[Federal Register Volume 88, Number 104 (Wednesday, May 31, 2023)]
[Proposed Rules]
[Pages 35574-35630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10772]



[[Page 35573]]

Vol. 88

Wednesday,

No. 104

May 31, 2023

Part IV





Department of Transportation





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 Federal Railroad Administration





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49 CFR Part 245





Certification of Dispatchers; Proposed Rule

  Federal Register / Vol. 88 , No. 104 / Wednesday, May 31, 2023 / 
Proposed Rules  

[[Page 35574]]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 245

[Docket No. FRA-2022-0019, Notice No. 1]
RIN 2130-AC91


Certification of Dispatchers

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes regulations for the certification of dispatchers, 
pursuant to the authority granted in section 402 of the Rail Safety 
Improvement Act of 2008.

DATES: Comments on the proposed rule must be received by July 31, 2023. 
FRA will consider comments received after that date to the extent 
practicable.

ADDRESSES: 
    Comments: Comments related to Docket No. FRA-2022-0019 may be 
submitted by going to https://www.regulations.gov and following the 
online instructions for submitting comments.
    Instructions: All submissions must include the agency name, docket 
number (FRA-2022-0019), and Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC91). All comments received will be posted 
without change to https://www.regulations.gov; this includes any 
personal information. Please see the Privacy Act heading in the 
SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov and follow the 
online instructions for accessing the docket.

FOR FURTHER INFORMATION CONTACT: Curtis Dolan, Railroad Safety 
Specialist, Dispatch Operating Practices, Federal Railroad 
Administration, telephone: (470) 522-6633, email: [email protected]; 
or Michael C. Spinnicchia, Attorney Adviser, Federal Railroad 
Administration, telephone: (202) 493-0109, email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Legal Authority
III. Background
IV. Section-by-Section Analysis
V. Regulatory Impact and Notices
    A. Executive Order 12866 as Amended by Executive Order 14094
    B. Regulatory Flexibility Act and Executive Order 13272
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Executive Order 12898 (Environmental Justice)
    H. Unfunded Mandates Reform Act of 1995
    I. Energy Impact
    J. Privacy Act Statement
    K. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

Purpose of the Regulatory Action

    FRA proposes to require railroads to develop programs for 
certifying individuals who perform dispatching tasks on their networks. 
Under this proposed rule, railroads would be required to have formal 
processes for training prospective dispatchers, as well as verifying 
that each dispatcher has the requisite knowledge, skills, safety 
record, and abilities to safely perform all of the safety-related 
dispatcher duties mandated by Federal laws and regulations, prior to 
certification. In addition, railroads would be required to have formal 
processes for revoking certification (either temporarily or 
permanently) for dispatchers who violate specified minimum 
requirements.
    FRA is proposing this regulation in response to the Rail Safety 
Improvement Act of 2008 (RSIA), which required the Secretary of 
Transportation (Secretary) to submit a report to Congress addressing 
whether certification of ``certain crafts or classes'' of railroad 
employees or contractors, including railroad dispatchers, was necessary 
to ``reduce the number and rate of accidents and incidents or to 
improve railroad safety.'' If the Secretary determined it was necessary 
to require the certification of certain crafts or classes to improve 
railroad safety, section 402 of the RSIA stated the Secretary may 
prescribe such regulations.
    The Secretary submitted a report to Congress on November 4, 2015, 
stating that, based on FRA's preliminary research, dispatchers were one 
of the most viable candidate railroad crafts for certification. Given 
the safety critical role of dispatchers in facilitating safe railroad 
operations (which includes the coordination of emergency services in 
response to accidents and incidents), FRA determined that railroad 
safety is expected to be improved if dispatchers were required to 
satisfy certain standards and be certified by their employing 
railroads.

Summary of Major Provisions

    This proposed rule would require railroads to develop written 
programs for certifying individuals who work as dispatchers on their 
territories and to submit those written certification programs to FRA 
for approval prior to implementation. FRA would issue a letter to the 
railroad when it approves a certification program, that explains the 
basis for approval, and a program will not be considered approved until 
the approval letter is issued.
    FRA is proposing to require Class I railroads (including the 
National Railroad Passenger Corporation), and railroads providing 
commuter service, to submit their written certification programs to FRA 
no later than eight (8) months after the final rule effective date. 
Class II and Class III railroads would be required to submit their 
written certification plans sixteen (16) months after the final rule 
effective date. New railroads that begin operation after the final rule 
effective date would be required to submit their written certification 
programs to FRA and obtain FRA approval before commencing operations. 
In addition, railroads seeking to materially modify their FRA-approved 
certification programs would be required to obtain FRA approval prior 
to modifying their programs.
    Railroads would be required to evaluate certification candidates in 
multiple areas, including prior safety conduct as a motor vehicle 
operator, prior safety conduct as an employee of a different railroad, 
substance abuse disorders and alcohol/drug rules compliance, and vision 
and hearing acuity.
    The proposed rule also contains minimum requirements for the 
training provided to prospective dispatchers. The proposed requirements 
are intended to ensure that certified dispatchers have received 
sufficient training before they are hired to work as dispatchers on the 
railroad. The proposed requirements are also intended to ensure that 
certified dispatchers periodically receive recurring training on 
railroad safety and operating rules and practices, as well as 
comprehensive training on the use of new dispatching systems and 
technology before they are introduced on the railroads in revenue 
service.
    With the exception of individuals designated as certified 
dispatchers prior to FRA approval of the railroad's

[[Page 35575]]

dispatcher certification program, the proposed rule would prohibit 
railroads from certifying dispatchers for intervals longer than three 
(3) years. This three-year limitation, which would be consistent with 
the 36-month maximum period for certifying locomotive engineers in 49 
CFR 240.217(c) and conductors in 49 CFR 242.201(c), would allow for 
periodic re-evaluation of certified dispatchers to verify their 
continued compliance with FRA's minimum safety requirements.
    Subpart D of this proposed rule addresses the process and criteria 
for denying and revoking certification. Proposed Sec.  245.301 
describes the process a railroad would be required to undergo before it 
denies an individual certification or recertification. This process 
would include providing the certification candidate with the 
information that forms the basis for the denial decision and giving the 
candidate an opportunity to rebut such evidence. When a railroad denies 
an individual certification or recertification, it must issue its 
decision in writing, and the decision must comply with certain 
requirements provided in the proposed rule.
    A railroad could only revoke a dispatcher's certification if one of 
eight events occurs. Generally, for the first revocable event that is 
not related to a dispatcher's use of drugs or alcohol, the person's 
certification would be revoked for 30 days. If an individual 
accumulates more of these violations in a given time period, the 
revocation period (period of ineligibility) would become increasingly 
longer.
    If a railroad acquires reliable information that a certified 
dispatcher has violated an operating rule or practice requiring 
decertification under the proposed rule, it shall suspend the 
dispatcher's certificate immediately while it determines whether 
revocation of the certificate is warranted. In such circumstances, 
dispatchers would be entitled to a hearing. Similar to a railroad's 
decision to deny an individual certification, a railroad's decision to 
revoke a dispatcher's certification would be required to satisfy 
certain requirements. Finally, if an intervening cause prevented or 
materially impaired a dispatcher's ability to comply with a railroad 
operating rule or practice, the railroad would not revoke the 
dispatcher's certification.
    Subpart E of this proposed rule discusses the dispute resolution 
process for individuals who wish to challenge a railroad's decision to 
deny certification, deny recertification, or revoke certification. This 
dispute resolution process mirrors the process used for locomotive 
engineers and conductors under 49 CFR parts 240 and 242, respectively.
    Finally, the proposed rule contains two appendices. Appendix A 
discusses the procedures that a person seeking certification or 
recertification should follow to furnish a railroad with information 
concerning their motor vehicle driving record. Appendix B provides 
guidance on the procedures railroads should employ in administering the 
vision and hearing requirements under Sec. Sec.  245.117 and 245.118.
    This proposed rule does not revise 49 CFR part 241, United States 
Locational Requirement for Dispatching of United States Rail 
Operations. Furthermore, this proposed rule would not apply to 
dispatchers located outside of the United States as ``[i]t is a 
longstanding principle of American law `that legislation of Congress, 
unless a contrary intent appears, is meant to apply only within the 
territorial jurisdiction of the United States.' '' \1\
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    \1\ E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 248 
(1991) (quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284-85 
(1949)).
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Costs and Benefits
    FRA analyzed the economic impact of this proposed rule. FRA 
estimated the costs to be incurred by railroads and the Government. FRA 
also estimated the benefits of fewer dispatcher-caused accidents.
    FRA is proposing regulations establishing a formal certification 
process for railroad dispatchers. As part of that process, railroads 
would be required to develop a program meeting specific requirements 
for training current and prospective dispatchers, documenting and 
verifying that the holder of the certificate has achieved certain 
training and proficiency, and creating a comprehensive record, 
including of safety compliance infractions, that other railroads can 
review when considering individuals for certification.
    This proposed regulation would ensure that dispatchers are properly 
trained, are qualified to perform their duties, and meet Federal safety 
standards. Additionally, this proposed regulation is expected to 
improve railroad safety by reducing the rate of accidents/incidents.
    FRA estimates the 10-year costs of the proposed rule to be $5.3 
million, discounted at 7 percent. The estimated annualized costs would 
be $0.8 million discounted at 7 percent. The following table shows the 
total costs of this proposed rule, over the 10-year analysis period.
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    \2\ Numbers in this table and subsequent tables may not sum due 
to rounding.

                                Total 10-Year Discounted Costs (2020 Dollars) \2\
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                                           Present value 7%    Present value 3%    Annualized 7%   Annualized 3%
                Category                          ($)                 ($)               ($)             ($)
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Development of Certification Program....             929,395             953,949         132,325         111,832
Certification Eligibility Requirements..              55,360              61,963           7,882           7,264
Recertification Eligibility Requirements              65,831              83,877           9,373           9,833
Training................................             707,334             812,820         100,708          95,287
Knowledge Testing.......................             233,988             281,581          33,315          33,010
Vision and Hearing......................           1,586,913           1,909,692         225,941         223,874
Monitoring Operational Performance......             256,017             305,956          36,451          35,867
Railroad Oversight Responsibilities.....             267,530             326,714          38,090          38,301
Certification Card......................              26,832              32,289           3,820           3,785
Petitions and Hearings..................               8,198               9,797           1,167           1,149
Government Administrative Cost..........           1,208,191           1,361,239         172,019         159,579
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    Total...............................           5,345,589           6,139,877         761,092         719,781
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    This rule is expected to reduce the likelihood of an accident 
occurring due to dispatcher error. FRA has analyzed accidents over the 
past five years to categorize those where dispatcher training and 
certification would have impacted the accident. FRA then estimated 
benefits based on that analysis.
    The following table shows the estimated 10-year quantifiable 
benefits of the proposed rule. The total 10-year estimated benefits 
would be $0.8 million (PV, 7%) and annualized benefits would be $0.1 
million (PV, 7%).

                                Total 10-Year Discounted Benefits (2020 Dollars)
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                                                             Present value 3%    Annualized 7%    Annualized 3%
                   Present value 7% ($)                             ($)               ($)              ($)
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785,599...................................................            918,450          111,852          107,670
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    This proposed rule would also provide unquantifiable benefits. FRA 
has quantified the monetary impact from accidents reported on FRA 
accident forms. However, some accident costs are not required to be 
reported on FRA accident forms (e.g., environmental impact). That 
impact may account for additional benefits not quantified in this 
analysis. If these costs were realized, accidents affected by this 
proposed rulemaking could have much greater economic impact than the 
quantitative benefit estimates provided here.
    There is also a chance of a high impact event due to a dispatcher 
error. This could involve fatalities, injuries, and environmental 
damage, as well as impacting railroads, communities, and the public. 
FRA has not estimated the likelihood of such an accident, but this 
proposed rule is expected to reduce the risk that an accident of that 
magnitude.

II. Legal Authority

    Pursuant to the Rail Safety Improvement Act of 2008, Public Law 
110-432, sec. 402, 122 Stat. 4848, 4884 (Oct. 16, 2008) (hereinafter 
``RSIA''), the Secretary of Transportation (Secretary) was required to 
submit a report to Congress addressing whether certification of certain 
crafts or classes of employees, including dispatchers, was necessary to 
reduce the number and rate of accidents and incidents or to improve 
railroad safety.\3\ If the Secretary determined it was necessary to 
require the certification of certain crafts or classes of employees to 
reduce the number and rate of accidents and incidents or to improve 
railroad safety, section 402 of the RSIA stated the Secretary may 
prescribe such regulations. The Secretary delegated this authority to 
the Federal Railroad Administrator. 49 CFR 1.89. In response to the 
RSIA, the Secretary submitted a report to Congress on November 4, 
2015,\4\ stating that, based on FRA's preliminary research, dispatchers 
and signal employees were potentially the most viable candidate 
railroad crafts for certification. Based on the analysis in Section III 
below, the Federal Railroad Administrator has determined that it is 
necessary to require the certification of railroad dispatchers to 
improve railroad safety.
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    \3\ See also 49 U.S.C. 20103 (providing FRA's general authority 
to ``prescribe regulations and issues orders for every area of 
railroad safety'').
    \4\ www.regulations.gov/document/FRA-2022-0019-0001.
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III. Background

1. Roles and Responsibilities of Dispatchers

    Railroad dispatchers play an integral role in railroad safety and 
operations. They are responsible for allocating and assigning track 
use, ensuring that trains are routed safely and efficiently, and 
ensuring the safety of personnel working on and around railroad track. 
These are cognitively complex tasks that require integrating multiple 
sources of information (e.g., information from train schedules, 
computer displays of current track state, radio communication with 
various personnel such as locomotive engineers, and in some cases, 
projecting into the future (e.g., estimating when the train will 
arrive)); and balancing multiple demands placed on track use (e.g., 
balancing the need for maintenance-of-way workers to have time to work 
on the track with the need to make sure that the track will be clear 
when a train is anticipated to arrive). Some of the main tasks \5\ 
dispatchers perform involve: operation monitoring (monitoring a 
computerized train dispatching model board); information collection and 
data entry (collecting information about slow orders and any blocking 
protection required by railroad workers on the track); communication 
(playing an important role in roadway worker planning and protection); 
emergency response (working to limit the damage to human life and 
property during an emergency); and knowledge of territory (knowing the 
specific characteristics of the territory assigned to them).
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    \5\ As part of a contract with FRA, Foster-Miller, Inc., 
conducted research to develop a tool for assessing railroad 
dispatcher task load. Task load is defined as the average time 
demanded of a dispatcher in carrying out all job-related tasks at a 
particular desk, over a specified period of time (e.g., one shift). 
Stephen J. Reinach, Toward the Development of a Performance Model of 
Railroad Dispatching 2042-46 (Proceedings of the Human Factors and 
Ergonomics Society 50th Annual Meeting, 2006). A copy of this report 
can be found at https://railroads.dot.gov/elibrary/proceedings-human-factors-and-ergonomics-society-50th-annual-meeting-2006.
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    Over the past 5 to 10 years, the job of a railroad dispatcher has 
become more complex and demanding. The number of dispatchers has 
decreased over the years, and dispatcher territory is expanding due to 
this decrease. Also, with the advancement of Positive Train Control 
(PTC), dispatchers must understand the interface between the computer-
aided dispatching system and the train control system, with respect to 
the safe movement of trains and other on-track equipment. Dispatchers 
need to understand the operating rules applicable to the train control 
system, including granting permission for movement and protection of 
roadway workers; unequipped trains; trains with failed or cut-out train 
control onboard systems; control system fails; and providing for safe 
operations under the alternative method of operation. The availability 
of affordable computer systems has made computer-aided dispatching 
(CAD) feasible for many railroads. The improved communications systems 
led to the acceptance of radio transmitted directives in place of the 
traditional paper train orders that had been previously used. These 
changes in communications and signal technology have also resulted in 
the closing of block towers, eliminating the job of tower operator, a 
job that was often on the career path to becoming a dispatcher.
    Today, dispatchers are likely to use multiple computer screens and 
electronic equipment, in addition to a communications system. However, 
a short line railroad may still use hand-

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written or verbal authorities to move trains across dark (unsignalled) 
territory. The industry's adoption of new dispatching technology, 
changes in operating rules and methods of operation, and railroad 
industry restructuring all have potential safety consequences. 
Additionally, excessive workloads and increases in occupational stress 
could result from any of these factors. The role of the dispatcher 
would also significantly increase with a possible increase in one-
person crew operations, as more vigilance and attention will be needed 
to cover these operations. Additional one-person crew operations would 
introduce increased workloads as the dispatcher will be the direct 
``lifeline'' to the multiple one-person operations in a given assigned 
territory.

2. FRA History of Certification

    On January 4, 1987, an Amtrak train collided with a Conrail train 
in Chase, Maryland, resulting in 16 deaths and 174 injuries. At the 
time, it was the deadliest train accident in Amtrak's history. The 
subsequent investigation by the National Transportation Safety Board 
concluded that the probable cause of the accident was the impairment of 
the Conrail engineer who was under the influence of marijuana at the 
time of the collision.\6\
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    \6\ Railroad Accident Report: Rear-end Collision of Amtrak 
Passenger Train 94, the Colonial and Consolidated Rail Corporation 
Freight Train ENS-121, on the Northeast Corridor, Chase, Maryland, 
January 4, 1987 144 (Nat'l Transp. Safety Bd. 1988).
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    Following this accident, Congress passed the Rail Safety 
Improvement Act of 1988, Public Law 100-342, 4, 102 Stat. 624, 625 
(1988), which instructed the Secretary of Transportation (Secretary) to 
``issue such rules, regulations, orders, and standards as may be 
necessary to establish a program requiring the licensing or 
certification of any operator of a locomotive, including any locomotive 
engineer.'' On June 19, 1991, FRA published a final rule establishing a 
certification system for locomotive engineers and requiring railroads 
to ensure that they only certify individuals who met minimum 
qualification standards.\7\ In order to minimize governmental 
intervention, FRA opted for a certification system where the railroads 
issue the certificates as opposed to a government-run licensing system. 
This final rule, published in 49 CFR part 240 (part 240), created 
certification requirements for engineers that addressed various areas, 
including vision and hearing acuity; training, knowledge, and 
performance skills; and prior safety conduct.
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    \7\ 56 FR 28227 (June 19, 1991).
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    Seventeen years later, Congress passed the Rail Safety Improvement 
Act of 2008, Public Law 110-432, 402, 122 Stat. 4848, 4884 (2008) 
(hereinafter ``RSIA''), which mandated the creation of a certification 
system for conductors. On November 9, 2011, FRA published a final rule 
requiring railroads to have certification programs for conductors and 
to ensure that all certified conductors satisfy minimum Federal safety 
standards.\8\ The conductor certification rule, published in 49 CFR 
part 242 (Part 242), was largely modeled after Part 240 with some 
deviations based on the different job classifications. Part 242 also 
included some organizational improvements which made the regulation 
more streamlined than Part 240.
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    \8\ 76 FR 69801 (Nov. 9, 2011).
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3. Statutory Background for Dispatcher Certification

    In addition to requiring certification for conductors, the RSIA 
required the Secretary to submit a report to Congress addressing 
whether certain other railroad crafts or classes of employees would 
benefit from certification. Specifically, section 402(b) of the RSIA 
requires that the Secretary issue a report to Congress ``about whether 
the certification of certain crafts or classes of railroad carrier or 
railroad carrier contractor or subcontractor employees is necessary to 
reduce the number and rate of accidents and incidents or to improve 
railroad safety.'' As part of that report, section 402(c) specifically 
requires the Secretary to consider dispatchers as one of the railroad 
crafts for certification.
    After identifying a railroad craft or class for which certification 
is necessary, pursuant to the report to Congress discussed above, 
section 402(d) authorizes the Secretary to ``prescribe regulations 
requiring the certification of certain crafts or classes of employees 
that the Secretary determines . . . are necessary to reduce the number 
and rate of accidents and incidents or to improve railroad safety.''

4. Report to Congress

    On November 4, 2015, the Secretary submitted the report to Congress 
required under the RSIA. The report stated that, based on FRA's 
preliminary research, dispatchers and signal repair employees were the 
most viable candidates for certification. In reaching this 
determination with respect to dispatchers, the Secretary cited a 
variety of factors.
    The report noted that dispatchers perform safety-sensitive work as 
shown by dispatchers being covered under the hours-of-service laws; and 
they are subject to regular and pre-employment random drug and alcohol 
testing. In 2012 and 2013, dispatchers had the highest pre-employment 
positive drug testing rate among all crafts. Annual drug and alcohol 
testing data submitted to FRA in 2012 and 2013 showed a 0.68-percent 
random positive drug testing rate and a 0.79-percent pre-employment 
positive drug testing rate for dispatch employees compared to a 0.48-
percent random positive drug testing rate and a 0.46-percent pre-
employment positive drug testing rate for signal employees; and a 0.49-
percent random positive drug testing rate and a 0.55-percent pre-
employment positive drug testing rate for train and engine service 
employees.\9\ The report noted that 49 CFR parts 240 and 242 require a 
five-year alcohol and drug background check as well as disqualification 
of employees for specified alcohol and drug test violations and for 
refusing such testing. If such requirements were included in a 
dispatcher certification program, it could help prevent dispatchers 
with active substance abuse disorders from ``job hopping'' from one 
employer to another and reduce the safety risk of having individuals 
with untreated substance abuse disorders working as dispatchers.
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    \9\ Testing results submitted to FRA in 2020 and 2021 showed a 
0.94-percent random violation rate (drug and alcohol positives and 
refusals) rate and a 0.85-percent pre-employment violation rate for 
dispatch employees compared to a 0.81-percent random violation rate 
and a 0.79-percent pre-employment violation rate for signal 
employees; and a 0.49-percent random positive drug testing rate and 
a 0.55-percent pre-employment positive drug testing rate for train 
and engine service employees.
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    Another important factor in the report was the complicated nature 
of the work dispatchers perform to ensure the safety and efficiency of 
railroad operations. Dispatchers are responsible for allocating and 
assigning main track use to trains from their own employer as well as 
trains from other railroads. They are also responsible for the safety 
of roadway workers working on or near track. The report summarized the 
demanding nature of dispatching by stating that it entails performing 
cognitively complex tasks that require rapid decision making, 
projecting into the future, and balancing numerous demands on track 
use.
    Additionally, the report cited a ``great amount of turnover'' in 
the nationwide train dispatching workforce, resulting in a less 
experienced workforce, as further support for requiring certification. 
Finally, the report found that, with the

[[Page 35578]]

exception of train and engine crews, no function of railroad operations 
is more critical to safety than dispatching. The accumulation of these 
factors led to the report's conclusion that dispatching was a 
potentially viable candidate for certification.

5. RSAC Working Group

    In March 1996, FRA established the Railroad Safety Advisory 
Committee (RSAC), which provides a forum for collaborative rulemaking 
and program development. RSAC includes representatives from all of the 
agency's major stakeholder groups, including railroads, labor 
organizations, suppliers and manufacturers, and other interested 
parties. When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If 
accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task.
    On April 21, 2017, a task statement regarding certification of 
dispatchers was presented to the RSAC by email, but no vote was taken. 
On April 24, 2019, the RSAC accepted a task (No. 19-02) entitled 
``Certification of Train Dispatchers.'' \10\ The purpose of the task 
was ``[t]o consider whether rail safety would be enhanced by developing 
guidance, voluntary standards, and/or draft regulatory language for the 
certification of train dispatchers.'' The task called for the RSAC 
Train Dispatcher Certification Working Group (Working Group) to perform 
the following:
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    \10\ At the same meeting, the RSAC also accepted a task (No. 19-
03) titled ``Certification of Railroad Signal Employees.'' A 
separate RSAC Working Group was formed to address this task, and FRA 
plans to issue a related proposed rule that would establish 
certification requirements for signal employees.
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    --Review critical tasks performed by dispatching employees for safe 
train operations, particularly with the introduction of PTC technology.
    --Review training, duration, content, and methodology for new hire 
and continuing education.
    --Review background checks designed to prevent dispatching 
employees with active substance abuse disorders from ``job-hopping'' 
from one employer to another.
    The task statement also asked the Working Group to address the 
following issues, if appropriate:
    --What requirements for training and experience are appropriate?
    --What classifications of dispatchers should be recognized, if any?
    --To what extent do existing requirements and procedures for 
certification of locomotive engineers and conductor certification 
provide a model for dispatcher certification?
    --What types of unsafe conduct should affect a train dispatcher's 
certification status?
    --Do the existing locomotive engineer and conductor certifications 
provide an adequate model for handling appeals from decertification 
decisions of the railroads?
    The Working Group, which included representatives from the 
Association of American Railroads (AAR), American Public Transportation 
Association, American Short Line and Regional Railroad Association 
(ASLRRA), American Train Dispatchers Association, Brotherhood of 
Railroad Signalmen, SMART Transportation, Commuter Rail Coalition, and 
National Railroad Construction & Maintenance Association, held its 
first and only meeting on September 4, 2019 in Washington, DC. At this 
meeting, the Working Group reviewed the task statement from the RSAC, 
discussed some of the safety-critical tasks performed by dispatchers, 
and debated whether certification of dispatchers would be beneficial to 
railroad safety. At the end of the meeting, action items were assigned 
and the next meeting was tentatively scheduled for January 2020.
    However, on December 16, 2019, the presidents of the American Train 
Dispatchers Association, the Brotherhood of Railroad Signalmen, and the 
International Brotherhood of Electrical Workers (collectively the 
``Unions'') sent a letter to the FRA Administrator requesting that this 
RSAC task be withdrawn from consideration at this time. The letter 
stated the Unions were currently involved in numerous activities and 
were not able to give the task proper attention. AAR and ASLRRA advised 
the Unions that they were not opposed to this request. In response to 
this letter, FRA withdrew this task from the RSAC, and the Working 
Group became inactive.

6. Public Outreach

    In 2021, FRA revisited the issue of establishing certification 
requirements for dispatchers. The agency assembled subject matter 
experts from FRA, the American Train Dispatchers Association (ATDA), 
the International Brotherhood of Electrical Workers (IBEW), and the 
Brotherhood of Railroad Signalmen to exchange facts and information 
regarding the tasks performed by dispatchers. Those parties met 
virtually several times between May 5, 2021 and June 30, 2021.
    As part of FRA's outreach, a list of tasks performed by dispatchers 
was developed. These tasks generally involved: track authorities; 
mandatory directives; track worker protection; emergency response 
coordination; or incident management. FRA reviewed each task to 
determine whether correctly performing the task was critical to 
railroad safety; what were the potential consequences if errors were 
made while performing the task; and whether there were any recent 
examples of issues or concerns with respect to the task. After 
performing this analysis, FRA concluded that the vast majority of tasks 
performed by dispatchers (80-90% of the listed tasks) were critical to 
railroad safety with potentially catastrophic consequences, such as 
accidents, injuries, and/or deaths, if the tasks were not performed 
properly. In addition, because dispatchers provide incident management 
and emergency response coordination, FRA concluded that by properly 
performing their tasks, dispatchers can help reduce the consequences of 
accidents and mitigate injuries.
    During FRA's outreach, the benefits of certification based on the 
experience of stakeholders with engineer and conductor certification 
under 49 CFR parts 240 and 242 were also discussed. Some of the main 
benefits of certification that were identified included:
    --Creating a minimum standard for training to ensure that the 
training encompasses all skills and proficiencies necessary to properly 
perform all safety-related dispatcher functions;
    --Establishing a record of safety compliance that will follow a 
dispatcher if they wish to become certified by another railroad and 
that can be used to review a dispatcher's performance and potential 
training needs;
    --Requiring certain safety checks, such as identifying active 
substance abuse disorders, that can minimize the risks posed by job 
hopping; and
    --Establishing a system for individuals to dispute a railroad's 
decision to deny or revoke certification with the aim of creating a 
fair and consistent process for all parties.
    Further, some parties noted that they had witnessed industry trends 
to reduce the length and level of training for dispatchers which would 
make certification even more beneficial. Based on these meetings, FRA 
concluded that requiring certification for dispatchers would be an 
important tool to ensure dispatchers are adequately trained and 
qualified; have a documented record of performance; and are not able to 
job hop without a new employer having knowledge of the dispatcher's 
safety performance record.

[[Page 35579]]

    Following this initial outreach, FRA held a follow-up conversation 
with ATDA and IBEW, on March 3, 2022, and individuals from ATDA and 
IBEW informed FRA of elements that they believe would be beneficial in 
a dispatcher certification program. During this conversation, which was 
held in videoconference format, FRA asked the attendees to provide 
individualized feedback on how similar or different a dispatcher 
certification rule should be to FRA's locomotive engineer and conductor 
certification rules found in 49 CFR parts 240 and 242.
    FRA heard that the agency needs to ensure that comprehensive 
training is provided to dispatchers as the current training is 
inadequate. FRA also heard that railroads are not providing enough 
training on new technology and in some cases, training only consists of 
a PowerPoint presentation or watching a video. It was also noted that 
dispatchers are often told to ask their managers if they have 
questions, but managers are not always knowledgeable about the craft 
and often do not have sufficient expertise to answer such questions.
    On March 7, 2022, FRA had a conversation with the railroad 
industry, including the Norfolk Southern Corporation (NS), AAR, and 
ASLRRA. During this conversation, which was conducted in a 
videoconference format, FRA also asked for individualized feedback on 
how FRA's locomotive engineer and conductor certification regulations 
in 49 CFR parts 240 and 242 could be improved upon with respect to 
dispatcher certification. Specifically, FRA asked for feedback on any 
regulatory provisions in 49 CFR parts 240 and 242 that, in their 
experience, may have been difficult to implement, as well as whether 
FRA should explore any changes to these regulatory provisions.
    AAR expressed opposition to FRA's proposal to issue regulations 
requiring certification of dispatchers arguing that there was not a 
safety benefit to certification. In addition, NS questioned the need 
for certification regulations in the absence of any identified gaps in 
coverage by existing railroad training programs. ASLRRA expressed 
concern that FRA's proposal to issue regulations requiring dispatcher 
certification would result in a large paperwork burden with little 
benefit.
    After this conversation, FRA provided a short list of written 
questions to AAR and ASLRRA. While AAR did not provide additional 
feedback in response to FRA's list of questions, ASLRRA responded to 
FRA's list of written questions by email on April 13, 2022, a copy of 
which has been placed in the docket.\11\
---------------------------------------------------------------------------

    \11\ A record of public contact summarizing this meeting has 
been posted in the rulemaking docket at: https://www.regulations.gov/document/FRA-2022-0019-0002.
---------------------------------------------------------------------------

    On March 10, 2022, FRA staff had a follow-up conversation with ATDA 
and IBEW to receive information on the types of errors and operating 
practice violations that should result in a railroad revoking a 
dispatcher's certification. During this conversation, which was 
conducted in a video conference format, FRA heard that a dispatcher's 
certification should not be revoked during an operations test, and that 
a person training a dispatcher should not have their certification 
revoked if a person they are training commits a revocable offense, as 
long as the trainer took appropriate action. However, a list of 
prospective revocable events was not generated during this meeting.

7. Contractors

    FRA considered whether railroad contractors (and subcontractors) 
should be authorized to certify their employees. FRA did not, however, 
include that option in this proposed rule. Instead, consistent with 
FRA's engineer and conductor certification regulations, this proposed 
rule requires railroads to develop and submit certification programs to 
FRA for approval and then implement their FRA-approved certification 
programs. FRA is proposing to adopt this approach because railroads are 
ultimately held responsible for the actions (or failure to act) of 
their employees, contractors, and subcontractors when engaged in 
railroad operations.
    FRA acknowledges that dispatcher functions are increasingly being 
contracted out by railroads to companies that specialize in this work. 
However, railroads are most knowledgeable about the unique 
characteristics of their territories. Therefore, railroads are best 
suited to develop certification programs that are needed to ensure that 
all employees responsible for allocating and assigning main track use, 
routing trains safely and efficiently, and ensuring the safety of 
roadway workers who are working on or near the railroad tracks have 
been properly trained and certified on: (a) the railroad's rules and 
practices for the safe movement of trains; (b) physical characteristics 
of the territory for which the employee will be working as a 
dispatcher; and (c) the dispatching systems and technology used by that 
railroad. In addition, by keeping certification programs in-house, 
railroads can implement quality control measures to ensure that their 
FRA-approved certification programs are being implemented properly.
    Nonetheless, FRA is soliciting comment on the approach adopted in 
this proposed rule, which would require railroads to develop and 
implement FRA-approved dispatcher certification programs. To ease any 
potential burden, especially on Class III railroads, the proposed rule 
would allow all railroads to choose between conducting the training or 
using a training program conducted by a third-party, which would be 
adopted and ratified by the railroad. In addition, contractors that 
employ dispatchers could help railroads comply with the requirements in 
this proposed rule by providing information about their dispatchers' 
compliance with some of the proposed regulatory requirements. For 
example, contractors could provide information about their dispatchers' 
compliance with the vision and hearing acuity requirements in the 
proposed rule. Under this proposed rule, however, railroads would 
ultimately be liable for ensuring that only certified dispatchers are 
permitted to perform dispatching tasks on their networks.

8. Interaction With Other FRA Regulations

    While developing this proposed rule, FRA has been mindful of other 
regulations that may touch upon topics covered in this proposed rule, 
including FRA's training, qualification, and oversight regulations in 
49 CFR part 243 (part 243); railroad safety risk reduction programs 
(SSP/RRP) in 49 CFR parts 270 and 271 (part 270 and part 271); and 
fatigue risk management programs (FRMP) in parts 270 and 271. However, 
FRA finds that this proposed rule would complement, rather than 
duplicate, those regulations.
    Dispatchers are currently included in part 243's requirements for 
training, qualification, and oversight for safety-related railroad 
employees. However, part 243 does not require employees to undergo a 
performance skill evaluation conducted by a qualified instructor to 
verify adequate knowledge transfer. Therefore, even though railroads 
(and third-party entities that employ dispatchers) are required to have 
training programs in place for dispatchers, railroads are not required 
to have effective processes in place to require prospective dispatchers 
to exhibit the extent to which they have developed the necessary skills 
to serve as an effective dispatcher.

[[Page 35580]]

    Part 243 also does not require railroads to have formal processes 
in place for promptly removing dispatchers from service if they violate 
one or more basic regulatory standards that could have a significant 
negative impact on the safety of rail operations. FRA's proposed 
dispatcher certification regulatory requirements have been drafted to 
help address this void, as well as prevent dispatchers who have been 
fired for committing one or more of the revocable events discussed in 
the proposed rule from ``job hopping'' and quickly resuming safety-
sensitive service at a different railroad that is unaware of the 
dispatcher's prior violation(s) of FRA's rail safety requirements.
    As codified in parts 270 and 271, FRA requires Class I railroads, 
railroads with inadequate safety performance, and passenger rail 
operations to implement railroad safety risk reduction programs. A 
railroad safety risk reduction program is a comprehensive, system-
oriented approach to safety that determines an operation's level of 
risk by identifying and analyzing identified hazards and developing 
strategies to mitigate risks associated with those hazards. In this 
background, FRA is using the term ``railroad safety risk reduction 
programs'' to include both a ``system safety program'' (SSP) that is 
required for certain passenger rail operations \12\ and a ``risk 
reduction program'' (RRP) that is required for a limited number of 
other rail operations.\13\
---------------------------------------------------------------------------

    \12\ 49 CFR 270.3 (requiring the application of the system 
safety rule to certain passenger rail operations).
    \13\ 49 CFR 271.3 (requiring the application of the risk 
reduction program rule to certain rail operations).
---------------------------------------------------------------------------

    Although a railroad safety risk reduction program might address a 
railroad's safety hazards and risks associated with its dispatchers, 
the framework established by these programs neither directly addresses 
the risks associated with dispatching nor establishes an industry-wide 
approach.
    First, not every railroad is required to have a railroad safety 
risk reduction program. Indeed, FRA estimates that fewer than 100 
railroads (out of approximately 750 under FRA's jurisdiction) will be 
required to develop a railroad safety risk reduction program over the 
next 10 years.
    Second, even if a railroad is required to have a railroad safety 
risk reduction program through which it identifies the risks associated 
with dispatching, the railroad may decide not to implement mitigations 
to eliminate or reduce those specific risks. Parts 270 and 271 permit 
railroads to prioritize risks.\14\ Whether a railroad that is required 
to have a program mitigates risks associated with dispatching will 
depend on how the railroad prioritizes risks for mitigation and how 
effectively that mitigation would promote continuous safety improvement 
compared to mitigation of other identified hazards and risks. Thus, 
even if aspects of dispatching are identified as a risk, a railroad may 
not implement mitigations to eliminate or reduce that risk.
---------------------------------------------------------------------------

    \14\ See e.g., 49 CFR 270.5 (definition of ``risk-based hazard 
management'') and 271.103(b)(3).
---------------------------------------------------------------------------

    Accordingly, while the SSP/RRP requirements may complement this 
proposed rule, they do not address the need for FRA and the railroads 
to consider and address the safety risks of dispatching across the 
entire industry.
    With respect to FRMPs,\15\ an FRMP is a comprehensive, system-
oriented approach to safety in which a railroad determines its fatigue 
risk by identifying and analyzing applicable hazards, and developing 
plans to mitigate, if not eliminate, those risks. Like the SSP/RRP 
rules, the FRMP rule is part of FRA's continual efforts to improve rail 
safety and will satisfy the statutory mandate of Section 103 of the 
Rail Safety Improvement Act of 2008.\16\
---------------------------------------------------------------------------

    \15\ On June 13, 2022, FRA published a final rule adding a FRMP 
to the railroad safety risk reduction program requirements in Parts 
270 and 271. 85 FR 83484.
    \16\ Codified at 49 U.S.C. 20156.
---------------------------------------------------------------------------

    Like the SSP/RRP requirements, there is no guarantee that any 
railroad covered by the regulation will use an FRMP to address 
dispatching issues. As with the SSP/RRP rules, a covered railroad must 
identify fatigue hazards, assess the risks associated with those 
fatigue hazards, and prioritize those risks for mitigation purposes. It 
is possible that other fatigue risks, not associated with dispatching, 
might rank higher, in which case the risk associated with dispatching 
might not be promptly mitigated. Further, because the FRMP requirements 
would apply only to those railroads required to comply with the SSP/RRP 
requirements, an FRMP would not be required of every railroad that 
performs dispatch tasks. Thus, like the SSP/RRP rules, this proposed 
rule is complementary to the FRMP final rule and is not duplicative.

