# Certification of Dispatchers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-10772 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** May 31, 2023 - **Citation:** 88 FR 35574 ## Text 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). 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: curtis.dolan@dot.gov; or Michael C. Spinnicchia, Attorney Adviser, Federal Railroad Administration, telephone: (202) 493-0109, email: michael.spinnicchia@dot.gov. SUPPLEMENTARY INFORMATION: Table of Contents for Supplementary Information I. Executive Summary 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 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 § 245.301 describes the process a railroad would be required to undergo before it denies an individual certification or recertification. This process would include providing the certification candidate with the information that forms the basis for the denial decision and giving the candidate an opportunity to rebut such evidence. When a railroad denies an individual certification or recertification, it must issue its decision in writing, and the decision must comply with certain requirements provided in the proposed rule. A railroad could only revoke a dispatcher's certification if one of eight events occurs. Generally, for the first revocable event that is not related to a dispatcher's use of drugs or alcohol, the person's certification would be revoked for 30 days. If an individual accumulates more of these violations in a given time period, the revocation period (period of ineligibility) would become increasingly longer. If a railroad acquires reliable information that a certified dispatcher has violated an operating rule or practice requiring decertification under the proposed rule, it shall suspend the dispatcher's certificate immediately while it determines whether revocation of the certificate is warranted. In such circumstances, dispatchers would be entitled to a hearing. Similar to a railroad's decision to deny an individual certification, a railroad's decision to revoke a dispatcher's certification would be required to satisfy certain requirements. Finally, if an intervening cause prevented or materially impaired a dispatcher's ability to comply with a railroad operating rule or practice, the railroad would not revoke the dispatcher's certification. Subpart E of this proposed rule discusses the dispute resolution process for individuals who wish to challenge a railroad's decision to deny certification, deny recertification, or revoke certification. This dispute resolution process mirrors the process used for locomotive engineers and conductors under 49 CFR parts 240 and 242, respectively. Finally, the proposed rule contains two appendices. Appendix A discusses the procedures that a person seeking certification or recertification should follow to furnish a railroad with information concerning their motor vehicle driving record. Appendix B provides guidance on the procedures railroads should employ in administering the vision and hearing requirements under §§ 245.117 and 245.118. This proposed rule does not revise 49 CFR part 241, United States Locational Requirement for Dispatching of United States Rail Operations. Furthermore, this proposed rule would not apply to dispatchers located outside of the United States as “[i]t is a longstanding 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 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)). Costs and Benefits FRA analyzed the economic impact of this proposed rule. FRA estimated the costs to be incurred by railroads and the Government. FRA also estimated the benefits of fewer dispatcher-caused accidents. FRA is proposing regulations establishing a formal certification process for railroad dispatchers. As part of that process, railroads would be required to develop a program meeting specific requirements for training current and prospective dispatchers, documenting and verifying that the holder of the certificate has achieved certain training and proficiency, and creating a comprehensive record, including of safety compliance infractions, that other railroads can review when considering individuals for certification. This proposed regulation would ensure that dispatchers are properly trained, are qualified to perform their duties, and meet Federal safety standards. Additionally, this proposed regulation is expected to improve railroad safety by reducing the rate of accidents/incidents. FRA estimates the 10-year costs of the proposed rule to be $5.3 million, discounted at 7 percent. The estimated annualized costs would be $0.8 million discounted at 7 percent. The following table shows the total costs of this proposed rule, over the 10-year analysis period. 2 Numbers in this table and subsequent tables may not sum due to rounding. Total 10-Year Discounted Costs (2020 Dollars) 2 Category Present value 7% ($) Present value 3% ($) Annualized 7% ($) Annualized 3% ($) 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 Total 5,345,589 6,139,877 761,092 719,781 This rule is expected to reduce the likelihood of an accident occurring due to dispatcher error. FRA has analyzed accidents over the past five years to categorize those where dispatcher training and certification would have impacted the accident. FRA then estimated benefits based on that analysis. The following table shows the estimated 10-year quantifiable benefits of the proposed rule. The total 10-year estimated benefits would be $0.8 million (PV, 7%) and annualized benefits would be $0.1 million (PV, 7%). Total 10-Year Discounted Benefits (2020 Dollars) Present value 7% ($) Present value 3% ($) Annualized 7% ($) Annualized 3% ($) 785,599 918,450 111,852 107,670 This proposed rule would also provide unquantifiable benefits. FRA has quantified the monetary impact from accidents reported on FRA accident forms. However, some accident costs are not required to be reported on FRA accident forms ( e.g., environmental impact). That impact may account for additional benefits not quantified in this analysis. If these costs were realized, accidents affected by this proposed rulemaking could have much greater economic impact than the quantitative benefit estimates provided here. There is also a chance of a high impact event due to a dispatcher error. This could involve fatalities, injuries, and environmental damage, as well as impacting railroads, communities, and the public. FRA has not estimated the likelihood of such an accident, but this proposed rule is expected to reduce the risk that an accident of that magnitude. II. Legal Authority Pursuant to the Rail Safety Improvement Act of 2008, Public Law 110-432, sec. 402, 122 Stat. 4848, 4884 (Oct. 16, 2008) (hereinafter “RSIA”), the Secretary of Transportation (Secretary) was required to submit a report to Congress addressing whether certification of certain crafts or classes of employees, including dispatchers, was necessary to reduce the number and rate of accidents and incidents or to improve railroad safety. 3 If the Secretary determined it was necessary to require the certification of certain crafts or classes of employees to reduce the number and rate of accidents and incidents or to improve railroad safety, section 402 of the RSIA stated the Secretary may prescribe such regulations. The Secretary delegated this authority to the Federal Railroad Administrator. 49 CFR 1.89. In response to the RSIA, the Secretary submitted a report to Congress on November 4, 2015, 4 stating that, based on FRA's preliminary research, dispatchers and signal employees were potentially the most viable candidate railroad crafts for certification. Based on the analysis in Section III below, the Federal Railroad Administrator has determined that it is necessary to require the certification of railroad dispatchers to improve railroad safety. 3 See also 49 U.S.C. 20103 (providing FRA's general authority to “prescribe regulations and issues orders for every area of railroad safety”). 4 www.regulations.gov/document/FRA-2022-0019-0001. III. Background 1. Roles and Responsibilities of Dispatchers Railroad dispatchers play an integral role in railroad safety and operations. They are responsible for allocating and assigning track use, ensuring that trains are routed safely and efficiently, and ensuring the safety of personnel working on and around railroad track. These are cognitively complex tasks that require integrating multiple sources of information ( e.g., information from train schedules, computer displays of current track state, radio communication with various personnel such as locomotive engineers, and in some cases, projecting into the future ( e.g., estimating when the train will arrive)); and balancing multiple demands placed on track use ( e.g., balancing the need for maintenance-of-way workers to have time to work on the track with the need to make sure that the track will be clear when a train is anticipated to arrive). Some of the main tasks 5 dispatchers perform involve: operation monitoring (monitoring a computerized train dispatching model board); information collection and data entry (collecting information about slow orders and any blocking protection required by railroad workers on the track); communication (playing an important role in roadway worker planning and protection); emergency response (working to limit the damage to human life and property during an emergency); and knowledge of territory (knowing the specific characteristics of the territory assigned to them). 