is revoked
for any of the violations described in 49 CFR 240.117(e) or 242.403(e)
that do not involve use of alcohol or drugs. Similarly, a person can
continue to work in another certified craft if their dispatcher
certification has been revoked for a violation described in Sec.
245.303(e)(1) through (6).
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\100\ 88 FR 35594.
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Section 245.215 Railroad Oversight Responsibilities
This section requires 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. Both TTD and ATDA requested
that FRA mandate that a railroad provide the data obtained through this
annual review and analysis of its certification programs to the
president of each labor organization that represents the railroad's
dispatchers. The labor organizations contend this would benefit
railroad safety as railroads and unions could work together to address
potential deficiencies and safety issues. It would also promote
collaboration between the two parties. FRA agrees that sharing this
information should benefit railroad safety by promoting communication
and collaboration between the railroads and the labor unions. Thus, FRA
has revised paragraph (d) of this section to allow the president of a
labor organization representing the railroad's dispatchers to request
that the railroad provide a report of the findings and conclusions
reached during the railroad's annual review and analysis required under
this section. FRA is also allowing th
[…truncated; see source link]Indexed from Federal Register on May 21, 2024.
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