IV. Section-by-Section Analysis

Subpart A--General

    Subpart A of the proposed rule contains general provisions, 
including a formal statement of the proposed rule's purpose and scope. 
The subpart also provides that this proposed rule does not constrain 
the ability of a railroad to prescribe additional or more stringent 
requirements for its dispatchers that are not inconsistent with this 
proposed rule.
Section 245.1 Purpose and Scope
    This section, derived from 49 CFR 240.1 and 242.1, indicates that 
the purpose of the proposed rule is to ensure that only those persons 
who meet minimum Federal safety standards serve as dispatchers, to 
reduce the rate and number of accidents and incidents, and to improve 
railroad safety.
    Even though a person may have a job title other than dispatcher, 
the requirements of this proposed rule would apply to that person if 
they meet the definition of ``dispatcher.'' The definition of 
``dispatcher,'' and an explanation of who is covered by the definition, 
are discussed in more detail in the section-by-section analysis for 
Sec.  245.7, below.
Section 245.3 Application and Responsibility for Compliance
    The extent of FRA's jurisdiction, and the agency's exercise of that 
jurisdiction, is well-established. See 49 CFR part 209, appendix A. 
This proposed application and responsibility for compliance section is 
consistent with FRA's Statement of Agency Policy Concerning Enforcement 
of the Federal Railroad Safety Laws in appendix A to 49 CFR part 209.
    This section, derived from 49 CFR 240.3 and 242.3, provides that 
the proposed rule would apply to all railroads with four exceptions. 
Paragraph (a)(1) of this section notes that this proposed rule would 
not apply to railroads that do not perform any dispatch tasks. In 
paragraph (a)(2), FRA proposes to exempt operations that occur within 
the confines of industrial installations commonly referred to as 
``plant railroads'' and typified by operations such as those in steel 
mills that do not go beyond the plant's boundaries and that do not 
involve the switching of rail cars for entities other than themselves. 
Further explanation of what is meant by the term ``plant railroad'' is 
provided in the section-by-section analysis for Sec.  245.7.
    Paragraph (a)(3) of this section excludes ``tourist, scenic, 
historic, and excursion operations that are not part of the general 
railroad system of transportation'' (as defined in Sec.  245.7) from 
compliance with this rule. Excluding these types of operations from 
this rule is consistent with FRA's jurisdictional policy that excludes 
these operations from all but a limited

[[Page 35581]]

number of Federal safety laws, regulations, and orders.
    The final proposed exclusion covers rapid transit operations in an 
urban area that are not connected to the general railroad system of 
transportation. It should, however, be noted that FRA exercises 
jurisdiction over some rapid transit type operations, given their links 
to the general railroad system of transportation, such as rapid transit 
operations conducted on track used for freight, intercity passenger, or 
commuter passenger railroad operation, during a block of time during 
which a general system railroad is not operating (temporal separation). 
Thus, this proposed rule would apply to persons who perform dispatch 
tasks for those rapid transit type operations.
    Paragraph (b) is intended to clarify that any person, as defined in 
Sec.  245.7, (including a railroad employee, employee of a railroad 
contractor, or employee of a railroad subcontractor) who performs a 
function required by this part will be held responsible for compliance. 
Therefore, this proposed regulation would cover all dispatchers 
regardless of whether they are employed by a railroad or a contractor. 
Covering employees of both railroads and contractors is consistent with 
other FRA regulations (such as FRA's training regulations in 49 CFR 
part 243) and the general trend in the railroad industry. In many 
instances, employees performing dispatch tasks for a railroad may be 
employed by a company other than the railroad upon which the person is 
working. In the interest of railroad safety, it is vital that all 
dispatchers are properly trained and qualified regardless of whether 
they are employed by a railroad or a contractor.
Section 245.5 Effect and Construction
    This section is derived from 49 CFR 240.5 and 242.5. Paragraph (a) 
addresses the relationship of this proposed rule to preexisting legal 
relationships. Paragraph (b) states that FRA does not intend to alter 
the authority of a railroad to initiate disciplinary sanctions against 
its employees by issuance of this proposed rule.
    Paragraph (c) of this section is intended to note that, as a 
general matter, FRA does not intend to create or prohibit the right to 
``flowback'' or take a position on whether ``flowback'' is desirable. 
The term ``flowback'' has been used in the industry to describe a 
situation where an employee leaves their current position to return to 
a previously held position or craft. The reasons for reverting back to 
the previous craft may derive from personal choice or a less voluntary 
nature (such as downsizing). Many collective bargaining agreements 
address the issue of flowback. However, paragraph (c) must be read in 
conjunction with Sec.  245.213, which limits flowback in certain 
situations (i.e., when a certificate is revoked due to an alcohol or 
drug violation).
    Paragraph (d) of this section addresses employee rights. The 
proposed rule would explicitly preserve any remedy already available to 
the person and would not create any new entitlements.
Section 245.7 Definitions
    This section, derived from 49 CFR 240.7 and 242.7, defines a number 
of terms that have specific meaning in this proposed part. A few of 
these terms have definitions that are similar to, but may not exactly 
mirror, definitions used elsewhere in this chapter.
Dispatch
    FRA proposes to use the definition of ``dispatch'' found in 49 CFR 
241.5. This definition sets the limits of what constitutes a dispatcher 
and provides examples of the types of activities FRA intends to cover 
and not cover under this definition. Under this definition, the 
function that the individual is performing determines whether a person 
is dispatching. Factors such as an individual's job title, location, 
and whether the individual is employed by a railroad, are irrelevant to 
the determination of whether the individual is dispatching. 
Furthermore, FRA does not intend for yardmasters, as a job category, to 
fall within the scope of this definition. Yardmasters are only covered 
by this part when they are performing dispatching functions.
    Paragraph (1)(i) of the definition gives specific examples of the 
types of functions that an individual would perform in order to be 
considered dispatching. In particular, FRA intends that anyone 
controlling the movement of on-track equipment requiring a power brake 
test under 49 CFR parts 232 or 238, would be considered dispatching 
and, therefore, would fall within the scope of the rule. Another type 
of movement that FRA intends to include is the movement of certain 
other on-track equipment, such as specialized maintenance-of-way 
equipment, that is not subject to the power brake regulations. However, 
as expressed in proposed paragraph (2)(iii), FRA intends to exclude 
movements of on-track equipment used in the process of sorting and 
grouping rail cars inside a railroad yard in order to assemble or 
disassemble a train.
    Paragraph (1)(i) also explicitly notes two methods of controlling 
movements that fall within the scope of the definition. The first 
method that FRA considers dispatching is controlling movements by the 
issuance of a written or verbal authority or permission that affects a 
railroad operation, such as through movement authorities and speed 
restrictions, and includes the following: Track Warrants, Track 
Bulletins, Track and Time Authority, Direct Traffic Control 
Authorities, and any other methods of conveying authority for trains 
and engines to operate on a main track, controlled siding, or other 
track controlled by a dispatcher.
    The second method that falls within the scope of the definition of 
``dispatch'' is to control a movement ``by establishing a route through 
the use of a signal or train control system but not merely by aligning 
or realigning a switch.'' This provision makes clear that the act of 
aligning or realigning a switch alone is not sufficient to constitute 
dispatching. In order to constitute dispatching under this part, 
aligning or realigning a switch must be accompanied by the act of 
setting a signal authorizing movement over a track segment.
    Paragraph (1)(ii) of the definition of ``dispatch'' clarifies that 
those railroad employees who issue an authority for either a roadway 
worker or stationary on-track equipment, or both, to occupy a certain 
stretch of track while performing repairs, inspections, etc., will also 
be covered by this rule. FRA included this section to distinguish this 
activity from that of authorizing movement of trains or other on-track 
equipment onto track, which is covered by paragraph (1)(i) above.
    Paragraph (1)(iii) of the definition of ``dispatch'' states another 
function of a dispatcher, which is to issue an authority for working 
limits to a roadway worker.
    Finally, paragraph (2) of the definition of ``dispatch'' clarifies 
that the term excludes several types of activities. Paragraph (2) 
limits the exclusions, however, to personnel in the field. Paragraph 
(2)(i) specifically excludes from the scope of the definition the 
carrying out of a written or verbal authority or permission or an 
authority for working limits. As further clarification, paragraph 
(2)(i) notes two examples of activities that would fall under the 
exclusion, provided they were carried out by field personnel: 
initiating an interlocking timing device and authorizing a train to 
enter working limits. Paragraph (2)(ii) specifically excludes from the 
scope of the definition the operation by field personnel of a function 
of a signal

[[Page 35582]]

system intended to be used by those field personnel, such as initiating 
an interlocking timing device.
Drug
    Consistent with parts 240 and 242, FRA proposes to define ``drug'' 
as any substance (other than alcohol) that has known mind- or function-
altering effects on a human subject, specifically including any 
psychoactive substance and including, but not limited to, controlled 
substances. This term is intended to refer to substances that have a 
significant potential for abuse and/or dependence. Normal ingestion of 
caffeine in beverages and use of nicotine from tobacco products, even 
though involving some degree of habituation or dependence, are not 
intended to be included within the definition.
Person
    In this proposed part, person takes on the same meaning as it does 
in FRA's other safety rules. The term means ``an entity of any type 
covered under 1 U.S.C. 1'' and the definition goes into detail 
regarding the types of people and entities that are covered.
Plant Railroad
    FRA proposes a definition of plant railroad consistent with FRA's 
longstanding policy. See 49 CFR part 209, app. A.
Substance Abuse Disorder
    Consistent with parts 240 and 242, the term ``substance abuse 
disorder'' is defined as a psychological or physical dependence on 
alcohol or a drug, or another identifiable and treatable mental or 
physical disorder involving the abuse of alcohol or drugs as a primary 
manifestation.
    This proposed definition would include drug and alcohol users who 
engage in abuse patterns which result in ongoing safety risks and 
violations.
    A substance abuse disorder is ``active'' within the meaning of this 
proposed rule if the person: (1) is currently using alcohol or other 
drugs, except under medical supervision consistent with the 
restrictions described in Sec.  219.103 of this chapter; or (2) has 
failed to successfully complete primary treatment or successfully 
participate in aftercare as directed by a Substance Abuse Professional 
(SAP) or Drug and Alcohol Counselor (DAC).
Section 245.9 Waivers
    This section, derived from 49 CFR 240.9 and 242.9, provides the 
proposed requirements for a person seeking a waiver of any section of 
this proposed rule.
Section 245.11 Penalties and Consequences for Noncompliance
    This section, derived from 49 CFR 240.11 and 242.11, explains that 
FRA may impose civil penalties on any person, including a railroad or 
an independent contractor or subcontractor providing goods or services 
to a railroad, that violates any requirement of this proposed rule. Any 
person who violates a requirement of this proposed rule may be subject 
to civil penalties between the minimum and maximum amounts authorized 
by statute and adjusted for inflation per violation. Individuals may be 
subject to penalties for willful violations only. Where a pattern of 
repeated violations, or a grossly negligent violation creates an 
imminent hazard of death or injury, or causes death or injury, an 
aggravated maximum penalty may be assessed.\17\ In addition, each day a 
violation continues constitutes a separate offense. Finally, a person 
may be subject to criminal penalties under 49 U.S.C. 21311 for 
knowingly and willfully falsifying reports required by these proposed 
regulations.
---------------------------------------------------------------------------

    \17\ Please visit FRA's website for the current aggravated 
maximum penalty amount at https://railroads.dot.gov/.
---------------------------------------------------------------------------

    Consistent with FRA's final rule regarding the removal of civil 
penalty schedules from the CFR (84 FR 23730 (May 23, 2019)), FRA will 
not publish a civil penalty schedule for this rule in the CFR, but 
plans to publish a civil penalty schedule on its website. Penalty 
schedules are statements of agency policy, thus notice and comment are 
not required prior to their issuance, nor are they required to be 
published in the CFR. See 5 U.S.C. 553(b)(3)(A). Nevertheless, 
commenters are invited to suggest the types of actions or omissions 
under each regulatory section that would subject a person to the 
assessment of a civil penalty. Commenters are also invited to recommend 
what penalty amounts may be appropriate, based upon the relative 
seriousness of each type of violation.

Subpart B--Program and Eligibility Requirements

Section 245.101 Certification Program Required
    This section, derived from 49 CFR 240.101 and 242.101, would 
require railroads to have written certification programs comprised of 
at least seven elements, each of which comports with specific 
regulatory provisions in the proposed rule related to that element.
Section 245.103 FRA Review of Certification Programs
    This proposed section, derived from 49 CFR 240.103 and 242.103, 
describes the process for the submission and review of dispatcher 
certification programs. Paragraph (a) of this section would only apply 
to railroads that have existing dispatching operations on the effective 
date of the final rule and provides the deadlines for when these 
railroads would be required to submit their certification programs to 
FRA. The submission schedule would require Class I railroads and 
commuter service railroads to submit their programs earlier than Class 
II railroads, Class III railroads, and railroads not otherwise 
classified. The separate deadlines would help space out the initial 
influx of programs FRA will receive after the final rule goes into 
effect, to allow FRA to issue approval and disapproval decisions in a 
more timely manner. FRA also presumes that, in general, Class I 
railroads and commuter service railroads will have more resources to 
devote to creating these programs and will be better positioned to 
create and draft them more quickly.
    Paragraph (b) of this section would only apply to railroads that do 
not have existing dispatching operations on the effective date of the 
final rule. If such railroads wish to begin dispatching operations, 
they would be required to submit their program to FRA, and FRA must 
approve their program, before they begin dispatching operations.
    Paragraph (c) of this section provides that railroads would submit 
their programs and their requests for approval (which are described in 
greater detail in Sec.  245.107(a)) by uploading them to a secure 
document submission site. This will allow for more efficient processing 
and will significantly reduce the risk of a program submission getting 
lost. FRA will need basic information from each railroad before setting 
up the user's account. In order to provide secure access, information 
regarding the points of contact is required. It is anticipated that FRA 
will be able to approve or disapprove all or part of a program and 
generate automated notifications by email to a railroad's points of 
contact.
    FRA does not intend to develop a secure document submission site so 
that confidential materials are identified and not shared with the 
general public. This is because FRA does not expect the information in 
a program to be of such a confidential or proprietary nature, 
particularly since each railroad would be required to share the program 
submission, resubmission, or material modification all of its 
dispatchers as

[[Page 35583]]

well as with the president of each labor organization that represents 
the railroad's certified dispatchers, and the programs will be 
available on FRA's website. See Sec.  245.103(d) and (j). Accordingly, 
FRA does not at this time believe it is necessary to develop a document 
submission system which addresses confidential materials.
    When a railroad submits its certification program to FRA, paragraph 
(d) of this section requires the railroad to also submit a copy of the 
program and the request for approval to the president of each labor 
organization that represents the railroad's dispatchers and to all of 
the railroad's dispatchers that are subject to this part. The 
railroad's submission to FRA must include a statement affirming that it 
has provided a copy of the program and the request for approval to the 
president of each labor organization that represents the railroad's 
dispatchers and to all of the railroad's dispatchers that are subject 
to this part. In addition, the submission must include a list of the 
names and email addresses of each labor organization president who 
received a copy of the program. Paragraph (e) of this section provides 
instruction on who is allowed to comment on these programs. For 
dispatchers who are members of a labor union, any comments must be 
submitted by a designated representative. For dispatchers who are not 
members of a labor union, they can personally submit a comment on their 
railroad's certification program. FRA anticipates that comments 
submitted under this process will assist the agency in determining 
whether a program conforms to the requirements set forth in this rule, 
and thus, FRA will not make a decision on a program until after the 45-
day comment period in paragraph (e)(1) has passed.
    Paragraph (f) of this section states FRA's aspirational goal to 
decide on whether to approve a program within 90 days of the date that 
the program is submitted. However, this is only a goal and not a 
deadline for the agency. Paragraph (f)(3) makes clear that if FRA is 
unable to issue a decision on the program within 90 days, the program 
is not considered approved on the 91st day. A certification program 
will not be approved until FRA issues a letter notifying the railroad 
that its program has been approved. While FRA will make every effort to 
issue approval and disapproval letters within 90 days, FRA recognizes 
that this will not always be possible. It may be especially difficult 
for FRA to meet this goal during the initial implementation of this 
rule when FRA expects to receive many certification programs within a 
relatively short period of time.
    Paragraph (g) of this section addresses the process for railroads 
who wish to materially modify their previously approved programs. If a 
railroad wishes to materially modify its program, it must submit two 
documents to FRA: (1) a description of how it intends to modify its 
current program (this constitutes the request for approval required 
under Sec.  245.107(a)); and (2) a copy of the modified program. 
Paragraph (g)(1) defines a ``material modification'' as a modification 
that ``would affect the program's conformance with this part.'' This 
definition is taken from 49 CFR 240.103(h)(1) and 242.103(i)(1) and is 
intentionally broad to cover the innumerable modifications to a program 
that could be considered material. FRA recognizes that there may be a 
desire among some interested parties to have a more specific definition 
of ``material modification'' in the regulation. Thus, FRA welcomes any 
comments on suggested changes to the ``material modification'' 
definition.
    Paragraph (g)(3) notes that the process for submission and review 
of material modifications mirrors the process for submission and review 
of initial certification programs. Railroads shall submit their 
material modifications to FRA in conformance with paragraph (c) of this 
section and shall send a copy of the material modification description 
and the modified program to all required parties referenced in 
paragraph (d) of this section. Certain interested parties may comment 
on the modification in conformance with paragraph (e) of this section, 
and FRA will issue a letter either approving or disapproving the 
material modification in conformance with paragraph (f) of this 
section. If FRA approves the material modification, the railroad can 
begin implementing the modification and the modified program will 
replace the original program. If FRA disapproves the material 
modification, the railroad cannot implement the modification, and the 
original program must remain in effect. If a railroad's material 
modification submission contains multiple modifications, FRA reserves 
the right to approve some modifications while disapproving other 
modifications. In such an instance, the railroad can only begin 
implementing those modifications that FRA has approved.
    Paragraph (h) of this section describes the process to resubmit a 
program or material modification that was previously disapproved by 
FRA. Paragraph (h)(2) notes that the process for submission and review 
of resubmitted programs and material modifications mirrors the process 
for submission and review of initial certification programs. Railroads 
shall resubmit their initial programs or material modifications to FRA 
in conformance with paragraph (c) of this section and shall send a copy 
of the resubmitted program or material modification to all required 
parties referenced in paragraph (d) of this section. Certain interested 
parties may comment on the resubmitted program or material modification 
in conformance with paragraph (e) of this section and FRA will issue a 
letter either approving or disapproving the resubmitted program or 
material modification in conformance with paragraph (f) of this 
section.
    Paragraph (h)(3) provides the deadlines, if any, for when a 
railroad must resubmit its program or material modification to FRA. 
Railroads with existing dispatching operations on the effective date of 
the final rule (legacy railroads), whose initial programs are 
disapproved by FRA, must resubmit their program within 30 days of the 
date FRA notified the railroad that its program was deficient. If a 
legacy railroad fails to resubmit its program within 30 days and 
continues its dispatching operations, FRA will determine the 
appropriate enforcement approach to achieve compliance, including civil 
penalties and/or an emergency order.
    FRA believes a 30-day deadline is needed for legacy railroads 
because Sec.  245.105(a) allows legacy railroads to continue 
dispatching operations while they await FRA approval of their programs. 
Thus, without a deadline, legacy railroads could purposely delay coming 
into compliance with this proposed rule by taking months or even years 
to resubmit their programs. In contrast, railroads that begin 
dispatching operations after the effective date of this proposed rule 
cannot begin such operations until FRA approves their program. 
Likewise, any railroad (both legacy and non-legacy) cannot implement a 
material modification to its program until FRA has approved the 
modification. Therefore, in these scenarios, FRA decided that a 
deadline is unnecessary because the railroads have every incentive to 
resubmit their programs or material modifications in a timely manner. 
However, while there is no FRA-imposed deadline in these scenarios, FRA 
still recommends that railroads provide their resubmissions within 30 
days of being notified of deficiencies.

[[Page 35584]]

    Paragraph (i) of this section acknowledges that FRA reserves the 
right to revisit a prior approval of a certification program. In 
certain circumstances, including an audit of a certification program, 
FRA may discover that it made an error when it previously approved a 
program. This paragraph allows FRA to rescind a prior approval while 
also providing the railroads with certain rights. Paragraph (i)(3) 
notes that the process for submission and review of programs whose 
prior approval has been rescinded mirrors the process for submission 
and review of initial certification programs, and resubmission of 
initially disapproved programs. Railroads shall resubmit their programs 
to FRA in conformance with paragraph (c) of this section and they shall 
send a copy of the resubmitted program to all required parties 
referenced in paragraph (d) of this section. Certain interested parties 
may comment on the resubmitted program in conformance with paragraph 
(e) of this section and FRA will issue a letter either approving or 
disapproving the resubmitted program in conformance with paragraph (f) 
of this section.
    Paragraphs (i)(6) and (7) allow for a grace period where a 
rescinded program may remain in effect for a certain period of time. 
However, once FRA approves a resubmitted program, the resubmitted 
program must replace the rescinded program. In addition, a rescinded 
program can no longer remain in effect if FRA has twice disapproved the 
railroad's resubmitted program. This latter scenario is best explained 
through an example: On February 10th, FRA notifies ABC Railroad (ABC) 
that FRA is rescinding its prior approval of its dispatcher 
certification program. On March 10th, ABC resubmits its program to FRA. 
On June 10th, FRA disapproves ABC's resubmitted program. On July 10th, 
ABC sends FRA its second resubmitted program. On October 10th, FRA 
issues a letter once again disapproving ABC's program. In this example, 
ABC's rescinded program could remain in effect between February 10th 
and October 10th. However, after October 10th, the rescinded program 
could no longer be in effect. If ABC continued to perform dispatching 
operations after October 10th, while it did not have an FRA-approved 
certification program, FRA could find that the railroad failed to 
implement a program. In such cases, FRA will determine the appropriate 
enforcement approach to achieve compliance, including civil penalties 
and/or an emergency order. In exercising its enforcement discretion, 
FRA may consider such factors as the number and extent of the remaining 
deficiencies in the program and whether the railroad made good faith 
efforts to address the deficiencies in its resubmissions.
    Finally, paragraph (j) of this section notes that the following 
documents will be available on FRA's website (railroads.dot.gov): (1) 
submitted programs and material modifications from the railroads; (2) 
any comments to the submissions from the railroads; and (3) the letters 
from FRA either approving or disapproving a program or a material 
modification. While parts 240 and 242 do not currently require the 
posting of these documents on FRA's website, the current practice, with 
respect to locomotive engineer and conductor certification programs, 
has been for FRA to post comments to a railroad's submission and FRA 
approval and disapproval letters on its website. FRA is proposing this 
paragraph (j) in an effort to make the review and approval process of 
dispatcher certification programs as transparent as possible.
Section 245.105 Implementation Schedule for Certification Programs
    This section, derived from 49 CFR 240.201 and 242.105, contains the 
timetable for the implementation of this proposed rule. Paragraph (a) 
of this section acknowledges that railroads with existing dispatching 
operations on the effective date of this proposed rule (legacy 
railroads) may continue their dispatching operations while they await 
FRA's approval of their certification programs. However, if FRA 
disapproves a legacy railroad's certification program on two occasions 
(the initial submission and the first resubmission), the railroad will 
no longer be in compliance with the rule if it continues its 
dispatching operations without an FRA-approved program. In such a 
scenario, FRA could find that the railroad has failed to implement a 
program and would determine the appropriate enforcement approach to 
achieve compliance, including civil penalties and/or an emergency 
order. In exercising this enforcement discretion, FRA may consider such 
factors as the number and extent of the remaining deficiencies in the 
program and whether the railroad made good faith efforts to comply with 
the requirements of the rule through its submitted program. Paragraph 
(b) of this section provides that any non-legacy railroad (a railroad 
that did not have existing dispatching operations on the effective date 
of this proposed rule) may not commence dispatching operations until 
FRA has approved its dispatcher certification program.
    Paragraphs (c) and (d) of this section require that railroads, in 
writing, designate as certified dispatchers all persons authorized by 
the railroad to perform the duties of a dispatcher as of the effective 
date of the final rule, or authorized between the effective date of the 
final rule and the date FRA approves the railroad's certification 
program. Railroads must also issue a certificate to each person they 
designate. This designation system is modeled after the system used 
when parts 240 and 242 first went into effect. This system allows such 
``legacy dispatchers'' to obtain a certificate so that once their 
railroad's program is approved, they will be considered a ``previously 
certified dispatcher'' when it comes time for them to be recertified 
through the railroad's certification program. Therefore, the 
recertifying railroad will not have to provide legacy dispatchers with 
the kind of basic training that would be given to individuals with no 
dispatching experience. In other words, a person with 20 years of 
experience as a dispatcher most likely does not need to take a 
``Dispatching 101'' course that goes over the basics of dispatching. 
Instead, this person would be better served by undergoing continuing 
education training as described in Sec. Sec.  245.107(b)(2) and 
245.119(j).
    Paragraph (e) of this section states that after this rule has been 
in effect for eight months, no person may serve as a dispatcher unless 
that person is certified. Paragraph (f) of this section requires each 
railroad to make formal determinations concerning those individuals it 
has designated as dispatchers within three years after FRA's approval 
of the railroad's certification program. Pursuant to this paragraph, a 
designated dispatcher may serve as a dispatcher for up to three years 
from the date of FRA's approval of the program. At the end of the three 
years, however, the designated dispatcher can no longer serve as a 
dispatcher unless they successfully complete the tests and evaluations 
provided in subpart B of this rule (i.e., the full certification 
process).
    Thus, individuals who are designated as dispatchers and certified 
under paragraphs (c) or (d) of this section could be certified for more 
than three years before they have to complete the railroad's full 
certification process. For example, if a person is designated (and 
certified) as a dispatcher on September 1, 2024, and FRA approves the 
railroad's certification program on September 1, 2025, this dispatcher 
would not have to go through the full certification process and get 
recertified until September 1, 2028 (four years from

[[Page 35585]]

the date the individual was designated by the railroad as a certified 
dispatcher). Railroads should note that they may not test and evaluate 
a designated dispatcher or dispatcher candidate under subpart B of this 
rule until they have a certification program approved by FRA pursuant 
to Sec.  245.103.
    In order to test and evaluate all of its designated dispatchers by 
the end of the three-year period, a large railroad will likely have to 
begin that process well in advance of the end of the three years. For 
example, paragraph (f), which is derived from part 240 and part 242's 
designation provisions, would permit a railroad to test and evaluate 
one-third of its designated dispatchers within one year of the approval 
date of the railroad's certification program; another one-third within 
two years of the program's approval date; and the final one-third 
within three years of the program's approval date.
    To address the issue of designated dispatchers who would be 
eligible to retire within three years of the date FRA approves their 
railroad's certification program, FRA is proposing paragraphs (f)(1) 
through (3) in this section since it would not be an efficient use of a 
railroad's resources to perform the full certification process on a 
designated dispatcher who is going to retire before the end of their 
designation period. Paragraph (f)(1) provides that a designated 
dispatcher, who is eligible to receive a retirement pension in 
accordance with the terms of an applicable agreement or with the terms 
of the Railroad Retirement Act (45 U.S.C. 231) within three years from 
the date FRA approves the railroad's certification program, may 
request, in writing, that the railroad not perform the full 
certification process on that designated dispatcher until three years 
from the date FRA approves the railroad's program.
    Paragraph (f)(2) provides that, upon receipt of that written 
request, a railroad may wait to perform the full certification process 
on the person making the request until the end of the dispatcher's 
designation period. Thus, paragraphs (f)(1) and (2) allow designated 
dispatchers to serve as dispatchers for the full designation period and 
then retire before being subjected to the full certification process. 
While it is in the railroads' interest not to perform the full 
certification process for a person who is going to retire once the 
designation period expires, and thus, in their interest to grant as 
many requests as possible, it may not be feasible to accommodate every 
request that is made. If, for example, a significant number of 
designated dispatchers on a railroad properly request that the railroad 
wait to recertify them at the end of the designation period, but then 
do not, in fact, retire by the expiration of the designation period, 
the railroad might not be able to recertify everyone in time and would 
risk violating this rule. In recognition of that risk and the need to 
give the railroads some flexibility to comply with the rule, paragraph 
(f)(2) also provides that a railroad that grants any request must grant 
the request of all eligible persons ``to every extent possible.''
    In addition, paragraph (f)(3) provides that a designated 
dispatcher, who is also subject to recertification under part 240 or 
242, may not make a request under paragraph (f)(1) of this section. 
This provision recognizes that railroads would likely want to have 
concurrent certification processes for certifying a person who will be 
both a certified dispatcher and a certified locomotive engineer or 
conductor. Thus, it would not be appropriate, in that instance, for a 
designated dispatcher who is already subject to recertification under 
part 240 or 242 to make a request to delay the full dispatcher 
certification process.
    Paragraph (g) of this section provides that, after FRA approves a 
railroad's certification program, the railroad cannot certify or 
recertify a person as a dispatcher unless that person has been tested 
and evaluated in accordance with the procedures provided in subpart B 
of this rule. In other words, after FRA approves a railroad's program, 
that railroad can no longer designate individuals as certified 
dispatchers under paragraphs (c) or (d) of this section.
Section 245.107 Requirements for Certification Programs
    This section, derived from appendix B to part 240 and appendix B to 
part 242, provides both the organizational requirements and a narrative 
description of the submission required under Sec. Sec.  245.101 and 
245.103. FRA is not requiring railroad submissions to be made on a 
specific form. Instead, FRA is prescribing only minimal constraints on 
the organization and manner of presenting information.
    Paragraph (a) of this section addresses what must be included in a 
railroad's submission to FRA. Specifically, the railroad must include 
two documents in its submission: (1) a request for approval; and (2) 
the certification program. If a railroad is submitting its initial 
certification program, the request for approval can be a brief document 
that simply states that the railroad is submitting its initial 
certification program for approval by FRA. However, if a railroad is 
making a material modification or modifications to a program that has 
previously been approved by FRA, the request for approval must mention 
all of the material modifications that the railroad is making to its 
program and the copy of the certification program will include all of 
the modifications.
    Paragraph (b) of this section requires that the program be divided 
into six sections, each dealing with a different subject matter, and 
that the railroad identify the appropriate person to be contacted in 
the event FRA needs to discuss some aspect of the railroad's program. 
Section 1 of a certification program shall include basic contact 
information and will address whether the railroad accepts 
responsibility for training previously uncertified dispatchers. Section 
2 of a program addresses how the railroad will handle training 
dispatchers who have been previously certified. The main focus in 
Section 2 is how the railroad will address its requirement to provide 
continuing education for its previously certified dispatchers. 
Continuing education is essential because time and circumstances have 
the capacity to diminish both abstract knowledge and the proper 
application of that knowledge to discrete events. Time and 
circumstances also have the capacity to alter the value of previously 
obtained knowledge and the application of that knowledge. Therefore, 
dispatchers need to have their fundamental knowledge of operating rules 
and practices refreshed periodically. While a railroad has latitude to 
select the specific subject matters to be covered, the duration of the 
training, the methods of presenting the information, and the frequency 
with which the training will be provided, the railroad must describe in 
this section how it will use that latitude to ensure that its 
dispatchers remain knowledgeable concerning the safe discharge of their 
responsibilities so as to comply with the standard set forth in Sec.  
245.119(j).
    A matter of particular concern to FRA is how each railroad acts to 
ensure that dispatchers remain knowledgeable about the territory over 
which they are authorized to dispatch, but from which the dispatcher 
has been absent. Paragraph (b)(2)(v) requires that Section 2 of the 
program addresses how long a person may be absent from dispatching over 
a territory before familiarization training is required and how the 
dispatcher will acquire that familiarization training. This time period 
can be less than 12 months, but

[[Page 35586]]

it cannot exceed 12 months in accordance with Sec.  245.120(c).
    Section 3 of the program includes requirements for the testing and 
evaluation procedures for previously certified dispatchers. Paragraph 
(b)(3)(i) notes that railroads must address how their programs will 
comply with the standards found in Sec.  245.121. Section 245.121 
directs that, when seeking a demonstration of the person's knowledge, a 
railroad must employ a written test that contains objective questions 
that cover the following subject matters: (i) safety and operating 
rules; (ii) timetable instructions; (iii) compliance with all 
applicable Federal regulations; (iv) physical characteristics of the 
territory on which a person will be serving as a dispatcher; and (v) 
dispatching systems and technology. The test must accurately measure 
the person's knowledge of all of these areas. Paragraph (b)(3)(ii) 
requires the program to detail the railroad's procedures for testing 
vision and hearing acuity and for ensuring that its medical examiners 
have sufficient knowledge to make a determination as to whether a 
person can safely work as a dispatcher.
    Section 4 of the program includes the requirements for training, 
testing, and evaluating persons not previously certified. Railroads who 
elect, in Section 1 of the program, to not take responsibility for 
training previously uncertified dispatchers can skip this section. 
However, all other railroads must provide details for how they will 
train, test, and evaluate previously uncertified persons to ensure that 
they acquire and demonstrate sufficient knowledge and skills to safely 
perform the job of a dispatcher. Paragraph (b)(4)(ii) requires the same 
level of detail in this section that is required in Sections 2 and 3 of 
the program. This encompasses addressing both the training requirements 
found in Sec.  245.119 and the knowledge testing requirements in Sec.  
245.121. If a railroad relies on another entity to conduct its training 
away from the railroad's own territory and dispatching systems, 
paragraph (b)(4)(iii) states that the railroad must explain in its 
program how dispatching students will be given the required training on 
the physical characteristics of the railroad's territory and its 
dispatching systems and technology.
    Section 5 of the program addresses how the railroad will monitor 
the operational performance of its certified dispatchers in accordance 
with Sec.  245.123. In particular, the railroad must discuss the 
processes and procedures it will use for ensuring that such monitoring 
and testing is performed. This includes a description of the scoring 
system the railroad will employ during such testing. Finally, Section 6 
of the program addresses how the railroad will perform its routine 
administration of the program. This section must include summaries of 
how the program will comply with the various provisions listed in 
paragraph (b)(6) that contain certain procedural requirements for a 
railroad's certification program.
Section 245.109 Determinations Required for Certification and 
Recertification
    This proposed section lists the determinations that would be 
required for evaluating a candidate's eligibility to be certified or 
recertified. The reference to Sec.  245.303 in paragraph (a)(2) of this 
section is to ensure railroads determine whether a candidate is 
eligible to hold a certification by reviewing any prior revocations 
addressed in subpart D of this rule.
    Despite the reference to provisions in Sec. Sec.  245.111 and 
245.113 requiring a review of safety conduct information from the 
preceding five years, Sec.  245.113(h)(1) would not permit a railroad 
to consider information concerning safety conduct that occurred prior 
to the effective date of the final rule issued in this rulemaking. Even 
though this provision would result in a railroad's evaluation of less 
than five years' worth of information for some dispatchers early on in 
the rule's effective period, it is included in Part 245 for the same 
reason similar provisions were included in parts 240 and 242. Namely, 
that all dispatchers should be permitted to start with a ``clean 
slate'' for certification purposes as a matter of basic fairness. See 
56 FR 28228, 28242 (June 19, 1991).
    Paragraph (b) of this section would provide flexibility to 
railroads and dispatchers or dispatcher candidates in obtaining the 
information required by Sec. Sec.  245.111 and 245.113.
Section 245.111 Prior Safety Conduct as Motor Vehicle Operator
    This section, derived from 49 CFR 240.111, 240.115, and 242.111, 
would provide the requirements and procedures that a railroad would be 
required to follow when evaluating a dispatcher or dispatcher 
candidate's prior safety conduct as a motor vehicle operator. FRA 
believes that the prior safety conduct of a motor vehicle operator is 
one indicator of that person's drug and/or alcohol use and therefore an 
important piece of information for a railroad to consider.
    Pursuant to this section, each person seeking certification or 
recertification as a dispatcher would be required to request in writing 
that the chief of each driver licensing agency that issued them a 
driver's license within the preceding five years provide a copy of the 
person's driving record to the railroad. Unlike part 240, this proposed 
rule would not require individuals to also request motor vehicle 
operator information from the National Driver Register (NDR). Based on 
the NDR statute and regulation (see 49 U.S.C. chapter 303 and 23 CFR 
part 1327), railroads are prohibited from running NDR checks or 
requesting NDR information from individuals seeking employment as 
certified dispatchers.
    Paragraphs (b) and (c) of this section would require a railroad to 
certify or recertify a person for 60 days if the person: (1) requested 
the required information at least 60 days prior to the date of the 
decision to certify or recertify; and (2) otherwise meets the 
eligibility requirements provided in Sec.  245.109(a)(2) through (5). 
If a railroad certifies or recertifies a person for 60 days pursuant to 
paragraphs (b) and (c) but is unable to obtain and evaluate the 
required information during those 60 days, the person would be 
ineligible to perform as a dispatcher until the information can be 
evaluated. However, if a person is simply unable to obtain the required 
information, that person or the certifying or recertifying railroad 
could petition for a waiver from FRA (see 49 CFR part 211). During the 
pendency of the waiver request, a railroad would be required to certify 
or recertify a person if the person otherwise meets the eligibility 
requirements of Sec.  245.109(a)(2) through (5).
    Paragraph (k) of this section would require certified dispatchers 
or persons seeking initial certification as dispatchers to notify the 
certifying railroad (or the prospective certifying railroad, if 
applicable) of motor vehicle incidents described in paragraphs (m)(1) 
and (2) of this section within 48 hours of the conviction or completed 
State action to cancel, revoke, suspend, or deny a motor vehicle 
driver's license for such incidents. This proposed paragraph would also 
prohibit railroads from having a more restrictive company rule 
requiring certified dispatchers to report a conviction or completed 
State action to cancel, revoke, or deny a motor vehicle driver's 
license in less than 48 hours.
    The reasoning behind proposed paragraph (k) involves several 
intertwined objectives. As a matter of fairness, a railroad should not 
revoke, deny, or otherwise make a person

[[Page 35587]]

ineligible for certification until that person has received due process 
from the State agency taking the action against the motor vehicle 
license. Further, by not requiring reporting until 48 hours after the 
completed State action, the proposed rule would have the practical 
effect of ensuring that a required referral to a drug and alcohol 
counselor (DAC) under paragraph (n) of this section would not occur 
prematurely. However, proposed paragraph (k) would not prevent an 
eligible person from choosing to voluntarily self-refer. Nor would it 
prevent the railroad from referring the person for an evaluation under 
an internal railroad policy, if other information exists that 
identifies the person as possibly having a substance abuse disorder.
    Paragraph (n) of this section would provide that, if a motor 
vehicle incident described in paragraph (m) is identified, the railroad 
would be required to provide the data to its DAC along with ``any 
information concerning the person's railroad service record.'' 
Furthermore, the person would have to be referred for evaluation to 
determine whether the person has an active substance abuse disorder. If 
the person has an active substance abuse disorder, the person would not 
be eligible for certification. However, even if it is determined that 
the person is not currently affected by an active substance abuse 
disorder, the railroad would be required, if recommended by a DAC, to 
condition certification upon participation in any needed aftercare and/
or follow-up testing for alcohol or drugs or both. The intent of this 
proposed provision is to use motor vehicle records to identify 
dispatchers or candidates for dispatcher certification who may have 
active substance abuse disorders and make sure they are referred for 
evaluation and any necessary treatment before allowing them to perform 
safety sensitive service. Any testing performed as a result of a DAC's 
recommendation under paragraph (n) would be done under company 
authority, not Federal authority. However, the testing would be 
required to comply with the ``technical standards'' of part 219, 
subpart H, and part 40.
    Paragraph (n)(5) is intended to clarify that failure to cooperate 
in the DAC evaluation discussed in paragraph (n)(2) of this section 
would result in the person being ineligible to perform as a certified 
dispatcher until such time as the person cooperates in the evaluation.
Section 245.113 Prior Safety Conduct With Other Railroads
    This proposed section, which is derived from 49 CFR 240.113, 
240.205, and 242.113, would establish a process for certification 
candidates to request information about their prior safety conduct when 
employed or certified by another railroad. Except as otherwise provided 
by the retroactive time limit contained in paragraph (g) of this 
section, this section would require railroads to review records 
provided by railroads that previously employed or certified the 
certification candidate regarding the candidate's prior compliance with 
Sec. Sec.  245.115 and 245.303 within the previous five years, as well 
as the candidate's prior compliance with Sec.  245.111 within the 
previous three years.
    Paragraph (b) of this section contains an exception that if a 
certification candidate has not been employed or certified by any other 
railroad in the previous five years, they do not have to submit a 
request pursuant to paragraph (c) of this section. Such candidates, 
however, must notify the railroad to which they are seeking 
certification of this fact. This exception should help minimize any 
burden arising from these proposed requirements.
    For certification candidates who do not qualify for the exception 
provided in paragraph (b), paragraph (c) would require the 
certification candidate to submit a written request to each railroad 
that employed or certified the candidate within the previous five 
years. As indicated earlier, the written request would direct the 
previous railroad employer or certifying railroad to provide 
information about the certification candidate's prior compliance with 
Sec. Sec.  245.115 and 245.303 within the previous five years, as well 
as the candidate's prior compliance with Sec.  245.111 within the 
previous three years from the date of the written request.
    In addition, railroads would be required by paragraph (e) of this 
section to comply with written requests for records of prior safety 
conduct submitted by former employees or certified persons pursuant to 
this section within 30 days after receipt of such requests. Railroads 
that are unable to provide information about prior safety conduct 
within 30 days would be required, by paragraph (f) of this section, to 
either: (1) provide a written explanation of why the railroad cannot 
provide the information within the requested time frame, along with an 
estimate of how much time will be needed to supply the requested 
information; or (2) provide an adequate explanation for why the 
railroad cannot provide the information requested.
    In the event a railroad seeking to certify or recertify a 
certification candidate receives a written statement from another 
railroad pursuant to paragraph (f) of this section, which explains that 
the railroad cannot provide the information requested, the railroad 
seeking to certify or recertify the certification candidate would be 
deemed to have complied with the eligibility determination required by 
paragraph (a) of this section provided it retains a copy of the other 
railroad's written statement in its records.
    Similarly, in the event a railroad seeking to certify or recertify 
a certification candidate does not receive any written response from 
other railroads, the railroad would be deemed to have complied with the 
eligibility determination required by paragraph (a) of this section 
provided it retains a copy of the written request for this information 
in its records.
Section 245.115 Substance Abuse Disorders and Alcohol Drug Rules 
Compliance
    This proposed section, which is derived from 49 CFR 240.119, 
240.205, and 242.115, addresses: (1) active substance abuse disorders 
and (2) specific alcohol/drug regulatory violations. As noted earlier, 
annual drug and alcohol testing data submitted to FRA revealed that 
dispatch employees had a random violation rate (drug and alcohol 
positives and refusals) and a pre-employment violation rate that was 
considerably higher than their train and engine service counterparts.
    Therefore, this section and Sec.  245.111 address certain 
situations in which inquiry must be made into the possibility that the 
individual has an active substance abuse disorder if the individual is 
to obtain or retain a certificate. The fact that specific instances are 
cited in this section would not eliminate the general duty of the 
railroad to take reasonable and proportional action in other 
appropriate cases. Declining job performance, extreme mood swings, 
irregular attendance, and other indicators may, to the extent not 
immediately explicable, indicate the need for an evaluation under 
internal policies of the railroad.
    The purpose of identifying conditions is not to require (and does 
not require) a railroad to order an evaluation any time a listed 
condition is exhibited. Rather, FRA is simply providing guidance here 
as to conditions that may, given the context, call for an evaluation 
under internal policies of the railroad.