5 As part of a contract with FRA, Foster-Miller, Inc., conducted research to develop a tool for assessing railroad dispatcher task load. Task load is defined as the average time demanded of a dispatcher in carrying out all job-related tasks at a particular desk, over a specified period of time ( e.g., one shift). Stephen J. Reinach, Toward the Development of a Performance Model of Railroad Dispatching 2042-46 (Proceedings of the Human Factors and Ergonomics Society 50th Annual Meeting, 2006). A copy of this report can be found at https://railroads.dot.gov/elibrary/proceedings-human-factors-and-ergonomics-society-50th-annual-meeting-2006. Over the past 5 to 10 years, the job of a railroad dispatcher has become more complex and demanding. The number of dispatchers has decreased over the years, and dispatcher territory is expanding due to this decrease. Also, with the advancement of Positive Train Control (PTC), dispatchers must understand the interface between the computer-aided dispatching system and the train control system, with respect to the safe movement of trains and other on-track equipment. Dispatchers need to understand the operating rules applicable to the train control system, including granting permission for movement and protection of roadway workers; unequipped trains; trains with failed or cut-out train control onboard systems; control system fails; and providing for safe operations under the alternative method of operation. The availability of affordable computer systems has made computer-aided dispatching (CAD) feasible for many railroads. The improved communications systems led to the acceptance of radio transmitted directives in place of the traditional paper train orders that had been previously used. These changes in communications and signal technology have also resulted in the closing of block towers, eliminating the job of tower operator, a job that was often on the career path to becoming a dispatcher. Today, dispatchers are likely to use multiple computer screens and electronic equipment, in addition to a communications system. However, a short line railroad may still use hand- written or verbal authorities to move trains across dark (unsignalled) territory. The industry's adoption of new dispatching technology, changes in operating rules and methods of operation, and railroad industry restructuring all have potential safety consequences. Additionally, excessive workloads and increases in occupational stress could result from any of these factors. The role of the dispatcher would also significantly increase with a possible increase in one-person crew operations, as more vigilance and attention will be needed to cover these operations. Additional one-person crew operations would introduce increased workloads as the dispatcher will be the direct “lifeline” to the multiple one-person operations in a given assigned territory. 2. FRA History of Certification On January 4, 1987, an Amtrak train collided with a Conrail train in Chase, Maryland, resulting in 16 deaths and 174 injuries. At the time, it was the deadliest train accident in Amtrak's history. The subsequent investigation by the National Transportation Safety Board concluded that the probable cause of the accident was the impairment of the Conrail engineer who was under the influence of marijuana at the time of the collision. 6 6 Railroad Accident Report: Rear-end Collision of Amtrak Passenger Train 94, the Colonial and Consolidated Rail Corporation Freight Train ENS-121, on the Northeast Corridor, Chase, Maryland, January 4, 1987 144 (Nat'l Transp. Safety Bd. 1988). Following this accident, Congress passed the Rail Safety Improvement Act of 1988, Public Law 100-342, 4, 102 Stat. 624, 625 (1988), which instructed the Secretary of Transportation (Secretary) to “issue such rules, regulations, orders, and standards as may be necessary to establish a program requiring the licensing or certification of any operator of a locomotive, including any locomotive engineer.” On June 19, 1991, FRA published a final rule establishing a certification system for locomotive engineers and requiring railroads to ensure that they only certify individuals who met minimum qualification standards. 7 In order to minimize governmental intervention, FRA opted for a certification system where the railroads issue the certificates as opposed to a government-run licensing system. This final rule, published in 49 CFR part 240 (part 240), created certification requirements for engineers that addressed various areas, including vision and hearing acuity; training, knowledge, and performance skills; and prior safety conduct. 7 56 FR 28227 (June 19, 1991). Seventeen years later, Congress passed the Rail Safety Improvement Act of 2008, Public Law 110-432, 402, 122 Stat. 4848, 4884 (2008) (hereinafter “RSIA”), which mandated the creation of a certification system for conductors. On November 9, 2011, FRA published a final rule requiring railroads to have certification programs for conductors and to ensure that all certified conductors satisfy minimum Federal safety standards. 8 The conductor certification rule, published in 49 CFR part 242 (Part 242), was largely modeled after Part 240 with some deviations based on the different job classifications. Part 242 also included some organizational improvements which made the regulation more streamlined than Part 240. 8 76 FR 69801 (Nov. 9, 2011). 3. Statutory Background for Dispatcher Certification In addition to requiring certification for conductors, the RSIA required the Secretary to submit a report to Congress addressing whether certain other railroad crafts or classes of employees would benefit from certification. Specifically, section 402(b) of the RSIA requires that the Secretary issue a report to Congress “about whether the certification of certain crafts or classes of railroad carrier or railroad carrier contractor or subcontractor employees is necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.” As part of that report, section 402(c) specifically requires the Secretary to consider dispatchers as one of the railroad crafts for certification. After identifying a railroad craft or class for which certification is necessary, pursuant to the report to Congress discussed above, section 402(d) authorizes the Secretary to “prescribe regulations requiring the certification of certain crafts or classes of employees that the Secretary determines . . . are necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.” 4. Report to Congress On November 4, 2015, the Secretary submitted the report to Congress required under the RSIA. The report stated that, based on FRA's preliminary research, dispatchers and signal repair employees were the most viable candidates for certification. In reaching this determination with respect to dispatchers, the Secretary cited a variety of factors. The report noted that dispatchers perform safety-sensitive work as shown by dispatchers being covered under the hours-of-service laws; and they are subject to regular and pre-employment random drug and alcohol testing. In 2012 and 2013, dispatchers had the highest pre-employment positive drug testing rate among all crafts. Annual drug and alcohol testing data submitted to FRA in 2012 and 2013 showed a 0.68-percent random positive drug testing rate and a 0.79-percent pre-employment positive drug testing rate for dispatch employees compared to a 0.48-percent random positive drug testing rate and a 0.46-percent pre-employment positive drug testing rate for signal employees; and a 0.49-percent random positive drug testing rate and a 0.55-percent pre-employment positive drug testing rate for train and engine service employees. 9 The report noted that 49 CFR parts 240 and 242 require a five-year alcohol and drug background check as well as disqualification of employees for specified alcohol and drug test violations and for refusing such testing. If such requirements were included in a dispatcher certification program, it could help prevent dispatchers with active substance abuse disorders from “job hopping” from one employer to another and reduce the safety risk of having individuals with untreated substance abuse disorders working as dispatchers. 