[[Page 35588]]

Moreover, FRA remains vigilant of harassment and intimidation and will 
take appropriate action if such conduct is discovered.
    Paragraph (a) of this section would require railroads to determine 
that a person initially certifying, or a dispatcher recertifying, meets 
the eligibility requirements of this section. In addition, each 
railroad would be required by Sec.  245.203 to retain the documents 
used to make that determination.
    Paragraph (c) of this section would prohibit a person with an 
active substance abuse disorder from being certified as a dispatcher. 
This means appropriate action must be taken with respect to a 
certificate (whether denial or suspension) whenever the existence of an 
active substance abuse disorder comes to the official attention of the 
railroad, with the exception discussed below. Paragraph (c) would also 
provide a mechanism for an employee to voluntarily self-refer for 
substance abuse counseling or treatment.
    Paragraph (d) would address conduct constituting a violation of 
Sec.  219.101 or Sec.  219.102 of FRA's alcohol/drug regulations. 
Section 219.101(a)(1) prohibits regulated employees from using or 
possessing alcohol or any controlled substance when the employee is on 
duty and subject to performing regulated service for a railroad. 
Section 219.101(a)(2) prohibits regulated employees from reporting for 
regulated service, or going on or remaining on duty in regulated 
service, while under the influence of (or impaired by) alcohol or while 
having a breath or blood alcohol concentration of 0.04 or more. A 
regulated employee is also prohibited from using alcohol either within 
four hours of reporting for regulated service or after receiving notice 
to report for regulated service, whichever is less. This is conduct 
that specifically and directly threatens safety in a way that is wholly 
unacceptable, regardless of its genesis and regardless of whether it 
has occurred previously. In its more extreme forms, such conduct is 
punishable as a felony under the criminal laws of the United States (18 
U.S.C. 341 et seq.) and a number of states.
    Section 219.102 prohibits use of a controlled substance by a 
regulated employee at any time, whether on or off duty, except for 
approved medical use. Abuse of marijuana, cocaine, amphetamines, and 
other controlled substances poses unacceptable risks to safety.
    Under the alcohol/drug regulations, whenever a violation of Sec.  
219.101 or Sec.  219.102 is established, based on authorized or 
mandated chemical testing, the employee must be removed from service 
and may not return until after an SAP evaluation, any needed treatment 
and/or education, and a negative return-to-duty test, and follow-up 
testing (as required by Sec.  219.104). These requirements constitute 
an absolute minimum standard for action when a dispatcher is determined 
to have violated one of these prohibitions. Considering the need both 
for general and specific deterrence with respect to future unsafe 
conduct, additional action should be premised on the severity of the 
violation and whether the same individual has had prior violations.
    This proposed rule would require railroads to consider conduct that 
occurred within the period of five consecutive years prior to the 
review. This is the same period provided in this proposed rule as the 
maximum period of ineligibility for certification following repeated 
alcohol/drug violations and is the same period used in parts 240 and 
242. Use of a five-year cycle reflects railroad industry experience 
indicating that conduct committed as much as five years before may tend 
to predict future alcohol or drug abuse behavior. For example, in 
analyzing data submitted to FRA between 2017 and 2021, FRA found that 
railroad employees returning to duty from previous drug or alcohol 
violations were approximately five times more likely to test positive 
than other railroad employees. Of course, railroads would retain the 
flexibility to consider prior conduct (including conduct more than five 
years prior) in determining whom they will hire as dispatchers.
    Conduct violative of the FRA proscriptions against alcohol and 
drugs need not occur while the person is serving in the capacity of a 
dispatcher in order to be considered. For instance, a person who 
violated Sec.  219.101 while working as a locomotive engineer and then 
sought dispatcher certification six months later (under the provision 
described below) would not be eligible for certification. The same is 
true under Part 240--an employee who violates Sec.  219.101 while 
working as a brakeman and then seeks locomotive engineer certification 
six months later would not be eligible for certification at that time. 
The responsibility of the railroad would therefore not be limited to 
periodic recertification. This proposed rule would require a review of 
certification status for any conduct in violation of Sec.  219.101 or 
Sec.  219.102.
    The proposed rule would require a determination of ineligibility 
for a period of nine months for an initial violation of Sec.  219.101. 
This would parallel the nine-month disqualification in Sec. Sec.  
240.119(c)(4)(iii) and 242.115(e)(4)(iii).
    Specifying a period of ineligibility serves the interest of 
deterrence while giving further encouragement to deal with the problem 
before it is detected by management. In order to preserve and encourage 
referrals, the nine-month period could only be waived in the case of a 
qualifying referral (see Sec.  219.1001). FRA believes that this 
distinction in treatment, which is also found in part 242, is warranted 
as a strong inducement to participation because referral programs help 
identify troubled employees before those employees get into accidents 
and incidents. Although FRA does not know how many actual referrals may 
be generated, the intended result would be reached if an atmosphere of 
intolerance for drug and/or alcohol abusing behavior is reinforced in 
the workplace and violators know that they may be reported by their 
colleagues or others if they report for duty while impaired.
    In the case of a second violation of Sec.  219.101, the dispatcher 
would be ineligible for a period of five years. Given railroad 
employment practices and commitment to alcohol/drug compliance, it is 
likely that any individual so situated may also be permanently 
dismissed from employment. However, it would be important that the 
employing railroad follow through and revoke the certificate under this 
proposed rule, so the dispatcher could not go to work for another 
railroad (or railroad contractor) within the five-year period using the 
unexpired certificate issued by the first railroad as the basis for 
certification. These proposed sanctions mirror the sanctions in 
Sec. Sec.  240.119 and 242.115.
    Under this proposed rule, one violation of Sec.  219.102 within the 
five-year window would require only temporary suspension and the 
minimum response described in Sec.  245.115(e) (referral for 
evaluation, treatment as necessary, negative return-to-duty test, and 
appropriate follow-up). This parallels the approach taken in parts 240 
and 242 and reflects FRA's intent to not undercut the therapeutic 
approach to drug abuse employed by many railroads. This approach 
permits first-time positive drug tests to be handled in a non-punitive 
manner that concentrates on remediation of any underlying substance 
abuse problem and avoids the adversarial process associated with 
investigations, grievances, and arbitrations under the Railway Labor 
Act and collective bargaining agreements. A second violation of Sec.  
219.102 would subject the

[[Page 35589]]

employee to a mandatory two-year period of ineligibility. A third 
violation within five years would lead to a five-year period of 
ineligibility.
    This proposed rule also addresses violations of Sec. Sec.  219.101 
and 219.102 in combination. A person violating Sec.  219.101 after a 
prior Sec.  219.102 violation would be ineligible for three years; and 
the same would be true for the reverse sequence. This mirrors the 
ineligibility period for locomotive engineers and conductors who have 
one Sec.  219.101 violation and one Sec.  219.102 violation. See 49 CFR 
240.119(e)(4)(ii) and 242.115(e)(4)(ii).
    Refusals to participate in chemical tests would be treated as if 
the test were positive. A refusal to provide a breath or body fluid 
sample for testing under the requirements of 49 CFR part 219 when 
instructed to do so by a railroad representative would be treated, for 
purposes of ineligibility under this section, in the same manner as a 
violation of: (1) Sec.  219.101, in the case of a refusal to provide a 
breath sample for alcohol testing, or a blood specimen for mandatory 
post-accident toxicological testing; or (2) Sec.  219.102, in the case 
of a refusal to provide a body fluid specimen for drug testing. 
Interested parties should, however, note that 49 CFR part 40, subpart 
I, discusses medical conditions under which an individual's failure to 
provide a sufficient sample would not be deemed a refusal. In addition, 
subpart G of FRA's alcohol and drug regulations excuses employees from 
compliance with the requirement to participate in random drug and 
alcohol testing if the employee can substantiate a medical emergency 
involving the employee or an immediate family member. See 49 CFR 
219.617.
    If an employee covered by 49 CFR part 219 refuses to provide a 
breath or body fluid specimen or specimens when required to by a 
railroad pursuant to a mandatory provision of 49 CFR part 219, then the 
railroad (apart from any action it takes under part 245) would be 
required to remove that employee from regulated service and disqualify 
the employee from working in regulated service for nine months. See 49 
CFR 219.104 and 219.107; see also, 49 CFR part 219, subpart H, and 49 
CFR 40.191 and 40.261.
    Paragraph (e) prescribes the conditions under which employees may 
be certified or recertified after a determination that the 
certification should be denied, suspended, or revoked, due to a 
violation of Sec.  219.101 or Sec.  219.102 of FRA's alcohol/drug 
regulations. These conditions are derived from the conditions in 
Sec. Sec.  240.119(d) and 242.115(f) and closely parallel the return-
to-duty provisions of the alcohol/drug rule. The proposed regulation 
would not require compensation of the employee for the time spent in 
this testing, which is a condition precedent to retention of the 
certificate; but the issue of compensation would ultimately be resolved 
by reference to the collective bargaining agreement or other terms and 
conditions of employment under the Railway Labor Act. Moreover, the 
railroad that intends to withdraw its conditional certification would 
be required to afford the dispatcher the hearing procedures provided by 
Sec.  245.307 if the dispatcher does not waive their right to the 
hearing.
    Paragraph (f) would ensure that a dispatcher, like any other 
covered employee, can self-refer for treatment under the alcohol/drug 
rule (49 CFR 219.1003) before being detected in violation of alcohol/
drug prohibitions and would be entitled to confidential handling of 
that referral and subsequent treatment. This means that a railroad 
would not normally receive notice from the DAC of any substance abuse 
disorder identified as a result of a voluntary self-referral under 49 
CFR 219.1003. However, paragraph (f) would also require that the 
railroad policy provide that confidentiality is waived if the 
dispatcher at any time refuses to cooperate in a recommended course of 
counseling or treatment, to the extent that the railroad must receive 
notice that the employee has an active substance abuse disorder so that 
appropriate certificate action can be taken. The effect of this 
proposed provision is that the certification status of a dispatcher who 
seeks help and cooperates in treatment would not be affected, unless 
the dispatcher fails to follow through.
Section 245.117 Vision Acuity
    This proposed section, derived from 49 CFR 240.121, 240.207, and 
242.117, contains the requirements for vision acuity testing that a 
railroad would have to incorporate in its dispatcher certification 
program. This section differs from its analogous sections in 49 CFR 
parts 240 and 242 in that 49 CFR parts 240 and 242 address the 
requirements for vision and hearing acuity in the same section. 
However, FRA determined that for this proposed rule, it could more 
clearly present these requirements if they were in two separate 
sections: one section for vision acuity (Sec.  245.117) and one section 
for hearing acuity (Sec.  245.118).
    Paragraph (c) of this section contains the general vision standards 
that a person must satisfy in order to be certified as a dispatcher 
unless they are determined to have sufficient vision acuity under 
paragraph (d) of this section. The standards in paragraph (c) mirror 
the vision acuity standards for locomotive engineers and conductors in 
49 CFR parts 240 and 242. In drafting this proposed rule, FRA discussed 
whether vision acuity standards were necessary for dispatchers and if 
so, whether they needed to be as stringent as the standards for 
engineers and conductors. Ultimately, FRA concluded that dispatchers 
should have to satisfy certain vision standards with a dispatcher's 
ability to distinguish between colors being particularly important. FRA 
requests comments on whether vision acuity standards for dispatchers 
are necessary, and if so, whether they should be as strict as the 
standards for locomotive engineers and conductors.
    Although some individuals may not be able to meet the threshold 
acuity levels in paragraph (c) of this section, they may be able to 
compensate in other ways that will permit them to function at an 
appropriately safe level despite their physical limitations. Paragraph 
(d) of this section permits a railroad to have procedures whereby 
medical examiners can evaluate such individuals and make discrete 
determinations about each person's ability to compensate for their 
physical limitations. If the railroad's medical examiner concludes that 
an individual has compensated for their limitations and could safely 
serve as a dispatcher, the railroad could certify that person under 
this regulation once the railroad possesses the medical examiner's 
professional medical opinion to that effect. If necessary, medical 
examiners can condition their opinion on certain circumstances or 
restrictions, such as the use of corrective lens for example.
    Paragraph (e) of this section describes what documents the railroad 
must keep on file with respect to vision acuity testing. Such records 
must be retained for both individuals who the railroad certifies as 
dispatchers and those individuals who the railroad denies 
certification. Paragraph (g) of this section addresses the issue of 
vision deterioration. Once certified dispatchers become aware that 
their vision has deteriorated, they must notify the railroad before 
performing any subsequent service as a dispatcher. FRA presumes that 
certified dispatchers would most likely become aware of deterioration 
in their vision either through their own personal observation or 
through examination by a medical professional. Should this occur, 
before a certified dispatcher can return to

[[Page 35590]]

service, they must be reexamined. If upon reexamination, the railroad's 
medical examiner concludes that the certified dispatcher still 
satisfies the vision acuity standards in this part, the dispatcher can 
return to service. However, if the medical examiner concludes that the 
dispatcher no longer satisfies these requirements, the railroad must 
deny the person's certification in accordance with Sec.  245.301, 
regardless of how much time remains before the dispatcher's current 
certificate expires. Certified dispatchers should note that willful 
noncompliance with the notification requirement in this paragraph could 
result in enforcement action.
Section 245.118 Hearing Acuity
    This proposed section, derived from 49 CFR 240.121, 240.207, and 
242.117, contains the requirements for hearing acuity testing that a 
railroad would have to incorporate in its dispatcher certification 
program.
    Paragraph (c) of this section contains the general hearing 
standards that a person must satisfy in order to be certified as a 
dispatcher unless they are determined to have sufficient hearing acuity 
under paragraph (d) of this section. The standards in paragraph (c) 
mirror the hearing acuity standards for locomotive engineers and 
conductors in 49 CFR parts 240 and 242. FRA discussed whether hearing 
acuity standards were necessary for dispatchers and if so, whether they 
needed to be as stringent as the standards for engineers and 
conductors. Ultimately, FRA concluded that dispatchers should have to 
satisfy certain hearing standards and it was logical for these 
standards to be consistent with the hearing standards for engineers and 
conductors. FRA requests comments on whether hearing acuity standards 
for dispatchers are necessary, and if so, whether they should be as 
strict as the standards for locomotive engineers and conductors.
    Although some individuals may not be able to meet the threshold 
acuity levels in paragraph (c) of this section, they may be able to 
compensate in other ways that will permit them to function at an 
appropriately safe level despite their physical limitations. Paragraph 
(d) of this section permits a railroad to have procedures whereby 
doctors can evaluate such individuals and make discrete determinations 
about each person's ability to compensate for their physical 
limitations. If the railroad's medical examiner concludes that an 
individual has compensated for their limitations and could safely serve 
as a dispatcher, the railroad could certify that person under this 
regulation once the railroad possesses the medical examiner's 
professional medical opinion to that effect. If necessary, medical 
examiners can condition their opinion on certain circumstances or 
restrictions, such as the use of a hearing aid for example.
    Paragraph (e) of this section describes what documents the railroad 
must keep on file with respect to hearing acuity testing. Such records 
must be retained for both individuals who the railroad certifies as 
dispatchers and those individuals who the railroad denies 
certification. Paragraph (g) of this section addresses the issue of 
hearing deterioration. Once certified dispatchers become aware that 
their hearing has deteriorated, they must notify the railroad before 
performing any subsequent service as a dispatcher. FRA presumes that 
certified dispatchers would most likely become aware of deterioration 
in their hearing either through their own personal observation or 
through examination by a medical professional. Should this occur, they 
must be reexamined before returning to service. If upon reexamination, 
the railroad's medical examiner concludes that the certified dispatcher 
still satisfies the hearing acuity standards in this part, the 
dispatcher can return to service. However, if the medical examiner 
concludes that the dispatcher no longer satisfies these requirements, 
the railroad must deny the person's certification in accordance with 
Sec.  245.301, regardless of how much time remains before the 
dispatcher's current certificate expires. Certified dispatchers should 
note that willful noncompliance with the notification requirement in 
this paragraph could result in enforcement action.
Section 245.119 Training Requirements
    This proposed section, derived from 49 CFR 240.123, 240.213, and 
242.119, would require railroads to provide initial and periodic 
training to dispatchers. Such training is necessary to ensure that 
dispatchers have the knowledge, skills, and abilities necessary to 
safely perform all of the safety-related duties mandated by Federal 
laws, regulations, and orders.
    Paragraph (b) of this section requires a railroad's certification 
program to address whether the railroad will accept responsibility for 
training dispatchers and thus be able to initially certify dispatchers 
or whether the railroad will only be recertifying dispatchers who were 
previously certified by other railroads. If a railroad accepts 
responsibility for training dispatchers, paragraph (c) of this section 
notes that the railroad must state in its certification program whether 
it will conduct the training program for dispatchers or it will have 
another entity perform the training on its behalf.
    Under this section, railroads have latitude to design and develop 
the training and delivery methods they will employ; but paragraphs (d), 
(e), and (f) of this section provide requirements for railroads that 
elect to train a previously untrained person to be a dispatcher. 
Pursuant to paragraph (d), a railroad that makes this election would be 
required to determine how training must be structured, developed, and 
delivered, including an appropriate combination of classroom, 
simulator, computer-based, correspondence, on-the-job training, or 
other formal training. Paragraph (d)(3) also requires railroads to 
review and modify their training programs whenever new safety-related 
railroad laws, regulations, orders, technologies, procedures, software, 
or equipment are introduced into the workplace.
    Paragraph (f) of this section provides the requirements a 
previously untrained person must satisfy in order to become certified. 
Paragraph (f)(2) states the person must demonstrate on-the-job 
proficiency by successfully completing dispatching tasks and using the 
necessary dispatching systems and technology. These tasks may be 
performed under the direct onsite supervision of a person who has the 
necessary dispatching experience and at least one year of experience as 
a dispatcher. FRA requests comments, including any supporting data, on 
whether this ``one year of experience'' requirement for persons 
supervising a certification candidate is sufficient. The final 
requirement, found in paragraph (f)(3), is that the previously 
untrained person shall demonstrate their knowledge of the physical 
characteristics of any assigned territory by successfully completing a 
test. FRA understands that a railroad may assign dispatchers additional 
territories after they become certified and the dispatchers can go 
through the process for becoming qualified on those territories after 
they are already certified. However, paragraph (f)(3) establishes the 
basic requirement that before a previously untrained person can become 
certified, they must demonstrate that they are qualified on at least 
one territory. Paragraph (f)(3) also requires railroads to provide the 
person(s) being tested with an opportunity to consult with a 
supervisory employee, who possesses territorial qualifications for the 
territory,

[[Page 35591]]

to explain a test question. This requirement is equivalent to 49 CFR 
242.119(f) and is included so that certification candidates being 
tested would be able to obtain clarification of test questions from 
someone who possesses knowledge of the relevant territory.
    Paragraph (g) of this section requires railroads to retain written 
documentation of the listed determinations. Paragraph (g)(1) only 
applies to individuals who have not been previously certified as 
dispatchers whereas paragraphs (g)(2) and (3) apply to all certified 
dispatchers.
    Paragraph (h) of this section requires a railroad's certification 
program to explain the methods for acquiring familiarity with the 
physical characteristics of a territory and becoming qualified or 
requalified on a territory. Paragraph (h)(3) requires railroads to 
designate in their programs the maximum amount of time that a 
dispatcher can be absent from a territory before requalification is 
required. To conform with Sec.  245.120(c), this time period cannot 
exceed 12 months. However, railroads can choose a shorter time period 
if they desire. For example, if a railroad wants to require that a 
dispatcher get requalified on a territory if they have not dispatched 
over that territory in six months, the railroad is allowed to do so, 
but it must include this requirement in its certification program.
Section 245.120 Requirements for Territorial Qualification
    This proposed section, derived from 49 CFR 240.231 and 242.301, 
explains the requirements for territorial qualifications. Paragraph (a) 
of this section prohibits railroads from permitting or requiring a 
person to serve as a dispatcher on a particular territory, unless the 
railroad determines that the person is a certified dispatcher who is 
either qualified on that particular territory or assisted by a 
Dispatcher Pilot who is qualified on the territory. Paragraph (b) of 
this section requires a person to immediately notify the railroad if 
they are called to serve on a territory on which the person is not 
qualified. In such scenarios, the dispatcher could only dispatch over 
the territory if they were assisted by a Dispatcher Pilot who is 
qualified on the territory. Paragraph (c) of this section establishes 
that the maximum amount of time that a dispatcher can be absent from a 
territory before requalification on that territory is required is 12 
months. However, railroads have the option, under Sec.  245.119(h)(3), 
to make this time period shorter.
Section 245.121 Knowledge Testing
    This proposed section, derived from 49 CFR 240.125, 240.209, and 
242.121, would require railroads to provide for the initial and 
periodic testing of dispatchers. Paragraph (b) of this section outlines 
the general requirements for such testing. This testing will have to 
effectively examine and measure a dispatcher's knowledge of five 
subject areas: safety and operating rules; timetable instructions; 
compliance with all applicable Federal regulations; physical 
characteristics of the territory on which a person will be or is 
currently working as a dispatcher; and dispatching systems and 
technology.
    Under this section, railroads have discretion to design the tests 
that will be employed; for most railroads that will entail some 
modification of their existing ``book of rules'' examination to include 
new subject areas. This section does not specify the number of 
questions to be asked or the passing score to be obtained. However, it 
does require that the test be conducted without open reference books 
unless use of such materials is part of a test objective. A railroad 
may not give an all-open book exam. Some portion of the test must be 
closed book. Since the testing procedures and requirements selected by 
the railroad would be submitted to FRA for approval, FRA would monitor 
the exercise of discretion being afforded railroads by this section.
    Paragraph (c) of this section mirrors 49 CFR 242.121(e) by 
requiring railroads to provide the person(s) being tested with an 
opportunity to consult with a supervisory employee, who possesses 
territorial qualifications for the territory, to explain a test 
question.
    Paragraph (d) of this section states that if a person fails a test, 
the railroad cannot allow that person to serve as a dispatcher until 
they achieve a passing score on reexamination. The railroad would 
decide how much time, if any, must pass after a test failure before a 
certification candidate can be reexamined. Furthermore, the railroad 
would decide what additional training, if any, a candidate would 
receive after a test failure. The railroad would also decide whether 
there should be a limit on the number of times a candidate could retake 
a test, and if so, the maximum number of test retakes the railroad will 
allow.
Section 245.123 Monitoring Operational Performance
    This proposed section, derived from 49 CFR 240.129 and 242.123, 
contains the requirements for conducting unannounced compliance tests. 
Paragraph (a) of this section requires each railroad to describe in its 
certification program how it will monitor the conduct of its certified 
dispatchers by performing unannounced compliance tests on railroad and 
Federal rules, as well as territorial and dispatch systems. Paragraph 
(a)(3) requires railroads to indicate the types of actions they will 
take in the event they find deficiencies with a dispatcher's 
performance during an unannounced compliance test. FRA believes it is 
up to each railroad to decide the appropriate action to take in light 
of various factors, including collective bargaining agreements. 
Further, FRA believes that the vast majority of railroads have adequate 
policies to deal with deficiencies with a dispatcher's performance and 
have handled them appropriately for many years.
    To avoid restricting the options available to the railroads and 
employee representatives to develop processes for handling test 
failures, FRA designed this regulation to be as flexible as possible. 
There are a variety of actions and approaches that a railroad could 
take such as developing and providing formal remedial training for 
dispatchers who fail tests or have deficiencies in their performance. 
Each railroad could also consider implementing a formal procedure 
whereby a dispatcher is given the opportunity to explain, in writing, 
the factors that they believe caused their test failure or performance 
deficiencies. This explanation may allow a railroad to determine what 
areas of training to focus on or perhaps discover that the reason for 
the failure/deficiency was due to something other than a lack of 
skills. FRA believes there are numerous other approaches that could be 
considered and evaluated by railroads and their dispatchers, and FRA 
does not want to stifle a railroad's ability to adopt an approach that 
is best for its organization.
    Paragraph (b) of this section provides the requirements for these 
unannounced compliance tests, including the operational tests that must 
be performed and who is allowed to conduct the test. Paragraph (b)(3) 
specifies that each railroad must give each of its certified 
dispatchers at least one unannounced compliance test each calendar 
year, except as provided in paragraph (c) of this section. FRA 
recognizes that before these unannounced compliance tests can be 
performed in conformance with this section, a railroad's certification 
program must first be approved by FRA. Thus, at the latest, FRA expects 
railroads to perform these unannounced compliance tests on all of their 
certified

[[Page 35592]]

dispatchers during the calendar year immediately following the year 
their certification program is first approved by FRA. For example, if 
FRA approves one railroad's program in January 2025 and another 
railroad's program in December 2025, both of these railroads would have 
to perform unannounced compliance tests on all of their certified 
dispatchers starting in 2026. While FRA would encourage these railroads 
to commence the unannounced tests after their programs are approved in 
2025, FRA recognizes it may not be practical to perform unannounced 
tests on all of their certified dispatchers by the end of 2025, 
especially for the railroad whose program was not approved until 
December 2025.
    Paragraph (c) of this section recognizes that some certified 
dispatchers may not be performing a service that requires a dispatcher 
certificate, and thus, a railroad may not be able to provide those 
dispatchers with the annual, unannounced compliance test. For example, 
a certified dispatcher may be on furlough, in military service, off 
with an extended illness, or working in another service. In situations 
like these where a dispatcher is not performing service that requires 
certification, the railroad does not have to give an unannounced 
compliance test. However, when the certified dispatcher returns to 
dispatcher service, they will have to be given an unannounced 
compliance test within 30 days of their return. Moreover, the railroad 
will have to retain a written record that documents the date the 
dispatcher stopped performing service requiring certification, the date 
the dispatcher returned to service requiring certification, and the 
date the dispatcher received their unannounced compliance test 
following their return to service requiring certification.
Section 245.125 Certification Determinations Made by Other Railroads
    This section of the proposed rule, derived from 49 CFR 240.225 and 
242.125, contains requirements that would apply when a certified or 
previously certified dispatcher is about to begin work for a different 
railroad. This section would permit a railroad to rely on 
determinations made by another railroad concerning a person's 
certification. However, this section would require railroads to address 
in their certification programs how they will administer training for 
previously uncertified dispatchers with extensive dispatching 
experience or previously certified dispatchers who have had their 
certification expire. In both scenarios, FRA would allow the railroad 
to reduce the on-the-job training that might otherwise be required if 
the person were treated as having no dispatching experience. However, 
if a railroad's certification program fails to specify how the railroad 
will train a dispatcher who was previously certified by another 
railroad, all dispatchers and dispatcher candidates will be required to 
take the railroad's entire training program (regardless of the 
dispatcher's prior certification status).

Subpart C--Administration of the Certification Program

Section 245.201 Time Limitations for Certification
    This proposed section, derived from 49 CFR 240.217 and 242.201, 
contains various time constraints to preclude railroads from relying on 
stale information when evaluating candidates for certification or 
recertification. For example, when making a determination of 
eligibility based on prior safety conduct as an employee of a different 
railroad pursuant to Sec.  245.113, paragraph (a) would prohibit a 
railroad from relying on data provided more than one year before the 
date of the railroad's certification decision. However, paragraph (b) 
goes on to explain that the time constraints listed in paragraph (a) 
would not apply to railroads who are not evaluating candidates for 
certification or recertification, but simply relying on eligibility 
determinations that have already been made by another railroad in 
accordance with Sec.  245.125.
    Paragraph (c) prohibits a railroad from certifying a person as a 
dispatcher for more than three years except for those individuals who 
are designated as certified dispatchers under Sec.  245.105(c) or (d). 
When a railroad designates an individual as a certified dispatcher 
under Sec.  245.105(c) or (d), that certification can last for three 
years after the date that FRA initially approves the railroad's 
certification program. This could lead to situations where a 
certificate could be valid for more than three years. For example, if a 
railroad designates an individual as a certified dispatcher in January 
2025, but FRA does not approve the railroad's certification program 
until January 2026, the dispatcher's certification could last until 
January 2029 (four years in total). However, any subsequent 
recertifications for that dispatcher could only last for three years. 
In other words, if the dispatcher in the previous example got 
recertified in January 2029, that certificate would expire no later 
than January 2032.
    Paragraph (d) would require railroads to issue certificates that 
comply with Sec.  245.207 to their certified dispatchers within 30 days 
from the date of the railroad's decision to certify or recertify that 
person.
Section 245.203 Retaining Information Supporting Determinations
    This proposed section, derived from 49 CFR 240.215 and 242.203, 
contains recordkeeping requirements for railroads that certify 
dispatchers. Paragraph (b) lists the information that railroads would 
be required to retain for each of their certified dispatchers and 
certification candidates, while paragraph (e) provides that all records 
required to be retained must be retained for six years from the date of 
the railroad's certification, recertification, denial, or revocation 
decision. Paragraph (e) would also require railroads to make these 
records available to FRA representatives, upon request, in a timely 
manner.
    Paragraph (f) would prohibit railroads and individuals from 
falsifying records that railroads are required to retain pursuant to 
this section. Paragraph (g) contains minimum standards for electronic 
recordkeeping with which railroads would be required to comply, in 
order to maintain electronic versions of the required records. These 
minimum standards for electronic recordkeeping are virtually identical 
to the electronic recordkeeping standards contained in 49 CFR 242.203.
Section 245.205 List of Certified Dispatchers and Recordkeeping
    This proposed section, derived from 49 CFR 240.221 and 242.205, 
would require a railroad to maintain a list of its certified 
dispatchers. Paragraph (b) of this section would also require a 
railroad to update its list of certified dispatchers at least annually 
and to make its list of certified dispatchers available, upon request, 
to FRA representatives in a timely manner.
    Paragraph (c) contains minimum standards for electronic 
recordkeeping with which railroads would be required to comply, in 
order to maintain an electronic version of the list of certified 
dispatchers required by this section. These minimum standards are 
similar to the electronic recordkeeping standards contained in 49 CFR 
242.205.
    Paragraph (d) would prohibit railroads and individuals from 
falsifying the list of certified dispatchers that railroads are 
required to maintain pursuant to this section.

[[Page 35593]]

Section 245.207 Certificate Requirements
    This proposed section contains requirements for the certificate 
that each certified dispatcher would be required to carry. The 
requirements in paragraphs (a)-(e) of this section, which pertain to 
the required minimum content for certificates and authorization of the 
person designated by the railroad to sign the certificates, are derived 
from 49 CFR 240.223 and 242.207.
    Paragraph (a) of this section specifies that railroads have the 
option of issuing certificates electronically or in paper form. 
Paragraph (a)(1) would require that the dispatcher certificate identify 
the railroad issuing the certificate. Therefore, a certified dispatcher 
who works for more than one railroad would be required to have a 
separate certificate for each railroad with which the dispatcher is 
currently certified. Paragraph (a)(7) would require the certificate to 
be signed by an individual who has been designated by the railroad as 
an authorized signatory of dispatcher certificates, as described in 
paragraph (c) of this section. Electronic signatures are permitted 
under this proposed rule. In addition, paragraph (e) of this section 
would prohibit railroads and individuals from falsifying dispatcher 
certificates.
    Paragraphs (f) and (i) are derived from 49 CFR 240.305 and 242.209. 
These paragraphs would require dispatchers to have their certificates 
in their possession while on duty as a dispatcher, to display their 
certificates when requested to do so by FRA representatives, State 
inspectors \18\ authorized under 49 CFR part 212, and certain railroad 
officers, and to notify a railroad if they are called to serve as a 
dispatcher in a service that would cause them to exceed their 
certificate limits.
---------------------------------------------------------------------------

    \18\ Although State inspectors authorized under 49 CFR part 212 
could be considered ``FRA representatives,'' they are mentioned 
separately in this section to ensure that there is no dispute 
regarding their authority.
---------------------------------------------------------------------------

    Paragraph (g), derived from 49 CFR 240.301 and 242.211(a), would 
require railroads to promptly replace a dispatcher's certificate at no 
cost to the dispatcher, if the certificate is lost, stolen, or 
mutilated. However, unlike Sec.  242.211(b), this section does not 
contain detailed requirements for temporary replacement certificates. 
Temporary replacement certificates generally contain most of the 
information provided on official certificates. Therefore, it does not 
appear to be especially burdensome for railroads to issue temporary 
certificates to replace certificates that have been lost, stolen, or 
mutilated. Nonetheless, by refraining from proposing a formal process 
for the issuance of temporary dispatcher replacement certificates, FRA 
would allow railroads to decide how and when to issue temporary 
replacement certificates to dispatchers. FRA is soliciting comment on 
this proposed approach.
Section 245.213 Multiple Certifications \19\
---------------------------------------------------------------------------

    \19\ To the extent possible, FRA has attempted to match the 
section numbers in this proposed rule to the analogous sections in 
the conductor certification rule (49 CFR part 242). Since 49 CFR 
242.213 addresses multiple certification issues, FRA is proposing 
section number 245.213 for the multiple certification section in 
this proposed rule instead of the next sequential section number 
which would be 245.209.
---------------------------------------------------------------------------

    This proposed section, derived from 49 CFR 240.308 and 242.213, 
establishes how railroads should handle certified dispatchers who are 
certified with multiple railroads, attempting to become certified with 
multiple railroads, or certified in another railroad craft. FRA 
recognizes that while it is fairly common for an individual to work as 
both a locomotive engineer and a conductor, it is less common for a 
dispatcher to also work in another craft that requires certification. 
However, because situations may arise where a dispatcher is also 
certified to work in another craft, such as a locomotive engineer or 
conductor, FRA wanted to address how to handle such situations.
    Paragraph (a) of this section would allow a certified dispatcher to 
become certified in one or more of the other railroad crafts that 
require certification such as locomotive engineer or conductor. If a 
person is certified in multiple crafts by the same railroad, paragraph 
(b) would require the railroad to coordinate the expiration dates of 
the certificates, to the extent possible. While railroads are not 
required to have all of a person's certificates expire at the same 
time, it would be beneficial, from the standpoint of administrating the 
certification programs, if railroads followed this practice. Thus, FRA 
encourages railroads to coordinate these expiration dates when 
possible.
    Paragraph (c) of this section would pertain to individuals who are 
certified dispatchers for multiple railroads or who are seeking to 
become certified dispatchers for multiple railroads. Paragraph (c)(1) 
would require a dispatcher to notify all railroads with which the 
dispatcher holds a current dispatcher certificate, if another railroad 
denies, suspends, or revokes the dispatcher's certification. Paragraph 
(c)(2) would prohibit an individual from working as a dispatcher for 
any railroad while their dispatcher certification is suspended or 
revoked by a railroad. For example, if a person is a certified 
dispatcher with Railroad ABC and Railroad DEF, and ABC suspends and/or 
revokes the person's certificate, that person would not be able to work 
as a dispatcher for DEF, or any other railroad, during the period of 
suspension and/or revocation. Furthermore, paragraph (c)(3) states that 
if a person has their dispatcher certification suspended or revoked by 
one railroad, and they attempt to become a certified dispatcher with 
another railroad while their certification is suspended or revoked, 
they must notify the railroad they are seeking certification from of 
their current suspended or revoked certification status. Therefore, if 
a person is seeking dispatcher certification with Railroad XYZ while 
their dispatcher certificate is suspended or revoked by Railroad ABC, 
they must notify XYZ of their current suspended or revoked 
certification status.
    Paragraphs (d), (e), and (f) of this section address how the 
revocation of a dispatcher's certification would affect an individual's 
ability to work in another railroad craft requiring certification, and 
vice versa. If a person's dispatcher certification was revoked because 
of a drug or alcohol violation, as described in Sec.  245.303(e)(8), 
then that person would be ineligible to work in any craft requiring 
certification, such as a locomotive engineer or conductor, for any 
railroad during the period of revocation. Such person would also not be 
able to obtain a certificate in any of those crafts from any railroad 
while their dispatcher certificate is revoked. Likewise, if a person's 
non-dispatcher certification(s), such as locomotive engineer or 
conductor, are revoked because of an alcohol or drug violation, that 
person will be ineligible to work as a certified dispatcher or obtain a 
dispatcher certificate from any railroad during the revocation period. 
In contrast, if a dispatcher's certification is revoked for a violation 
that does not involve alcohol or drugs, such as Sec.  245.303(e)(1) 
through (7), that person would still be able to work in any other craft 
requiring certification, such as a locomotive engineer or conductor, 
during the period of revocation, as long as the person is certified in 
that craft. Likewise, a person could still work as a certified 
dispatcher if their certificate for another craft, such as locomotive 
engineer or conductor, was revoked due

[[Page 35594]]

to a violation that did not involve drugs or alcohol.
    FRA's reasoning for this line of delineation between revocable 
events that involve alcohol and drugs and those that do not is rooted 
in railroad safety. If someone shows up to work as a dispatcher under 
the influence of alcohol or drugs, it stands to reason that they could 
likely show up to work for another certified craft, such as a 
locomotive engineer or conductor, under the influence as well. Thus, it 
makes sense for an individual's alcohol or drug violations as a 
dispatcher to impact their eligibility to work in another craft that 
requires certification and vice versa. With respect to revocable events 
that do not involve alcohol or drugs, FRA finds that the tasks 
performed by a dispatcher are so inherently different from the tasks 
performed in another certified craft, such as an operating crew member, 
that it does not automatically follow that a person's revocable event 
as a dispatcher indicates that they are more likely to also have a 
revocable event while performing in another certified craft. Thus, FRA 
is taking the position that a revocation of a dispatcher certificate 
which does not involve alcohol or drugs should not affect that person's 
eligibility to work in another railroad craft requiring certification, 
and vice versa. However, FRA requests comments on this issue.
    Paragraphs (g) and (h) of this section would prohibit a railroad 
from denying or revoking a dispatcher's certification just because 
their attempt at certification or recertification in another railroad 
craft, such as locomotive engineer or conductor, was denied, and vice 
versa. Paragraph (i) of this section would allow a railroad to issue a 
single certificate to a person who is certified in multiple railroad 
crafts that require certification. If a railroad exercises this option, 
it must ensure that the single certificate contains all of the 
components required for each craft. Alternatively, railroads are also 
welcome to issue multiple certificates to a person who is certified in 
multiple crafts (one certificate for each craft). Thus, if a person is 
certified as both a dispatcher and conductor, the railroad could issue 
the person a single certificate containing both crafts or it could 
issue one dispatcher certificate and one conductor certificate.
    Finally, paragraph (j) of this section denotes that if a person is 
certified in multiple crafts and they are involved in a revocable 
event, that event can only lead to the revocation of a certificate for 
a single railroad craft. The railroad must determine which certificate 
should be revoked based on the work the individual was performing at 
the time of the event. In such instances, while the railroad may only 
revoke a certificate for a single craft, that revocation could affect a 
person's eligibility to perform other crafts. For example, if a person 
who is certified as a dispatcher and a conductor, violates 49 CFR 
219.101 while on duty as a dispatcher, the railroad should only revoke 
the individual's dispatcher certification. The person's conductor 
certificate cannot be revoked for the incident that occurred while the 
person was on duty as a dispatcher. However, as discussed in paragraph 
(d)(1) of this section, this person would not be able to work as a 
conductor while their dispatcher certificate was revoked for this 
offense.
Section 245.215 Railroad Oversight Responsibilities
    This proposed section, derived from 49 CFR 240.309 and 242.215, 
would require each Class I railroad (including the National Railroad 
Passenger Corporation), each railroad providing commuter service, and 
each Class II railroad to conduct an annual review and analysis of its 
program for responding to detected instances of poor safety conduct by 
certified dispatchers. FRA has formulated the information collection 
requirements of this proposed section to ensure that railroads collect 
data on dispatcher safety behavior and feed that information into their 
operational monitoring efforts, thereby enhancing safety.
    This section would require each Class I railroad (including the 
National Railroad Passenger Corporation), railroad providing commuter 
service, and Class II railroad to have an internal auditing plan to 
keep track of eight distinct events that involve poor safety conduct by 
dispatchers. For each event, the railroad would be required to indicate 
what response it took to that situation. The railroad would then be 
required to evaluate this information, together with data showing the 
results of annual operational testing and causation of FRA reportable 
train accidents, to determine what additional or different efforts, if 
any, are needed to improve the safety performance of that railroad's 
certified dispatchers. FRA would not require railroads to furnish this 
data or their analysis of the data to FRA. Instead, FRA would require 
that railroads be prepared to submit such information when requested.
    As set forth in paragraph (i), an instance of poor safety conduct 
involving a person who is a certified dispatcher and is certified in 
another railroad craft (such as a locomotive engineer or conductor) 
need only be reported once under the appropriate section of this 
chapter (e.g., under Sec.  240.309, Sec.  242.215, or under this 
section). The determination as to where to report the instance of poor 
safety conduct should be based on the work the person was performing at 
the time the conduct occurred. This determination is similar to the 
determination made under part 225, in which railroads determine whether 
an accident was caused by poor performance of what is traditionally 
considered a conductor's job function (e.g., switch handling, derail 
handling, etc.) or whether it was caused by poor performance of what is 
traditionally considered a locomotive engineer's job function (e.g., 
operation of the locomotive, braking, etc.)