9 Testing results submitted to FRA in 2020 and 2021 showed a 0.94-percent random violation rate (drug and alcohol positives and refusals) rate and a 0.85-percent pre-employment violation rate for dispatch employees compared to a 0.81-percent random violation rate and a 0.79-percent pre-employment violation rate for signal employees; and a 0.49-percent random positive drug testing rate and a 0.55-percent pre-employment positive drug testing rate for train and engine service employees. Another important factor in the report was the complicated nature of the work dispatchers perform to ensure the safety and efficiency of railroad operations. Dispatchers are responsible for allocating and assigning main track use to trains from their own employer as well as trains from other railroads. They are also responsible for the safety of roadway workers working on or near track. The report summarized the demanding nature of dispatching by stating that it entails performing cognitively complex tasks that require rapid decision making, projecting into the future, and balancing numerous demands on track use. Additionally, the report cited a “great amount of turnover” in the nationwide train dispatching workforce, resulting in a less experienced workforce, as further support for requiring certification. Finally, the report found that, with the exception of train and engine crews, no function of railroad operations is more critical to safety than dispatching. The accumulation of these factors led to the report's conclusion that dispatching was a potentially viable candidate for certification. 5. RSAC Working Group In March 1996, FRA established the Railroad Safety Advisory Committee (RSAC), which provides a forum for collaborative rulemaking and program development. RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. On April 21, 2017, a task statement regarding certification of dispatchers was presented to the RSAC by email, but no vote was taken. On April 24, 2019, the RSAC accepted a task (No. 19-02) entitled “Certification of Train Dispatchers.” 10 The purpose of the task was “[t]o consider whether rail safety would be enhanced by developing guidance, voluntary standards, and/or draft regulatory language for the certification of train dispatchers.” The task called for the RSAC Train Dispatcher Certification Working Group (Working Group) to perform the following: 10 At the same meeting, the RSAC also accepted a task (No. 19-03) titled “Certification of Railroad Signal Employees.” A separate RSAC Working Group was formed to address this task, and FRA plans to issue a related proposed rule that would establish certification requirements for signal employees. —Review critical tasks performed by dispatching employees for safe train operations, particularly with the introduction of PTC technology. —Review training, duration, content, and methodology for new hire and continuing education. —Review background checks designed to prevent dispatching employees with active substance abuse disorders from “job-hopping” from one employer to another. The task statement also asked the Working Group to address the following issues, if appropriate: —What requirements for training and experience are appropriate? —What classifications of dispatchers should be recognized, if any? —To what extent do existing requirements and procedures for certification of locomotive engineers and conductor certification provide a model for dispatcher certification? —What types of unsafe conduct should affect a train dispatcher's certification status? —Do the existing locomotive engineer and conductor certifications provide an adequate model for handling appeals from decertification decisions of the railroads? The Working Group, which included representatives from the Association of American Railroads (AAR), American Public Transportation Association, American Short Line and Regional Railroad Association (ASLRRA), American Train Dispatchers Association, Brotherhood of Railroad Signalmen, SMART Transportation, Commuter Rail Coalition, and National Railroad Construction & Maintenance Association, held its first and only meeting on September 4, 2019 in Washington, DC. At this meeting, the Working Group reviewed the task statement from the RSAC, discussed some of the safety-critical tasks performed by dispatchers, and debated whether certification of dispatchers would be beneficial to railroad safety. At the end of the meeting, action items were assigned and the next meeting was tentatively scheduled for January 2020. However, on December 16, 2019, the presidents of the American Train Dispatchers Association, the Brotherhood of Railroad Signalmen, and the International Brotherhood of Electrical Workers (collectively the “Unions”) sent a letter to the FRA Administrator requesting that this RSAC task be withdrawn from consideration at this time. The letter stated the Unions were currently involved in numerous activities and were not able to give the task proper attention. AAR and ASLRRA advised the Unions that they were not opposed to this request. In response to this letter, FRA withdrew this task from the RSAC, and the Working Group became inactive. 6. Public Outreach In 2021, FRA revisited the issue of establishing certification requirements for dispatchers. The agency assembled subject matter experts from FRA, the American Train Dispatchers Association (ATDA), the International Brotherhood of Electrical Workers (IBEW), and the Brotherhood of Railroad Signalmen to exchange facts and information regarding the tasks performed by dispatchers. Those parties met virtually several times between May 5, 2021 and June 30, 2021. As part of FRA's outreach, a list of tasks performed by dispatchers was developed. These tasks generally involved: track authorities; mandatory directives; track worker protection; emergency response coordination; or incident management. FRA reviewed each task to determine whether correctly performing the task was critical to railroad safety; what were the potential consequences if errors were made while performing the task; and whether there were any recent examples of issues or concerns with respect to the task. After performing this analysis, FRA concluded that the vast majority of tasks performed by dispatchers (80-90% of the listed tasks) were critical to railroad safety with potentially catastrophic consequences, such as accidents, injuries, and/or deaths, if the tasks were not performed properly. In addition, because dispatchers provide incident management and emergency response coordination, FRA concluded that by properly performing their tasks, dispatchers can help reduce the consequences of accidents and mitigate injuries. During FRA's outreach, the benefits of certification based on the experience of stakeholders with engineer and conductor certification under 49 CFR parts 240 and 242 were also discussed. Some of the main benefits of certification that were identified included: —Creating a minimum standard for training to ensure that the training encompasses all skills and proficiencies necessary to properly perform all safety-related dispatcher functions; —Establishing a record of safety compliance that will follow a dispatcher if they wish to become certified by another railroad and that can be used to review a dispatcher's performance and potential training needs; —Requiring certain safety checks, such as identifying active substance abuse disorders, that can minimize the risks posed by job hopping; and —Establishing a system for individuals to dispute a railroad's decision to deny or revoke certification with the aim of creating a fair and consistent process for all parties. Further, some parties noted that they had witnessed industry trends to reduce the length and level of training for dispatchers which would make certification even more beneficial. Based on these meetings, FRA concluded that requiring certification for dispatchers would be an important tool to ensure dispatchers are adequately trained and qualified; have a documented record of performance; and are not able to job hop without a new employer having knowledge of the dispatcher's safety performance record. 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. 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 § 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 § 245.7. Paragraph (a)(3) of this section excludes “tourist, scenic, historic, and excursion operations that are not part of the general railroad system of transportation” (as defined in § 245.7) from compliance with this rule. Excluding these types of operations from this rule is consistent with FRA's jurisdictional policy that excludes these operations from all but a limited number of Federal safety laws, regulations, and orders. The final proposed exclusion covers rapid transit operations in an urban area that are not connected to the general railroad system of transportation. It should, however, be noted that FRA exercises jurisdiction over some rapid transit type operations, given their links to the general railroad system of transportation, such as rapid transit operations conducted on track used for freight, intercity passenger, or commuter passenger railroad operation, during a block of time during which a general system railroad is not operating (temporal separation). Thus, this proposed rule would apply to persons who perform dispatch tasks for those rapid transit type operations. Paragraph (b) is intended to clarify that any person, as defined in § 245.7, (including a railroad employee, employee of a railroad contractor, or employee of a railroad subcontractor) who performs a function required by this part will be held responsible for compliance. Therefore, this proposed regulation would cover all dispatchers regardless of whether they are employed by a railroad or a contractor. Covering employees of both railroads and contractors is consistent with other FRA regulations (such as FRA's training regulations in 49 CFR part 243) and the general trend in the railroad industry. In many instances, employees performing dispatch tasks for a railroad may be employed by a company other than the railroad upon which the person is working. In the interest of railroad safety, it is vital that all dispatchers are properly trained and qualified regardless of whether they are employed by a railroad or a contractor. Section 245.5 Effect and Construction This section is derived from 49 CFR 240.5 and 242.5. Paragraph (a) addresses the relationship of this proposed rule to preexisting legal relationships. Paragraph (b) states that FRA does not intend to alter the authority of a railroad to initiate disciplinary sanctions against its employees by issuance of this proposed rule. Paragraph (c) of this section is intended to note that, as a general matter, FRA does not intend to create or prohibit the right to “flowback” or take a position on whether “flowback” is desirable. The term “flowback” has been used in the industry to describe a situation where an employee leaves their current position to return to a previously held position or craft. The reasons for reverting back to the previous craft may derive from personal choice or a less voluntary nature (such as downsizing). Many collective bargaining agreements address the issue of flowback. However, paragraph (c) must be read in conjunction with § 245.213, which limits flowback in certain situations ( i.e., when a certificate is revoked due to an alcohol or drug violation). Paragraph (d) of this section addresses employee rights. The proposed rule would explicitly preserve any remedy already available to the person and would not create any new entitlements. Section 245.7 Definitions This section, derived from 49 CFR 240.7 and 242.7, defines a number of terms that have specific meaning in this proposed part. A few of these terms have definitions that are similar to, but may not exactly mirror, definitions used elsewhere in this chapter. Dispatch FRA proposes to use the definition of “dispatch” found in 49 CFR 241.5. This definition sets the limits of what constitutes a dispatcher and provides examples of the types of activities FRA intends to cover and not cover under this definition. Under this definition, the function that the individual is performing determines whether a person is dispatching. Factors such as an individual's job title, location, and whether the individual is employed by a railroad, are irrelevant to the determination of whether the individual is dispatching. Furthermore, FRA does not intend for yardmasters, as a job category, to fall within the scope of this definition. Yardmasters are only covered by this part when they are performing dispatching functions. Paragraph (1)(i) of the definition gives specific examples of the types of functions that an individual would perform in order to be considered dispatching. In particular, FRA intends that anyone controlling the movement of on-track equipment requiring a power brake test under 49 CFR parts 232 or 238, would be considered dispatching and, therefore, would fall within the scope of the rule. Another type of movement that FRA intends to include is the movement of certain other 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 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 § 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 § 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 well as with the president of each labor organization that represents the railroad's certified dispatchers, and the programs will be available on FRA's website. See § 245.103(d) and (j). Accordingly, FRA does not at this time believe it is necessary to develop a document submission system which addresses confidential materials. When a railroad submits its certification program to FRA, paragraph (d) of this section requires the railroad to also submit a copy of the program and the request for approval to the president of each labor organization that represents the railroad's dispatchers and to all of the railroad's dispatchers that are subject to this part. The railroad's submission to FRA must include a statement affirming that it has provided a copy of the program and the request for approval to the president of each labor organization that represents the railroad's dispatchers and to all of the railroad's dispatchers that are subject to this part. In addition, the submission must include a list of the names and email addresses of each labor organization president who received a copy of the program. Paragraph (e) of this section provides instruction on who is allowed to comment on these programs. For dispatchers who are members of a labor union, any comments must be submitted by a designated representative. For dispatchers who are not members of a labor union, they can personally submit a comment on their railroad's certification program. FRA anticipates that comments submitted under this process will assist the agency in determining whether a program conforms to the requirements set forth in this rule, and thus, FRA will not make a decision on a program until after the 45-day comment period in paragraph (e)(1) has passed. Paragraph (f) of this section states FRA's aspirational goal to decide on whether to approve a program within 90 days of the date that the program is submitted. However, this is only a goal and not a deadline for the agency. Paragraph (f)(3) makes clear that if FRA is unable to issue a decision on the program within 90 days, the program is not considered approved on the 91st day. A certification program will not be approved until FRA issues a letter notifying the railroad that its program has been approved. While FRA will make every effort to issue approval and disapproval letters within 90 days, FRA recognizes that this will not always be possible. It may be especially difficult for FRA to meet this goal during the initial implementation of this rule when FRA expects to receive many certification programs within a relatively short period of time. Paragraph (g) of this section addresses the process for railroads who wish to materially modify their previously approved programs. If a railroad wishes to materially modify its program, it must submit two documents to FRA: (1) a description of how it intends to modify its current program (this constitutes the request for approval required under § 245.107(a)); and (2) a copy of the modified program. Paragraph (g)(1) defines a “material modification” as a modification that “would affect the program's conformance with this part.” This definition is taken from 49 CFR 240.103(h)(1) and 242.103(i)(1) and is intentionally broad to cover the innumerable modifications to a program that could be considered material. FRA recognizes that there may be a desire among some interested parties to have a more specific definition of “material modification” in the regulation. Thus, FRA welcomes any comments on suggested changes to the “material modification” definition. Paragraph (g)(3) notes that the process for submission and review of material modifications mirrors the process for submission and review of initial certification programs. Railroads shall submit their material modifications to FRA in conformance with paragraph (c) of this section and shall send a copy of the material modification description and the modified program to all required parties referenced in paragraph (d) of this section. Certain interested parties may comment on the modification in conformance with paragraph (e) of this section, and FRA will issue a letter either approving or disapproving the material modification in conformance with paragraph (f) of this section. If FRA approves the material modification, the railroad can begin implementing the modification and the modified program will replace the original program. If FRA disapproves the material modification, the railroad cannot implement the modification, and the original program must remain in effect. If a railroad's material modification submission contains multiple modifications, FRA reserves the right to approve some modifications while disapproving other modifications. In such an instance, the railroad can only begin implementing those modifications that FRA has approved. Paragraph (h) of this section describes the process to resubmit a program or material modification that was previously disapproved by FRA. Paragraph (h)(2) notes that the process for submission and review of resubmitted programs and material modifications mirrors the process for submission and review of initial certification programs. Railroads shall resubmit their initial programs or material modifications to FRA in conformance with paragraph (c) of this section and shall send a copy of the resubmitted program or material modification to all required parties referenced in paragraph (d) of this section. Certain interested parties may comment on the resubmitted program or material modification in conformance with paragraph (e) of this section and FRA will issue a letter either approving or disapproving the resubmitted program or material modification in conformance with paragraph (f) of this section. Paragraph (h)(3) provides the deadlines, if any, for when a railroad must resubmit its program or material modification to FRA. Railroads with existing dispatching operations