Denial and Revocation of Certification

    This subpart parallels part 240 and part 242's approach to adverse 
decisions concerning certification (i.e., decisions to deny 
certification or recertification and revoke certification). With 
respect to denials, the approach of this rule is predicated principally 
on the theory that decisions to deny certification or recertification 
will come at the conclusion of a prescribed evaluation process which 
will be conducted in accordance with the provisions set forth in this 
subpart. Thus, this proposed rule contains specific procedures designed 
to ensure that a person in jeopardy of being denied certification or 
recertification will be given a reasonable opportunity to examine and 
respond to the negative information that might serve as the basis for 
being denied certification or recertification.
    When considering revocation, this proposed rule contemplates that 
decisions to revoke certification will only occur for the reasons 
specified in this subpart. Since revocation decisions by their very 
nature involve a clear potential for factual disagreement, this subpart 
is structured to ensure that such decisions will only come after a 
certified dispatcher has been afforded an opportunity for an 
investigatory hearing at which the presiding officer will determine 
whether there is sufficient evidence to establish that the dispatcher's 
conduct warranted revocation of their certification.
    This subpart also provides for certificate suspension in certain 
circumstances. Certificate suspension would be employed in instances 
where there is reason to think the certificate should be revoked or 
made conditional but time is needed to resolve the situation. 
Certificate suspension is applicable in instances where a person

[[Page 35595]]

is awaiting an investigatory hearing to determine whether that person 
violated certain provisions of FRA's alcohol and drug control rules, or 
committed a violation of certain operating rules or practices, and 
situations in which the person is being evaluated or treated for an 
active substance abuse disorder.
Section 245.301 Process for Denying Certification
    This proposed section, derived from 49 CFR 240.219 and 242.401, 
establishes minimum procedures that must be offered to a certification 
candidate before a railroad denies the candidate certification or 
recertification. Paragraph (a) of this section gives a certification 
candidate a reasonable opportunity to explain or rebut adverse 
information, including written documents or records, that the railroad 
intends to use as the basis for its decision to deny certification or 
recertification.
    Paragraph (b) of this section requires that a written explanation 
of an adverse decision be `served' on a certification candidate within 
10 days of the railroad's decision. Paragraph (b) also requires that 
the basis for a railroad's denial decision address any explanation or 
rebuttal information that the dispatcher candidate may have provided 
pursuant to paragraph (a) of this section.
    Paragraph (c) of this section prohibits a railroad from denying 
certification based on a failure to comply with a railroad operating 
rule or practice which constitutes a violation under Sec.  
245.303(e)(1) through (7) if sufficient evidence exists to establish 
that an intervening cause prevented or materially impaired the 
dispatcher's ability to comply with that railroad operating rule or 
practice. This paragraph is derived from the intervening cause 
exception for revocation in Sec.  245.307(h).
Section 245.303 Criteria for Revoking Certification
    This proposed section, derived from 49 CFR 240.117, 240.305, and 
242.403, provides the circumstances under which a dispatcher may have 
their certification revoked. In addition, paragraph (a) of this section 
makes it unlawful to fail to comply with any of the railroad rules or 
practices described in paragraph (e) of this section. Paragraph (a) is 
needed so that FRA can initiate enforcement action. For example, FRA 
might want to initiate enforcement action in the event that a railroad 
fails to initiate revocation action or a person who is not a certified 
dispatcher violates a railroad rule or practice described in paragraph 
(e) of this section. (Railroads should, however, note that they may not 
revoke a dispatcher's certificate, including a designated dispatcher's 
certificate, until they have obtained FRA approval of their 
certification programs pursuant to Sec.  245.103.)
    Paragraph (b) of this section provides that a certified dispatcher 
who fails to comply with a railroad rule or practice described in 
paragraph (e) would have their dispatcher certification revoked. 
Paragraph (c) provides that a certified dispatcher who is monitoring, 
piloting, or instructing another dispatcher could have their 
certification revoked if the certified dispatcher fails to take 
appropriate action to prevent a violation of a railroad rule or 
practice described in paragraph (e) of this section. As explained in 
paragraph (c), ``appropriate action'' does not mean that a supervisor, 
pilot, or instructor must prevent a violation from occurring at all 
costs, but rather the duty may be met by warning the dispatcher, as 
appropriate, of a potential or foreseeable violation.
    Paragraph (d) provides that a certified dispatcher who is called by 
a railroad to perform a duty other than that of a dispatcher would not 
have their dispatcher certification revoked based on actions taken or 
not taken while performing that duty. In general, this paragraph would 
apply regardless of whether the individual was called to perform a 
certified craft, such as locomotive engineer or conductor, or a non-
certified craft. However, this exemption would not apply to violations 
described in paragraph (e)(8) of this section. Therefore, certified 
dispatchers working in other capacities, that do not require 
certification, who violate certain alcohol and drug rules would have 
their certification revoked for the appropriate period pursuant to 
Sec.  245.115. However, if the certified dispatcher was working in 
another certified craft, such as a locomotive engineer or conductor, at 
the time of the alcohol or drug violation, their certificate for the 
craft that they were performing at the time of the violation would be 
revoked as opposed to their dispatcher certificate. If a certified 
dispatcher who is also certified in another craft, such as locomotive 
engineer or conductor, violates Sec.  219.101 while performing a craft 
that does not require certification, the railroad shall pick one, and 
only one, certificate to revoke. For example, if a person, who is a 
certified dispatcher and conductor, violates Sec.  219.101 while 
working as a brakeman, the railroad must decide to revoke either their 
dispatcher certificate or their conductor certificate, but it cannot 
revoke both certificates. Regardless of which certificate the railroad 
chooses to revoke, the person will be unable to work as a dispatcher or 
conductor during the period of revocation. See Sec.  245.213(d)(1) and 
(3).
    Paragraph (e) provides the eight types of rule infractions that 
could result in certification revocation. The infractions listed in 
paragraphs (e)(1) through (8) are derived in part from the revocable 
events provided in 49 CFR 242.117(e) but have been modified to account 
for the duties and responsibilities of a dispatcher.
    Paragraph (e)(1) refers to a dispatcher's failure to properly 
protect the public and railroad personnel after receiving a report of 
highway-rail grade crossing warning system malfunction. Depending on 
the type of warning system malfunction at issue, this violation could 
involve the dispatcher's failure to issue a mandatory directive that 
restricts speed or imposes a stop and flag order for train crews 
approaching the highway-rail grade crossing.
    Paragraph (e)(2) refers to violations that could include a 
dispatcher granting authority or permission for a train or on-track 
equipment to enter an out of service or blue flag protected track.
    Paragraph (e)(3) refers to violations that could include a 
dispatcher granting authority or permission for a train or on-track 
equipment to enter established Roadway Worker In Charge (RWIC) limits 
without authorization from the RWIC who owns the limits.
    Paragraph (e)(4) refers to the removal of blocking devices or 
established protection of RWIC working limits, prior to the RWIC 
releasing the limits. Similar to the previous paragraph, this entry is 
directly correlated to the protection of personnel and equipment on 
controlled track. In setting up protected limits for an RWIC, 
dispatchers apply blocking devices which are used to isolate the limits 
owned by the RWIC. Removing these devices and established protection 
exposes the RWIC to movements of trains, engines, and on-track 
equipment.
    Paragraph (e)(5) refers to violations that could include the 
failure of a dispatcher to properly apply blocking devices or establish 
appropriate protection necessary to protect working limits or the 
movement of trains or on-track equipment.
    Paragraph (e)(6) references a dispatcher's failure to properly 
issue or apply mandatory directives when warranted. Mandatory 
directives are defined in Sec.  245.7 as any movement authority or 
speed restriction that affects a railroad operation. Therefore, any 
form used to authorize the use of, or

[[Page 35596]]

provide protection for, controlled track is a mandatory directive. 
Mandatory directives can be in the form of speed restrictions/slow 
orders, track authorities, track warrants, and various other movement 
orders.
    Paragraph (e)(7) refers to violations that could include a 
dispatcher circumventing train control systems by granting permission 
or authorizing a train or engine with inoperative or malfunctioning PTC 
or cab signal equipment onto territory requiring the use of these 
systems.
    Paragraph (f) proposes a three-year period for considering 
certified dispatcher conduct that failed to comply with a railroad 
operating rule or practice described in paragraphs (e)(1) through (7) 
of this section. However, when alcohol and drug violations are at 
issue, the time period for evaluating prior operating rule misconduct 
would be dictated by Sec.  245.115, which would establish a period of 
60 consecutive months prior to the date of review for such evaluations.
    Paragraph (g) provides that if a single incident contravenes more 
than one railroad operating rule or practice listed in paragraph (e) of 
this section, the incident would be treated as a single violation. FRA 
considers a single incident to be a unique identifiable occurrence 
caused by a certified dispatcher's violation of one or more railroad 
operating rules or practices listed in paragraph (e). However, a 
certified dispatcher could be involved in more than one incident during 
a single tour of duty, if the incidents are separated by time, 
distance, or circumstance.
    Paragraph (h) provides that a certified dispatcher may have their 
certification revoked for violation of a railroad operating rule or 
practice listed in paragraph (e) that occurs during a properly 
conducted operational compliance test. However, as reflected in 
paragraph (i), violations of railroad operating rules or practices that 
occur during operational tests that are not conducted in compliance 
with this part, the railroad's operating rules, or the railroad's 
program under Sec.  217.9 will not be considered for revocation 
purposes.
Section 245.305 Periods of Ineligibility
    This section of the proposed rule, derived from 49 CFR 240.117 and 
242.405, describes how a railroad would determine the period of 
ineligibility (e.g., for revocation or denial of certification) for a 
dispatcher or dispatcher candidate. Paragraph (a) of this section 
provides the starting date for a period of ineligibility. For persons 
who are not currently certified as dispatchers, a period of 
ineligibility would begin on the date of the railroad's written 
determination that the most recent incident has occurred. For example, 
if the railroad made a written determination on March 10th that the 
most recent incident occurred on March 1st, the period of ineligibility 
would begin on March 10th. For persons who are currently certified 
dispatchers, a period of ineligibility would begin on the date the 
railroad notifies the person that their recertification has been denied 
or their certification has been suspended. For dispatchers who have 
their certification revoked, the period of ineligibility would begin on 
the date the railroad notifies the dispatcher of the certificate 
suspension as opposed to the notification date of certificate 
revocation because once a person's certificate is suspended, they are 
ineligible to work as a dispatcher pending a determination as to 
whether the certificate should be revoked.
    With respect to revocation, paragraph (b) of this section provides 
that once a railroad determines that a dispatcher has failed to comply 
with its safety rule concerning one or more events listed in Sec.  
245.303(e), two consequences will occur. First, the railroad will be 
required to revoke the dispatcher's certification for a period of time 
provided in this section. Second, that revocation will initiate a 
period during which the dispatcher will be subject to an increasingly 
more severe period of revocation if additional revocable events occur 
in the next 24 to 36 months. The standard periods of revocation 
proposed in this section track the revocation periods provided in parts 
240 and 242. One revocable event would result in revocation for 30 
days. Two revocable events within 24 months of each other would result 
in revocation for six (6) months. Three revocable events within 36 
months of each other would result in revocation of one (1) year. Four 
revocable events within 36 months of each other would result in 
revocation for three (3) years.
    While paragraph (c) of this section contains a provision that 
parallels Sec.  242.405(b) and provides that all periods of revocation 
may consist of training, paragraph (d) contains a provision that 
parallels Sec. Sec.  240.117(h) and 242.405(c). Paragraph (d) provides 
that a person whose dispatcher certification is denied or revoked will 
be eligible for grant or reinstatement of the certificate prior to the 
expiration of the initial period of revocation if they satisfy all of 
the criteria listed in the paragraph.
Section 245.307 Process for Revoking Certification
    This proposed section, derived from 49 CFR 240.307 and 242.407, 
provides the procedures a railroad must follow if it acquires reliable 
information regarding a dispatcher's violation of an operating rule or 
practice listed in Sec. Sec.  245.303(e) or 245.115(d). Paragraph 
(b)(1) of this section provides that, upon receipt of reliable 
information regarding a violation of a railroad operating rule or 
practice described in Sec. Sec.  245.303(e) or 245.115(d), a railroad 
must suspend the person's certificate immediately. Paragraph (b)(2) 
provides that, prior to or upon suspending the person's certificate, 
the railroad would have to provide either oral or written notice of the 
reason for the suspension, the pending revocation, and an opportunity 
for a hearing. If the initial notice was verbal, then the notice would 
have to be promptly confirmed in writing. The amount of time the 
railroad has to confirm the notice in writing would depend on whether 
or not a collective bargaining agreement is in effect and applicable. 
In the absence of such an agreement, a railroad would have four days to 
provide written notice. If a notice of suspension is amended after a 
hearing is convened and/or does not contain citations to all railroad 
rules and practices that may apply to a potentially revocable event, 
the Certification Review Board (CRB or Board), if asked to review the 
revocation decision, might subsequently find that this constitutes 
procedural error pursuant to Sec.  245.405.
    Pursuant to paragraph (b)(4) of this section, no later than the 
convening of a hearing, the railroad must provide the dispatcher with a 
copy of the written information and a list of witnesses the railroad 
will present at the hearing. If requested, a recess to the start of the 
hearing shall be granted if the copy of the written information and 
list of witnesses is not provided until just prior to the convening of 
the hearing. If the information that led to the suspension of a 
dispatcher's certificate pursuant to paragraph (b)(1) of this section 
is provided through statements of an employee of the convening 
railroad, the railroad must make that employee available for 
examination during the hearing. Examination may be telephonic or 
virtual when it is impractical to provide the witness at the hearing. 
These provisions in paragraph (b)(4) of this section were added to 
ensure that dispatchers are provided with information and/or witnesses 
necessary to defend themselves at their hearing. Even if a railroad 
conducts a

[[Page 35597]]

hearing pursuant to the procedures in an applicable collective 
bargaining agreement, the railroad will still have to comply with the 
provisions of paragraph (b)(4). It is not, however, FRA's intent to 
require railroads to call every witness included on the railroad's list 
of witnesses to testify at the hearing. If, for example, a railroad 
believes that it has provided sufficient evidence during a hearing to 
prove its case, and that calling a witness on its list to testify would 
be unduly repetitive, the railroad would not be obligated to call that 
witness to testify. Of course, the opposing party could request that 
the witness be produced to testify, but the hearing officer would have 
the authority pursuant to paragraph (d)(4) of this section to determine 
whether the witness's testimony would be unduly repetitive or so 
extensive and lacking in relevancy that its admission would impair the 
prompt, orderly, and fair resolution of the proceeding.
    Paragraph (d)(2) of this section provides the presiding officer 
with the powers necessary to regulate the conduct of the hearing. Thus, 
a presiding officer would be permitted to deny excessive hearing 
request delays by the dispatcher. Moreover, a presiding officer could 
find implied consent to postpone a hearing when a dispatcher's 
witnesses are not available within 10 days of the date the certificate 
is suspended. However, the CRB may grant a petition on review if the 
CRB finds that the hearing schedule caused the petitioner substantial 
harm.
    Paragraph (e) of this section contains requirements regarding the 
written decision in a railroad hearing. FRA believes these requirements 
will ensure that railroads issue clear and detailed decisions. In turn, 
clear and detailed decisions will allow a dispatcher to understand 
exactly why their certification was revoked and will allow the CRB to 
have a more detailed understanding of the case if it is asked to review 
the revocation decision pursuant to subpart E of this proposed rule.
    Paragraph (f) credits the period of certificate suspension prior to 
the commencement of a hearing required under this section towards 
satisfying any applicable revocation period imposed in accordance with 
the provisions of Sec.  245.305. For example, if a dispatcher's 
certificate is suspended on July 1st and on July 11th, the railroad 
issues a decision to revoke the dispatcher's certificate for 30 days, 
the time between July 1st and July 11th would count towards the 30-day 
revocation period. Thus, the dispatcher's certificate would only be 
revoked for an additional 20 days after the railroad issued its 
revocation decision.
    Paragraph (g) requires a railroad to revoke a dispatcher's 
certification if it discovers that another railroad has revoked that 
person's dispatcher certification. The revocation period shall coincide 
with the revocation period of the railroad that initially revoked the 
dispatcher's certification. For example, if a dispatcher is certified 
by Railroad ABC and Railroad XYZ, and ABC revokes the dispatcher's 
certification from November 1st through November 30th, XYZ must revoke 
the dispatcher's certification through November 30th once it learns of 
ABC's revocation. The revocation hearing requirement in this rule is 
satisfied when any single railroad holds a revocation hearing for a 
dispatcher that arises from the same set of facts.
    Paragraphs (h) and (i) provide two specific defenses for railroad 
supervisors and hearing officers to consider when deciding whether to 
suspend or revoke a person's certificate due to an alleged revocable 
event. Pursuant to these provisions, either defense would have to be 
proven by sufficient evidence. Paragraph (h) prohibits railroads from 
revoking a dispatcher's certificate when there is sufficient evidence 
of an intervening cause that prevented or materially impaired the 
dispatcher's ability to comply. For example, a railroad should consider 
assertions that a Dispatcher Pilot or Dispatcher Trainer failed to take 
appropriate action to prevent an uncertified dispatcher or dispatcher 
trainee from using defective equipment. Similarly, a railroad should 
consider assertions that a train crew member relayed incorrect 
information to the dispatcher who reasonably relied on it, thus causing 
a revocable event. However, FRA does not intend to imply that all 
equipment failures and errors caused by others will serve to absolve 
dispatchers from certification revocation under this proposed rule. The 
factual issues presented by each incident would need to be analyzed on 
a case-by-case basis.
    Paragraph (i) would allow railroads to exercise discretion when 
determining whether to revoke a dispatcher's certification ``if 
sufficient evidence exists to establish that the violation of the 
railroad operating rule or practice described in Sec.  245.303(e) was 
of a minimal nature and had no direct or potential effect on rail 
safety.'' However, FRA acknowledges that the determination as to 
whether an incident meets this criterion could be subject to different 
interpretations. For this reason, paragraph (j) would require railroads 
to retain information about the evidence relied upon when exercising 
this discretion. Unless a railroad fails to retain information as 
required in paragraph (j) or acts in bad faith, FRA does not anticipate 
taking enforcement action against the railroad even if FRA believes the 
railroad could have revoked the dispatcher's certification.
    Paragraph (j) of this section requires railroads to keep records of 
those violations in which they must not or elect not to revoke a 
dispatcher's certificate pursuant to paragraph (h) or (i) of this 
section. Paragraph (k) addresses concerns that problems could arise if 
FRA disagrees with a railroad's decision not to suspend a dispatcher's 
certificate for an alleged violation of an operating rule or practice 
pursuant to Sec.  245.303(e). As long as a railroad makes a good faith 
determination after a reasonable inquiry, the railroad will have 
immunity from civil enforcement for making what the agency believes to 
be an incorrect determination. However, if railroads do not conduct a 
reasonable inquiry or act in good faith, they could be subject to civil 
penalty assessment under this rule. In addition, even if a railroad 
does not take what FRA considers appropriate revocation action, FRA 
could still take enforcement action against an individual responsible 
for the noncompliance by assessing a civil penalty against the 
individual or issuing an order prohibiting the individual from 
performing safety-sensitive functions in the rail industry for a 
specified period pursuant to part 209, subpart D.

Subpart E--Dispute Resolution Procedures

    This subpart details the opportunities and procedures for a person 
to challenge a railroad's decision to deny certification or 
recertification or to revoke a dispatcher's certification. While the 
proposed dispute resolution process for dispatchers largely mirrors the 
processes for engineers under part 240 and conductors under part 242, 
FRA has made some modifications that will be discussed below. In 
addition, FRA has undertaken efforts to simplify these regulations so 
that they are clear and comprehensible to all interested parties.
Section 245.401 Review Board Established
    This proposed section, derived from 49 CFR 240.401 and 242.501, 
provides that a person who is denied certification or recertification 
or has had their dispatcher certification revoked may petition FRA to 
review the railroad's decision. Pursuant to this section, FRA

[[Page 35598]]

delegates initial responsibility for adjudicating such disputes to the 
CRB. Although creation of the CRB will require issuance of an internal 
FRA order, FRA anticipates that the CRB will mirror the Operating Crew 
Review Board (OCRB) which currently adjudicates disputes under parts 
240 and 242.\20\ Under this proposed rule, this newly created Board 
would adjudicate certification disputes for all certified crafts, 
including locomotive engineers, conductors, and dispatchers. FRA is 
fully aware that these different job disciplines require different 
knowledge bases and skill sets. While the specific process for 
selecting CRB members would be delineated in an FRA order or other 
internal document, FRA would ensure that the CRB is composed of 
employees with sufficient backgrounds in these various disciplines. 
Only those CRB members with sufficient knowledge of dispatching would 
be able to participate as a voting member on a petition filed under 
this part.
---------------------------------------------------------------------------

    \20\ In a future rulemaking, FRA expects to revise parts 240 and 
242 to refer to the CRB instead of the OCRB.
---------------------------------------------------------------------------

Section 245.403 Petition Requirements
    This proposed section, derived from 49 CFR 240.403 and 242.503, 
provides the requirements for obtaining FRA review of a railroad's 
decision to deny certification, deny recertification, or revoke 
certification. The requirements contained in paragraph (b) of this 
section include the need to seek review in a timely fashion once the 
adverse decision is served on the petitioner. In the interest of 
consistency and uniformity with parts 240 and 242, petitioners under 
this part would have 120 days, from the date the adverse decision was 
served upon them, to file a petition for review by the CRB.
    Paragraph (b)(3) provides that a petitioner must file their 
petition through https://www.regulations.gov. Petitioners and their 
representatives should save some form of proof of their filing in case 
an error occurs in the Regulations.gov system and they have to submit 
proof that their petition was timely filed. All documents associated 
with a CRB petition will be posted to the docket for that case on 
Regulations.gov and all DOT dockets on Regulations.gov are available to 
the public. You may review DOT's complete Privacy Act Statement 
published in the Federal Register on April 11, 2000 (Volume 65, Number 
70, Pages 19477-78).
    Paragraph (b)(4) requires that a petition contain certain contact 
information, including an email address, for the petitioner and their 
representative, if any. The OCRB solely communicates with parties via 
email. FRA anticipates that the CRB will operate in a similar manner, 
and will only send communications to the parties via email. If a 
petition only contains an email address for the petitioner's 
representative, but not the petitioner, the CRB will only send any 
necessary communications to the representative. Because all 
communications will be performed via email, FRA has determined that it 
is unnecessary for a petition to include a mailing address for 
petitioner or their representative. Thus, unlike in parts 240 and 242, 
this information will not be required.\21\ Lastly, if any required 
contact information for petitioner or their representative, such as a 
phone number or email address, changes during the pendency of a 
petition before the CRB, it is the responsibility of the petitioner or 
their representative to provide the CRB and the railroad with the new 
contact information.
---------------------------------------------------------------------------

    \21\ In a future rulemaking, FRA expects to revise Parts 240 and 
242 to conform to the electronic communication requirements of this 
rulemaking.
---------------------------------------------------------------------------

    Paragraph (b)(6) requires petitioners or their representatives to 
state the facts and arguments in support of their petition. In other 
words, they need to explain to the CRB why they think the railroad was 
incorrect in denying or revoking the petitioner's certification. 
Paragraph (b)(7) requires petitioners to submit all documents related 
to the railroad's decision that are in their possession or reasonably 
available to them. This potentially includes the transcript and 
exhibits from the petitioner's denial or revocation hearing. In most 
cases, these documents will be essential to the Board's ability to make 
an informed decision on the petition. If neither the petitioner nor the 
railroad provides these documents, the Board may have to specifically 
request these documents. Such a request is likely to delay the Board's 
adjudication of the petition. Therefore, it is in the petitioner's 
interest to provide the Board with these documents as part of their 
petition.
    Paragraph (c) of this section was added to clarify a petitioner's 
responsibilities, if requested by the CRB, with respect to a petition 
seeking review of a railroad decision that is based on a failure to 
comply with any drug or alcohol related rules or a return-to-service 
agreement. It provides that, if requested by the CRB, a petitioner must 
supplement the petition with ``a copy of the information under 49 CFR 
40.329 that laboratories, medical review officers, and other service 
agents are required to release to employees.'' This paragraph also 
provides that a petitioner must provide a written explanation in 
response to a CRB request if they do not supply the Board with the 
written documents that should be reasonably available under 49 CFR 
40.329.
    Paragraph (d) of this section gives the CRB discretion to grant a 
request for additional time to file a petition if certain circumstances 
are met. As an initial matter, the petitioner must put forth good cause 
for granting the extension. Thus, a petitioner will have to demonstrate 
a reasonable justification for granting the extension of time. This 
justification should be as detailed as possible to assist the Board in 
its determination. In addition to showing good cause for an extension, 
a petitioner must either submit their extension request before the 
deadline for filing their petition or, if the deadline has already 
passed, they must allege facts constituting ``excusable neglect'' for 
failing to meet the deadline. The mere assertion of excusable neglect, 
unsupported by facts, will be insufficient. Excusable neglect requires 
a demonstration of good faith on the part of the party seeking an 
extension of time, and some reasonable basis for noncompliance within 
the time frame specified in the rules. Absent a showing along these 
lines, relief will be denied. The Board will make determinations on 
whether ``good cause'' and/or ``excusable neglect'' has been shown on a 
case-by-case basis.
    Paragraph (e) of this section explains that a decision by the CRB 
to deny a petition for untimeliness or lack of compliance with the 
requirements of Sec.  245.403 may be appealed directly to the FRA 
Administrator. Normally an appeal to the Administrator can only occur 
after a case has been heard by FRA's hearing officer. However, 
petitions that the Board finds to be untimely or incomplete are the two 
exceptions where a party can skip petitioning the hearing officer and 
go directly to filing an appeal with the Administrator.
Section 245.405 Processing Certification Review Petitions
    This section of the proposed rule, derived from 49 CFR 240.405 and 
242.505, details how petitions for review by the CRB will be handled. 
Paragraph (a) of this section notes that when FRA receives a CRB 
petition, it will send a written notification to the parties involved 
in the petition. FRA will send these acknowledgments via email. If a 
representative files a petition

[[Page 35599]]

on behalf of a petitioner, the petition must include the petitioner's 
email address, if the petitioner also wants to receive the 
acknowledgment email and any other correspondence (including the 
Board's decision) from FRA. The acknowledgment email will include the 
docket number for the petition so that both parties can access the 
documents in the case on https://www.regulations.gov. FRA will not send 
a copy of the petition to the railroad.
    Paragraph (b) of this section provides railroads with the 
opportunity to respond to a petition. While it is always optional for a 
railroad to respond to a petitioner's arguments, if the petitioner did 
not include relevant documents in their petition, such as hearing 
transcripts or exhibits, the railroad is required to provide FRA with 
those documents, even if it does not otherwise respond to the arguments 
in the petition. Railroads would have 60 days, from the date FRA sends 
the acknowledgment email, to file a response in the docket on https://www.regulations.gov. Railroads may submit responses after the 60-day 
deadline, but the Board will only review such late filings if it is 
practicable. In other words, there is no guarantee that the Board will 
review a late response prior to issuing a decision; thus, if a railroad 
wishes to respond to a petition, it should meet the 60-day deadline. 
The railroad can fulfill its requirement to serve a copy of its 
response on the other party by sending its response to petitioner and/
or petitioner's representative via email.
    Paragraph (c) of this section specifies when a case will be 
referred to the Board, and what authority the Board has to decide on a 
petition. If a railroad files a response before the 60-day deadline in 
paragraph (b) of this section, the petition will be referred to the 
Board upon receipt of the response. Otherwise, the petition will be 
referred to the Board 60 days after the date the acknowledgment email 
was sent. The Board has the authority to grant a petition (rule in 
favor of the petitioner), deny a petition (rule in favor of the 
railroad), or dismiss a petition. An example of when the Board would 
dismiss a petition would be if the railroad did not deny or revoke the 
petitioner's certification, and thus, there was no case or controversy 
before the Board. If there is insufficient evidence of record for the 
Board to make a decision on the merits of a petition, the Board may 
choose to remand a petition or issue an interim order, so that 
additional fact-finding can occur.
    Paragraphs (d), (e), and (f) of this section provide the standards 
of review that the Board will employ for procedural issues, factual 
issues, and legal issues, respectively. These standards mirror the 
standards of review used by the OCRB to review locomotive engineer and 
conductor petitions. It is not the Board's intention to correct all 
procedural errors committed by a railroad. Instead, the Board will only 
grant a petition if the railroad's procedural error caused substantial 
harm to the petitioner. For factual issues, the petitioner must show 
that the railroad did not have substantial evidence to support its 
decision to deny or revoke the petitioner's certification. If the Board 
must decide a legal issue, it will perform de novo review, meaning that 
it will not give deference to any decision or interpretation made by 
the railroad.
    Paragraph (g) of this section acknowledges that the Board's 
decision-making power is limited to granting or denying a petition. In 
other words, the Board is only empowered to make determinations 
concerning qualifications under this regulation. The Board is not 
empowered to mitigate the consequences of a railroad decision if the 
decision was valid under this regulation. The contractual consequences, 
if any, of these determinations would have to be resolved under dispute 
resolution mechanisms that do not directly involve FRA. For example, 
FRA cannot order a railroad to alter its seniority rosters or make an 
award of back pay, in the event of a finding that a railroad wrongfully 
denied certification.
    Paragraph (h) of this section notes that the Board will issue a 
written decision that will be served on both parties. FRA will send the 
decision to the parties by email and it will also be posted in the 
case's docket on https://www.regulations.gov.
Section 245.407 Request for a Hearing
    This proposed section, derived from 49 CFR 240.407 and 49 CFR 
242.507, provides that a party who has been adversely affected by a CRB 
decision will have the opportunity to request an administrative 
proceeding as prescribed in Sec.  245.509. Paragraph (b) of this 
section gives the instructions and the deadline for submitting a 
hearing request. Just like with CRB petitions, parties must file 
hearing requests electronically. To file a hearing request, the 
adversely affected party should upload the request to the docket on 
https://www.regulations.gov that was used while the case was before the 
Board. This docket will also be used to file documents while the case 
is before the hearing officer. After the 20-day deadline to file a 
hearing request has passed, FRA will check the docket on https://www.regulations.gov to see if a hearing request was filed. Paragraph 
(c) of this section contains the requirements for a hearing request, 
which includes the docket number for the case while it was before the 
Board. Paragraph (c) also requires the signature of the requesting 
party or their representative. FRA will accept electronic signatures 
for purposes of satisfying this requirement.
    Paragraph (d) of this section notes that FRA will arrange for the 
appointment of a presiding officer, and it will be the presiding 
officer's duty to schedule a hearing for the earliest practicable date. 
Paragraph (e) of this section provides that a party who fails to 
request an administrative hearing in a timely fashion will lose the 
right to further administrative review and the CRB's decision will 
constitute final agency action.
Section 245.409 Hearings
    This section of the proposed rule, derived from 49 CFR 240.409 and 
49 CFR 242.509, describes the authority of the presiding officer to 
conduct an administrative hearing and the procedures by which the 
administrative hearing will be governed. Paragraph (b) of this section 
provides that the proceeding will afford an aggrieved party a de novo 
hearing at which the relevant facts will be adduced, and the correct 
application of this part will be determined. In instances when the 
issues are purely legal, or when only limited factual findings are 
necessary to determine issues, the presiding officer may determine the 
issues following an evidentiary hearing only on the disputed factual 
issues, if any. The presiding officer can therefore grant full or 
partial summary judgment.
    Paragraph (d) of this section provides that the presiding officer 
may authorize discovery. It also authorizes the presiding officer to 
sanction willful noncompliance with permissible discovery requests. 
Paragraph (e) of this section requires that documents in the nature of 
pleadings be signed. This signature can be electronic and will 
constitute a certification of factual and legal good faith. Paragraph 
(f) of this section provides the requirement for service and for 
certificates of service. Paragraph (g) of this section expresses the 
presiding officer's authority to address noncompliance with a law or 
directive. This provision is intended to ensure that the presiding 
officer will have the authority to control the proceeding so that an 
efficient and fair hearing is conducted.

[[Page 35600]]

    Paragraph (h) of this section states the right of each party to 
appear and be represented. Paragraph (i) of this section protects 
witnesses by ensuring their right of representation and their right to 
have their representative question them. Paragraph (j) of this section 
allows any party to request consolidation or separation of hearings of 
two or more petitions when to do so would be appropriate under 
established jurisprudential standards. This option is intended to allow 
more efficient determination of petitions in cases where a joint 
hearing would be advantageous.
    Under paragraph (k) of this section, the presiding officer could, 
with certain exceptions, extend periods for action required in the 
proceedings, provided substantial prejudice would not result to a 
party. The authority to deny an extension request submitted after a 
deadline has already passed shows the preference for use of this 
authority to provide extensions of time as a tool to alleviate 
unforeseen or unnecessary burdens, and not as a remedy for inexcusable 
neglect.
    Paragraph (l) of this section establishes a motion as the 
appropriate method for requesting action by the presiding officer. This 
paragraph also provides the form of motions and the response period for 
written motions. Paragraph (m) of this section provides rules for the 
mode of hearing and record maintenance, including requirements for 
sworn testimony, verbatim record (including oral testimony and 
argument), and inclusion of evidence or substitutes therefor in the 
record. Paragraph (n) of this section directs the presiding officer to 
employ specific rules of evidence as guidelines for the introduction of 
evidence, and permits the presiding officer to determine what evidence 
may be received. Further, paragraph (o) of this section provides 
additional powers the presiding officer may exercise during the 
proceedings.
    Paragraph (p) of this section provides that the petitioner before 
the CRB, the railroad that took the certification action at issue, and 
FRA are mandatory parties to the administrative proceeding. Paragraph 
(q) of this section states what party will be the hearing petitioner 
and what parties will be the respondents. If the Board granted the 
petition, the railroad will be the hearing petitioner and the 
dispatcher or dispatcher candidate will be a respondent. If the Board 
denied the petition, the dispatcher or dispatcher candidate will be the 
hearing petitioner and the railroad will be a respondent. The actions 
of the dispatcher and the railroad will be at issue in the hearing--not 
the actions of the CRB. Thus, it is appropriate that the dispatcher and 
the railroad fill the roles of petitioner and respondent for the 
hearing.
    Paragraph (q) also provides that FRA will be a mandatory party in 
the proceeding. In all proceedings, FRA will initially be considered a 
co-respondent. If, based on evidence acquired after the filing of a 
hearing petition, FRA concludes that the public interest in safety is 
more closely aligned with the position of the petitioner than the 
respondent, FRA can request that the hearing officer exercise their 
inherent authority to realign parties for good cause shown. However, 
FRA anticipates that such a situation would rarely occur. FRA 
represents the interests of the government; hence, parties and their 
representatives will have to be careful to avoid ethical dilemmas that 
might arise due to FRA's ability to realign itself. Paragraph (q) also 
notes that the party requesting the hearing has the burden of proving 
its case by the preponderance of evidence.
    Paragraph (r) of this section gives the presiding officer authority 
to close the record in a case. Paragraph (s) of this section provides 
the presiding officer with the authority to issue a decision and 
includes requirements for that decision.
Section 245.411 Appeals
    This proposed section, derived from 49 CFR 240.411 and 49 CFR 
242.511, permits any party aggrieved by the presiding officer's 
decision to file an appeal with the FRA Administrator. Paragraph (a) of 
this section provides that if no appeal is timely filed, the presiding 
officer's decision will constitute final agency action. The appeal 
shall be filed in the same docket on https://www.regulations.gov used 
when the case was before the Board and the presiding officer.
    Paragraph (b) of this section allows for a party to reply to the 
appeal. Paragraphs (c) and (d) of this section describe the 
Administrator's authority to conduct the proceedings of an appeal. 
Paragraph (e) of this section addresses the Administrator's different 
options for ruling on an appeal. The phrase ``except where the terms of 
the Administrator's decision (for example, remanding a case to the 
presiding officer) show that the parties' administrative remedies have 
not been exhausted'' is included in this rule so that parties 
understand that a remand, or other intermediate decision, will not 
constitute final agency action. The inclusion of this phrase clarifies 
this potential outcome to those parties that are not represented by an 
attorney or who might otherwise be confused as to whether any action 
taken by the Administrator should be considered final agency action.
    Paragraph (f) of this section provides instructions for how appeals 
to the Administrator that come directly from the CRB should be handled. 
The only cases that can go directly from the Board to the Administrator 
are cases where the Board denied a petition for being untimely or 
incomplete. If the Administrator vacates and remands the Board's 
decision, the case will return to the Board. If the Administrator 
affirms the Board's decision, that will constitute final agency action.
Appendices
    FRA has included two appendices with this proposed rule.
    Appendix A, derived from appendix C to part 240 and appendix C to 
part 242, provides a narrative discussion of the procedures that a 
person seeking certification or recertification should follow to 
furnish a railroad with information concerning their motor vehicle 
driving record. Appendix B, derived from appendix D to part 240 and 
appendix D to part 242, provides a narrative discussion of the 
procedures that a railroad is required to employ in administering the 
vision and hearing requirements of Sec.  245.117 and Sec.  245.118. The 
main issue addressed in this appendix is discussing test methods for 
determining whether a person has the ability to recognize and 
distinguish among the colors used as signals in the railroad industry.

V. Regulatory Impact and Notices

A. Executive Order 12866 as Amended by Executive Order 14094

    This proposed rule is not a significant regulatory action within 
the meaning of Executive Order 12866 as amended by Executive Order 
14094, Modernizing Regulatory Review. Details on the estimated costs of 
this NPRM can be found in the Regulatory Impact Analysis (RIA), which 
FRA has prepared and placed in the docket (FRA-2022-0019).
    FRA is proposing regulations establishing a formal certification 
process for railroad dispatchers. As part of that process, railroads 
would be required to develop a program for training current and 
prospective dispatchers, documenting and verifying that the holder of 
the certificate has achieved certain training and proficiency, and 
creating a record of safety compliance infractions that other railroads 
can review when considering individuals for certification. This 
proposed regulation would ensure that dispatchers are properly trained, 
are

[[Page 35601]]

qualified to perform their duties, and meet Federal safety standards. 
Additionally, this proposed regulation is expected to improve railroad 
safety by reducing the rate of accidents/incidents.
    The RIA presents estimates of the costs likely to occur over the 
first 10 years of the proposed rule. The analysis includes estimates of 
costs associated with development of certification programs, initial 
and periodic training, knowledge testing, and monitoring of operational 
performance. Additionally, costs are estimated for vision and hearing 
tests, review of certification determinations made by other railroads, 
and Government administrative costs.
    FRA estimated 10-year costs of $5.3 million discounted at 7 
percent. The annualized cost would be $0.8 million discounted at 7 
percent. The following table shows the estimated 10-year costs of the 
proposed rule.