on the effective date of the final rule (legacy railroads), whose initial programs are disapproved by FRA, must resubmit their program within 30 days of the date FRA notified the railroad that its program was deficient. If a legacy railroad fails to resubmit its program within 30 days and continues its dispatching operations, FRA will determine the appropriate enforcement approach to achieve compliance, including civil penalties and/or an emergency order. FRA believes a 30-day deadline is needed for legacy railroads because § 245.105(a) allows legacy railroads to continue dispatching operations while they await FRA approval of their programs. Thus, without a deadline, legacy railroads could purposely delay coming into compliance with this proposed rule by taking months or even years to resubmit their programs. In contrast, railroads that begin dispatching operations after the effective date of this proposed rule cannot begin such operations until FRA approves their program. Likewise, any railroad (both legacy and non-legacy) cannot implement a material modification to its program until FRA has approved the modification. Therefore, in these scenarios, FRA decided that a deadline is unnecessary because the railroads have every incentive to resubmit their programs or material modifications in a timely manner. However, while there is no FRA-imposed deadline in these scenarios, FRA still recommends that railroads provide their resubmissions within 30 days of being notified of deficiencies. 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 §§ 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 the date the individual was designated by the railroad as a certified dispatcher). Railroads should note that they may not test and evaluate a designated dispatcher or dispatcher candidate under subpart B of this rule until they have a certification program approved by FRA pursuant to § 245.103. In order to test and evaluate all of its designated dispatchers by the end of the three-year period, a large railroad will likely have to begin that process well in advance of the end of the three years. For example, paragraph (f), which is derived from part 240 and part 242's designation provisions, would permit a railroad to test and evaluate one-third of its designated dispatchers within one year of the approval date of the railroad's certification program; another one-third within two years of the program's approval date; and the final one-third within three years of the program's approval date. To address the issue of designated dispatchers who would be eligible to retire within three years of the date FRA approves their railroad's certification program, FRA is proposing paragraphs (f)(1) through (3) in this section since it would not be an efficient use of a railroad's resources to perform the full certification process on a designated dispatcher who is going to retire before the end of their designation period. Paragraph (f)(1) provides that a designated dispatcher, who is eligible to receive a retirement pension in accordance with the terms of an applicable agreement or with the terms of the Railroad Retirement Act (45 U.S.C. 231) within three years from the date FRA approves the railroad's certification program, may request, in writing, that the railroad not perform the full certification process on that designated dispatcher until three years from the date FRA approves the railroad's program. Paragraph (f)(2) provides that, upon receipt of that written request, a railroad may wait to perform the full certification process on the person making the request until the end of the dispatcher's designation period. Thus, paragraphs (f)(1) and (2) allow designated dispatchers to serve as dispatchers for the full designation period and then retire before being subjected to the full certification process. While it is in the railroads' interest not to perform the full certification process for a person who is going to retire once the designation period expires, and thus, in their interest to grant as many requests as possible, it may not be feasible to accommodate every request that is made. If, for example, a significant number of designated dispatchers on a railroad properly request that the railroad wait to recertify them at the end of the designation period, but then do not, in fact, retire by the expiration of the designation period, the railroad might not be able to recertify everyone in time and would risk violating this rule. In recognition of that risk and the need to give the railroads some flexibility to comply with the rule, paragraph (f)(2) also provides that a railroad that grants any request must grant the request of all eligible persons “to every extent possible.” In addition, paragraph (f)(3) provides that a designated dispatcher, who is also subject to recertification under part 240 or 242, may not make a request under paragraph (f)(1) of this section. This provision recognizes that railroads would likely want to have concurrent certification processes for certifying a person who will be both a certified dispatcher and a certified locomotive engineer or conductor. Thus, it would not be appropriate, in that instance, for a designated dispatcher who is already subject to recertification under part 240 or 242 to make a request to delay the full dispatcher certification process. Paragraph (g) of this section provides that, after FRA approves a railroad's certification program, the railroad cannot certify or recertify a person as a dispatcher unless that person has been tested and evaluated in accordance with the procedures provided in subpart B of this rule. In other words, after FRA approves a railroad's program, that railroad can no longer designate individuals as certified dispatchers under paragraphs (c) or (d) of this section. Section 245.107 Requirements for Certification Programs This section, derived from appendix B to part 240 and appendix B to part 242, provides both the organizational requirements and a narrative description of the submission required under §§ 245.101 and 245.103. FRA is not requiring railroad submissions to be made on a specific form. Instead, FRA is prescribing only minimal constraints on the organization and manner of presenting information. Paragraph (a) of this section addresses what must be included in a railroad's submission to FRA. Specifically, the railroad must include two documents in its submission: (1) a request for approval; and (2) the certification program. If a railroad is submitting its initial certification program, the request for approval can be a brief document that simply states that the railroad is submitting its initial certification program for approval by FRA. However, if a railroad is making a material modification or modifications to a program that has previously been approved by FRA, the request for approval must mention all of the material modifications that the railroad is making to its program and the copy of the certification program will include all of the modifications. Paragraph (b) of this section requires that the program be divided into six sections, each dealing with a different subject matter, and that the railroad identify the appropriate person to be contacted in the event FRA needs to discuss some aspect of the railroad's program. Section 1 of a certification program shall include basic contact information and will address whether the railroad accepts responsibility for training previously uncertified dispatchers. Section 2 of a program addresses how the railroad will handle training dispatchers who have been previously certified. The main focus in Section 2 is how the railroad will address its requirement to provide continuing education for its previously certified dispatchers. Continuing education is essential because time and circumstances have the capacity to diminish both abstract knowledge and the proper application of that knowledge to discrete events. Time and circumstances also have the capacity to alter the value of previously obtained knowledge and the application of that knowledge. Therefore, dispatchers need to have their fundamental knowledge of operating rules and practices refreshed periodically. While a railroad has latitude to select the specific subject matters to be covered, the duration of the training, the methods of presenting the information, and the frequency with which the training will be provided, the railroad must describe in this section how it will use that latitude to ensure that its dispatchers remain knowledgeable concerning the safe discharge of their responsibilities so as to comply with the standard set forth in § 245.119(j). A matter of particular concern to FRA is how each railroad acts to ensure that dispatchers remain knowledgeable about the territory over which they are authorized to dispatch, but from which the dispatcher has been absent. Paragraph (b)(2)(v) requires that Section 2 of the program addresses how long a person may be absent from dispatching over a territory before familiarization training is required and how the dispatcher will acquire that familiarization training. This time period can be less than 12 months, but it cannot exceed 12 months in accordance with § 245.120(c). Section 3 of the program includes