                                         Total 10-Year Discounted Costs
                                                 [2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                   10-Year cost    Present value   Present value   Annualized 7%   Annualized 3%
            Category                    ($)           7% ($)          3% ($)            ($)             ($)
----------------------------------------------------------------------------------------------------------------
Development of Certification             976,996         929,395         953,949         132,325         111,832
 Program........................
Certification Eligibility                 67,860          55,360          61,963           7,882           7,264
 Requirements...................
Recertification Eligibility              101,515          65,831          83,877           9,373           9,833
 Requirements...................
Training........................         910,415         707,334         812,820         100,708          95,287
Knowledge Testing...............         327,028         233,988         281,581          33,315          33,010
Vision and Hearing..............       2,217,910       1,586,913       1,909,692         225,941         223,874
Monitoring Operational                   353,656         256,017         305,956          36,451          35,867
 Performance....................
Railroad Oversight                       383,510         267,530         326,714          38,090          38,301
 Responsibilities...............
Certification Card..............          37,501          26,832          32,289           3,820           3,785
Petitions and Hearings..........          11,325           8,198           9,797           1,167           1,149
Government Administrative Cost..       1,505,376       1,208,191       1,361,239         172,019         159,579
                                 -------------------------------------------------------------------------------
    Total.......................       6,893,092       5,345,589       6,139,877         761,092         719,781
----------------------------------------------------------------------------------------------------------------

    The primary benefit of this proposed rule is that it would ensure 
that railroads properly train and monitor dispatcher performance to 
reduce the risk of accidents caused by dispatcher error. This rule 
would allow railroads to revoke certification of dispatchers who make 
serious safety-related violations. This includes failure to protect a 
malfunctioning highway-rail grade crossing or incorrectly granting 
permission to proceed through a protected track segment.
    This rule is expected to reduce the likelihood of an accident 
occurring due to dispatcher error. FRA has analyzed accidents over the 
past five years to categorize those where dispatcher training and 
certification would have impacted the accident. FRA estimated that this 
rule would prevent 30% of accidents that were caused or likely caused 
by the dispatcher. FRA estimated that this rule would prevent 10% of 
accidents where a dispatcher may have contributed to the accident.
    The following table shows the estimated 10-year benefits of the 
proposed rule. The total 10-year estimated benefits would be $0.8 
million (PV, 7%) and annualized benefits would be $0.1 million (PV, 
7%).

                                        Total 10-Year Discounted Benefits
                                                 [2020 dollars]
----------------------------------------------------------------------------------------------------------------
                                                             Present value 3%    Annualized 7%    Annualized 3%
                   Present value 7% ($)                             ($)               ($)              ($)
----------------------------------------------------------------------------------------------------------------
785,599...................................................            918,450          111,852          107,670
----------------------------------------------------------------------------------------------------------------

    FRA has quantified the monetary impact from accidents reported on 
FRA accident forms. However, some accident costs are not required to be 
reported on FRA accident forms (e.g., environmental impact). For 
example, the cost of property damage represents a portion of the total 
cost of train accidents, such as, the cost of direct labor and damage 
to on-track equipment, track, track structures, and roadbed. Other 
direct accident costs, such as accident clean up, third party property 
damage, lost lading, environmental damage, loss of economic activity to 
the community, and train delays are not included in FRA's accident/
incident reportable damages from the railroads. That impact may account 
for additional benefits not quantified in this analysis. If these costs 
not covered by FRA data were realized, accidents affected by this 
proposed rulemaking could have much greater economic impact than the 
quantitative benefit estimates provided here.

[[Page 35602]]

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
E.O. 13272 (67 FR 53461, Aug. 16, 2002) require agency review of 
proposed and final rules to assess their impacts on small entities. An 
agency must prepare an Initial Regulatory Flexibility Analysis (IRFA) 
unless it determines and certifies that a rule, if promulgated, would 
not have a significant economic impact on a substantial number of small 
entities. FRA has not determined whether this proposed rule would have 
a significant economic impact on a substantial number of small 
entities. Therefore, FRA prepared this IRFA to facilitate public 
comment on the potential small business impacts of the requirements in 
this NPRM.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact on small entities that would 
result from adoption of the proposals in this NPRM. FRA particularly 
encourages small entities that could potentially be impacted by the 
proposed rule to participate in the public comment process. FRA will 
consider all information and comments received in the public comment 
process when making a determination of the economic impact on small 
entities.
1. Reasons for Considering Agency Action
    FRA is concerned with the potential for accidents caused by 
dispatcher error. Railroads' dispatcher training programs may not be 
covering all aspects of a dispatcher's job responsibility. 
Additionally, railroads may not be testing dispatchers and ensuring 
that their knowledge is maintained continuously. The risk from job-
hopping of a dispatcher with a substance abuse problem is also 
addressed by the proposed rule.
    This NPRM would require railroads to develop a dispatcher 
certification program. This proposed rule would ensure that railroads 
examine railroad safety with respect to dispatchers. If FRA did not 
issue the rule as proposed, railroads would be free to hire and train 
dispatchers as they see fit.
2. A Succinct Statement of the Objectives of, and the Legal Basis for, 
the Proposed Rule
    This proposed rule is expected to help reduce the rate of 
dispatcher-caused accidents. The annual operational performance 
monitoring would ensure that dispatchers maintain their knowledge after 
the initial certification process.
    FRA is proposing regulations concerning dispatcher certification 
based on the general statutory authority of the Secretary. The general 
authority states, in relevant part, that the Secretary ``as necessary, 
shall prescribe regulations and issue orders for every area of railroad 
safety supplementing laws and regulations in effect on October 16, 
1970.'' \22\ The Secretary delegated this authority to the Federal 
Railroad Administrator.\23\ In addition, section 402 of the RSIA grants 
the Secretary authority to prescribe regulations requiring the 
certification of certain crafts or classes, including dispatchers, to 
improve railroad safety.
---------------------------------------------------------------------------

    \22\ 49 U.S.C. 20103.
    \23\ 49 CFR 1.89(a).
---------------------------------------------------------------------------

3. A Description of, and Where Feasible, an Estimate of the Number of 
Small Entities to Which the Proposed Rule Would Apply
    The Regulatory Flexibility Act of 1980 requires a review of 
proposed and final rules to assess their impact on small entities, 
unless the Secretary certifies that the rule would not have a 
significant economic impact on a substantial number of small entities. 
``Small entity'' is defined in 5 U.S.C. 601 as a small business concern 
that is independently owned and operated and is not dominant in its 
field of operation. The U.S. Small Business Administration (SBA) has 
authority to regulate issues related to small businesses, and 
stipulates in its size standards that a ``small entity'' in the 
railroad industry is a for profit ``line-haul railroad'' that has fewer 
than 1,500 employees, a ``short line railroad'' with fewer than 1,500 
employees, a ``commuter rail system'' with annual receipts of less than 
$16.5 million dollars, or a contractor that performs support activities 
for railroads with annual receipts of less than $16.5 million.\24\
---------------------------------------------------------------------------

    \24\ U.S. Small Business Administration, ``Table of Small 
Business Size Standards Matched to North American Industry 
Classification System Codes, August 19, 2019. https://www.sba.gov/sites/default/files/2019-08/SBA%20Table%20of%20Size%20Standards_Effective%20Aug%2019,%202019.pdf.

---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Under that authority, FRA has published a proposed statement 
of agency policy that formally establishes ``small entities'' or 
``small businesses'' as railroads, contractors, and hazardous materials 
shippers that meet the revenue requirements of a Class III railroad as 
set forth in 49 CFR 1201.1-1, which is $20 million or less in 
inflation-adjusted annual revenues,\25\ and commuter railroads or small 
Governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891 (May 9, 2003) (codified at appendix C to 49 CFR part 
209). FRA is using this definition for the proposed rule.
---------------------------------------------------------------------------

    \25\ The Class III railroad revenue threshold is $40.4 million 
or less, for 2021. (The Class II railroad threshold is between $40.4 
million and $900 million.) Surface Transportation Board (STB), 
available at https://www.stb.gov/news-communications/latest-news/pr-21-16/.
---------------------------------------------------------------------------

    When developing the proposed rule, FRA considered the impact that 
the proposed rule would have on small entities.
    The proposed rule would be applicable to all railroads who perform 
dispatching operations. However, the majority of small railroads do not 
have a dispatching function as part of their operations. The remaining 
small railroads would only be minimally impacted as most of their 
dispatch operations are contracted out to third parties. FRA estimates 
there are 744 Class III railroads, of which 704 operate on the general 
system. These railroads are of varying size, with some belonging to 
larger holding companies. Approximately 140 Class III railroads would 
be impacted by this rulemaking because they have dispatchers on staff 
or use third parties to dispatch trains for their operation. The 
remaining Class III railroads operate on track owned by Class I 
railroads or do not have a dispatching function as part of their 
operation. For those railroads operating on Class I track, the host 
railroad would be responsible for the dispatching on those tracks; 
therefore, the smaller railroad would not require a dispatcher 
certification program.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Would Be Subject to the Requirements and the 
Type of Professional Skill Necessary for Preparation of the Report or 
Record
    Railroads would be required to submit information to FRA for 
approval of dispatching certification programs. For small railroads 
that choose to develop their own certification programs, they would 
likely be less complex than larger railroads' operations. This would 
ease some of the burden on small railroads.
    The training program, and annual railroad responsibilities would be 
prepared by a professional or administrative employee. The type of 
professional skills needed by an employee responsible for submitting a 
special approval request includes the

[[Page 35603]]

ability to plan and organize work. Such an employee would also need 
good verbal and written communication skills and attention to detail.
Summary of Class III Railroad Costs
    Class III Railroads would have all the same cost components as 
larger railroads except they would not be required to perform annual 
railroad oversight responsibilities in accordance with the proposed 
rule. Therefore, that cost has been excluded for Class III railroads.
    The following table shows the annualized cost for Class III 
railroads over the 10-year analysis period. The total estimated 10-year 
costs for Class III railroads would be $0.8 million and the annualized 
cost for all Class III railroads would be $118,984 (PV, 7 percent).

         Total 10-Year and Annualized Costs, Class III Railroads
------------------------------------------------------------------------
                                           Present value   Annualized 7%
                Category                      7% ($)            ($)
------------------------------------------------------------------------
Development of Certification Program....         100,579          14,320
Certification Eligibility Requirements..          13,840           1,971
Recertification Eligibility Requirements          16,458           2,343
Training................................         176,834          25,177
Knowledge Testing.......................          58,497           8,329
Vision and Hearing......................         396,728          56,485
Monitoring Operational Performance......          64,004           9,113
Certification Card......................           6,708             955
Petitions and Hearings..................           2,050             292
                                         -------------------------------
    Total...............................         835,697         118,984
------------------------------------------------------------------------

    The industry trade organization representing small railroads, 
ASLRRA, reports the average freight revenue per Class III railroad is 
$4.75 million.\26\ The following table summarized the average annual 
costs and revenue for Class III railroads.
---------------------------------------------------------------------------

    \26\ American Short Line and Regional Railroad Association, 
Short Line and Regional Railroad Facts and Figures, p. 10 (2017 
pamphlet).

                                 Average Class III Railroads' Costs and Revenue
----------------------------------------------------------------------------------------------------------------
                                              Number of class   Average annual                    Average annual
     Total cost for class III railroads,       III railroads    cost per class   Average class      cost as a
              annualized 7% ($)               with dispatcher    III railroad      III annual       percent of
                                                   plans             ($)          revenue ($)        revenue
A                                                          B        c = a / b                d        e = c / d
----------------------------------------------------------------------------------------------------------------
118,984.....................................             140              850        4,750,000             0.02
----------------------------------------------------------------------------------------------------------------

    The average annual cost for a Class III railroad impacted by this 
rule would be $850. This represents a small percentage (0.02%) of the 
average annual revenue for a Class III railroad.
    The estimates above show that the burden on Class III railroads 
would not be a significant economic burden. FRA requests comments on 
this estimate and will consider all comments when making a 
determination for the final rule.
5. Identification, to the Extent Practicable, of All Relevant Federal 
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
    FRA is not aware of any relevant Federal rule that duplicates, 
overlaps with, or conflicts with this NPRM. This proposed rule is 
complementary to, rather than duplicative of, other recent regulatory 
initiatives FRA has issued or is in the process of developing. These 
initiatives include: the implementation of positive train control (PTC) 
systems by required railroads; \27\ training, qualification, and 
oversight; \28\ railroad safety risk reduction programs; \29\ and the 
development of fatigue risk management programs.\30\
---------------------------------------------------------------------------

    \27\ See generally 49 CFR part 236, subpart I; and press release 
in which FRA announces full implementation of positive train control 
(Dec. 29, 2020), available at https://railroads.dot.gov/sites/fra.dot.gov/files/2020-12/fra1920.pdf.
    \28\ 49 CFR part 243.
    \29\ 49 CFR parts 270 and 271.
    \30\ 87 FR 35660 (Jul. 13, 2022) (final rule amending 49 CFR 
parts 270 and 271 to require certain railroads to develop and 
implement a Fatigue Risk Management Program as one component of the 
railroads' larger railroad safety risk reduction programs).
---------------------------------------------------------------------------

6. A Description of Significant Alternatives to the Rule
    This analysis considered two alternatives to the rule: the baseline 
approach, and an approach that would certify just the training program. 
The baseline alternative (no action) would not ensure that dispatchers 
are being properly trained. Without this rule, railroad operations may 
be less safe if railroads are not providing adequate training to their 
dispatchers.
    The alternative of certifying only the training program would 
require a railroad to enhance their training of dispatchers. Training, 
however, is only a part of the certification process. The additional 
requirements of this proposed rule would ensure that dispatchers' 
hearing, vision, prior safety conduct at other railroads, and other 
aspects have been reviewed and are consistent with railroad safety.

C. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this 
proposed rule to the Office of Management and

[[Page 35604]]

Budget (OMB) for approval under the Paperwork Reduction Act of 
1995.\31\ The entire table contains the new information collection 
requirements and the estimated time to fulfill each requirement are as 
follows:
---------------------------------------------------------------------------

    \31\ 44 U.S.C. 3501 et seq.
    \32\ Throughout the tables in this document, the dollar 
equivalent cost is derived from the 2020 Surface Transportation 
Board's Full Year Wage A&B data series using the appropriate 
employee group hourly wage rate that includes 75-percent overhead 
charges.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                      Total
                                                                                              Average time per        annual                  Total cost
             CFR  section                 Respondent universe     Total annual responses          response            burden     Wage rate    equivalent
                                                                                                                      hours
                                                                 (A)....................  (B)....................  (C) = A * B     (D) \32\  (E) = C * D
--------------------------------------------------------------------------------------------------------------------------------------------------------
245.9--Waivers--Petitions............  203 railroads...........  .33 petitions..........  3 hours................         1.00       $77.44       $77.44
245.101/.103--Certification program    203 railroads + ASLRRA    71 plans (14.33 Class I  120 hours + 120 hours +     2,439.18       115.24   281,091.10
 required and FRA review of             and holding companies.    and commuter railroads   6 hours.
 certification program--Development                               plans + 3.33 generic
 of certification program in                                      program developed by
 accordance with this Part and                                    ASLRRA and holding
 procedures contained under Sec.                                  companies plans +
 245.107--Railroads with Current                                  53.33 Class II and III
 Dispatching Operations and New                                   railroads plans).
 Dispatching Railroads (Note: Each
 certification program includes
 procedure requirements under Sec.
 245.111 through Sec.   245.121.).
--(d)(1) Dispatcher certification      203 railroads...........  3 copies...............  15 minutes.............          .75        77.44        58.08
 submission--Copies of the program
 provided to the president of each
 rail labor organization (RLO) that
 represents the railroad's employees
 that are subject to this part.
--(d)(2) Affirmative statements that   203 railroads...........  3 affirmative            15 minutes.............          .75        77.44        58.08
 the railroad has provided a copy of                              statements.
 the program to RLOs.
--(e) Comment Period--Affirmed         203 railroads...........  12 comments............  4 hours................        48.00        77.44     3,717.12
 comments on a railroad's program by
 any designated representative of
 employees subject to this part or
 any directly affected employee who
 does not have a designated
 representative.
                                      ------------------------------------------------------------------------------------------------------------------
--(g) Material Modifications of FRA-   The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
 approved program--Railroad to submit
 a description of how it intends to
 modify the program and a copy of the
 modified program to FRA.
                                      ------------------------------------------------------------------------------------------------------------------
--(h) Resubmission--Railroad can       203 railroads + ASLRRA    4.67 revised plans       20 hours...............        94.00        77.44     7,279.36
 resubmit its program or material       and holding companies.    (3.67 revised plans
 modification as described in                                     Class I and commuter
 paragraph (f)(2) of this section                                 railroads + 1 revised
 after addressing all of the                                      plan ASLRRA and
 deficiencies noted by FRA and the                                holding companies).
 resubmission must conform with the
 procedures and requirements
 contained in Sec.   245.107.
                                      ------------------------------------------------------------------------------------------------------------------
--(i) Rescinding Prior Approval of     The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
 Program--Railroad to resubmit its
 certification program and the
 program must conform with the
 procedures and requirements
 contained in Sec.   245.107.
                                      ------------------------------------------------------------------------------------------------------------------
245.105 (c)(1)-(d)(1)--Implementation  203 railroads...........  522 designated lists...  5 minutes..............        43.50        77.44     3,368.64
 schedule for certification programs--
 Designation of certified dispatcher.
--(c)(2)-(d)(2) Issue a certificate    203 railroads...........  522 issued certificate   3 minutes..............        26.10        77.44     2,021.18
 that complies with Sec.   245.207 to                             cards.
 each person that it designates.
                                      ------------------------------------------------------------------------------------------------------------------
--(f) Written requests for delayed     FRA anticipates zero submissions.
 certification--Railroad may wait to
 recertify the person making the
 request until the end of the three-
 year period after FRA has approved
 the railroad's certification program.
                                      ------------------------------------------------------------------------------------------------------------------
--(g) Testing and evaluation--         The paperwork burden for testing and evaluation is included in the economic burden and the burden for
 Railroad shall only certify or         certificates is included under Sec.   245.105.
 recertify a person as a dispatcher
 if that person has been tested and
 evaluated in accordance with
 procedures that comply with subpart
 B of this part.
                                      ------------------------------------------------------------------------------------------------------------------
245.107--Requirements for              The paperwork requirements described in this appendix are accounted for throughout this table.
 Certification Programs--Procedures
 for Obtaining and Evaluating Motor
 Vehicle Driving Record Data.
                                      ------------------------------------------------------------------------------------------------------------------
245.109(a)--Determinations required    The paperwork burden for this requirement is covered under Sec.   245.111 through Sec.   245.121 and Sec.
 for certification and                  245.303.
 recertification--Eligibility
 requirements.
                                      ------------------------------------------------------------------------------------------------------------------

[[Page 35605]]

 
--(b) Person entering into an          As a condition of employment, dispatchers will sign an agreement upon being hired. There is no paperwork burden
 agreement that results in a railroad   since this is the usual and customary procedure.
 obtaining the information needed for
 compliance with this subpart in a
 different manner than that
 prescribed in Sec.   245.111 or Sec.
   245.113.
                                      ------------------------------------------------------------------------------------------------------------------
245.111(a)-(c)--Prior safety conduct   203 railroads...........  522 motor vehicle        5 minutes..............        43.50        77.44     3,368.64
 as motor vehicle operator--                                      records.
 Eligibility requirements of this
 section involving prior conduct as a
 motor vehicle operator.
--(e) If driver information is not     203 railroads...........  2 waivers..............  2 hours................         4.00        77.44       309.76
 obtained as required pursuant to
 paragraph (g) of this section, that
 person or the railroad certifying or
 recertifying that person may
 petition for a waiver in accordance
 with the provisions of part 211 of
 this chapter.
                                      ------------------------------------------------------------------------------------------------------------------
--(f) Individual's duty--Consent to    This is usual and customary procedure. The consent form is signed at the time of hiring to make driving
 make information concerning driving    information available to the railroad.
 record available to that railroad.
                                      ------------------------------------------------------------------------------------------------------------------
--(g)-(h) Request to obtain driver's   203 railroads...........  522 written requests...  5 minutes..............        43.50        59.00     2,566.50
 license information from licensing
 agency.
                                      ------------------------------------------------------------------------------------------------------------------
--(i) Requests for additional          The paperwork burden for this requirement is included under Sec.   242.111(g)-(h).
 information from licensing agency.
                                      ------------------------------------------------------------------------------------------------------------------
--(j) Notification to railroad by      203 railroads...........  2 notices..............  10 minutes.............          .33        77.44        25.56
 persons of never having a license.
--(k) Report of motor vehicle          203 railroads...........  10 self-reports........  10 minutes.............         1.67        77.44       129.32
 incidents described in paragraphs
 (m)(1) and (2) of this section to
 the employing railroad within 48
 hours.
--(l)-(m) Evaluation of person's       203 railroads...........  522 motor vehicle        5 minutes..............        43.50        71.89     3,127.22
 driving record by railroad.                                      record evaluations.
--(n)(1) DAC referral by railroad      203 railroads...........  9 DAC referrals........  5 minutes..............          .75       115.24        86.43
 after report of driving drug/alcohol
 incident.
--(n)(2) DAC request and supply by     203 railroads...........  1 request and supplied   30 minutes.............          .50       115.24        57.62
 persons of prior counseling or                                   record.
 treatment.
--(n)(3) Conditional certifications    203 railroads...........  3 conditional            4 hours................        12.00       115.24     1,382.88
 recommended by DAC.                                              certification
                                                                  recommendations.
                                      ------------------------------------------------------------------------------------------------------------------
245.113(b)--Prior safety conduct as    This is usual and customary procedure and, therefore, there is no paperwork burden.
 an employee of a different railroad--
 Certification candidate has not been
 employed or certified by any other
 railroad in the previous five years,
 they do not have to submit a request
 in accordance with paragraph (c) of
 this section, but they must notify
 the railroad of this fact in
 accordance with procedures
 established by the railroad in its
 certification program.
                                      ------------------------------------------------------------------------------------------------------------------
--(c) Person seeking certification or  203 railroads...........  3.33 requests..........  15 minutes.............          .83        77.44        64.28
 recertification under this part
 shall submit a written request to
 each railroad that employed or
 certified the person within the
 previous five years.
--(e) and (g) Railroad shall provide   203 railroads...........  3.33 records...........  15 minutes.............          .83        77.44        64.28
 the information requested to the
 railroad designated in the written
 request.
                                      ------------------------------------------------------------------------------------------------------------------
--(f) An explanation shall state why   FRA anticipates zero submissions.
 the railroad cannot provide the
 information within the requested
 time frame or cannot provide the
 requested information.
                                      ------------------------------------------------------------------------------------------------------------------
245.115(a)--Substance abuse disorders  203 railroads...........  459 determinations.....  2 minutes..............        15.30        77.40     1,184.22
 and alcohol drug rules compliance--
 Determination that person meets
 eligibility requirements.
--(b) Written documents from DAC that  203 railroads...........  20 filed documents.....  30 minutes.............        10.00       115.24     1,152.40
 person is not affected by a disorder.
--(c)(3) Fitness requirement--         203 railroads...........  1 self-referral........  10 minutes.............          .17       115.24        19.59
 Voluntarily self-referral by
 dispatcher for substance abuse
 counseling or treatment under the
 policy required by Sec.   219.1003
 of this chapter.

[[Page 35606]]

 
--(d)(1)-(d)(2) Prior alcohol/drug     203 railroads...........  522 certification        10 minutes.............        87.00       115.24    10,025.88
 conduct; Federal rule compliance.                                reviews.
--(d)(3)(i) Written determination      203 railroads...........  8 written                1 hour.................         8.00       115.24       921.92
 that most recent incident has                                    determinations.
 occurred.
--(d)(3)(ii) Notification to person    203 railroads...........  8 notifications........  30 minutes.............         4.00        77.44       309.76
 that recertification has been denied.
--(d)(4) Persons/conductors waiving    203 railroads...........  5 waived investigations  10 minutes.............          .83        77.44        64.28
 investigation/de-certifications.
245.117(a)-(c)--Vision acuity--        203 railroads...........  522 records............  2 minutes..............        17.40        71.89     1,250.89
 Determination vision standards met--
 Medical examiner certificate/record.
--(d)(1) Request for retest and        203 railroads...........  5 records..............  2 minutes..............          .17        71.89        12.22
 another medical evaluation--Medical
 examiner certificate/record.
--(d)(2) Railroad to provide a copy    203 railroads...........  522 copies.............  5 minutes..............        43.50        71.89     3,127.22
 of this part to medical examiner.
--(d)(3) Consultations by medical      203 railroads...........  5 consultations +        30 minutes + 10 minutes         3.33        71.89       239.39
 examiners with railroad officer and                              conditional
 issue of conditional certification.                              certifications.
--(g) Notification by certified        203 railroads...........  1 notification.........  10 minutes.............          .17        71.89        12.22
 dispatcher of deterioration of
 vision.
245.118--Hearing acuity--              203 railroads...........  522 medical records....  2 minutes..............        17.40        71.89     1,250.89
 Determination hearing standards met--
 Medical records.
--(d)(1) Request for retest and        203 railroads...........  5 records..............  2 minutes..............          .17        71.89        12.22
 another medical evaluation--Medical
 examiner certificate/record.
--(d)(2) Railroad to provide a copy    203 railroads...........  522 copies.............  5 minutes..............        43.50        71.89     3,127.22
 of this part to medical examiner.
--(d)(3) Consultations by medical      203 railroads...........  5 consultations +        30 minutes + 10 minutes         3.33        71.89       239.39
 examiners with railroad officer and                              conditional
 issue of conditional certification.                              certifications.
--(g) Notification by certified        203 railroads...........  1 notification.........  10 minutes.............          .17        71.89        12.22
 dispatcher of deterioration of
 hearing.
                                      ------------------------------------------------------------------------------------------------------------------
245.119(b)-(c)--Training               The paperwork burden for this requirement is covered under Sec.   245.101/.103.
 requirements--A railroad's election
 for the training of dispatchers
 shall be stated in its certification
 program.
                                      ------------------------------------------------------------------------------------------------------------------
--(d) Initial training program for     203 railroads...........  71 training programs...  3 hours................       213.00       115.24    24,546.12
 previously untrained person to be a
 dispatcher.
                                      ------------------------------------------------------------------------------------------------------------------
--(d)(3) Modification to training      The paperwork burden for this requirement is outside the scope of the 3-year PRA review period.
 program when new safety-related
 railroad laws, regulations and etc.
 are introduced into the workplace.
                                      ------------------------------------------------------------------------------------------------------------------
--(e) Relevant information or          The paperwork burden for this requirement is covered under Sec.   245.101/.103.
 materials on safety or other rules
 made available to certification
 candidates.
                                      ------------------------------------------------------------------------------------------------------------------
--(f) and (g) Completion of initial    203 railroads...........  67 written documents or  10 minutes.............        11.17        77.44       865.00
 training program by a person being                               records.
 certified as a dispatcher--Written
 documentation showing completed
 training program that complies with
 paragraph (d) of this section.
                                      ------------------------------------------------------------------------------------------------------------------
--(f)(3) Employee consultation with    The paperwork burden for this requirement is covered under Sec.   245.119.
 qualified supervisory employee if
 given written test to demonstrate
 knowledge of physical
 characteristics of any assigned
 territory.
                                      ------------------------------------------------------------------------------------------------------------------
--(h) Certification program is         The paperwork burden for this requirement is covered under Sec.   245.101/.103.
 submitted in accordance with the
 procedures and requirements
 described in Sec.   245.107.
                                      ------------------------------------------------------------------------------------------------------------------
--(i) Familiarization training for     FRA anticipates zero submissions.
 dispatcher of acquiring railroad
 from selling company/railroad prior
 to commencement of new operation.
                                      ------------------------------------------------------------------------------------------------------------------
--(j) Continuing education of          203 railroads...........  522 training records...  15 minutes.............       130.50        71.89     9,381.65
 certified dispatchers.
                                      ------------------------------------------------------------------------------------------------------------------
245.120--Requirements for territorial  The paperwork burden for this requirement is covered under Sec.   245.119.
 qualification--Determining
 eligibility and
                                      ------------------------------------------------------------------------------------------------------------------
--(b) Notification by persons who do   The paperwork burden for this requirement is covered under Sec.   245.119.
 not meet territorial qualification.
                                      ------------------------------------------------------------------------------------------------------------------

[[Page 35607]]

 
245.121(a)-(c)--Knowledge testing--    203 railroads...........  522 test records.......  5 minutes..............        43.50        77.44     3,368.64
 Determining eligibility.
--(d) Reexamination of the failed      203 railroads...........  2 examination records..  5 minutes..............          .17        77.44        13.16
 test.
245.123(c)--Monitoring operational     203 railroads...........  1,822 records..........  2 minutes..............        60.73        77.44     4,702.93
 performance--Unannounced compliance
 tests--Retention of a written record.
245.125--Certification determinations  203 railroads...........  3.33 determinations....  30 minutes.............         1.67        77.44       129.32
 made by other railroads.
245.203(b)--Retaining information      203 railroads...........  522 record retentions..  15 minutes.............       130.50        77.44    10,105.92
 supporting determination--Records.
--(g) Amended electronic records.....  203 railroads...........  1 amended record.......  15 minutes.............          .25        77.44        19.36
                                      ------------------------------------------------------------------------------------------------------------------
245.205--List of certified             The paperwork requirement for this burden is covered under Sec.   245.105(c)(1)-(d)(1).
 dispatchers and recordkeeping.
                                      ------------------------------------------------------------------------------------------------------------------
245.207(a)-(f)--Certificate            The paperwork requirement for this burden is covered under Sec.   245.105(c)(2)-(d)(2).
 requirements.
                                      ------------------------------------------------------------------------------------------------------------------
--(b) Notification by dispatchers      203 railroads...........  30 notifications.......  30 seconds.............          .25        71.89        17.97
 that railroad request to serve
 exceeds certification.
--(g)-(h) Replacement of certificates  203 railroads...........  15 replacement           5 minutes..............    1.25 hour        77.44        96.80
                                                                  certificates.
245.213(a)-(h)--Multiple               203 railroads...........  3 notifications........  10 minutes.............     .50 hour        77.44        38.72
 Certificates--Notification of denial
 of certification by individuals
 holding multiple certifications.
                                      ------------------------------------------------------------------------------------------------------------------
--(i) In lieu of issuing multiple      The paperwork requirement for this burden is covered under Sec.   245.105.
 certificates, a railroad may issue
 one certificate to a person who is
 certified in multiple crafts.
                                      ------------------------------------------------------------------------------------------------------------------
245.215--Railroad oversight            203 railroads...........  17.33 annual reviews     8 hours................       138.64       115.24    15,976.87
 responsibility--Review and analysis                              and analyses.
 of administration of certification
 program.
--(d) Report of findings and           203 railroads...........  2 reports..............  4 hours................         8.00       115.24       921.92
 conclusions reached during annual
 review by railroad to FRA (if
 requested in writing by FRA) review
 and analysis effort.
245.301(a)--Denial of certification--  203 railroads...........  2 notices + 1 response.  1 hour.................         3.00        77.44       232.32
 Notification to candidate of
 information that and candidate
 response forms basis for denying
 certification.
--(b) Denial Decision Requirements--   203 railroads...........  2 notifications........  1 hour.................         2.00        77.44       154.88
 Written notification of denial of
 certification by railroad to
 candidate.
245.307(b)(1)-(b)(4)--Process for      203 railroads...........  5 suspended              30 minutes.............         2.50        77.44       193.60
 revoking certification--Immediate                                certification letters
 suspension of dispatcher's                                       and documentations.
 certification.
                                      ------------------------------------------------------------------------------------------------------------------
--(b)(5)-(b)(6) Determinations based   The paperwork requirement for this burden is covered under Sec.   245.307(e).
 on the record of the hearing,
 whether revocation of the
 certification is warranted.
                                      ------------------------------------------------------------------------------------------------------------------
--(b)(7) Retention of record of the    203 railroads...........  5 records..............  15 minutes.............         1.25        77.44        96.80
 hearing for three years after the
 date the decision is rendered.
--(d)(9) Hearing Procedures--Written   203 railroads...........  1 written waiver.......  10 minutes.............          .17        59.00        10.03
 waiver of right to hearing.
--(e) Revocation Decision              203 railroads...........  5 written decisions and  2 hours................        10.00       115.24     1,152.40
 Requirements--Written decisions by                               service of decisions.
 railroad official.
--(g) Revocation of certification      203 railroads...........  1 revoked certification  10 minutes.............          .17       115.24        19.59
 based on information that another
 railroad has done so.
                                      ------------------------------------------------------------------------------------------------------------------
--(j) Placing relevant information in  The paperwork requirement for this burden is covered under Sec.   245.307(b)(7).
 record if sufficient evidence
 meeting the criteria in paragraph
 (h) or (i) of this section becomes
 available.
                                      ------------------------------------------------------------------------------------------------------------------
--(k) Good faith determination.......  203 railroads...........  1 good faith             1 hour.................    1.00 hour        77.44        77.44
                                                                  determination.
                                      ------------------------------------------------------------------------------------------------------------------
Subpart E--Dispute Resolution          The requirements under these provisions are exempted from the PRA under 5 CFR 1320.4(a)(2). Since these
 Procedures--Sec.   245.401 through     provisions pertain to an administrative action or investigation, there is no PRA burden associated with these
 Sec.   245.411.                        requirements.
                                      ------------------------------------------------------------------------------------------------------------------
Appendix A to Part 245--Procedures     The paperwork requirements described in this appendix are accounted for throughout this table.
 for Obtaining and Evaluating Motor
 Vehicle Driving Record Data.
                                      ------------------------------------------------------------------------------------------------------------------

[[Page 35608]]

 
Appendix B to Part 245--Medical        The paperwork requirements described in this appendix are accounted for throughout this table.
 Standards Guidelines.
                                      ------------------------------------------------------------------------------------------------------------------
    Totals \33\......................  203 railroads + ASLRRA    9,493 responses........  N/A....................        3,819          N/A      403,937
                                        and holding companies.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: Whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Ms. Arlette Mussington, 
Information Collection Clearance Officer, at (571) 609-1285, or Ms. 
Joanne Swafford, Information Collection Clearance Officer, at (757) 
897-9908.
---------------------------------------------------------------------------

    \33\ Totals may not add due to rounding.
---------------------------------------------------------------------------

    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them via email to 
Ms. Arlette Mussington at [email protected], or Ms. Joanne 
Swafford at [email protected].
    OMB is required to decide concerning the collection of information 
requirements contained in this rule between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. FRA is not authorized to 
impose a penalty on persons for violating information collection 
requirements that do not display a current OMB control number, if 
required. FRA intends to obtain current OMB control numbers for any new 
information collection requirements resulting from this rulemaking 
action prior to the effective date of the final rule. The OMB control 
number, when assigned, will be announced by separate notice in the 
Federal Register.

D. Federalism Implications

    Executive Order 13132, Federalism,\34\ requires FRA to develop an 
accountable process to ensure ``meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under Executive Order 13132, the agency may not issue 
a regulation with federalism implications that imposes substantial 
direct compliance costs and that is not required by statute, unless the 
Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, the agency 
consults with State and local governments, or the agency consults with 
State and local government officials early in the process of developing 
the regulation. Where a regulation has federalism implications and 
preempts State law, the agency seeks to consult with State and local 
officials in the process of developing the regulation.
---------------------------------------------------------------------------

    \34\ 64 FR 43255 (Aug. 10, 1999).
---------------------------------------------------------------------------

    FRA has analyzed this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13132. FRA has 
determined that this proposed rule has no federalism implications, 
other than the possible preemption of State laws under 49 U.S.C. 20106. 
Therefore, the consultation and funding requirements of Executive Order 
13132 do not apply, and preparation of a federalism summary impact 
statement for the proposed rule is not required.

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 \35\ prohibits Federal agencies 
from engaging in any standards or related activities that create 
unnecessary obstacles to the foreign commerce of the United States. 
Legitimate domestic objectives, such as safety, are not considered 
unnecessary obstacles. The statute also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards. This proposed rule is purely domestic in nature and 
is not expected to affect trade opportunities for U.S. firms doing 
business overseas or for foreign firms doing business in the United 
States.
---------------------------------------------------------------------------

    \35\ 19 U.S.C. Ch. 13.
---------------------------------------------------------------------------

F. Environmental Impact

    FRA has evaluated this proposed rule consistent with the National 
Environmental Policy Act \36\ (NEPA), the Council on Environmental 
Quality's NEPA implementing regulations,\37\ and FRA's NEPA 
implementing regulations \38\ and determined that it is categorically 
excluded from environmental review and therefore does not require the 
preparation of an environmental assessment (EA) or environmental impact 
statement (EIS). Categorical exclusions (CEs) are actions identified in 
an agency's NEPA implementing regulations that do not normally have a 
significant impact on the environment and therefore do not require 
either an EA or EIS.\39\ Specifically, FRA has determined that this 
proposed rule is categorically excluded from detailed environmental 
review.\40\
---------------------------------------------------------------------------

    \36\ 42 U.S.C. 4321 et seq.
    \37\ 40 CFR parts 1500-1508.
    \38\ 23 CFR part 771.
    \39\ 40 CFR 1508.4.
    \40\ See 23 CFR 771.116(c)(15) (categorically excluding 
``[p]romulgation of rules, the issuance of policy statements, the 
waiver or modification of existing regulatory requirements, or 
discretionary approvals that do not result in significantly 
increased emissions of air or water pollutants or noise'').
---------------------------------------------------------------------------

    The main purpose of this rulemaking is to establish certification 
requirements

[[Page 35609]]

for train dispatchers. This rule would not directly or indirectly 
impact any environmental resources and would not result in 
significantly increased emissions of air or water pollutants or noise. 
In analyzing the applicability of a CE, FRA must also consider whether 
unusual circumstances are present that would warrant a more detailed 
environmental review.\41\ FRA has concluded that no such unusual 
circumstances exist with respect to this proposed rule and it meets the 
requirements for categorical exclusion.\42\
---------------------------------------------------------------------------

    \41\ 23 CFR 771.116(b).
    \42\ 23 CFR 771.116(c)(15).
---------------------------------------------------------------------------

    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect historic properties.\43\ FRA has also 
determined that this rulemaking does not approve a project resulting in 
a use of a resource protected by Section 4(f).\44\ Further, FRA 
reviewed this proposed rulemaking and found it consistent with 
Executive Order 14008, ``Tackling the Climate Crisis at Home and 
Abroad.''
---------------------------------------------------------------------------

    \43\ See 16 U.S.C. 470.
    \44\ See Department of Transportation Act of 1966, as amended 
(Pub. L. 89-670, 80 Stat. 931); 49 U.S.C. 303.
---------------------------------------------------------------------------

G. Executive Order 12898 (Environmental Justice)

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations,'' and DOT 
Order 5610.2C \45\ require DOT agencies to achieve environmental 
justice as part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects, including interrelated social and economic 
effects, of their programs, policies, and activities on minority 
populations and low-income populations. The DOT Order instructs DOT 
agencies to address compliance with Executive Order 12898 and 
requirements within the DOT Order in rulemaking activities, as 
appropriate, and also requires consideration of the benefits of 
transportation programs, policies, and other activities where minority 
populations and low-income populations benefit, at a minimum, to the 
same level as the general population as a whole when determining 
impacts on minority and low-income populations. FRA has evaluated this 
proposed rule under Executive Order 12898 and the DOT Order and has 
determined it would not cause disproportionately high and adverse human 
health and environmental effects on minority populations or low-income 
populations.
---------------------------------------------------------------------------

    \45\ Available at: https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210312-003-signed.pdf.
---------------------------------------------------------------------------

H. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995,\46\ 
each Federal agency ``shall, unless otherwise prohibited by law, assess 
the effects of Federal regulatory actions on State, local, and Tribal 
governments, and the private sector (other than to the extent that such 
regulations incorporate requirements specifically set forth in law).'' 
Section 202 of the Act \47\ further requires that ``before promulgating 
any general notice of proposed rulemaking that is likely to result in 
promulgation of any rule that includes any Federal mandate that may 
result in the expenditure by State, local, and Tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) in any 1 year, and before 
promulgating any final rule for which a general notice of proposed 
rulemaking was published, the agency shall prepare a written 
statement'' detailing the effect on State, local, and Tribal 
governments and the private sector. This proposed rule would not result 
in the expenditure, in the aggregate, of $100,000,000 or more (as 
adjusted annually for inflation) in any one year, and thus preparation 
of such a statement is not required.
---------------------------------------------------------------------------

    \46\ Public Law 104-4, 2 U.S.C. 1531.
    \47\ 2 U.S.C. 1532.
---------------------------------------------------------------------------

I. Energy Impact

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' requires 
Federal agencies to prepare a Statement of Energy Effects for any 
``significant energy action.'' \48\ FRA evaluated this proposed rule 
under Executive Order 13211 and determined that this regulatory action 
is not a ``significant energy action'' within the meaning of Executive 
Order 13211.
---------------------------------------------------------------------------

    \48\ 66 FR 28355 (May 22, 2001).
---------------------------------------------------------------------------

J. Privacy Act Statement

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, to http://www.regulations.gov, as described in 
the system of records notice, DOT/ALL-14 FDMS, accessible through 
www.transportation.gov/privacy. To facilitate comment tracking and 
response, we encourage commenters to provide their name, or the name of 
their organization; however, submission of names is completely 
optional. Whether or not commenters identify themselves, all timely 
comments will be fully considered. If you wish to provide comments 
containing proprietary or confidential information, please contact the 
agency for alternate submission instructions.