requirements for the testing and evaluation procedures for previously certified dispatchers. Paragraph (b)(3)(i) notes that railroads must address how their programs will comply with the standards found in § 245.121. Section 245.121 directs that, when seeking a demonstration of the person's knowledge, a railroad must employ a written test that contains objective questions that cover the following subject matters: (i) safety and operating rules; (ii) timetable instructions; (iii) compliance with all applicable Federal regulations; (iv) physical characteristics of the territory on which a person will be serving as a dispatcher; and (v) dispatching systems and technology. The test must accurately measure the person's knowledge of all of these areas. Paragraph (b)(3)(ii) requires the program to detail the railroad's procedures for testing vision and hearing acuity and for ensuring that its medical examiners have sufficient knowledge to make a determination as to whether a person can safely work as a dispatcher. Section 4 of the program includes the requirements for training, testing, and evaluating persons not previously certified. Railroads who elect, in Section 1 of the program, to not take responsibility for training previously uncertified dispatchers can skip this section. However, all other railroads must provide details for how they will train, test, and evaluate previously uncertified persons to ensure that they acquire and demonstrate sufficient knowledge and skills to safely perform the job of a dispatcher. Paragraph (b)(4)(ii) requires the same level of detail in this section that is required in Sections 2 and 3 of the program. This encompasses addressing both the training requirements found in § 245.119 and the knowledge testing requirements in § 245.121. If a railroad relies on another entity to conduct its training away from the railroad's own territory and dispatching systems, paragraph (b)(4)(iii) states that the railroad must explain in its program how dispatching students will be given the required training on the physical characteristics of the railroad's territory and its dispatching systems and technology. Section 5 of the program addresses how the railroad will monitor the operational performance of its certified dispatchers in accordance with § 245.123. In particular, the railroad must discuss the processes and procedures it will use for ensuring that such monitoring and testing is performed. This includes a description of the scoring system the railroad will employ during such testing. Finally, Section 6 of the program addresses how the railroad will perform its routine administration of the program. This section must include summaries of how the program will comply with the various provisions listed in paragraph (b)(6) that contain certain procedural requirements for a railroad's certification program. Section 245.109 Determinations Required for Certification and Recertification This proposed section lists the determinations that would be required for evaluating a candidate's eligibility to be certified or recertified. The reference to § 245.303 in paragraph (a)(2) of this section is to ensure railroads determine whether a candidate is eligible to hold a certification by reviewing any prior revocations addressed in subpart D of this rule. Despite the reference to provisions in §§ 245.111 and 245.113 requiring a review of safety conduct information from the preceding five years, § 245.113(h)(1) would not permit a railroad to consider information concerning safety conduct that occurred prior to the effective date of the final rule issued in this rulemaking. Even though this provision would result in a railroad's evaluation of less than five years' worth of information for some dispatchers early on in the rule's effective period, it is included in Part 245 for the same reason similar provisions were included in parts 240 and 242. Namely, that all dispatchers should be permitted to start with a “clean slate” for certification purposes as a matter of basic fairness. See 56 FR 28228, 28242 (June 19, 1991). Paragraph (b) of this section would provide flexibility to railroads and dispatchers or dispatcher candidates in obtaining the information required by §§ 245.111 and 245.113. Section 245.111 Prior Safety Conduct as Motor Vehicle Operator This section, derived from 49 CFR 240.111, 240.115, and 242.111, would provide the requirements and procedures that a railroad would be required to follow when evaluating a dispatcher or dispatcher candidate's prior safety conduct as a motor vehicle operator. FRA believes that the prior safety conduct of a motor vehicle operator is one indicator of that person's drug and/or alcohol use and therefore an important piece of information for a railroad to consider. Pursuant to this section, each person seeking certification or recertification as a dispatcher would be required to request in writing that the chief of each driver licensing agency that issued them a driver's license within the preceding five years provide a copy of the person's driving record to the railroad. Unlike part 240, this proposed rule would not require individuals to also request motor vehicle operator information from the National Driver Register (NDR). Based on the NDR statute and regulation ( see 49 U.S.C. chapter 303 and 23 CFR part 1327), railroads are prohibited from running NDR checks or requesting NDR information from individuals seeking employment as certified dispatchers. Paragraphs (b) and (c) of this section would require a railroad to certify or recertify a person for 60 days if the person: (1) requested the required information at least 60 days prior to the date of the decision to certify or recertify; and (2) otherwise meets the eligibility requirements provided in § 245.109(a)(2) through (5). If a railroad certifies or recertifies a person for 60 days pursuant to paragraphs (b) and (c) but is unable to obtain and evaluate the required information during those 60 days, the person would be ineligible to perform as a dispatcher until the information can be evaluated. However, if a person is simply unable to obtain the required information, that person or the certifying or recertifying railroad could petition for a waiver from FRA ( see 49 CFR part 211). During the pendency of the waiver request, a railroad would be required to certify or recertify a person if the person otherwise meets the eligibility requirements of § 245.109(a)(2) through (5). Paragraph (k) of this section would require certified dispatchers or persons seeking initial certification as dispatchers to notify the certifying railroad (or the prospective certifying railroad, if applicable) of motor vehicle incidents described in paragraphs (m)(1) and (2) of this section within 48 hours of the conviction or completed State action to cancel, revoke, suspend, or deny a motor vehicle driver's license for such incidents. This proposed paragraph would also prohibit railroads from having a more restrictive company rule requiring certified dispatchers to report a conviction or completed State action to cancel, revoke, or deny a motor vehicle driver's license in less than 48 hours. The reasoning behind proposed paragraph (k) involves several intertwined objectives. As a matter of fairness, a railroad should not revoke, deny, or otherwise make a person 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 §§ 245.115 and 245.303 within the previous five years, as well as the candidate's prior compliance with § 245.111 within the previous three years. Paragraph (b) of this section contains an exception that if a certification candidate has not been employed or certified by any other railroad in the previous five years, they do not have to submit a request pursuant to paragraph (c) of this section. Such candidates, however, must notify the railroad to which they are seeking certification of this fact. This exception should help minimize any burden arising from these proposed requirements. For certification candidates who do not qualify for the exception provided in paragraph (b), paragraph (c) would require the certification candidate to submit a written request to each railroad that employed or certified the candidate within the previous five years. As indicated earlier, the written request would direct the previous railroad employer or certifying railroad to provide information about the certification candidate's prior compliance with §§ 245.115 and 245.303 within the previous five years, as well as the candidate's prior compliance with § 245.111 within the previous three years from the date of the written request. In addition, railroads would be required by paragraph (e) of this section to comply with written requests for records of prior safety conduct submitted by former employees or certified persons pursuant to this section within 30 days after receipt of such requests. Railroads that are unable to provide information about prior safety conduct within 30 days would be required, by paragraph (f) of this section, to either: (1) provide a written explanation of why the railroad cannot provide the information within the requested time frame, along with an estimate of how much time will be needed to supply the requested information; or (2) provide an