K. Executive Order 13175 (Tribal Consultation)

    FRA has evaluated this proposed rule in accordance with the 
principles and criteria contained in Executive Order 13175, 
Consultation and Coordination with Indian Tribal Governments, dated 
November 6, 2000. The proposed rule would not have a substantial direct 
effect on one or more Indian Tribes, would not impose substantial 
direct compliance costs on Indian Tribal governments, and would not 
preempt Tribal laws. Therefore, the funding and consultation 
requirements of Executive Order 13175 do not apply, and a Tribal 
summary impact statement is not required.

List of Subjects in 49 CFR Part 245

    Administrative practice and procedure, Dispatcher, Penalties, 
Railroad employees, Railroad operating procedures, Railroad safety, 
Reporting and recordkeeping requirements.

The Proposed Rule

0
 For the reasons discussed in the preamble, FRA proposes to amend 
chapter II, subtitle B, of title 49 of the Code of Federal Regulations, 
by adding part 245 to read as follows:

PART 245--QUALIFICATION AND CERTIFICATION OF DISPATCHERS

Sec.
Subpart A--General
245.1 Purpose and scope.
245.3 Application and responsibility for compliance.
245.5 Effect and construction.
245.7 Definitions.
245.9 Waivers.
245.11 Penalties and consequences for noncompliance.
Subpart B--Program and Eligibility Requirements
245.101 Certification program required.
245.103 FRA review of certification programs.
245.105 Implementation schedule for certification programs.
245.107 Requirements for certification programs.
245.109 Determinations required for certification and 
recertification.

[[Page 35610]]

245.111 Prior safety conduct as motor vehicle operator.
245.113 Prior safety conduct with other railroads.
245.115 Substance abuse disorders and alcohol drug rules compliance.
245.117 Vision acuity.
245.118 Hearing acuity.
245.119 Training requirements.
245.120 Requirements for territorial qualification.
245.121 Knowledge testing.
245.123 Monitoring operational performance.
245.125 Certification determinations made by other railroads.
Subpart C--Administration of the Certification Program
245.201 Time limitations for certification.
245.203 Retaining information supporting determinations.
245.205 List of certified dispatchers and recordkeeping.
245.207 Certificate requirements.
245.213 Multiple certifications.
245.215 Railroad oversight responsibilities.
Subpart D--Denial and Revocation of Certification
245.301 Process for denying certification.
245.303 Criteria for revoking certification.
245.305 Periods of ineligibility.
245.307 Process for revoking certification.
Subpart E--Dispute Resolution Procedures
245.401 Review board established.
245.403 Petition requirements.
245.405 Processing certification review petitions.
245.407 Request for a hearing.
245.409 Hearings.
245.411 Appeals.

Appendix A to Part 245--Procedures for Obtaining and Evaluating Motor 
Vehicle Driving Record Data

Appendix B to Part 245--Medical Standards Guidelines

    Authority:  49 U.S.C. 20103, 20107, 20162, 21301, 21304, 21311; 
28 U.S.C. 2461 note; 49 CFR 1.89; and Public Law 110-432, sec. 402, 
122 Stat. 4884.

Subpart A--General


Sec.  245.1  Purpose and scope.

    (a) The purpose of this part is to ensure that only those persons 
who meet minimum Federal safety standards serve as dispatchers, to 
reduce the rate and number of accidents and incidents, and to improve 
railroad safety.
    (b) This part prescribes minimum Federal safety standards for the 
eligibility, training, testing, certification, and monitoring of all 
dispatchers to whom it applies. This part does not restrict a railroad 
from adopting and enforcing additional or more stringent requirements 
consistent with this part.
    (c) The dispatcher certification requirements prescribed in this 
part apply to any person who meets the definition of dispatcher 
contained in Sec.  245.7, regardless of the fact that the person may 
have a job classification title other than that of dispatcher.


Sec.  245.3  Application and responsibility for compliance.

    (a) This part applies to all railroads except:
    (1) Railroads that do not have any dispatch tasks, as defined in 
Sec.  245.7, performed either by dispatchers employed by the railroad 
or employed by a contractor or subcontractor;
    (2) Railroads that operate only on track inside an installation 
that is not part of the general railroad system of transportation 
(i.e., plant railroads, as defined in Sec.  245.7);
    (3) Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation as defined in 
Sec.  245.7; or
    (4) Rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    (b) Although the duties imposed by this part are generally stated 
in terms of the duty of a railroad, each person, as defined in Sec.  
245.7, who performs any function required by this part must perform 
that function in accordance with this part.


Sec.  245.5  Effect and construction.

    (a) FRA does not intend, by use of the term dispatcher in this 
part, to alter the terms, conditions, or interpretation of existing 
collective bargaining agreements that employ other job classification 
titles when identifying a person who dispatches train.
    (b) FRA does not intend, by issuance of these regulations, to alter 
the authority of a railroad to initiate disciplinary sanctions against 
its employees, including managers and supervisors, in the normal and 
customary manner, including those contained in its collective 
bargaining agreements.
    (c) Except as provided in Sec.  245.213, nothing in this part shall 
be construed to create or prohibit an eligibility or entitlement to 
employment in other service for the railroad as a result of denial, 
suspension, or revocation of certification under this part.
    (d) Nothing in this part shall be deemed to abridge any additional 
procedural rights or remedies not inconsistent with this part that are 
available to the employee under a collective bargaining agreement, the 
Railway Labor Act, or (with respect to employment at will) at common 
law with respect to removal from service or other adverse action taken 
as a consequence of this part.


Sec.  245.7  Definitions.

    As used in this part:
    Administrator means the Administrator of the FRA or the 
Administrator's delegate.
    Alcohol means ethyl alcohol (ethanol) and includes use or 
possession of any beverage, mixture, or preparation containing ethyl 
alcohol.
    Blocking device means a method of control that either prohibits the 
operation of a switch or signal or restricts access to a section of 
track.
    Controlled substance has the meaning assigned by 21 U.S.C. 802 and 
includes all substances listed on Schedules I through V as they may be 
revised from time to time (21 CFR parts 1301 through 1316).
    Controlled track means a track upon which movements of trains, 
engines, and on-track equipment must be authorized by a control 
station.
    Dispatch means:
    (1) To perform a function that would be classified as a duty of a 
``dispatching service employee,'' as that term is defined by the hours 
of service laws at 49 U.S.C. 21101(2), if the function were to be 
performed in the United States. The term dispatch includes, but is not 
limited to, by the use of an electrical or mechanical device:
    (i) Controlling the movement of a train or other on-track equipment 
by the issuance of a written or verbal authority or permission 
affecting a railroad operation, or by establishing a route through the 
use of a railroad signal or train control system but not merely by 
aligning or realigning a switch; or
    (ii) Controlling the occupancy of a track by a roadway worker or 
stationary on-track equipment, or both; or
    (iii) Issuing an authority for working limits to a roadway worker.
    (2) The term dispatch does not include the action of personnel in 
the field:
    (i) Effecting implementation of a written or verbal authority or 
permission affecting a railroad operation or an authority or permission 
affecting a railroad operation or an authority for working limits to a 
roadway worker (e.g., initiating an interlocking timing device, 
authorizing a train to enter working limits); or
    (ii) Operating a function of a signal system designed for use by 
those personnel; or
    (iii) Sorting and grouping rail cars inside a railroad yard to 
assemble or disassemble a train.
    Dispatcher means any individual who dispatches.
    Dispatcher Pilot means a dispatcher qualified on assigned 
territory, tasked with overseeing a non-qualified

[[Page 35611]]

employee who has not successfully completed all instruction, training 
and examination programs for the physical characteristics of the 
territory or position.
    Drug means any substance (other than alcohol) that has known mind 
or function-altering effects on a human subject, specifically including 
any psychoactive substance and including, but not limited to, 
controlled substances.
    Drug and alcohol counselor (DAC) means a person who meets the 
credentialing and qualification requirements of a ``Substance Abuse 
Professional'' (SAP), as provided in 49 CFR part 40.
    File, filed, and filing mean submission of a document under this 
part on the date when the Docket Clerk receives it, or if sent by mail, 
the date mailing was completed.
    FRA means the Federal Railroad Administration.
    FRA representative means the FRA Associate Administrator for 
Railroad Safety/Chief Safety Officer and the Associate Administrator's 
delegate, including any safety inspector employed by the Federal 
Railroad Administration and any qualified State railroad safety 
inspector acting under part 212 of this chapter.
    Ineligible or ineligibility means that a person is legally 
disqualified from serving as a certified dispatcher. The term covers a 
number of circumstances in which a person may not serve as a certified 
dispatcher. Revocation of certification pursuant to Sec.  245.307 and 
denial of certification pursuant to Sec.  245.301 are two examples in 
which a person would be ineligible to serve as a dispatcher. A period 
of ineligibility may end when a condition or conditions are met, such 
as when a person meets the conditions to serve as a dispatcher 
following an alcohol or drug violation pursuant to Sec.  245.115.
    Knowingly means having actual knowledge of the facts giving rise to 
the violation or that a reasonable person acting in the circumstances, 
exercising due care, would have had such knowledge.
    Main track means a track upon which the operation of trains is 
governed by one or more of the following methods of operation: 
Timetable; mandatory directive; signal indication; or any form of 
absolute or manual block system.
    Mandatory directive means any movement authority or speed 
restriction that affects a railroad operation.
    Medical examiner means a person licensed as a doctor of medicine or 
doctor of osteopathy. A medical examiner can be a qualified full-time 
salaried employee of a railroad, a qualified practitioner who contracts 
with the railroad on a fee-for-service or other basis, or a qualified 
practitioner designated by the railroad to perform functions in 
connection with medical evaluations of employees. As used in this rule, 
the medical examiner owes a duty to make an honest and fully informed 
evaluation of the condition of an employee.
    On-the-job training means job training that occurs in the 
workplace, i.e., the employee learns the job while doing the job.
    Person means an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor.
    Physical characteristics means the actual track profile of and 
physical location for points within a specific yard or route that 
affect the movement of a locomotive or train. Physical characteristics 
includes main track physical characteristics (see definition of ``main 
track'' in this section) and other than main track physical 
characteristics.
    Plant railroad means a plant or installation that owns or leases a 
locomotive, uses that locomotive to switch cars throughout the plant or 
installation, and is moving goods solely for use in the facility's own 
industrial processes. The plant or installation could include track 
immediately adjacent to the plant or installation if the plant railroad 
leases the track from the general system railroad and the lease 
provides for (and actual practice entails) the exclusive use of that 
trackage by the plant railroad and the general system railroad for 
purposes of moving only cars shipped to or from the plant. A plant or 
installation that operates a locomotive to switch or move cars for 
other entities, even if solely within the confines of the plant or 
installation, rather than for its own purposes or industrial processes, 
will not be considered a plant railroad because the performance of such 
activity makes the operation part of the general railroad system of 
transportation.
    Qualified means a person who has successfully completed all 
instruction, training and examination programs required by the 
employer, and the applicable parts of this chapter and that the person 
therefore may reasonably be expected to be proficient on all safety 
related tasks the person is assigned to perform.
    Qualified instructor means a person who has demonstrated, pursuant 
to the railroad's written program, an adequate knowledge of the 
subjects under instruction and, where applicable, has the necessary 
dispatching experience to effectively instruct in the field, and has 
the following qualifications:
    (1) Has demonstrated, pursuant to the railroad's written program, 
an adequate knowledge of the subjects under instruction;
    (2) Where applicable, has the necessary experience to effectively 
instruct in the field;
    (3) Is a certified dispatcher under this part; and
    (4) If the railroad has designated employee representation, has 
been selected by a designated railroad officer, in concurrence with the 
designated employee representative, or has a minimum of one year of 
service working as a certified dispatcher.
    Railroad means any form of nonhighway ground transportation that 
runs on rails or electromagnetic guideways and any entity providing 
such transportation, including:
    (1) Commuter or other short-haul railroad passenger service in a 
metropolitan or suburban area and commuter railroad service that was 
operated by the Consolidated Rail Corporation on January 1, 1979; and
    (2) High speed ground transportation systems that connect 
metropolitan areas, without regard to whether those systems use new 
technologies not associated with traditional railroads; but does not 
include rapid transit operations in an urban area that are not 
connected to the general railroad system of transportation.
    Railroad officer means any supervisory employee of a railroad.
    Roadway worker in charge (RWIC) means a roadway worker who is 
qualified under Sec.  214.353 of this chapter to establish on-track 
safety for roadway work groups, and lone workers qualified under Sec.  
214.347 of this chapter to establish on-track safety for themselves.
    Serve or service, in the context of serving documents, has the 
meaning given in Rule 5 of the Federal Rules of Civil Procedure as 
amended. Similarly, the computation of time provisions in Rule 6 of the 
Federal Rules of Civil Procedure as amended are also applicable in this 
part. See also the definition of ``filing'' in this section.
    Substance abuse disorder refers to a psychological or physical 
dependence on alcohol or a drug, or another identifiable and treatable 
mental or

[[Page 35612]]

physical disorder involving the abuse of alcohol or drugs as a primary 
manifestation. A substance abuse disorder is ``active'' within the 
meaning of this part if the person is currently using alcohol or other 
drugs, except under medical supervision consistent with the 
restrictions described in Sec.  219.103 of this chapter or has failed 
to complete primary treatment successfully or participate in aftercare 
successfully as directed by a DAC or SAP.
    Substance Abuse Professional (SAP) means a person who meets the 
qualifications of a substance abuse professional, as provided in 49 CFR 
part 40.
    Territorial qualifications means possessing the necessary knowledge 
concerning a railroad's operating rules and timetable special 
instructions including familiarity with applicable main track and other 
than main track physical characteristics of the territory over which 
the locomotive or train movement will occur as well as the 
characteristics of the position to include and not limited to the 
operation and capabilities of dispatch control systems.
    Tourist, scenic, historic, or excursion operations that are not 
part of the general railroad system of transportation means a tourist, 
scenic, historic, or excursion operation conducted only on track used 
exclusively for that purpose (i.e., there is no freight, intercity 
passenger, or commuter passenger railroad operation on the track).


Sec.  245.9  Waivers.

    (a) A person subject to a requirement of this part may petition FRA 
for a waiver of compliance with such requirement. The filing of such a 
petition does not affect that person's responsibility for compliance 
with that requirement while the petition is being considered.
    (b) Each petition for a waiver under this section must be filed in 
the manner and contain the information required by part 211 of this 
chapter.
    (c) If FRA finds that a waiver of compliance is in the public 
interest and is consistent with railroad safety, FRA may grant the 
waiver subject to any conditions FRA deems necessary.


Sec.  245.11  Penalties and consequences for noncompliance.

    (a) Any person (including but not limited to a railroad; any 
manager, supervisor, official, or other employee or agent of a 
railroad; any owner, manufacturer, lessor, or lessee of railroad 
equipment, track, or facilities; any employee of such owner, 
manufacturer, lessor, or lessee; or any independent contractor or 
subcontractor of a railroad) who violates any requirement of this part 
or causes the violation of any such requirement is subject to a civil 
penalty of at least the minimum civil monetary penalty and not more 
than the ordinary maximum civil monetary penalty per violation. 
However, penalties may be assessed against individuals only for willful 
violations, and a penalty not to exceed the aggravated maximum civil 
monetary penalty per violation may be assessed, where:
    (1) A grossly negligent violation, or a pattern of repeated 
violations, has created an imminent hazard of death or injury to 
persons; or
    (2) A death or injury has occurred. See 49 CFR part 209, appendix 
A.
    (b) Each day a violation continues constitutes a separate offense.
    (c) A person who violates any requirement of this part or causes 
the violation of any such requirement may be subject to 
disqualification from all safety-sensitive service in accordance with 
part 209 of this chapter.
    (d) A person who knowingly and willfully falsifies a record or 
report required by this part may be subject to criminal penalties under 
49 U.S.C. 21311.
    (e) In addition to the enforcement methods referred to in 
paragraphs (a) through (d) of this section, FRA may also address 
violations of this part by use of the emergency order, compliance 
order, and/or injunctive provisions of the Federal rail safety laws.
    (f) FRA's website at https://railroads.dot.gov/ contains a schedule 
of civil penalty amounts used in connection with this part.

Subpart B--Program and Eligibility Requirements


Sec.  245.101  Certification program required.

    (a) Each railroad that this part applies to shall have a written 
dispatcher certification program.
    (b) Each certification program shall include all of the following:
    (1) A procedure for evaluating prior safety conduct as a motor 
vehicle operator that complies with the criteria established in Sec.  
245.111.
    (2) A procedure for evaluating prior safety conduct as an employee 
or certified dispatcher of a different railroad that complies with the 
criteria established in Sec.  245.113.
    (3) A procedure for evaluating potential substance abuse disorders 
and compliance with railroad alcohol and drug rules that complies with 
the criteria established in Sec.  245.115.
    (4) A procedure for evaluating vision and hearing acuity that 
complies with the criteria established in Sec. Sec.  245.117 and 
245.118.
    (5) A procedure for training that complies with the criteria 
established in Sec.  245.119.
    (6) A procedure for knowledge testing that complies with the 
criteria established in Sec.  245.121.
    (7) A procedure for monitoring operational performance that 
complies with the criteria established in Sec.  245.123.


Sec.  245.103  FRA review of certification programs.

    (a) Certification program submission schedule for railroads with 
current dispatching operations. Each railroad with current dispatching 
operations, as [EFFECTIVE DATE OF FINAL RULE] shall submit its 
dispatcher certification program to FRA, in accordance with the 
procedures and requirements contained in Sec.  245.107, according to 
the following schedule:
    (1) All Class I railroads (including the National Railroad 
Passenger Corporation) and railroads providing commuter service shall 
submit their programs to FRA no later than [DATE EIGHT MONTHS AFTER THE 
EFFECTIVE DATE OF THE FINAL RULE].
    (2) All Class II railroads and Class III railroads (including a 
switching and terminal or other railroad not otherwise classified) 
shall submit their programs to FRA no later than [DATE 16 MONTHS AFTER 
THE EFFECTIVE DATE OF THE FINAL RULE].
    (b) Certification program submission for new dispatching railroads. 
For each railroad that commences dispatching operations after the 
effective date of this rule, the railroad shall submit and obtain 
approval of its written certification program to FRA, in accordance 
with the procedures and requirements contained in Sec.  245.107, prior 
to commencing dispatching operations.
    (c) Method for submitting certification programs to FRA. Railroads 
must submit their written certification programs and their requests for 
approval (described in Sec.  245.107(a)) by uploading the program to 
FRA's secure document submission site.
    (d) Notification requirements. Each railroad that submits a program 
to FRA must:
    (1) Simultaneously with its submission, provide a copy of the 
program and the request for approval to the president of each labor 
organization that represents the railroad's dispatchers

[[Page 35613]]

and to all of the railroad's dispatchers that are subject to this part; 
and
    (2) Include in its submission to FRA, a statement affirming that 
the railroad has provided a copy of the program and the request for 
approval to the president of each labor organization that represents 
the railroad's dispatchers and to all of the railroad's dispatchers 
that are subject to this part, along with a list of the names and email 
addresses of each president of a labor organization who was provided a 
copy of the program.
    (e) Comment period. Any designated representative of dispatchers 
subject to this part or any directly affected person who does not have 
a designated representative may comment on a railroad's program 
provided that:
    (1) The comment is submitted no later than 45 days after the date 
the program was submitted to FRA;
    (2) The comment includes a concise statement of the commenter's 
interest in the matter;
    (3) The commenter affirms that a copy of the comment was provided 
to the railroad; and
    (4) The comment was emailed to [email protected].
    (f) FRA review period. Upon receipt of a program, FRA will commence 
a thorough review of the program to ensure that it satisfies all of the 
requirements under this part.
    (1) If FRA determines that the program satisfies all of the 
requirements under this part, FRA will issue a letter notifying the 
railroad that its program has been approved. Such letter will typically 
be issued within 90 days of the date the program was submitted to FRA.
    (2) If FRA determines that the program does not satisfy all of the 
requirements under this part, FRA will issue a letter notifying the 
railroad that its program has been disapproved. Such letter will 
typically be issued within 90 days of the date the program was 
submitted to FRA and will identify the deficiencies found in the 
program that must be corrected before the program can be approved. 
After addressing these deficiencies, railroads can resubmit their 
programs in accordance with paragraph (h) of this section.
    (3) If a railroad does not receive an approval or disapproval 
letter from FRA within 90 days of the date the program was submitted to 
FRA, FRA's decision on the program will remain pending until such time 
that FRA issues a letter either approving or disapproving the program. 
A certification program is not approved until FRA issues a letter 
approving the program.
    (g) Material modifications. A railroad that intends to make one or 
more material modifications to its FRA-approved program must submit a 
description of how it intends to modify the program and a copy of the 
modified program.
    (1) A modification is material if it would affect the program's 
conformance with this part.
    (2) The description of the modification and the modified program 
must conform with the procedures and requirements contained in Sec.  
245.107.
    (3) The process for submission and review of material modifications 
shall conform with paragraphs (c) through (f) of this section.
    (4) A railroad cannot implement a material modification to its 
program until FRA issues its approval of the material modification in 
accordance with paragraph (f)(1) of this section.
    (h) Resubmissions. If FRA disapproves a railroad's program or 
material modification, as described in paragraph (f)(2) of this 
section, the railroad can resubmit its program or material modification 
after addressing all of the deficiencies noted by FRA.
    (1) The resubmission must conform with the procedures and 
requirements contained in Sec.  245.107.
    (2) The process for submission and review of resubmitted programs 
and resubmitted material modifications shall conform with paragraphs 
(c) through (f) of this section.
    (3) The following deadlines apply for railroads that have their 
programs or material modifications disapproved by FRA:
    (i) For a railroad that submitted its program pursuant to paragraph 
(a) of this section, the railroad must resubmit its program within 30 
days of the date that FRA notified the railroad of the deficiencies in 
its program. If a railroad fails to resubmit its program within this 
timeframe and it continues its dispatching operations, FRA may consider 
such actions to be a failure to implement a program.
    (ii) For a railroad that submitted its program pursuant to 
paragraph (b) of this section, there is no FRA-imposed deadline for 
resubmitting its program. However, pursuant to Sec.  245.105(b), the 
railroad cannot begin dispatching operations until its program has been 
approved by FRA.
    (iii) For a railroad that submitted a material modification to its 
FRA-approved program, there is no FRA-imposed deadline for resubmitting 
the material modification. However, pursuant to paragraph (g)(3) of 
this section, the railroad cannot implement the material modification 
until it has been approved by FRA.
    (i) Rescinding prior approval of program. FRA reserves the right to 
revisit its prior approval of a railroad's program at any time.
    (1) If upon such review, FRA discovers deficiencies in the program 
such that the program does not comply with subpart B of this part, FRA 
shall issue the railroad a letter rescinding its prior approval of the 
program and notifying the railroad of the deficiencies in its program 
that must be addressed.
    (2) Within 30 days of FRA notifying the railroad of the 
deficiencies in its program, the railroad must address these 
deficiencies and resubmit its program to FRA. The resubmitted program 
must conform with the procedures and requirements contained in Sec.  
245.107.
    (3) The process for submission and review of resubmitted programs 
under this paragraph shall conform with paragraphs (c) through (f) of 
this section.
    (4) If a railroad fails to resubmit its program to FRA within the 
timeframe prescribed in paragraph (i)(2) of this section and the 
railroad continues its dispatching operations, FRA may consider such 
actions to be a failure to implement a program.
    (5) If FRA issues a letter disapproving the railroad's resubmitted 
program, the railroad shall continue to resubmit its program in 
accordance with this paragraph (i).
    (6) A program that has its approval rescinded under paragraph 
(i)(1) of this section may remain in effect until whichever of the 
following happens first:
    (i) FRA approves the railroad's resubmitted program; or
    (ii) FRA disapproves the railroad's second attempt at resubmitting 
its program.
    (7) If FRA disapproves a railroad's second attempt at resubmitting 
its program under this paragraph and the railroad continues its 
dispatching operations, FRA may consider such actions to be a failure 
to implement a program.
    (j) Availability of certification program documents. The following 
documents will be available on FRA's website (railroads.dot.gov):
    (1) A railroad's originally submitted program, a resubmission of 
its program, or a material modification of its program;
    (2) Any comments, submitted in accordance with paragraph (e) of 
this section, to a railroad's originally submitted program, a 
resubmission of its program, or a material modification of its program; 
and
    (3) Any approval or disapproval letter issued by FRA in response to 
a

[[Page 35614]]

railroad's originally submitted program, a resubmission of its program, 
or a material modification of its program.


Sec.  245.105  Implementation schedule for certification programs.

    (a) Each railroad that submits its dispatcher certification program 
to FRA in accordance with Sec.  245.103(a), may continue dispatching 
operations while it awaits approval of its program by FRA. However, if 
FRA disapproves a railroad's program on two occasions and the railroad 
continues dispatching operations, FRA may consider such actions to be a 
failure to implement a program.
    (b) Each railroad that submits its dispatcher certification program 
to FRA in accordance with Sec.  245.103(b), must have its program 
approved by FRA prior to commencing dispatching operations. If such 
railroad commences dispatching operations before its program is 
approved by FRA, FRA may consider such actions to be a failure to 
implement a program.
    (c) By [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], each 
railroad shall:
    (1) In writing, designate as certified dispatchers all persons 
authorized by the railroad to perform the duties of a dispatcher as of 
[DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE]; and
    (2) Issue a certificate that complies with Sec.  245.207 to each 
person that it designates.
    (d) After [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], each 
railroad shall:
    (1) In writing, designate as a certified dispatcher any person who 
has been authorized by the railroad to perform the duties of a 
dispatcher between [EFFECTIVE DATE OF FINAL RULE] and the date FRA 
approves the railroad's certification program; and
    (2) Issue a certificate that complies with Sec.  245.207 to each 
person that it designates.
    (e) After [DATE 8 MONTHS AFTER EFFECTIVE DATE OF FINAL RULE], no 
railroad shall permit or require a person to perform service as a 
dispatcher unless that person is a certified dispatcher.
    (f) No railroad shall permit or require a person, designated as a 
certified dispatcher under the provisions of paragraph (c) or (d) of 
this section, to perform service as a certified dispatcher for more 
than three years after the date FRA approves the railroad's 
certification program unless that person has been tested and evaluated 
in accordance with procedures that comply with subpart B of this part.
    (1) Except as provided in paragraph (f)(3) of this section, a 
person who has been designated as a certified dispatcher under the 
provisions of paragraph (c) or (d) of this section and who is eligible 
to receive a retirement pension in accordance with the terms of an 
applicable agreement or in accordance with the terms of the Railroad 
Retirement Act (45 U.S.C. 231) within three years from the date the 
certifying railroad's program is approved by FRA, may request in 
writing, that a railroad not recertify that person, pursuant to subpart 
B of this part, until three years from the date the certifying 
railroad's program is approved.
    (2) Upon receipt of a written request pursuant to paragraph (f)(1) 
of this section, a railroad may wait to recertify the person making the 
request until the end of the three-year period after FRA has approved 
the railroad's certification program. If a railroad grants any request, 
it must grant the request of all eligible persons to every extent 
possible.
    (3) A person who is subject to recertification under part 240 or 
242 of this chapter may not make a request pursuant to paragraph (f)(1) 
of this section.
    (g) After a railroad's certification program has been approved by 
FRA, the railroad shall only certify or recertify a person as a 
dispatcher if that person has been tested and evaluated in accordance 
with procedures that comply with subpart B of this part.


Sec.  245.107  Requirements for certification programs.

    (a) Railroad's certification program submission. (1) A railroad's 
certification program submission must include a copy of the 
certification program and a request for approval.
    (2) The request for approval can be in letter or narrative format.
    (3) A railroad will receive approval or disapproval notices from 
FRA by email.
    (4) FRA may electronically store any materials required by this 
part.
    (b) Organization of the certification program. Each program must be 
organized to present the required information in paragraphs (b)(1) 
through (6) of this section. Each section must begin by giving the 
name, title, telephone number, and email address of the person to be 
contacted concerning the matters addressed by that section. If a person 
is identified in a prior section, it is sufficient to merely repeat the 
person's name in a subsequent section.
    (1) Section 1 of the program: general information and elections. 
(i) The first section of the submission must contain the name of the 
railroad, the person to be contacted concerning the request (including 
the person's name, title, telephone number, and email address) and a 
statement electing either to accept responsibility for educating 
previously uncertified persons to be dispatchers or to not accept this 
responsibility.
    (ii) If a railroad elects not to provide initial dispatcher 
training, the railroad will be limited to recertifying persons 
initially certified by another railroad. A railroad can change its 
election by obtaining FRA approval of a material modification to its 
program in accordance with Sec.  245.103(g).
    (iii) If a railroad elects to accept responsibility for training 
persons not previously certified as dispatchers, the railroad must 
submit information on how such persons will be trained, but is not 
required to actually perform such training. A railroad that elects to 
accept the responsibility for the training of such persons may 
authorize another railroad or a non-railroad entity to perform the 
actual training effort. The electing railroad remains responsible for 
ensuring that such other training providers adhere to the training 
program the railroad submits.
    (2) Section 2 of the program: training persons previously 
certified. The second section of the submission must contain 
information concerning the railroad's program for training previously 
certified dispatchers, including all of the following information:
    (i) As provided for in Sec.  245.119(j), each railroad must have a 
program for the ongoing education of its dispatchers to ensure that 
they maintain the necessary knowledge concerning relevant Federal 
safety regulations, operating rules and practices, familiarity with 
physical characteristics of the territory, and the dispatching systems 
and technology. The railroad must describe in this section how it will 
ensure that its dispatchers remain knowledgeable concerning the safe 
discharge of their responsibilities so as to comply with the standard 
set forth in Sec.  245.119(j);
    (ii) In accordance with the requirements in Sec.  245.119(h), this 
section must contain sufficient detail to permit effective evaluation 
of the railroad's training program in terms of the subject matters 
covered, the frequency and duration of the training sessions (including 
the interval between attendance at such trainings), the training 
environment employed (for example, use of classroom, use of computer-
based training, use of film or slide presentations, and use of on-the-
job training), and which aspects of the program are voluntary or 
mandatory;

[[Page 35615]]

    (iii) How the training will address a certified dispatcher's loss 
of retention of knowledge over time;
    (iv) How the training will address changed circumstances over time 
such as the introduction of new or modified technology, including 
software modifications to dispatch systems and related signal and train 
control systems, new operating rule books, or significant changes in 
operations including alteration in the territory dispatchers are 
authorized to work over; and
    (v) A plan for familiarization training that addresses how long a 
person can be absent from dispatching on a territory before needing to 
be requalified on that territory (a time period that cannot exceed 12 
months), and once that threshold is reached, how the person will 
acquire the needed familiarization training.
    (3) Section 3 of the program: testing and evaluating persons 
previously certified. The third section of the submission must contain 
information concerning the railroad's program for testing and 
evaluating previously certified dispatchers including all of the 
following information:
    (i) The railroad must describe in this section how it will ensure 
that its dispatchers demonstrate their knowledge concerning the safe 
discharge of their responsibilities so as to comply with the standards 
set forth in Sec.  245.121; and
    (ii) The railroad must describe in this section how it will have 
ongoing testing and evaluation to ensure that its dispatchers have the 
necessary vision and hearing acuity as provided for in Sec. Sec.  
245.117 and 245.118. This section must also address how a railroad will 
ensure that its medical examiners have sufficient information 
concerning the railroad's operations, as well as the dispatcher's 
safety related tasks, to effectively form appropriate conclusions about 
the ability of a particular individual to safely perform as a 
dispatcher.
    (4) Section 4 of the program: training, testing, and evaluating 
persons not previously certified. Unless a railroad has made an 
election not to accept responsibility for conducting the initial 
training of persons to be dispatchers, the fourth section of the 
submission must contain information concerning the railroad's program 
for educating, testing, and evaluating persons not previously certified 
as dispatchers including all of the following information:
    (i) As provided for in Sec.  245.119(d), a railroad that is issuing 
an initial dispatcher certification to a person must have a program for 
the training, testing, and evaluation of its dispatchers to ensure that 
they acquire the necessary knowledge and skills. A railroad must 
describe in this section how it will ensure that its dispatchers will 
acquire sufficient knowledge and skills and demonstrate their knowledge 
and skills concerning the safe discharge of their responsibilities.
    (ii) This section must contain the same level of detail concerning 
initial training programs and the testing and evaluation of previously 
uncertified dispatchers as is required for previously certified 
dispatchers in Sec.  245.107(b)(2) and (3) (Sections 2 and 3 of the 
program).
    (iii) Railroads that elect to rely on other entities to conduct 
training away from the railroad's own territory and dispatching systems 
and technology, must indicate how the student will be provided with the 
required training on the physical characteristics for the railroad's 
territory and dispatching systems and technology.
    (5) Section 5 of the program: monitoring operational performance by 
certified dispatchers. The fifth section of the submission must contain 
information concerning the railroad's program for monitoring the 
operation of its certified dispatchers including all of the following 
information:
    (i) Section 245.123 requires that a railroad perform ongoing 
monitoring of its dispatchers and that each dispatcher has an annual 
unannounced compliance test. A railroad must describe in this section 
how it will ensure that the railroad is monitoring that its dispatchers 
demonstrate their skills concerning the safe discharge of their 
responsibilities.
    (ii) A railroad must describe the scoring system used by the 
railroad during an operational monitoring observation or unannounced 
compliance test administered in accordance with the procedures required 
under Sec.  245.123.
    (6) Section 6 of the program: procedures for routine administration 
of the dispatcher certification program. The final section of the 
submission must contain a summary of how the railroad's program and 
procedures will implement the various aspects of the regulatory 
provisions that relate to routine administration of its certification 
program for dispatchers. Specifically, this section must address the 
procedural aspects of the following provisions and must describe the 
manner in which the railroad will implement its program so as to comply 
with each of the following provisions:
    (i) Section 245.301 which provides that each railroad must have 
procedures for review and comment on adverse information;
    (ii) Sections 245.111, 245.113, 245.115, and 245.303 which require 
a railroad to have procedures for evaluating data concerning prior 
safety conduct as a motor vehicle operator and as railroad workers;
    (iii) Sections 245.109, 245.201, and 245.301 which place a duty on 
the railroad to make a series of determinations. When describing how it 
will implement its program to comply with those sections, a railroad 
must describe: the procedures it will utilize to ensure that all of the 
necessary determinations have been made in a timely fashion; who will 
be authorized to conclude that a person will or will be not certified; 
and how the railroad will communicate adverse decisions;
    (iv) Sections 245.109, 245.117, 245.118, 245.119, and 245.121, 
which place a duty on the railroad to make a series of determinations. 
When describing how it will implement its program to comply with those 
sections, a railroad must describe how it will document the factual 
basis the railroad relied on in making determinations under those 
sections;
    (v) Section 245.125 which permits reliance on certification 
determinations made by other railroads; and
    (vi) Sections 245.207 and 245.307 which contain the requirements 
for replacing lost certificates and the conduct of certification 
revocation proceedings.


Sec.  245.109  Determinations required for certification and 
recertification.

    (a) After FRA has approved a railroad's dispatcher certification 
program, the railroad, prior to initially certifying or recertifying 
any person as a dispatcher, shall, in accordance with its FRA-approved 
program, determine in writing that:
    (1) The individual meets the prior safety conduct eligibility 
requirements of Sec. Sec.  245.111 and 245.113;
    (2) The individual meets the eligibility requirements of Sec. Sec.  
245.115 and 245.303;
    (3) The individual meets the vision and hearing acuity standards of 
Sec. Sec.  245.117 and 245.118;
    (4) The individual has the necessary knowledge, as demonstrated by 
successfully completing a test that meets the requirements of Sec.  
245.121; and
    (5) If applicable, the individual has completed a training program 
that meets the requirements of Sec.  245.119.
    (b) Nothing in this section, Sec.  245.111, or Sec.  245.113 shall 
be construed to prevent persons subject to this part from

[[Page 35616]]

entering into an agreement that results in a railroad obtaining the 
information needed for compliance with this subpart in a different 
manner than that prescribed in Sec.  245.111 or Sec.  245.113.


Sec.  245.111  Prior safety conduct as motor vehicle operator.

    (a) Except as provided in paragraphs (b) through (e) of this 
section, after FRA has approved a railroad's dispatcher certification 
program, the railroad, prior to initially certifying or recertifying 
any person as a dispatcher, shall determine that the person meets the 
eligibility requirements of this section involving prior conduct as a 
motor vehicle operator.
    (b) A railroad shall initially certify a person as a dispatcher for 
60 days if the person:
    (1) Requested the information required by paragraph (g) of this 
section at least 60 days prior to the date of the decision to certify 
that person; and
    (2) Otherwise meets the eligibility requirements provided in Sec.  
245.109(a)(1) through (5).
    (c) A railroad shall recertify a person as a dispatcher for 60 days 
from the expiration date of that person's certification if the person:
    (1) Requested the information required by paragraph (g) of this 
section at least 60 days prior to the date of the decision to recertify 
that person; and
    (2) Otherwise meets the eligibility requirements provided in Sec.  
245.109(a)(1) through (5).
    (d) Except as provided in paragraph (e) of this section, if a 
railroad who certified or recertified a person for 60 days pursuant to 
paragraph (b) or (c) of this section does not obtain and evaluate the 
information requested pursuant to paragraph (g) of this section within 
60 days, that person will be ineligible to perform as a dispatcher 
until the information can be evaluated by the railroad.
    (e) If a person requests the information required pursuant to 
paragraph (g) of this section but is unable to obtain it, that person 
or the railroad certifying or recertifying that person may petition for 
a waiver of the requirements of paragraph (a) of this section in 
accordance with the provisions of part 211 of this chapter. A railroad 
shall certify or recertify a person during the pendency of the waiver 
request if the person otherwise meets the eligibility requirements 
provided in Sec.  245.109(a)(1) through (5).
    (f) Except for persons designated as dispatchers under Sec.  
245.105(c) or (d) or for persons covered by paragraph (j) of this 
section, each person seeking certification or recertification under 
this part shall, within one year prior to the date of the railroad's 
decision on certification or recertification:
    (1) Take the actions required by paragraphs (g) through (i) of this 
section to make information concerning their driving record available 
to the railroad that is considering such certification or 
recertification; and
    (2) Take any additional actions, including providing any necessary 
consent required by State, Federal, or foreign law to make information 
concerning their driving record available to that railroad.
    (g) Each person seeking certification or recertification under this 
part shall request, in writing, that the chief of each driver licensing 
agency identified in paragraph (h) of this section provide a copy of 
that agency's available information concerning their driving record to 
the railroad that is considering such certification or recertification.
    (h) Each person shall request the information required under 
paragraph (g) of this section from:
    (1) The chief of the driver licensing agency of any jurisdiction, 
including a State or foreign country, which last issued that person a 
driver's license; and
    (2) The chief of the driver licensing agency of any other 
jurisdiction, including states or foreign countries, that issued or 
reissued the person a driver's license within the preceding five years.
    (i) If advised by the railroad that a driver licensing agency has 
informed the railroad that additional information concerning that 
person's driving history may exist in the files of a State agency or 
foreign country not previously contacted in accordance with this 
section, such person shall:
    (1) Request in writing that the chief of the driver licensing 
agency which compiled the information provide a copy of the available 
information to the prospective certifying railroad; and
    (2) Take any additional action required by State, Federal, or 
foreign law to obtain that additional information.
    (j) Any person who has never obtained a motor vehicle driving 
license is not required to comply with the provisions of paragraph (g) 
of this section but shall notify the railroad of that fact in 
accordance with procedures established by the railroad in its 
certification program.
    (k) Each certified dispatcher or person seeking initial 
certification shall report motor vehicle incidents described in 
paragraphs (m)(1) and (2) of this section to the employing railroad 
within 48 hours of being convicted for, or completed State action to 
cancel, revoke, suspend, or deny a motor vehicle driver's license for, 
such violations. For purposes of this paragraph and paragraph (m) of 
this section, ``State action'' means action of the jurisdiction that 
has issued the motor vehicle driver's license, including a foreign 
country. For purposes of dispatcher certification, no railroad shall 
require reporting earlier than 48 hours after the conviction, or 
completed State action to cancel, revoke, suspend, or deny a motor 
vehicle driver's license.
    (l) When evaluating a person's motor vehicle driving record, a 
railroad shall not consider information concerning motor vehicle 
driving incidents that occurred:
    (1) Prior to the effective date of this rule;
    (2) More than three years before the date of the railroad's 
certification decision; or
    (3) At a time other than that specifically provided for in Sec.  
245.111, Sec.  245.113, Sec.  245.115, or Sec.  245.303.
    (m) A railroad shall only consider information concerning the 
following types of motor vehicle incidents:
    (1) A conviction for, or completed State action to cancel, revoke, 
suspend, or deny a motor vehicle driver's license for operating a motor 
vehicle while under the influence of, or impaired by, alcohol or a 
controlled substance; or
    (2) A conviction for, or completed State action to cancel, revoke, 
suspend, or deny a motor vehicle driver's license for refusal to 
undergo such testing as is required by State or foreign law when a law 
enforcement official seeks to determine whether a person is operating a 
vehicle while under the influence of alcohol or a controlled substance.
    (n) If such an incident, described in paragraph (m) of this 
section, is identified:
    (1) The railroad shall provide the data to the railroad's DAC, 
together with any information concerning the person's railroad service 
record, and shall refer the person for evaluation to determine if the 
person has an active substance abuse disorder.
    (2) The person shall cooperate in the evaluation and shall provide 
any requested records of prior counseling or treatment for review 
exclusively by the DAC in the context of such evaluation.
    (3) If the person is evaluated as not currently affected by an 
active substance abuse disorder, the subject data shall not be 
considered further with respect to certification. However, the railroad 
shall, on recommendation of the DAC, condition certification upon 
participation in any needed aftercare and/or follow-up testing for 
alcohol or

[[Page 35617]]

drugs deemed necessary by the DAC consistent with the technical 
standards specified in 49 CFR part 219, subpart H, as well as 49 CFR 
part 40.
    (4) If the person is evaluated as currently affected by an active 
substance abuse disorder, the provisions of Sec.  245.115(c) will 
apply.
    (5) If the person fails to comply with the requirements of 
paragraph (n)(2) of this section, the person shall be ineligible to 
perform as a certified dispatcher until such time as the person 
complies with the requirements.
    (o) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  245.113  Prior safety conduct with other railroads.

    (a) After FRA has approved a railroad's dispatcher certification 
program, the railroad shall determine, prior to issuing any person a 
dispatcher certificate, that the certification candidate meets the 
eligibility requirements of this section.
    (b) If the certification candidate has not been employed or 
certified by any other railroad in the previous five years, they do not 
have to submit a request in accordance with paragraph (c) of this 
section, but they must notify the railroad of this fact in accordance 
with procedures established by the railroad in its certification 
program.
    (c) Except as provided for in paragraph (b) of this section, each 
person seeking certification or recertification under this part shall 
submit a written request to each railroad that employed or certified 
the person within the previous five years to provide the following 
information to the railroad that is considering whether to certify or 
recertify that person as a dispatcher:
    (1) Information about that person's compliance with Sec.  245.111 
within the three years preceding the date of the request;
    (2) Information about that person's compliance with Sec.  245.115 
within the five years preceding the date of the request; and
    (3) Information about that person's compliance with Sec.  245.303 
within the five years preceding the date of the request.
    (d) Each person submitting a written request required by paragraph 
(c) of this section shall:
    (1) Submit the request no more than one year before the date of the 
railroad's decision on certification or recertification; and
    (2) Take any additional actions, including providing any necessary 
consent required by State or Federal law to make information concerning 
their service record available to that railroad.
    (e) Within 30 days after receipt of a written request that complies 
with paragraph (c) of this section, a railroad shall provide the 
information requested to the railroad designated in the written 
request.
    (f) If a railroad is unable to provide the information requested 
within 30 days after receipt of a written request that complies with 
paragraph (c) of this section, the railroad shall provide an 
explanation, in writing, of why it cannot provide the information 
within the requested time frame. If the railroad will ultimately be 
able to provide the requested information, the explanation shall state 
approximately how much more time the railroad needs to supply the 
requested information. If the railroad will not be able to provide the 
requested information, the explanation shall provide an adequate 
explanation for why it cannot provide this information. Copies of this 
explanation shall be provided to the railroad designated in the written 
request and to the person who submitted the written request for 
information.
    (g) When evaluating a person's prior safety conduct with a 
different railroad, a railroad shall not consider information 
concerning prior safety conduct that occurred:
    (1) Prior to [EFFECTIVE DATE OF FINAL RULE]; or
    (2) At a time other than that specifically provided for in Sec.  
245.111, Sec.  245.113, Sec.  245.115, or Sec.  245.303.
    (h) Each railroad shall adopt and comply with a program that 
complies with the requirements of this section. When any person 
(including but not limited to a railroad; any manager, supervisor, 
official, or agent of a railroad; any owner, manufacturer, lessor, or 
lessee of railroad equipment, track, or facilities; any employee of 
such owner, manufacturer, lessor, lessee, or independent contractor or 
subcontractor) violates any requirement of a program that complies with 
the requirements of this subject, that person shall be considered to 
have violated the requirements of this section.


Sec.  245.115  Substance abuse disorders and alcohol drug rules 
compliance.

    (a) Eligibility determination. After FRA has approved a railroad's 
dispatcher certification program, the railroad shall determine, prior 
to issuing any person a dispatcher certificate, that the person meets 
the eligibility requirements of this section.
    (b) Documentation. In order to make the determination required 
under paragraph (c) of this section, a railroad shall have on file 
documents pertinent to that determination, including a written document 
from its DAC which states their professional opinion that the person 
has been evaluated as not currently affected by a substance abuse 
disorder or that the person has been evaluated as affected by an active 
substance abuse disorder.
    (c) Fitness requirement. (1) A person who has an active substance 
abuse disorder shall be denied certification or recertification as a 
dispatcher.
    (2) Except as provided for in paragraph (f) of this section, a 
certified dispatcher who is determined to have an active substance 
abuse disorder shall be ineligible to hold certification. Consistent 
with other provisions of this part, certification may be reinstated as 
provided in paragraph (e) of this section.
    (3) In the case of a current employee of a railroad evaluated as 
having an active substance abuse disorder (including a person 
identified under the procedures of Sec.  245.111), the employee may, if 
otherwise eligible, voluntarily self-refer for substance abuse 
counseling or treatment under the policy required by Sec.  
219.1001(b)(1) of this chapter; and the railroad shall then treat the 
substance abuse evaluation as confidential except with respect to 
ineligibility for certification.
    (d) Prior alcohol/drug conduct; Federal rule compliance. (1) In 
determining whether a person may be or remain certified as a 
dispatcher, a railroad shall consider conduct described in paragraph 
(d)(2) of this section that occurred within a period of five 
consecutive years prior to the review. A review of certification shall 
be initiated promptly upon the occurrence and documentation of any 
incident of conduct described in this paragraph (d).
    (2) A railroad shall consider any violation of Sec.  219.101 or 
Sec.  219.102 of this chapter and any refusal to provide a breath or 
body fluid sample for testing under the requirements of part 219 of 
this chapter when instructed to do so by a railroad representative.
    (3) A period of ineligibility described in this section shall 
begin:

[[Page 35618]]

    (i) For a person not currently certified, on the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (ii) For a person currently certified, on the date of the 
railroad's notification to the person that recertification has been 
denied or certification has been suspended.
    (4) The period of ineligibility described in this section shall be 
determined in accordance with the following standards:
    (i) In the case of one violation of Sec.  219.102 of this chapter, 
the person shall be ineligible to hold a certificate during evaluation 
and any required primary treatment as described in paragraph (e) of 
this section. In the case of two violations of Sec.  219.102 of this 
chapter, the person shall be ineligible to hold a certificate for a 
period of two years. In the case of more than two such violations, the 
person shall be ineligible to hold a certificate for a period of five 
years.
    (ii) In the case of one violation of Sec.  219.102 of this chapter 
and one violation of Sec.  219.101 of this chapter, the person shall be 
ineligible to hold a certificate for a period of three years.
    (iii) In the case of one violation of Sec.  219.101 of this 
chapter, the person shall be ineligible to hold a certificate for a 
period of nine months (unless identification of the violation was 
through a qualifying referral program described in Sec.  219.1001 of 
this chapter and the dispatcher waives investigation, in which case the 
certificate shall be deemed suspended during evaluation and any 
required primary treatment as described in paragraph (e) of this 
section). In the case of two or more violations of Sec.  219.101 of 
this chapter, the person shall be ineligible to hold a certificate for 
a period of five years.
    (iv) If a person refuses to provide a breath or body fluid sample 
for testing under the requirements of part 219 of this chapter when 
instructed to do so by a railroad representative, the person shall be 
ineligible to hold a certificate for a period of nine months.
    (e) Future eligibility to hold certificate following alcohol/drug 
violation. The following requirements apply to a person who has been 
denied certification or who has had their certification suspended or 
revoked as a result of conduct described in paragraph (d) of this 
section:
    (1) The person shall not be eligible for grant or reinstatement of 
the certificate unless and until the person has:
    (i) Been evaluated by a SAP to determine if the person currently 
has an active substance abuse disorder;
    (ii) Successfully completed any program of counseling or treatment 
determined to be necessary by the SAP prior to return to service; and
    (iii) In accordance with the testing procedures of 49 CFR part 219, 
subpart H, has had a return-to-duty alcohol test with an alcohol 
concentration of less than .02 and return-to-duty body fluid sample 
that tested negative for controlled substances.
    (2) A dispatcher placed in service or returned to service under the 
above-stated conditions shall continue in any program of counseling or 
treatment deemed necessary by the SAP and shall be subject to a 
reasonable program of follow-up alcohol and drug testing without prior 
notice for a period of not more than five years following return to 
service. Follow-up tests shall include not fewer than six alcohol tests 
and six drug tests during the first year following return to service.
    (3) Return-to-duty and follow-up alcohol and drug tests shall be 
performed consistent with the requirements of 49 CFR part 219, subpart 
H.
    (4) This paragraph (e) does not create an entitlement to utilize 
the services of a railroad SAP, to be afforded leave from employment 
for counseling or treatment, or to employment as a dispatcher. Nor does 
it restrict any discretion available to the railroad to take 
disciplinary action based on conduct described herein.
    (f) Confidentiality protected. Nothing in this part shall affect 
the responsibility of the railroad under Sec.  219.1003(f) of this 
chapter to treat qualified referrals for substance abuse counseling and 
treatment as confidential; and the certification status of a dispatcher 
who is successfully assisted under the procedures of that section shall 
not be adversely affected. However, the railroad shall include in its 
referral policy, as required pursuant to Sec.  219.1003(j) of this 
chapter, a provision that, at least with respect to a certified 
dispatcher or a candidate for certification, the policy of 
confidentiality is waived (to the extent that the railroad shall 
receive from the SAP or DAC official notice of the substance abuse 
disorder and shall suspend or revoke the certification, as appropriate) 
if the person at any time refuses to cooperate in a recommended course 
of counseling or treatment.
    (g) Complying with certification program. Each railroad shall adopt 
and comply with a program meeting the requirements of this section. 
When any person (including, but not limited to, each railroad, railroad 
officer, supervisor, and employee) violates any requirement of a 
program which complies with the requirements of this section, that 
person shall be considered to have violated the requirements of this 
section.


Sec.  245.117  Vision acuity.

    (a) After FRA has approved a railroad's dispatcher certification 
program, the railroad shall determine, prior to issuing any person a 
dispatcher certificate, that the person meets the standards for visual 
acuity prescribed in this section and Appendix B to this part.
    (b) Any examination required under this section shall be performed 
by or under the supervision of a medical examiner or a licensed 
physician's assistant.
    (c) Except as provided in paragraph (d) of this section, each 
dispatcher shall have visual acuity that meets or exceeds the following 
thresholds:
    (1) For distant viewing, either:
    (i) Distant visual acuity of at least 20/40 (Snellen) in each eye 
without corrective lenses; or
    (ii) Distant visual acuity separately corrected to at least 20/40 
(Snellen) with corrective lenses and distant binocular acuity of at 
least 20/40 (Snellen) in both eyes with or without corrective lenses;
    (2) A field of vision of at least 70 degrees in the horizontal 
meridian in each eye; and
    (3) The ability to recognize and distinguish between the colors of 
railroad signals as demonstrated by successfully completing one of the 
tests in appendix B to this part.
    (d) A person not meeting the thresholds in paragraph (c) of this 
section shall, upon request of the certification candidate, be subject 
to further medical evaluation by a railroad's medical examiner to 
determine that person's ability to safely perform as a dispatcher. In 
such cases, the following procedures will apply:
    (1) In accordance with the guidance prescribed in appendix B to 
this part, a person is entitled to:
    (i) One retest without making any showing; and
    (ii) An additional retest if the person provides evidence that 
circumstances have changed since the last test to the extent that the 
person may now be able to safely perform as a dispatcher.
    (2) The railroad shall provide its medical examiner with a copy of 
this part, including all appendices.
    (3) If, after consultation with a railroad officer, the medical 
examiner concludes that, despite not meeting the threshold(s) in 
paragraph (c) of this section, the person has the ability to safely 
perform as a dispatcher, the

[[Page 35619]]

railroad may conclude that the person satisfies the vision acuity 
requirements of this section to be a certified dispatcher. Such 
certification will be conditioned on any special restrictions the 
medical examiner determines in writing to be necessary.
    (e) In order to make the determination required under paragraph (a) 
of this section, a railroad shall have on file the following for each 
certification candidate:
    (1) A medical examiner's certificate that the candidate has been 
medically examined and either does or does not meet the vision acuity 
standards prescribed in paragraph (c) of this section.
    (2) If needed under paragraph (d) of this section, a medical 
examiner's written professional opinion which states the basis for 
their determination that:
    (i) The candidate can be certified, under certain conditions if 
necessary, even though the candidate does not meet the vision acuity 
standards prescribed in paragraph (c) of this section; or
    (ii) The candidate's vision acuity prevents the candidate from 
being able to safely perform as a dispatcher.
    (f) If the examination required under this section shows that the 
person needs corrective lenses to meet the standards for vision acuity 
prescribed in this section and appendix B to this part, that person 
shall use corrective lenses at all times while performing as a 
dispatcher unless the railroad's medical examiner subsequently 
determines in writing that the person can safely perform as a 
dispatcher without corrective lenses.
    (g) When a certified dispatcher becomes aware that their vision has 
deteriorated, they shall notify the railroad's medical department or 
other appropriate railroad official of the deterioration. Such 
notification must occur prior to performing any subsequent service as a 
dispatcher. The individual cannot return to service as a dispatcher 
until they are reexamined and determined by the railroad's medical 
examiner to satisfy the vision acuity standards prescribed in this 
section and appendix B to this part.
    (h) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  245.118  Hearing acuity.

    (a) After FRA has approved a railroad's dispatcher certification 
program, the railroad shall determine, prior to issuing any person a 
dispatcher certificate, that the person meets the standards for hearing 
acuity prescribed in this section and Appendix B to this part.
    (b) Any examination required under this section shall be performed 
by or under the supervision of a medical examiner or a licensed 
physician's assistant.
    (c) Except as provided in paragraph (d) of this section, each 
dispatcher shall have hearing acuity that meets or exceeds the 
following thresholds with or without use of a hearing aid: The person 
does not have an average hearing loss in the better ear greater than 40 
decibels at 500 Hz, 1,000 Hz, and 2,000 Hz. The hearing test or 
audiogram used to show a person's hearing acuity shall meet the 
requirements of one of the following:
    (1) As required in 29 CFR 1910.95(h) (Occupational Safety and 
Health Administration);
    (2) As required in Sec.  227.111 of this chapter; or
    (3) Conducted using an audiometer that meets the specifications of 
and is maintained and used in accordance with a formal industry 
standard, such as American National Standards Institute (ANSI) S3.6, 
``Specifications for Audiometers.''
    (d) A person not meeting the thresholds in paragraph (c) of this 
section shall, upon request of the certification candidate, be subject 
to further medical evaluation by a railroad's medical examiner to 
determine that person's ability to safely perform as a dispatcher. In 
such cases, the following procedures will apply:
    (1) In accordance with the guidance prescribed in appendix B to 
this part, a person is entitled to:
    (i) One retest without making any showing; and
    (ii) An additional retest if the person provides evidence that 
circumstances have changed since the last test to the extent that the 
person may now be able to safely perform as a dispatcher.
    (2) The railroad shall provide its medical examiner with a copy of 
this part, including all appendices.
    (3) If, after consultation with a railroad officer, the medical 
examiner concludes that, despite not meeting the threshold(s) in 
paragraph (c) of this section, the person has the ability to safely 
perform as a dispatcher, the railroad may conclude that the person 
satisfies the hearing acuity requirements of this section to be a 
certified dispatcher. Such certification will be conditioned on any 
special restrictions the medical examiner determines in writing to be 
necessary.
    (e) In order to make the determination required under paragraph (a) 
of this section, a railroad shall have on file the following for each 
certification candidate:
    (1) A medical examiner's certificate that the candidate has been 
medically examined and either does or does not meet the hearing acuity 
standards prescribed in paragraph (c) of this section.
    (2) If needed under paragraph (d) of this section, a medical 
examiner's written professional opinion which states the basis for 
their determination that:
    (i) The candidate can be certified, under certain conditions if 
necessary, even though the candidate does not meet the hearing acuity 
standards prescribed in paragraph (c) of this section; or
    (ii) The candidate's hearing acuity prevents the candidate from 
being able to safely perform as a dispatcher.
    (f) If the examination required under this section shows that the 
person needs a hearing aid to meet the standards for hearing acuity 
prescribed in this section and appendix B to this part, that person 
shall use a hearing aid at all times while performing as a dispatcher 
unless the railroad's medical examiner subsequently determines in 
writing that the person can safely perform as a dispatcher without a 
hearing aid.
    (g) When a certified dispatcher becomes aware that their hearing 
has deteriorated, they shall notify the railroad's medical department 
or other appropriate railroad official of the deterioration. Such 
notification must occur prior to performing any subsequent service as a 
dispatcher. The individual cannot return to service as a dispatcher 
until they are reexamined and determined by the railroad's medical 
examiner to satisfy the hearing acuity standards prescribed in this 
section and appendix B to this part.
    (h) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  245.119  Training requirements.

    (a) After FRA has approved a railroad's certification program, the

[[Page 35620]]

railroad shall determine, prior to issuing any person a dispatcher 
certificate, that the person has successfully completed the training, 
in accordance with the requirements of this section.
    (b) A railroad's certification program shall state the railroad's 
election either:
    (1) To accept responsibility for the training of dispatchers and 
thereby obtain authority for that railroad to initially certify a 
person as a dispatcher; or
    (2) To recertify only dispatchers previously certified by other 
railroads.
    (c) A railroad that elects to accept responsibility for the 
training of dispatchers shall state in its certification program 
whether it will conduct the training program or employ a training 
program conducted by some other entity on its behalf but adopted and 
ratified by the railroad.
    (d) A railroad that elects to train persons not previously 
certified as dispatchers shall develop an initial training program 
which, at a minimum, includes the following:
    (1) An explanation of how training must be structured, developed, 
and delivered, including an appropriate combination of classroom, 
simulator, computer-based, correspondence, on-the-job training, or 
other formal training. The curriculum shall be designed to impart 
knowledge of, and ability to comply with, applicable Federal railroad 
safety laws, regulations, and orders, as well as any relevant railroad 
rules and procedures promulgated to implement those applicable Federal 
railroad safety laws, regulations, and orders. This training shall 
document a person's knowledge of, and ability to comply with, Federal 
railroad safety laws, regulations, and orders, as well as railroad 
rules and procedures.
    (2) An on-the-job training component which shall include the 
following:
    (i) A syllabus describing content, required tasks, and related 
steps the employee learning the job shall be able to perform within a 
specified timeframe;
    (ii) A statement of the conditions (e.g., prerequisites, dispatch 
and related dispatch support systems, documentation, briefings, 
demonstrations, and practice) necessary for learning transfer; and
    (iii) A statement of the standards by which proficiency is measured 
through a combination of task/step accuracy, completeness, and 
repetition.
    (3) A description of the processes to review and modify its 
training program when new safety-related railroad laws, regulations, 
orders, technologies, procedures, software, or equipment are introduced 
into the workplace, including how it is determined if additional or 
refresher training is needed.
    (e) Prior to beginning the initial dispatching related tasks 
associated with on-the-job exercises discussed in paragraph (d)(2) of 
this section, each railroad shall make any relevant information or 
materials, such as operating rules, safety rules, or other rules, 
available for referencing by certification candidates.
    (f) Prior to a person, not previously certified as a dispatcher, 
being certified as a dispatcher, a railroad shall require the person 
to:
    (1) Successfully complete the formal initial training program 
developed pursuant to paragraph (d) of this section and any associated 
examinations covering the skills and knowledge the person will need to 
perform the tasks necessary to be a dispatcher;
    (2) Demonstrate on-the-job proficiency, with input from a qualified 
instructor, by successfully completing the tasks and using the 
dispatching systems and technology necessary to be a dispatcher. A 
certification candidate may perform such tasks under the direct onsite 
supervision of a person who has the necessary dispatching experience 
and at least one year of experience as a dispatcher; and
    (3) Demonstrate knowledge of the physical characteristics of any 
assigned territory. If the railroad uses a written test to fulfill this 
requirement, the railroad must provide the certification candidate with 
an opportunity to consult with a supervisory employee, who possesses 
territorial qualifications for the territory, to explain a question.
    (g) In making the determination required under paragraph (a) of the 
section, a railroad shall have written documentation showing that:
    (1) The person completed a training program that complies with 
paragraph (d) of this section (if the person has not been previously 
certified as a dispatcher);
    (2) The person demonstrated their knowledge by achieving a passing 
grade under the testing and evaluation procedures of the training 
program; and
    (3) The person achieved a passing score on the physical 
characteristics exam associated with the territories, or its pertinent 
segments, over which the person will be performing dispatching service.
    (h) The certification program, required under this part and 
submitted in accordance with the procedures and requirements described 
in Sec.  245.107, shall include:
    (1) The methods that a person may acquire familiarity with the 
physical characteristics of a territory;
    (2) The procedures used to qualify and requalify a dispatcher on a 
territory; and
    (3) The maximum time period in which a dispatcher can be absent 
from a territory before requalification is required. In accordance with 
Sec.  245.120(c), this time period cannot exceed 12 months.
    (i) If ownership of a railroad is being transferred from one 
company to another, the dispatchers of the acquiring company may 
receive familiarization training from the selling company prior to the 
acquiring company commencing operation.
    (j) A railroad shall provide for the continuing education of 
certified dispatchers to ensure that each dispatcher maintains the 
necessary knowledge concerning:
    (1) Railroad safety and operating rules;
    (2) Physical territory:
    (3) Dispatching systems and technology; and
    (4) Compliance with all applicable Federal regulations including, 
but not limited to, hazardous materials, passenger train emergency 
preparedness, emergency response procedures, and physical 
characteristics of a territory.
    (k) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  245.120  Requirements for territorial qualification.

    (a) After FRA has approved a railroad's certification program, a 
railroad shall not permit or require a person to serve as a dispatcher 
on a particular territory unless that railroad determines that:
    (1) The person is certified as a dispatcher; and
    (2) The person either:
    (i) Possesses the necessary territorial qualifications for the 
applicable territory pursuant to Sec.  245.119; or
    (ii) Is assisted by a Dispatcher Pilot who is qualified on the 
territory.
    (b) If a person is called to serve on a territory that they are not 
qualified on, the person must immediately notify the railroad that they 
are not qualified on the assigned territory.
    (c) A person shall no longer be considered qualified on a territory 
if they have not worked on that territory

[[Page 35621]]

as a dispatcher in the previous 12 months.
    (d) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  245.121  Knowledge testing.

    (a) After FRA has approved a railroad's dispatcher certification 
program, the railroad shall determine, prior to issuing any person a 
dispatcher certificate and in accordance with the requirements of this 
section, that the person has demonstrated sufficient knowledge of the 
railroad's rules and practices for the safe movement of trains.
    (b) In order to make the knowledge determination required by 
paragraph (a) of this section, a railroad shall have procedures for 
testing a person being evaluated for certification as a dispatcher that 
shall be:
    (1) Designed to examine a person's knowledge of the railroad's 
operating rules and practices for the safe movement of trains;
    (2) Objective in nature;
    (3) In written or electronic form;
    (4) Covering the following subjects:
    (i) Safety and operating rules;
    (ii) Timetable instructions;
    (iii) Compliance with all applicable Federal regulations;
    (iv) Physical characteristics of the territory on which a person 
will be or is currently working as a dispatcher; and
    (v) Dispatching systems and technology.
    (5) Sufficient to accurately measure the person's knowledge of the 
covered subjects; and
    (6) Conducted without open reference books or other materials 
except to the degree the person is being tested on their ability to use 
such reference books or materials.
    (c) The railroad shall provide the certification candidate with an 
opportunity to consult with a supervisory employee, who possesses 
territorial qualifications for the territory, to explain a test 
question.
    (d) If a person fails the test, no railroad shall permit or require 
that person to function as a dispatcher prior to that person's 
achieving a passing score during a reexamination of the test.
    (e) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  245.123  Monitoring operational performance.

    (a) Each railroad's certification program shall describe how it 
will monitor the operational performance of its certified dispatchers 
by including procedures for:
    (1) Giving each certified dispatcher at least one unannounced 
railroad and Federal rules, territorial and dispatch systems compliance 
test each calendar year, except as provided for in paragraph (c) of 
this section;
    (2) Giving unannounced compliance tests to certified dispatchers 
who return to dispatcher service after performing service that does not 
require certification pursuant to this part, as described in paragraph 
(c) of this section; and
    (3) What actions the railroad will take if it finds deficiencies in 
a dispatcher's performance during an unannounced compliance test.
    (b) An unannounced compliance test shall:
    (1) Test certified dispatchers for compliance with one or more 
operational tests in accordance with the provisions of Sec.  217.9 of 
this chapter;
    (2) Be performed by a railroad officer who meets the requirements 
of Sec.  217.9(b)(1) of this chapter; and
    (3) Be given to each certified dispatcher at least once each 
calendar year, except as provided for in paragraph (c) of this section.
    (c) A certified dispatcher who is not performing service that 
requires certification pursuant to this part does not need to be given 
an unannounced compliance test. However, when the certified dispatcher 
returns to service that requires certification pursuant to this part, 
the railroad shall:
    (1) Give the certified dispatcher an unannounced compliance test 
within 30 days of their return to dispatcher service; and
    (2) Retain a written record that includes the following 
information:
    (i) The date the dispatcher stopped performing service that 
required certification pursuant to this part;
    (ii) The date the dispatcher returned to service that required 
certification pursuant to this part; and
    (iii) The date and the result of the unannounced compliance test 
that was performed following the dispatcher's return to service 
requiring certification.
    (d) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  245.125  Certification determinations made by other railroads.

    (a) A railroad that is considering certification of a person as a 
dispatcher may rely on certain determinations made by another railroad 
concerning that person's certification.
    (b) A railroad's certification program shall address how the 
railroad will administer the training of previously uncertified 
dispatchers with extensive dispatching experience or previously 
certified dispatchers who have had their certification expire. If a 
railroad's certification program fails to specify how it will train 
these dispatchers, then the railroad shall require these dispatchers to 
successfully complete the certifying railroad's entire training 
program.
    (c) A railroad relying on certification determinations made by 
another railroad shall still be responsible for determining that:
    (1) The prior certification is still valid in accordance with the 
provisions of Sec. Sec.  245.201 and 245.307;
    (2) The person has received training on the physical 
characteristics of the new territory in accordance with Sec.  245.119; 
and
    (3) The person has demonstrated the necessary knowledge concerning 
the railroad's operating rules, territory, dispatch systems and 
technology in accordance with Sec.  245.121.

Subpart C--Administration of the Certification Program


Sec.  245.201  Time limitations for certification.

    (a) After FRA approves a railroad's dispatcher certification 
program, that railroad shall not certify or recertify a person as a 
dispatcher if the railroad is making:
    (1) A determination concerning eligibility under Sec. Sec.  
245.111, 245.113, 245.115, and 245.303 and the eligibility data being 
relied on was furnished more than one year before the date of the 
railroad's certification decision;
    (2) A determination concerning visual or hearing acuity and the 
medical examination being relied on was

[[Page 35622]]

conducted more than 450 days before the date of the railroad's 
certification decision;
    (3) A determination concerning demonstrated knowledge and the 
knowledge examination being relied on was conducted more than one year 
before the date of the railroad's certification decision; or
    (4) A determination concerning demonstrated knowledge and the 
knowledge examination being relied on was conducted more than two years 
before the date of the railroad's recertification decision if the 
railroad administers a knowledge testing program pursuant to Sec.  
245.121 at intervals that do not exceed two years.
    (b) The time limitations of paragraph (a) of this section do not 
apply to a railroad that is making a certification decision in reliance 
on determinations made by another railroad in accordance with Sec.  
245.125.
    (c) Except if a person is designated as a certified dispatcher 
under Sec.  245.105(c) or (d), no railroad shall certify a person as a 
dispatcher for an interval of more than three years.
    (d) Each railroad shall issue each certified dispatcher a 
certificate that complies with Sec.  245.207 no later than 30 days from 
the date of its decision to certify or recertify that person.


Sec.  245.203  Retaining information supporting determinations.

    (a) After FRA approves a railroad's dispatcher certification 
program, any time the railroad issues, denies, or revokes a certificate 
after making the determinations required under Sec.  245.109, it shall 
maintain a record for each certified dispatcher and certification 
candidate. Each record shall contain the information, described in 
paragraph (b) of this section, that the railroad relied on in making 
the determinations required under Sec.  245.109.
    (b) A railroad shall retain the following information:
    (1) Relevant data from the railroad's records concerning the 
person's prior safety conduct and eligibility;
    (2) Relevant data furnished by another railroad;
    (3) Relevant data furnished by a governmental agency concerning the 
person's motor vehicle driving record;
    (4) Relevant data furnished by the person seeking certification 
concerning their eligibility;
    (5) The relevant test results data concerning vision and hearing 
acuity;
    (6) If applicable, the relevant data concerning the professional 
opinion of the railroad's medical examiner on the adequacy of the 
person's vision or hearing acuity;
    (7) Relevant data from the railroad's records concerning the 
person's success or failure on knowledge test(s) under Sec.  245.121;
    (8) A sample copy of the written knowledge test or tests 
administered; and
    (9) The relevant data from the railroad's records concerning the 
person's success or failure on unannounced tests the railroad performed 
to monitor the dispatcher's performance in accordance with Sec.  
245.123.
    (c) If a railroad is relying on successful completion of an 
approved training program conducted by another entity, the relying 
railroad shall maintain a record for each certification candidate that 
contains the relevant data furnished by the training entity concerning 
the person's demonstration of knowledge and relied on by the railroad 
in making its determinations.
    (d) If a railroad is relying on a certification decision initially 
made by another railroad, the relying railroad shall maintain a record 
for each certification candidate that contains the relevant data 
furnished by the other railroad which it relied on in making its 
determinations.
    (e) All records required under this section shall be retained by 
the railroad for a period of six years from the date of the 
certification, recertification, denial, or revocation decision and 
shall, upon request, be made available to FRA representatives in a 
timely manner.
    (f) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on the record(s) required by this section; or
    (2) Otherwise falsify such records through material misstatement, 
omission, or mutilation.
    (g) Nothing in this section precludes a railroad from maintaining 
the information required to be retained under this section in an 
electronic format provided that:
    (1) The railroad maintains an information technology security 
program adequate to ensure the integrity of the electronic data storage 
system, including the prevention of unauthorized access to the program 
logic or individual records;
    (2) The program and data storage system must be protected by a 
security system that utilizes an employee identification number and 
password, or a comparable method, to establish appropriate levels of 
program access meeting all of the following standards:
    (i) No two individuals have the same electronic identity; and
    (ii) A record cannot be deleted or altered by any individual after 
the record is certified by the employee who created the record;
    (3) Any amendment to a record is either:
    (i) Electronically stored apart from the record that it amends; or
    (ii) Electronically attached to the record as information without 
changing the original record;
    (4) Each amendment to a record uniquely identifies the person 
making the amendment; and
    (5) The system employed by the railroad for data storage permits 
reasonable access and retrieval of the information which can be easily 
produced in an electronic or printed format that can be:
    (i) Provided to FRA representatives in a timely manner; and
    (ii) Authenticated by a designated representative of the railroad 
as a true and accurate copy of the railroad's records if requested to 
do so by an FRA representative.


Sec.  245.205  List of certified dispatchers and recordkeeping.

    (a) After a railroad's certification program has received its 
initial approval from FRA, pursuant to Sec.  245.103(f)(1), the 
railroad must maintain a list of each person who is currently certified 
as a dispatcher by the railroad. The list must include the date of the 
railroad's certification decision and the date the person's 
certification expires.
    (b) The list shall:
    (1) Be updated at least annually;
    (2) Be made available, upon request, to FRA representatives in a 
timely manner; and
    (3) Be available either:
    (i) In electronic format pursuant to paragraph (c) of this section; 
or
    (ii) At the divisional or regional headquarters of the railroad.
    (c) If a railroad elects to maintain its list in an electronic 
format, it must:
    (1) Maintain an information technology security program adequate to 
ensure the integrity of the electronic data storage system, including 
the prevention of unauthorized access to the program logic or the list;
    (2) Have its program and data storage system protected by a 
security system that utilizes an employee identification number and 
password, or a comparable method, to establish appropriate levels of 
program access meeting all of the following standards:
    (i) No two individuals have the same electronic identity; and
    (ii) An entry on the list cannot be deleted or altered by any 
individual

[[Page 35623]]

after the entry is certified by the employee who created the entry;
    (3) Have any amendment to the list either:
    (i) Electronically stored apart from the entry on the list that it 
amends; or
    (ii) Electronically attached to the entry on the list as 
information without changing the original entry;
    (4) Ensure that each amendment to the list uniquely identifies the 
person making the amendment; and
    (5) Ensure that the system employed for data storage permits 
reasonable access and retrieval of the information which can be easily 
produced in an electronic or printed format that can be:
    (i) Provided to FRA representatives in a timely manner; and
    (ii) Authenticated by a designated representative of the railroad 
as a true and accurate copy of the railroad's records if requested to 
do so by an FRA representative.
    (d) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on the list required by this section; or
    (2) Otherwise falsify such list through material misstatement, 
omission, or mutilation.


Sec.  245.207  Certificate requirements.

    (a) Each person who becomes a certified dispatcher in accordance 
with this part shall be issued a paper or electronic certificate that 
must:
    (1) Identify the railroad that is issuing the certificate;
    (2) Indicate that it is a dispatcher certificate;
    (3) Provide the following information about the certified person:
    (i) Name;
    (ii) Employee identification number;
    (iii) Year of birth; and
    (iv) Either a physical description or photograph of the person;
    (4) Identify any conditions or limitations, including conditions to 
ameliorate vision or hearing acuity deficiencies, that restrict, limit, 
or alter the person's abilities to work as a dispatcher;
    (5) Show the effective date of the certification;
    (6) Show the expiration date of the certification except as 
provided for in paragraph (b) of this section;
    (7) Be signed by an individual designated in accordance with 
paragraph (c) of this section; and
    (8) Be electronic or be of sufficiently small size to permit being 
carried in an ordinary pocket wallet.
    (b) A certificate does not need to include an expiration date, as 
required under paragraph (a)(6) of this section, if the person was 
designated as a certified dispatcher under Sec.  245.105(c) or (d).
    (c) Each railroad shall designate in writing any person it 
authorizes to sign the certificates described in this section. The 
designation shall identify such persons by name or job title.
    (d) Nothing in this section shall prohibit any railroad from 
including additional information on the certificate or supplementing 
the certificate through other documents.
    (e) It shall be unlawful for any railroad to knowingly or any 
individual to willfully:
    (1) Make, cause to be made, or participate in the making of a false 
entry on a certificate; or
    (2) Otherwise falsify a certificate through material misstatement, 
omission, or mutilation.
    (f) Except as provided for in paragraph (h) of this section, each 
certified dispatcher shall:
    (1) Have their certificate in their possession while on duty as a 
dispatcher; and
    (2) Display their certificate upon a request from:
    (i) An FRA representative;
    (ii) A state inspector authorized under part 212 of this chapter;
    (iii) An officer of the issuing railroad; or
    (iv) An officer of the dispatcher's employer if the dispatcher is 
not employed by the issuing railroad.
    (g) If a dispatcher's certificate is lost, stolen, or mutilated, 
the railroad shall promptly replace the certificate at no cost to the 
dispatcher.
    (h) A certified dispatcher is exempt from the requirements of 
paragraph (f) of this section if:
    (1) The railroad made its certification or recertification decision 
within the last 30 days and the dispatcher has not yet received their 
certificate; or
    (2) The dispatcher's certificate was lost, stolen, or mutilated, 
and the railroad has not yet issued a replacement certificate to the 
dispatcher.
    (i) Any dispatcher who is notified or called to serve as a 
dispatcher and such service would cause the dispatcher to exceed 
certificate limitations, set forth in accordance with subpart B of this 
part, shall immediately notify the railroad that they are not 
authorized to perform that anticipated service and it shall be unlawful 
for the railroad to require such service.
    (j) Nothing in this section shall be deemed to alter a certified 
dispatcher's duty to comply with other provisions of this chapter 
concerning railroad safety.


Sec.  245.213  Multiple certifications.

    (a) A person who holds a dispatcher certificate may also be 
certified in other crafts, such as a locomotive engineer or conductor.
    (b) A railroad that issues multiple certificates to a person, 
shall, to the extent possible, coordinate the expiration date of those 
certificates.
    (c)(1) A person who holds a current dispatcher certificate from 
more than one railroad shall immediately notify the other certifying 
railroad(s) if they are denied dispatcher certification or 
recertification under Sec.  245.301 by another railroad or has their 
dispatcher certification suspended or revoked under Sec.  245.307 by 
another railroad.
    (2) If a person has their dispatcher certification suspended or 
revoked by a railroad under Sec.  245.307, they may not work as a 
dispatcher for any other railroad during the period that their 
certification is suspended or revoked.
    (3) If a person has their dispatcher certification suspended or 
revoked by a railroad under Sec.  245.307, they must notify any 
railroad that they are seeking certification from that their dispatcher 
certification is currently suspended or revoked by another railroad.
    (d) Paragraphs (d)(1) through (4) apply to people who are currently 
certified as a dispatcher and also currently certified in another 
craft, such as a locomotive engineer or conductor:
    (1) If a person's dispatcher certification is revoked under Sec.  
245.307 for a violation of Sec.  245.303(e)(8), they may not work in 
another certified craft, such as a locomotive engineer or conductor, 
for any railroad during the period of revocation.
    (2) If a person's dispatcher certification is revoked under Sec.  
245.307 for a violation of Sec.  245.303(e)(1) through (7), they may 
work in another certified craft, such as a locomotive engineer or 
conductor, during the period of revocation.
    (3) If any of a person's non-dispatcher certifications are revoked 
for failure to comply with Sec.  219.101 of this chapter, they may not 
work as a dispatcher for any railroad during the period of revocation.
    (4) If any of a person's non-dispatcher certifications are revoked 
for any reason other than a failure to comply with Sec.  219.101 of 
this chapter, they may work as a dispatcher during the period of 
revocation.
    (e) A person who has had their dispatcher certification revoked for 
failure to comply with Sec.  219.101 of this chapter, may not obtain 
any other certification pursuant to this chapter from any railroad 
during the period of revocation.