adequate explanation for why the railroad cannot provide the information requested. In the event a railroad seeking to certify or recertify a certification candidate receives a written statement from another railroad pursuant to paragraph (f) of this section, which explains that the railroad cannot provide the information requested, the railroad seeking to certify or recertify the certification candidate would be deemed to have complied with the eligibility determination required by paragraph (a) of this section provided it retains a copy of the other railroad's written statement in its records. Similarly, in the event a railroad seeking to certify or recertify a certification candidate does not receive any written response from other railroads, the railroad would be deemed to have complied with the eligibility determination required by paragraph (a) of this section provided it retains a copy of the written request for this information in its records. Section 245.115 Substance Abuse Disorders and Alcohol Drug Rules Compliance This proposed section, which is derived from 49 CFR 240.119, 240.205, and 242.115, addresses: (1) active substance abuse disorders and (2) specific alcohol/drug regulatory violations. As noted earlier, annual drug and alcohol testing data submitted to FRA revealed that dispatch employees had a random violation rate (drug and alcohol positives and refusals) and a pre-employment violation rate that was considerably higher than their train and engine service counterparts. Therefore, this section and § 245.111 address certain situations in which inquiry must be made into the possibility that the individual has an active substance abuse disorder if the individual is to obtain or retain a certificate. The fact that specific instances are cited in this section would not eliminate the general duty of the railroad to take reasonable and proportional action in other appropriate cases. Declining job performance, extreme mood swings, irregular attendance, and other indicators may, to the extent not immediately explicable, indicate the need for an evaluation under internal policies of the railroad. The purpose of identifying conditions is not to require (and does not require) a railroad to order an evaluation any time a listed condition is exhibited. Rather, FRA is simply providing guidance here as to conditions that may, given the context, call for an evaluation under internal policies of the railroad. Moreover, FRA remains vigilant of harassment and intimidation and will take appropriate action if such conduct is discovered. Paragraph (a) of this section would require railroads to determine that a person initially certifying, or a dispatcher recertifying, meets the eligibility requirements of this section. In addition, each railroad would be required by § 245.203 to retain the documents used to make that determination. Paragraph (c) of this section would prohibit a person with an active substance abuse disorder from being certified as a dispatcher. This means appropriate action must be taken with respect to a certificate (whether denial or suspension) whenever the existence of an active substance abuse disorder comes to the official attention of the railroad, with the exception discussed below. Paragraph (c) would also provide a mechanism for an employee to voluntarily self-refer for substance abuse counseling or treatment. Paragraph (d) would address conduct constituting a violation of § 219.101 or § 219.102 of FRA's alcohol/drug regulations. Section 219.101(a)(1) prohibits regulated employees from using or possessing alcohol or any controlled substance when the employee is on duty and subject to performing regulated service for a railroad. Section 219.101(a)(2) prohibits regulated employees from reporting for regulated service, or going on or remaining on duty in regulated service, while under the influence of (or impaired by) alcohol or while having a breath or blood alcohol concentration of 0.04 or more. A regulated employee is also prohibited from using alcohol either within four hours of reporting for regulated service or after receiving notice to report for regulated service, whichever is less. This is conduct that specifically and directly threatens safety in a way that is wholly unacceptable, regardless of its genesis and regardless of whether it has occurred previously. In its more extreme forms, such conduct is punishable as a felony under the criminal laws of the United States (18 U.S.C. 341 et seq. ) and a number of states. Section 219.102 prohibits use of a controlled substance by a regulated employee at any time, whether on or off duty, except for approved medical use. Abuse of marijuana, cocaine, amphetamines, and other controlled substances poses unacceptable risks to safety. Under the alcohol/drug regulations, whenever a violation of § 219.101 or § 219.102 is established, based on 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 § 219.104). These requirements constitute an absolute minimum standard for action when a dispatcher is determined to have violated one of these prohibitions. Considering the need both for general and specific deterrence with respect to future unsafe conduct, additional action should be premised on the severity of the violation and whether the same individual has had prior violations. This proposed rule would require railroads to consider conduct that occurred within the period of five consecutive years prior to the review. This is the same period provided in this proposed rule as the maximum period of ineligibility for certification following repeated alcohol/drug violations and is the same period used in parts 240 and 242. Use of a five-year cycle reflects railroad industry experience indicating that conduct committed as much as five years before may tend to predict future alcohol or drug abuse behavior. For example, in analyzing data submitted to FRA between 2017 and 2021, FRA found that railroad employees returning to duty from previous drug or alcohol violations were approximately five times more likely to test positive than other railroad employees. Of course, railroads would retain the flexibility to consider prior conduct (including conduct more than five years prior) in determining whom they will hire as dispatchers. Conduct violative of the FRA proscriptions against alcohol and drugs need not occur while the person is serving in the capacity of a dispatcher in order to be considered. For instance, a person who violated § 219.101 while working as a locomotive engineer and then sought dispatcher certification six months later (under the provision described below) would not be eligible for certification. The same is true under Part 240—an employee who violates § 219.101 while working as a brakeman and then seeks locomotive engineer certification six months later would not be eligible for certification at that time. The responsibility of the railroad would therefore not be limited to periodic recertification. This proposed rule would require a review of certification status for any conduct in violation of § 219.101 or § 219.102. The proposed rule would require a determination of ineligibility for a period of nine months for an initial violation of § 219.101. This would parallel the nine-month disqualification in §§ 240.119(c)(4)(iii) and 242.115(e)(4)(iii). Specifying a period of ineligibility serves the interest of deterrence while giving further encouragement to deal with the problem before it is detected by management. In order to preserve and encourage referrals, the nine-month period could only be waived in the case of a qualifying referral ( see § 219.1001). FRA believes that this distinction in treatment, which is also found in part 242, is warranted as a strong inducement to participation because referral programs help identify troubled employees before those employees get into accidents and incidents. Although FRA does not know how many actual referrals may be generated, the intended result would be reached if an atmosphere of intolerance for drug and/or alcohol abusing behavior is reinforced in the workplace and violators know that they may be reported by their colleagues or others if they report for duty while impaired. In the case of a second violation of § 219.101, the dispatcher would be ineligible for a period of five years. Given railroad employment practices and commitment to alcohol/drug compliance, it is likely that any individual so situated may also be permanently dismissed from employment. However, it would be important that the employing railroad follow through and revoke the certificate under this proposed rule, so the dispatcher could not go to work for another railroad (or railroad contractor) within the five-year period using the unexpired certificate issued by the first railroad as the basis for certification. These proposed sanctions mirror the sanctions in §§ 240.119 and 242.115. Under this proposed rule, one violation of § 219.102 within the five-year window would require only temporary suspension and the minimum response described in § 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 § 219.102 would subject the 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 §§ 219.101 and 219.102 in combination. A person violating § 219.101 