[[Page 35624]]

    (f) A person who has had any of their non-dispatcher certifications 
revoked for failure to comply with Sec.  219.101 of this chapter, may 
not obtain a dispatcher certificate pursuant to this part from any 
railroad during the period of revocation.
    (g) A railroad that denies a person dispatcher certification or 
recertification under Sec.  245.301 shall not, solely on the basis of 
that denial, deny or revoke that person's non-dispatcher certifications 
or recertifications.
    (h) A railroad that denies a person any non-dispatcher 
certification pursuant to this chapter shall not, solely on the basis 
of that denial, deny or revoke that person's dispatcher certification 
or recertification.
    (i) In lieu of issuing multiple certificates, a railroad may issue 
one certificate to a person who is certified in multiple crafts as long 
as the single certificate complies with all of the certificate 
requirements for those crafts.
    (j) A person who is certified in multiple crafts and who is 
involved in a revocable event, as described in this chapter, may only 
have one certificate revoked for that event. The determination by the 
railroad as to which certificate to revoke must be based on the work 
the person was performing at the time the revocable event occurred.


Sec.  245.215  Railroad oversight responsibilities.

    (a) No later than March 31 of each year (beginning in calendar year 
[DATE THREE YEARS AFTER EFFECTIVE DATE OF FINAL RULE], each Class I 
railroad (including the National Railroad Passenger Corporation), each 
railroad providing commuter service, and each Class II railroad shall 
conduct a formal annual review and analysis concerning the 
administration of its program for responding to detected instances of 
poor safety conduct by certified dispatchers during the prior calendar 
year.
    (b) Each review and analysis shall involve:
    (1) The number and nature of the instances of detected poor safety 
conduct including the nature of the remedial action taken in response 
thereto;
    (2) The number and nature of FRA reported train accidents 
attributed to poor safety performance by dispatchers; and
    (3) The number and type of operational monitoring test failures 
recorded by railroad officers who meet the requirements of Sec.  
217.9(b)(1) of this chapter.
    (c) Based on that review and analysis, each railroad shall 
determine what action(s) it will take to improve the safety of railroad 
operations to reduce or eliminate future incidents of that nature.
    (d) If requested in writing by FRA, the railroad shall provide a 
report of the findings and conclusions reached during such annual 
review and analysis effort.
    (e) For reporting purposes, information about the nature of 
detected poor safety conduct shall be capable of segregation for study 
and evaluation purposes into the following categories:
    (1) Incidents involving failure to provide proper protection of a 
reported inoperable or malfunctioning highway-rail grade crossing.
    (2) Incidents involving granting permission for a train or on-track 
equipment to enter into an out-of-service or blue flag protected track.
    (3) Incidents involving granting permission for a train or on-track 
equipment to enter into established RWIC limits without authority or 
permission from the RWIC.
    (4) Incidents involving removal of blocking devices or established 
protection of RWIC working limits prior to the RWIC releasing the 
limits.
    (5) Incidents involving failure to properly apply blocking devices 
or failure to establish proper protection for specified working limits 
or movements of trains or on-track equipment.
    (6) Incidents involving failure to properly issue or apply 
mandatory directives when warranted.
    (7) Incidents involving granting permission for a train to enter 
Positive Train Control (PTC) or Cab Signal limits with inoperative or 
malfunctioning PTC or Cab Signal equipment without proper approval.
    (8) Incidents involving noncompliance with part 219 of this 
chapter.
    (f) For reporting purposes, each category of detected poor safety 
conduct identified in paragraph (e) of this section shall be capable of 
being annotated to reflect the following:
    (1) The total number of incidents in that category;
    (2) The number of incidents within that total which reflect 
incidents requiring an FRA accident/incident report under part 225 of 
this chapter; and
    (3) The number of incidents within that total which were detected 
as a result of a scheduled operational monitoring effort.
    (g) For reporting purposes, each instance of detected poor safety 
conduct identified in paragraph (b) of this section shall be capable of 
being annotated to reflect the following:
    (1) The nature of the remedial action taken, and the number of 
events subdivided, so as to reflect which of the following actions was 
selected:
    (i) Imposition of informal discipline;
    (ii) Imposition of formal discipline;
    (iii) Provision of informal training; or
    (iv) Provision of formal training; and
    (2) If the nature of the remedial action taken was formal 
discipline, the number of events further subdivided so as to reflect 
which of the following punishments was imposed by the railroad:
    (i) The person was withheld from service;
    (ii) The person was dismissed from employment; or
    (iii) The person was issued demerits. If more than one form of 
punishment was imposed, only the punishment deemed the most severe 
shall be shown.
    (h) For reporting purposes, each instance of detected poor safety 
conduct identified in paragraph (b) of this section which resulted in 
the imposition of formal or informal discipline shall be annotated to 
reflect the following:
    (1) The number of instances in which the railroad's internal 
appeals process reduced the punishment initially imposed at the 
conclusion of its hearing; and
    (2) The number of instances in which the punishment imposed by the 
railroad was reduced by any of the following entities: The National 
Railroad Adjustment Board, a Public Law Board, a Special Board of 
Adjustment, or other body for the resolution of disputes duly 
constituted under the provisions of the Railway Labor Act.
    (i) For reporting purposes, an instance of poor safety conduct 
involving a person who is a certified dispatcher and is certified in 
another craft, such as a locomotive engineer or conductor, need only be 
reported once (e.g., either under this section or Sec.  240.309 or 
Sec.  242.215 of this chapter). The determination as to where to report 
the instance of poor safety conduct should be based on the work the 
person was performing at the time the conduct occurred.

Subpart D--Denial and Revocation of Certification


Sec.  245.301  Process for denying certification.

    (a) A railroad shall notify a candidate for certification or 
recertification of information known to the railroad that forms the 
basis for denying the person certification and provide the person a 
reasonable opportunity to explain or rebut that adverse information in

[[Page 35625]]

writing prior to denying certification. A railroad shall provide the 
dispatcher candidate with any documents or records, including written 
statements, related to failure to meet a requirement of this part which 
support its pending denial decision.
    (b) If a railroad denies a person certification or recertification, 
it shall issue a decision that complies with all of the following 
requirements:
    (1) It must be in writing.
    (2) It must explain the basis for the railroad's denial decision.
    (3) It must address any explanation or rebuttal information that 
the certification candidate provided pursuant to paragraph (a) of this 
section.
    (4) It must include the date of the railroad's decision.
    (5) It must be served on the candidate no later than 10 days after 
the railroad's decision.
    (c) A railroad shall not deny the person's certification for 
failing to comply with a railroad operating rule or practice which 
constitutes a violation under Sec.  245.303(e)(1) through (7) if 
sufficient evidence exists to establish that an intervening cause 
prevented or materially impaired the dispatcher's ability to comply 
with that railroad operating rule or practice.


Sec.  245.303  Criteria for revoking certification.

    (a) It shall be unlawful to fail to comply with any of the railroad 
rules or practices described in paragraph (e) of this section.
    (b) A certified dispatcher who has demonstrated a failure to comply 
with a railroad rule or practice described in paragraph (e) of this 
section shall have their certification revoked.
    (c) A certified dispatcher who is monitoring, piloting, or 
instructing a dispatcher and fails to take appropriate action to 
prevent a violation of a railroad rule or practice described in 
paragraph (e) of this section shall have their certification revoked. 
Appropriate action does not mean that a supervisor, pilot, or 
instructor must prevent a violation from occurring at all costs; the 
duty may be met by warning the dispatcher of a potential or foreseeable 
violation.
    (d) A certified dispatcher who is called by a railroad to perform a 
duty other than that of a dispatcher shall not have their dispatcher 
certification revoked based on actions taken or not taken while 
performing that duty except for violations described in paragraph 
(e)(8) of this section.
    (e) When determining whether to revoke a dispatcher's 
certification, a railroad shall only consider violations of its 
operating rules or practices that involve:
    (1) Failure to provide proper protection of a reported inoperable 
or malfunctioning highway-rail grade crossing.
    (2) Granting permission for a train or on-track equipment to enter 
into an out-of-service or blue flag protected track.
    (3) Granting permission for a train or on-track equipment to enter 
into established RWIC limits without authority or permission from the 
RWIC.
    (4) Removal of blocking devices or established protection of RWIC 
working limits prior to the RWIC releasing the limits.
    (5) Failure to properly apply blocking devices or establish proper 
protection for specified working limits or movements of trains or on-
track equipment.
    (6) Failure to properly issue or apply mandatory directives when 
warranted.
    (7) Granting permission, without prior approval, for a train to 
enter Positive Train Control (PTC) or Cab Signal limits with 
inoperative or malfunctioning PTC or Cab Signal equipment.
    (8) Failure to comply with Sec.  219.101 of this chapter. However, 
such incidents shall be considered as a violation only for the purposes 
of Sec.  245.305(a)(2) and (b).
    (f) In making the determination as to whether to revoke a 
dispatcher's certification, a railroad shall only consider conduct 
described in paragraphs (e)(1) through (7) of this section that 
occurred within the three years prior to the determination.
    (g) If in any single incident the person's conduct contravened more 
than one operating rule or practice, that event shall be treated as a 
single violation for the purposes of this section.
    (h) A violation of one or more operating rules or practices 
described in paragraphs (e)(1) through (7) of this section that occurs 
during a properly conducted operational compliance test subject to the 
provisions of this chapter shall be counted in determining the periods 
of ineligibility described in Sec.  245.305.
    (i) An operational test that is not conducted in compliance with 
this part, a railroad's operating rules, or a railroad's program under 
Sec.  217.9 of this chapter, will not be considered a legitimate test 
of operational skill or knowledge, and will not be considered for 
revocation purposes.
    (j) Each railroad shall adopt and comply with a program meeting the 
requirements of this section. When any person (including, but not 
limited to, each railroad, railroad officer, supervisor, and employee) 
violates any requirement of a program which complies with the 
requirements of this section, that person shall be considered to have 
violated the requirements of this section.


Sec.  245.305  Periods of ineligibility.

    (a) The starting date for a period of ineligibility described in 
this section shall be:
    (1) For a person not currently certified, the date of the 
railroad's written determination that the most recent incident has 
occurred; or
    (2) For a person currently certified, the date of the railroad's 
notification to the person that recertification has been denied or 
certification has been suspended.
    (b) A period of ineligibility shall be determined according to the 
following standards:
    (1) In the case of a single incident involving a violation of one 
or more of the operating rules or practices described in Sec.  
245.303(e)(1) through (7), the person shall have their certificate 
revoked for a period of 30 calendar days.
    (2) In the case of two separate incidents involving a violation of 
one or more of the operating rules or practices described in Sec.  
245.303(e)(1) through (7), that occurred within 24 months of each 
other, the person shall have their certificate revoked for a period of 
6 months.
    (3) In the case of three separate incidents involving violations of 
one or more of the operating rules or practices, described in Sec.  
245.303(e)(1) through (8), that occurred within 36 months of each 
other, the person shall have their certificate revoked for a period of 
1 year.
    (4) In the case of four separate incidents involving violations of 
one or more of the operating rules or practices, described in Sec.  
245.303(e)(1) through (8), that occurred within 36 months of each 
other, the person shall have their certificate revoked for a period of 
3 years.
    (5) Where, based on the occurrence of violations described in Sec.  
245.303(e)(8), different periods of ineligibility may result under the 
provisions of this section and Sec.  245.115, the longest period of 
revocation shall control.
    (c) Any or all periods of revocation provided in paragraph (b) of 
this section may consist of training.
    (d) A person whose certification is denied or revoked shall be 
eligible for grant or reinstatement of the certificate prior to the 
expiration of the initial period of ineligibility only if:
    (1) The denial or revocation of certification in accordance with 
the

[[Page 35626]]

provisions of paragraph (b) of this section is for a period of one year 
or less;
    (2) Certification is denied or revoked for reasons other than 
noncompliance with Sec.  219.101 of this chapter;
    (3) The person is evaluated by a railroad officer and determined to 
have received adequate remedial training;
    (4) The person successfully completes any mandatory program of 
training or retraining, if that is determined to be necessary by the 
railroad prior to return to service; and
    (5) At least one half the pertinent period of ineligibility 
specified in paragraph (b) of this section has elapsed.


Sec.  245.307  Process for revoking certification.

    (a) If a railroad determines that a dispatcher, who is currently 
certified by the railroad, has violated a railroad operating rule or 
practice described in Sec.  245.303(e), the railroad shall revoke the 
dispatcher's certification in accordance with the procedures and 
requirements of this section.
    (b) Except as providing for in Sec.  245.115(f), if a railroad 
acquires reliable information that a dispatcher, who is currently 
certified by the railroad, has violated a railroad operating rule or 
practice described in Sec. Sec.  245.303(e) or 245.115(d), the railroad 
shall undergo the following process to determine whether revocation of 
the dispatcher's certification is warranted:
    (1) The dispatcher's certification shall be suspended immediately.
    (2) Prior to or upon suspending the dispatcher's certification, the 
railroad shall provide the dispatcher with notice of: the reason for 
the suspension; the pending revocation; and an opportunity for a 
hearing before a presiding officer other than the investigating 
officer. This notice may initially be given either orally or in 
writing. If given orally, the notice must be subsequently confirmed in 
writing in a manner that conforms with the notification provisions of 
the applicable collective bargaining agreement. If there is no 
applicable collective bargaining agreement notification provision, the 
written notice must be made within four days of the date the 
certification was suspended.
    (3) The railroad must convene the hearing within the time frame 
required under the applicable collective bargaining agreement. If there 
is no applicable collective bargaining agreement or the applicable 
collective bargaining agreement does not include such a requirement, 
the hearing shall be convened within 10 days of the date the 
certification is suspended unless the dispatcher requests or consents 
to a delay to the start of the hearing.
    (4) No later than the start of the hearing, the railroad shall 
provide the dispatcher with a copy of the written information and a 
list of witnesses the railroad will present at the hearing. If this 
information was provided just prior to the start of the hearing and the 
dispatcher requests a recess to the start of the hearing, such request 
must be granted. If this information was provided by an employee of the 
railroad, the railroad shall make that employee available for 
examination during the hearing.
    (5) Following the hearing, the railroad must determine, based on 
the record of the hearing, whether revocation of the certification is 
warranted. The railroad shall have the burden of proving that 
revocation of the dispatcher's certification is warranted under Sec.  
245.303.
    (6) If the railroad determines that revocation of the dispatcher's 
certification is warranted, the railroad shall impose the proper period 
of revocation provided for in Sec.  245.305 or Sec.  245.115.
    (7) The railroad shall retain the record of the hearing for three 
years after the date the decision is rendered.
    (c) A hearing required by this section which is conducted in a 
manner that conforms procedurally to the applicable collective 
bargaining agreement shall satisfy the procedural requirements of this 
section.
    (d) Except as provided for in paragraph (c) of this section, a 
hearing required under this section shall be conducted in accordance 
with the following procedures:
    (1) The hearing shall be conducted by a presiding officer who can 
be any proficient person authorized by the railroad other than the 
investigating officer.
    (2) The presiding officer shall convene and preside over the 
hearing and exercise the powers necessary to regulate the conduct of 
the hearing for the purpose of achieving a prompt and fair 
determination of all material issues in dispute.
    (3) The presiding officer may:
    (i) Adopt any needed procedures for the submission of evidence in 
written form;
    (ii) Examine witnesses at the hearing; and
    (iii) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may assist in 
achieving a prompt and fair determination of all material issues in 
dispute.
    (4) All relevant and probative evidence shall be received into the 
record unless the presiding officer determines the evidence to be 
unduly repetitive or have such minimal relevance that its admission 
would impair the prompt, orderly, and fair resolution of the 
proceeding.
    (5) Parties may appear at the hearing and be heard on their own 
behalf or through designated representatives. Parties may offer 
relevant evidence including testimony and may conduct such examination 
of witnesses as may be required for a full disclosure of the relevant 
facts.
    (6) Testimony by witnesses at the hearing shall be recorded 
verbatim. Witnesses can testify in person, over the phone, or 
virtually.
    (7) The record in the proceeding shall be closed at the conclusion 
of the hearing unless the presiding officer allows additional time for 
the submission of evidence.
    (8) A hearing required under this section may be consolidated with 
any disciplinary action or other hearing arising from the same facts.
    (9) A person may waive their right to a hearing. That waiver shall:
    (i) Be in writing;
    (ii) Reflect the fact that the person has knowledge and 
understanding of these rights and voluntarily surrenders them; and
    (iii) Be signed by the person making the waiver.
    (e) Except as provided for in paragraph (c) of this section, a 
decision, required by this section, on whether to revoke a dispatcher's 
certification shall comply with the following requirements:
    (1) No later than 10 days after the close of the record, a railroad 
official, other than the investigating officer, shall prepare and sign 
a written decision as to whether the railroad is revoking the 
dispatcher's certification.
    (2) The decision shall:
    (i) Contain the findings of fact on all material issues as well as 
an explanation for those findings with citations to all applicable 
railroad operating rules and practices;
    (ii) State whether the railroad official found that the 
dispatcher's certification should be revoked;
    (iii) State the period of revocation under Sec.  245.305 (if the 
railroad official concludes that the dispatcher's certification should 
be revoked); and
    (iv) Be served on the employee and the employee's representative, 
if any, with the railroad retaining proof of service for three years 
after the date the decision is rendered.
    (f) The period that a dispatcher's certification is suspended in 
accordance

[[Page 35627]]

with paragraph (b)(1) of this section shall be credited towards any 
period of revocation that the railroad assesses in accordance with 
Sec.  245.305.
    (g) A railroad shall revoke a dispatcher's certification if, during 
the period that certification is valid, the railroad acquires 
information which convinces it that another railroad has revoked the 
person's dispatcher certification in accordance with the provisions of 
this section. Such revocation shall end on the same date that the 
revocation period ends for the railroad that initially revoked the 
person's certification. The requirement to provide a hearing under this 
section is satisfied when any single railroad holds a hearing. No 
additional hearing is required prior to a revocation by more than one 
railroad arising from the same facts.
    (h) A railroad shall not revoke a dispatcher's certification if 
sufficient evidence exists to establish that an intervening cause 
prevented or materially impaired the dispatcher's ability to comply 
with the railroad operating rule or practice which constitutes a 
violation under Sec.  245.303.
    (i) A railroad may decide not to revoke a dispatcher's 
certification if sufficient evidence exists to establish that the 
violation of the railroad operating rule or practice described in Sec.  
245.303(e) was of a minimal nature and had no direct or potential 
effect on rail safety.
    (j) If sufficient evidence meeting the criteria in paragraph (h) or 
(i) of this section becomes available, the railroad shall place the 
relevant information in the records maintained in compliance with:
    (1) Section 245.215 for Class I railroads (including that National 
Railroad Passenger Corporation), railroads providing commuter service, 
and Class II railroads; and
    (2) Section 245.203 for Class III railroads.
    (k) If a railroad makes a good faith determination, after 
performing a reasonable inquiry, that the course of conduct provided 
for in paragraph (h) or (i) of this section is warranted, the railroad 
will not be in violation of paragraph (b)(1) of this section if it 
decides not to suspend the dispatcher's certification.

Subpart E--Dispute Resolution Procedures


Sec.  245.401  Review board established.

    (a) Any person who has been denied certification, denied 
recertification, or has had their certification revoked and believes 
that a railroad incorrectly determined that they failed to meet the 
certification requirements of this part when making the decision to 
deny or revoke certification, may petition the Administrator to review 
the railroad's decision.
    (b) The Administrator has delegated initial responsibility for 
adjudicating such disputes to the Certification Review Board (Board). 
The Board shall be composed of FRA employees.


Sec.  245.403  Petition requirements.

    (a) To obtain review of a railroad's decision to deny 
certification, deny recertification, or revoke certification, a person 
shall file a petition for review that complies with this section.
    (b) Each petition shall:
    (1) Be in writing;
    (2) Be filed no more than 120 days after the date the railroad's 
denial or revocation decision was served on the petitioner, except as 
provided for in paragraph (d) of this section;
    (3) Be filed on https://www.regulations.gov.
    (4) Include the following contact information for the petitioner 
and petitioner's representative (if petitioner is represented):
    (i) Full name;
    (ii) Daytime telephone number; and
    (iii) Email address;
    (5) Include the name of the railroad;
    (6) Contain the facts that the petitioner believes constitute the 
improper action by the railroad and the arguments in support of the 
petition; and
    (7) Include all written documents in the petitioner's possession or 
reasonably available to the petitioner that document the railroad's 
decision.
    (c) If requested by the Board, the petitioner must provide a copy 
of the information under 49 CFR 40.329 that laboratories, medical 
review officers, and other service agents are required to release to 
employees. The petitioner must provide a written explanation in 
response to a Board request if written documents, that should be 
reasonably available to the petitioner, are not supplied.
    (d) The Board may extend the petition filing period in its 
discretion provided that the petitioner provides good cause for the 
extension and:
    (1) The request for an extension is filed before the expiration of 
the period provided for in paragraph (b)(2) of this section; or
    (2) The failure to timely file was the result of excusable neglect.
    (e) A party aggrieved by a Board decision to deny a petition as 
untimely or not in compliance with the requirements of this section may 
file an appeal with the Administrator in accordance with Sec.  245.411.


Sec.  245.405  Processing certification review petitions.

    (a) Each petition shall be acknowledged in writing by FRA. The 
acknowledgment shall be sent to the petitioner (if an email address is 
provided), petitioner's representative (if any), and the railroad. The 
acknowledgment shall contain the docket number assigned to the petition 
and will notify the parties where the petition can be accessed.
    (b) Within 60 days from the date of the acknowledgment provided in 
paragraph (a) of this section, the railroad may submit to FRA any 
information that the railroad considers pertinent to the petition, and 
shall supplement the record with any relevant documents in its 
possession, such as hearing transcripts and exhibits, that were not 
submitted by the petitioner. Late filings will only be considered to 
the extent practicable. A railroad that submits such information shall:
    (1) Identify the petitioner by name and the docket number for the 
petition;
    (2) Provide the railroad's email address;
    (3) Serve a copy of the information being submitted to the 
petitioner and petitioner's representative, if any; and
    (4) Be filed on https://www.regulations.gov.
    (c) The petition will be referred to the Board for a decision after 
a railroad's response is received or 60 days from the date of the 
acknowledgment provided in paragraph (a) of this section, whichever is 
earlier. Based on the record, the Board shall have the authority to 
grant, deny, dismiss, or remand the petition. If the Board finds that 
there is insufficient basis for granting or denying the petition, the 
Board may issue an order affording the parties an opportunity to 
provide additional information or argument consistent with its 
findings.
    (d) When considering procedural issues, the Board will grant the 
petition if the petitioner shows:
    (1) That a procedural error occurred; and
    (2) The procedural error caused substantial harm to the petitioner.
    (e) When considering factual issues, the Board will grant the 
petition if the petitioner shows that the railroad did not provide 
substantial evidence to support its decision.
    (f) When considering legal issues, the Board will determine whether 
the railroad's legal interpretations are correct based on a de novo 
review.
    (g) The Board will only consider whether the denial or revocation 
of

[[Page 35628]]

certification or recertification was improper under this part and will 
grant or deny the petition accordingly. The Board will not otherwise 
consider the propriety of a railroad's decision. For example,the Board 
will not consider whether the railroad properly applied its own more 
stringent requirements.
    (h) The Board's written decision shall be served on the petitioner 
and/or petitioner's representative (if any), and the railroad.


Sec.  245.407  Request for a hearing.

    (a) If adversely affected by the Board's decision, either the 
petitioner before the Board or the railroad involved shall have a right 
to an administrative proceeding as prescribed by Sec.  245.409.
    (b) To exercise that right, the adversely affected party shall file 
a written request for a hearing within 20 days of service of the 
Board's decision on that party. The request must be filed in the docket 
on https://www.regulations.gov that was used when the case was before 
the Board.
    (c) A written request for a hearing must contain the following:
    (1) The name, telephone number, and email address of the requesting 
party and the requesting party's designated representative (if any);
    (2) The name, telephone number, and email address of the 
respondent;
    (3) The docket number for the case while it was before the Board;
    (4) The specific factual issues, industry rules, regulations, or 
laws that the requesting party alleges need to be examined in 
connection with the certification decision in question; and
    (5) The signature of the requesting party or the requesting party's 
representative (if any).
    (d) Upon receipt of a hearing request complying with paragraph (c) 
of this section, FRA shall arrange for the appointment of a presiding 
officer who shall schedule the hearing for the earliest practicable 
date.
    (e) If a party fails to request a hearing within the period 
provided in paragraph (b) of this section, the Board's decision will 
constitute final agency action.


Sec.  245.409  Hearings.

    (a) An administrative hearing for a dispatcher certification 
petition shall be conducted by a presiding officer, who can be any 
person authorized by the Administrator.
    (b) The presiding officer shall convene and preside over the 
hearing. The hearing shall be a de novo hearing to find the relevant 
facts and determine the correct application of this part to those 
facts. The presiding officer may determine that there is no genuine 
issue covering some or all material facts and limit evidentiary 
proceedings to any issues of material fact as to which there is a 
genuine dispute.
    (c) The presiding officer may exercise the powers of the 
Administrator to regulate the conduct of the hearing for the purpose of 
achieving a prompt and fair determination of all material issues in 
controversy.
    (d) The presiding officer may authorize discovery of the types and 
quantities which in the presiding officer's discretion will contribute 
to a fair hearing without unduly burdening the parties. The presiding 
officer may impose appropriate non-monetary sanctions, including 
limitations as to the presentation of evidence and issues, for any 
party's willful failure or refusal to comply with approved discovery 
requests.
    (e) Every petition, motion, response, or other authorized or 
required document shall be signed by the party filing the same, or by a 
duly authorized officer or representative of record, or by any other 
person. If signed by such other person, the reason therefor must be 
stated and the power of attorney or other authority authorizing such 
other person to subscribe the document must be filed with the document. 
The signature of the person subscribing any document constitutes a 
certification that they have read the document; that to the best of 
their knowledge, information, and belief every statement contained in 
the document is true and no such statements are misleading; and that it 
is not interposed for delay or to be vexatious.
    (f) After the request for a hearing is filed, all documents filed 
or served upon one party must be served upon all parties. Each party 
may designate a person upon whom service is to be made when not 
specified by law, regulation, or directive of the presiding officer. If 
a party does not designate a person upon whom service is to be made, 
then service may be made upon any person having subscribed to a 
submission of the party being served, unless otherwise specified by 
law, regulation, or directive of the presiding officer. Proof of 
service shall accompany all documents when they are tendered for 
filing.
    (g) If any document initiating, filed in, or served in, a 
proceeding is not in substantial compliance with the applicable law, 
regulation, or directive of the presiding officer, the presiding 
officer may strike or dismiss all or part of such document, or require 
its amendment.
    (h) Any party to a proceeding may appear and be heard in person or 
by an authorized representative.
    (i) Any person testifying at a hearing or deposition may be 
accompanied, represented, and advised by an attorney or other 
representative, and may be examined by that person.
    (j) Any party may request to consolidate or separate the hearing of 
two or more petitions by motion to the presiding officer, when they 
arise from the same or similar facts or when the matters are for any 
reason deemed more efficiently heard together.
    (k) Except as provided in Sec.  245.407(e) and paragraph (s)(4) of 
this section, whenever a party has the right or is required to take 
action within a period prescribed by this part, or by law, regulation, 
or directive of the presiding officer, the presiding officer may extend 
such period, with or without notice, for good cause, provided another 
party is not substantially prejudiced by such extension. A request to 
extend a period which has already expired may be denied as untimely.
    (l) An application to the presiding officer for an order or ruling 
not otherwise specifically provided for in this part shall be by 
motion. The motion shall be filed with the presiding officer and, if 
written, served upon all parties. All motions, unless made during the 
hearing, shall be written. Motions made during hearings may be made 
orally on the record, except that the presiding officer may direct that 
any oral motion be reduced to writing. Any motion shall state with 
particularity the grounds therefor and the relief or order sought and 
shall be accompanied by any affidavits or other evidence desired to be 
relied upon which is not already part of the record. Any matter 
submitted in response to a written motion must be filed and served 
within 14 days of the motion, or within such other period as directed 
by the presiding officer.
    (m) Testimony by witnesses at the hearing shall be given under oath 
and the hearing shall be recorded verbatim. The presiding officer shall 
give the parties to the proceeding adequate opportunity during the 
course of the hearing for the presentation of arguments in support of 
or in opposition to motions, and objections and exceptions to rulings 
of the presiding officer. The presiding officer may permit oral 
argument on any issues for which the presiding officer deems it 
appropriate and beneficial. Any evidence or argument received or 
proffered orally shall be transcribed and made a part of the record. 
Any physical evidence or written argument received or proffered shall 
be made a part of the

[[Page 35629]]

record, except that the presiding officer may authorize the 
substitution of copies, photographs, or descriptions, when deemed to be 
appropriate.
    (n) The presiding officer shall employ the Federal Rules of 
Evidence for United States Courts and Magistrates as general guidelines 
for the introduction of evidence. Notwithstanding paragraph (m) of this 
section, all relevant and probative evidence shall be received unless 
the presiding officer determines the evidence to be unduly repetitive 
or so extensive and lacking in relevancy that its admission would 
impair the prompt, orderly, and fair resolution of the proceeding.
    (o) The presiding officer may:
    (1) Administer oaths and affirmations;
    (2) Issue subpoenas as provided for in Sec.  209.7 of this chapter;
    (3) Adopt any needed procedures for the submission of evidence in 
written form;
    (4) Examine witnesses at the hearing;
    (5) Convene, recess, adjourn, or otherwise regulate the course of 
the hearing; and
    (6) Take any other action authorized by or consistent with the 
provisions of this part and permitted by law that may expedite the 
hearing or aid in the disposition of the proceeding.
    (p) The petitioner before the Board, the railroad involved in 
taking the certification action, and FRA shall be parties at the 
hearing. All parties may participate in the hearing and may appear and 
be heard on their own behalf or through designated representatives. All 
parties may offer relevant evidence, including testimony, and may 
conduct such cross-examination of witnesses as may be required to make 
a record of the relevant facts.
    (q) The party requesting the administrative hearing shall be the 
``hearing petitioner.'' The party that the Board issued its decision in 
favor of will be a respondent. At the start of each proceeding, FRA 
will be a respondent as well. The hearing petitioner shall have the 
burden of proving its case by a preponderance of the evidence.
    (r) The record in the proceeding shall be closed at the conclusion 
of the evidentiary hearing unless the presiding officer allows 
additional time for the submission of additional evidence. In such 
instances the record shall be left open for such time as the presiding 
officer grants for that purpose.
    (s) At the close of the record, the presiding officer shall prepare 
a written decision in the proceeding. The decision:
    (1) Shall contain the findings of fact and conclusions of law, as 
well as the basis for each, concerning all material issues of fact or 
law presented on the record;
    (2) Shall be served on all parties to the proceeding;
    (3) Shall not become final for 35 days after issuance;
    (4) Constitutes final agency action unless an aggrieved party files 
an appeal within 35 days after issuance; and
    (5) Is not precedential.


Sec.  245.411  Appeals.

    (a) Any party aggrieved by the presiding officer's decision may 
file an appeal in the presiding officer's docket. The appeal must be 
filed within 35 days of issuance of the decision. A copy of the appeal 
shall be served on each party. The appeal shall set forth objections to 
the presiding officer's decision, supported by reference to applicable 
laws and regulations and with specific reference to the record. If no 
appeal is timely filed, the presiding officer's decision constitutes 
final agency action.
    (b) A party may file a reply to the appeal within 25 days of 
service of the appeal. The reply shall be supported by reference to 
applicable laws and regulations and with specific reference to the 
record, if the party relies on evidence contained in the record.
    (c) The Administrator may extend the period for filing an appeal or 
a response for good cause shown, provided that the written request for 
extension is served before expiration of the applicable period provided 
in this section.
    (d) The Administrator has sole discretion to permit oral argument 
on the appeal. On the Administrator's own initiative or written motion 
by any party, the Administrator may grant the parties an opportunity 
for oral argument.
    (e) The Administrator may remand, vacate, affirm, reverse, alter, 
or modify the decision of the presiding officer and the Administrator's 
decision constitutes final agency action except where the terms of the 
Administrator's decision (for example, remanding a case to the 
presiding officer) show that the parties' administrative remedies have 
not been exhausted.
    (f) An appeal from a Board decision pursuant to Sec.  245.403(e) 
must be filed in the Board's docket within 35 days of issuance of the 
decision. A copy of the appeal shall be served on each party. The 
Administrator may affirm or vacate the Board's decision, and may remand 
the petition to the Board for further proceedings. An Administrator's 
decision to affirm the Board's decision constitutes final agency 
action.

Appendix A to Part 245--Procedures for Obtaining and Evaluating Motor 
Vehicle Driving Record Data

    (1) The purpose of this appendix is to outline the procedures 
available to individuals and railroads for complying with the 
proposed requirements of Sec.  245.111 of this chapter. This 
provision requires that railroads consider the motor vehicle driving 
record of each person prior to issuing him or her certification or 
recertification as a dispatcher.
    (2) To fulfill that obligation, a railroad is required to review 
a certification candidate's recent motor vehicle driving record. 
Generally, that will be a single record on file with the State 
agency that issued the candidate's current motor vehicle driver's 
license. However, a motor vehicle driving record can include 
multiple documents if the candidate has been issued a motor vehicle 
driver's license by more than one State agency or a foreign country.

Access to State Motor Vehicle Driving Record Data

    (3) The right of railroad workers, their employers, or 
prospective employers to have access to a State motor vehicle 
licensing agency's data concerning an individual's driving record is 
controlled by state law. Although many States have mechanisms 
through which employers and prospective employers, such as 
railroads, can obtain such data, there are some states where privacy 
concerns make such access very difficult or impossible. Since 
individuals are generally entitled to obtain access to their driving 
record data that will be relied on by a State motor vehicle 
licensing agency when that agency is taking action concerning their 
driving privileges, FRA places the responsibility on individuals who 
want to serve as dispatchers to request that their current state 
motor vehicle licensing agency (or agencies) furnish such data 
directly to the railroad that is considering certification (or 
recertification) of the individual as a dispatcher. Depending on the 
procedures established by the state motor vehicle licensing agency, 
the individual may be asked to send the State agency a brief letter 
requesting such action or to execute a state agency form that 
accomplishes the same effect. Requests for an individual's motor 
vehicle driving record normally involve payment of a nominal fee 
established by the State agency as well. In rare instances, when a 
certification (or recertification) candidate has been issued 
multiple licenses, an individual may be required to submit multiple 
requests.
    (4) Once the railroad has obtained the individual's motor 
vehicle driving record(s), the railroad is required to afford the 
certification (or recertification) candidate an opportunity to 
review and comment on the record(s) in writing pursuant to Sec.  
245.301. The railroad is also required to provide this review 
opportunity before the railroad renders a decision based on 
information in the record(s). The railroad is required to evaluate 
the information in the certification (or recertification) 
candidate's motor vehicle driving record(s) pursuant to the 
provisions of this part.

[[Page 35630]]

Appendix B to Part 245--Medical Standards Guidelines

    (1) The purpose of this appendix is to provide greater guidance 
on the procedures that should be employed in administering the 
vision and hearing requirements of Sec. Sec.  245.117 and 245.118.
    (2) For any examination performed to determine whether a person 
meets the vision acuity requirements in Sec.  245.117, it is 
recommended that such examination be performed by a licensed 
optometrist or a technician who reports to a licensed optometrist. 
It is also recommended that any test conducted pursuant to Sec.  
245.117 be performed according to any directions supplied by the 
test's manufacturer and any ANSI standards that are applicable.
    (3) For any examination performed to determine whether a person 
meets the hearing acuity requirements in Sec.  245.118, it is 
recommended that such examination be performed by a licensed or 
certified audiologist or a technician who reports to a licensed or 
certified audiologist. It is also recommended that any test 
conducted pursuant to Sec.  245.118 be performed according to any 
directions supplied by the test's manufacturer and any ANSI 
standards that are applicable.
    (4) In determining whether a person has the visual acuity that 
meets or exceeds the requirements of this part, the following 
testing protocols are deemed acceptable testing methods for 
determining whether a person has the ability to recognize and 
distinguish among the colors used as signals in the railroad 
industry. The acceptable test methods are shown in the left-hand 
column and the criteria that should be employed to determine whether 
a person has failed the particular testing protocol are shown in the 
right-hand column.

                    Table 1 to Appendix B of Part 245
------------------------------------------------------------------------
             Accepted tests                      Failure criteria
------------------------------------------------------------------------
                     Pseudoisochromatic Plate Tests
------------------------------------------------------------------------
American Optical Company 1965..........  5 or more errors on plates 1-
                                          15.
AOC--Hardy-Rand-Ritter plates--second    Any error on plates 1-6 (plates
 edition.                                 1-4 are for demonstration--
                                          test plate 1 is actually plate
                                          5 in book).
Dvorine--Second edition................  3 or more errors on plates 1-
                                          15.
Ishihara (14 plate)....................  2 or more errors on plates 1-
                                          11.
Ishihara (16 plate)....................  2 or more errors on plates 1-8.
Ishihara (24 plate)....................  3 or more errors on plates 1-
                                          15.
Ishihara (38 plate)....................  4 or more errors on plates 1-
                                          21.
Richmond Plates 1983...................  5 or more errors on plates 1-
                                          15.
------------------------------------------------------------------------
                       Multifunction Vision Tester
------------------------------------------------------------------------
Keystone Orthoscope....................  Any error.
OPTEC 2000.............................  Any error.
Titmus Vision Tester...................  Any error.
Titmus II Vision Tester................  Any error.
------------------------------------------------------------------------

    (5) In administering any of these protocols, the person 
conducting the examination should be aware that railroad signals do 
not always occur in the same sequence and that ``yellow signals'' do 
not always appear to be the same. It is not acceptable to use 
``yarn'' or other materials to conduct a simple test to determine 
whether the certification candidate has the requisite vision. No 
person shall be allowed to wear chromatic lenses during an initial 
test of the person's color vision; the initial test is one conducted 
in accordance with one of the accepted tests in the chart and Sec.  
245.117(c)(3).
    (6) An examinee who fails to meet the criteria in the chart may 
be further evaluated as determined by the railroad's medical 
examiner. Ophthalmologic referral, field testing, or other practical 
color testing may be utilized depending on the experience of the 
examinee. The railroad's medical examiner will review all pertinent 
information and, under some circumstances, may restrict an examinee 
who does not meet the criteria for serving as a dispatcher. The 
intent of Sec. Sec.  245.117(d) and 245.118(d) is not to provide an 
examinee with the right to make an infinite number of requests for 
further evaluation, but to provide an examinee with at least one 
opportunity to prove that a hearing or vision test failure does not 
mean the examinee cannot safely perform as a dispatcher. Appropriate 
further medical evaluation could include providing another approved 
scientific screening test or a field test. All railroads should 
retain the discretion to limit the number of retests that an 
examinee can request, but any cap placed on the number of retests 
should not limit retesting when changed circumstances would make 
such retesting appropriate. Changed circumstances would most likely 
occur if the examinee's medical condition has improved in some way 
or if technology has advanced to the extent that it arguably could 
compensate for a hearing or vision deficiency.
    (7) Dispatchers who wear contact lenses should have good 
tolerance to the lenses and should be instructed to have a pair of 
corrective glasses available when on duty.

    Issued in Washington, DC.
Amitabha Bose,
Administrator.
[FR Doc. 2023-10772 Filed 5-30-23; 8:45 am]
BILLING CODE 4910-06-P