after a prior § 219.102 violation would be ineligible for three years; and the same would be true for the reverse sequence. This mirrors the ineligibility period for locomotive engineers and conductors who have one § 219.101 violation and one § 219.102 violation. See 49 CFR 240.119(e)(4)(ii) and 242.115(e)(4)(ii). Refusals to participate in chemical tests would be treated as if the test were positive. A refusal to provide a breath or body fluid sample for testing under the requirements of 49 CFR part 219 when instructed to do so by a railroad representative would be treated, for purposes of ineligibility under this section, in the same manner as a violation of: (1) § 219.101, in the case of a refusal to provide a breath sample for alcohol testing, or a blood specimen for mandatory post-accident toxicological testing; or (2) § 219.102, in the case of a refusal to provide a body fluid specimen for drug testing. Interested parties should, however, note that 49 CFR part 40, subpart I, discusses medical conditions under which an individual's failure to provide a sufficient sample would not be deemed a refusal. In addition, subpart G of FRA's alcohol and drug regulations excuses employees from compliance with the requirement to participate in random drug and alcohol testing if the employee can substantiate a medical emergency involving the employee or an immediate family member. See 49 CFR 219.617. If an employee covered by 49 CFR part 219 refuses to provide a breath or body fluid specimen or specimens when required to by a railroad pursuant to a mandatory provision of 49 CFR part 219, then the railroad (apart from any action it takes under part 245) would be required to remove that employee from regulated service and disqualify the employee from working in regulated service for nine months. See 49 CFR 219.104 and 219.107; see also, 49 CFR part 219, subpart H, and 49 CFR 40.191 and 40.261. Paragraph (e) prescribes the conditions under which employees may be certified or recertified after a determination that the certification should be denied, suspended, or revoked, due to a violation of § 219.101 or § 219.102 of FRA's alcohol/drug regulations. These conditions are derived from the conditions in §§ 240.119(d) and 242.115(f) and closely parallel the return-to-duty provisions of the alcohol/drug rule. The proposed regulation would not require compensation of the employee for the time spent in this testing, which is a condition precedent to retention of the certificate; but the issue of compensation would ultimately be resolved by reference to the collective bargaining agreement or other terms and conditions of employment under the Railway Labor Act. Moreover, the railroad that intends to withdraw its conditional certification would be required to afford the dispatcher the hearing procedures provided by § 245.307 if the dispatcher does not waive their right to the hearing. Paragraph (f) would ensure that a dispatcher, like any other covered employee, can self-refer for treatment under the alcohol/drug rule (49 CFR 219.1003) before being detected in violation of alcohol/drug prohibitions and would be entitled to confidential handling of that referral and subsequent treatment. This means that a railroad would not normally receive notice from the DAC of any substance abuse disorder identified as a result of a voluntary self-referral under 49 CFR 219.1003. However, paragraph (f) would also require that the railroad policy provide that confidentiality is waived if the dispatcher at any time refuses to cooperate in a recommended course of counseling or treatment, to the extent that the railroad must receive notice that the employee has an active substance abuse disorder so that appropriate certificate action can be taken. The effect of this proposed provision is that the certification status of a dispatcher who seeks help and cooperates in treatment would not be affected, unless the dispatcher fails to follow through. Section 245.117 Vision Acuity This proposed section, derived from 49 CFR 240.121, 240.207, and 242.117, contains the requirements for vision acuity testing that a railroad would have to incorporate in its dispatcher certification program. This section differs from its analogous sections in 49 CFR parts 240 and 242 in that 49 CFR parts 240 and 242 address the requirements for vision and hearing acuity in the same section. However, FRA determined that for this proposed rule, it could more clearly present these requirements if they were in two separate sections: one section for vision acuity (§ 245.117) and one section for hearing acuity (§ 245.118). Paragraph (c) of this section contains the general vision standards that a person must satisfy in order to be 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 service, they must be reexamined. If upon reexamination, the railroad's medical examiner concludes that the certified dispatcher still satisfies the vision acuity standards in this part, the dispatcher can return to service. However, if the medical examiner concludes that the dispatcher no longer satisfies these requirements, the railroad must deny the person's certification in accordance with § 245.301, regardless of how much time remains before the dispatcher's current certificate expires. Certified dispatchers should note that willful noncompliance with the notification requirement in this paragraph could result in enforcement action. Section 245.118 Hearing Acuity This proposed section, derived from 49 CFR 240.121, 240.207, and 242.117, contains the requirements for hearing acuity testing that a railroad would have to incorporate in its dispatcher certification program. Paragraph (c) of this section contains the general hearing standards that a person must satisfy in order to be certified as a dispatcher unless they are determined to have sufficient hearing acuity under paragraph (d) of this section. The standards in paragraph (c) mirror the hearing acuity standards for locomotive engineers and conductors in 49 CFR parts 240 and 242. FRA discussed whether hearing acuity standards were necessary for dispatchers and if so, whether they needed to be as stringent as the standards for engineers and conductors. Ultimately, FRA concluded that dispatchers should have to satisfy certain hearing standards and it was logical for these standards to be consistent with the hearing standards for engineers and conductors. FRA requests comments on whether hearing acuity standards for dispatchers are necessary, and if so, whether they should be as strict as the standards for locomotive engineers and conductors. Although some individuals may not be able to meet the threshold acuity levels in paragraph (c) of this section, they may be able to compensate in other ways that will permit them to function at an appropriately safe level despite their physical limitations. Paragraph (d) of this section permits a railroad to have procedures whereby doctors can evaluate such individuals and make discrete determinations about each person's ability to compensate for their physical limitations. If the railroad's medical examiner concludes that an individual has compensated for their limitations and could safely serve as a dispatcher, the railroad could certify that person under this regulation once the railroad possesses the medical examiner's professional medical opinion to that effect. If necessary, medical examiners can condition their opinion on certain circumstances or restrictions, such as the use of a hearing aid for example. Paragraph (e) of this section describes what documents the railroad must keep on file with respect to hearing acuity testing. Such records must be retained for both individuals who the railroad certifies as dispatchers and those individuals who the railroad denies certification. Paragraph (g) of this section addresses the issue of hearing deterioration. Once certified dispatchers become aware that their hearing has deteriorated, they must notify the railroad before performing any subsequent service as a dispatcher. FRA presumes that certified dispatchers would most likely become aware of deterioration in their hearing either through their own personal observation or through examination by a medical professional. Should this occur, they must be reexamined before returning to service. If upon reexamination, the railroad's medical examiner concludes that the certified dispatcher still satisfies the hearing acuity standards in this part, the dispatcher can return to service. However, if the medical examiner concludes that the dispatcher no longer satisfies these requirements, the railroad must deny the person's certification in accordance with § 245.301, regardless of how much time remains before the dispatcher's current certificate expires. Certified dispatchers should note that willful noncompliance with the notification requirement in this paragraph could result in enforcement action. Section 245.119 Training Requirements This proposed section, derived from 49 CFR 240.123, 240.213, and 242.119, would require railroads to provide initial and periodic training to dispatchers. Such training is necessary to ensure that dispatchers ha [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-10772. Public record. Not legal advice.