July 22, 2024 Certification of Dispatchers

Federal RegisterMay 21, 2024

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 245

[Docket No. FRA-2022-0019, Notice No. 4]

RIN 2130-AC91

July 22, 2024 Certification of Dispatchers

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

FRA is establishing regulations for the certification of dispatchers, pursuant to the authority granted in section 402 of the Rail Safety Improvement Act of 2008 (RSIA).

DATES:

This regulation is effective July 22, 2024.

ADDRESSES:

For access to the docket to read background documents or comments received, go to

https://www.regulations.gov

at any time.

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) 713-7671, email:

michael.spinnicchia@dot.gov.

SUPPLEMENTARY INFORMATION:

Abbreviations and Terms Used in This Document

AANP—American Association of Nurse Practitioners

AAR—Association of American Railroads

ADA—Americans with Disabilities Act

ANSI—American National Standards Institute

APTA—American Public Transportation Association

ASLRRA—American Short Line and Regional Railroad Association

ATDA—American Train Dispatchers Association

BRS—Brotherhood of Railroad Signalmen

CAD—computer-aided dispatching

CE—categorical exclusion

CRB or Board—Certification Review Board

DAC—Drug and Alcohol Counselor

D.C. Circuit—U.S. Court of Appeals for the District of Columbia Circuit

DOT—U.S. Department of Transportation

EA—environmental assessment

EIS—environmental impact statement

FRA—Federal Railroad Administration

Hz—hertz

IBEW—International Brotherhood of Electrical Workers

IMOU—implementing memorandum of understanding

mph—miles per hour

MTA—Metropolitan Transportation Authority

NEPA—National Environmental Policy Act

NPRM—Notice of Proposed Rulemaking

NRC—Network Rail Consulting

NS—Norfolk Southern Railway

OJT—On the job training

PTC—Positive Train Control

RIA—Regulatory Impact Analysis

RLO—Rail Labor Organization

RRP—Risk Reduction Program

RSAC—Railroad Safety Advisory Committee

RSIA—Rail Safety Improvement Act of 2008

RWIC—Roadway Worker In Charge

SAP—Substance Abuse Professional

SBA—Small Business Administration

Secretary—Secretary of Transportation

SEPTA—Southeastern Pennsylvania Transportation Authority

SMART-TD—International Association of Sheet Metal, Air, Rail and Transportation Workers Transportation Division

SSP—System Safety Program

TTD—Transportation Trade Department, AFL-CIO

WLF—Washington Legal Foundation

Table of Contents for Supplementary Information

I. Executive Summary

II. Background

A. Roles and Responsibilities of Dispatchers

B. FRA History of Certification

C. Statutory Background for Dispatcher Certification

D. Report to Congress

E. RSAC Working Group

F. Stakeholder Outreach

G. Notice of Proposed Rulemaking

III. Discussion of Comments and FRA's Conclusions

A. Overview of Comments

B. Comments Supporting the NPRM

1. Labor Organizations and Consulting Company

2. Individual Commenters

C. Comments Opposing the NPRM

1. Comments Alleging There Is No Safety Justification for This Rule as the Cost-Benefit Analysis Does Not Support Requiring Dispatcher Certification

2. Comments Relating to RSIA Authority

3. Comments Stating That Contractors and Subcontractors Should Be Responsible for Certifying Their Own Employees

4. Comments Related to Evidence That This Rule Would Limit Job Hopping

5. Comments Relating to Evidence That New Dispatcher Duties Necessitate Requiring Certification

6. Comments Asserting That the Rule Is Duplicative of Parts 243, 270, and 271

D. Miscellaneous Comments

IV. Section-by-Section Analysis

V. Regulatory Impact and Notices

A. Executive Order 12866 as Amended by Executive Order 14094

B. Regulatory Flexibility Act and Executive Order 13272

1. Statement of the Need for, and Objectives of, the Rule

2. Significant Issues Raised by Public Comments

3. Response to Comments Filed by the Chief Counsel for Advocacy of the Small Business Administration

4. Description and Estimate of the Number of Small Entities to Which the Rule will Apply

5. Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of the Rule

6. A Description of the Steps the Agency Has Taken To Minimize the Economic Impact on Small Entities

C. Paperwork Reduction Act

D. Federalism Implications

E. International Trade Impact Assessment

F. Environmental Assessment

G. Environmental Justice

H. Unfunded Mandates Reform Act of 1995

I. Energy Impact

J. Executive Order 13175 (Tribal Consultation)

I. Executive Summary

Purpose of the Regulatory Action

FRA is requiring railroads to develop programs for certifying individuals who perform dispatching tasks on their networks. Under this rule, railroads are required to have formal processes for training prospective dispatchers, as well as verifying that each dispatcher has the requisite knowledge, skills, safety record, and abilities to safely perform all of the safety-related dispatcher duties mandated by Federal laws and regulations, prior to certification. In addition, railroads are required to have formal processes for revoking certification for dispatchers who violate specified minimum requirements.

FRA is promulgating this regulation in response to section 402 of the RSIA, Public Law 110-432, 122 Stat. 4848, 4884 (Oct. 16, 2008), which required the Secretary of Transportation (Secretary) to submit a report to Congress addressing whether certification of “certain crafts or classes” of railroad employees or contractors, including railroad dispatchers, was necessary to “reduce the number and rate of accidents and incidents or to improve railroad safety.” Section 402 further provides that the Secretary may prescribe regulations requiring the certification of certain crafts or classes if the Secretary determined, pursuant to the report to Congress, that such regulations are necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.

The Secretary submitted a report to Congress on November 4, 2015, stating that, based on FRA's preliminary research, dispatchers were one of the most viable candidate railroad crafts for certification due to the complex safety-critical work dispatchers perform, the high turnover among dispatchers which has led to a less experienced workforce, and the need to prevent persons with active substance abuse disorders from

working as dispatchers.

FRA subsequently performed outreach with various stakeholders to compile a list of tasks performed by dispatchers. Upon review of this task list, FRA found that the vast majority of dispatcher tasks are critical to railroad safety with potentially catastrophic consequences if they are not performed properly. Certification addresses these safety concerns by creating minimum training standards, establishing safety records for dispatchers, and requiring certain safety and knowledge checks before a person can become certified. Given the safety critical role of dispatchers in facilitating safe railroad operations (which includes the coordination of emergency services in response to accidents and incidents), FRA determined that the number and rate of accidents and incidents would be expected to decrease and railroad safety would be expected to improve if dispatchers were required to satisfy certain standards and be certified.

FRA-2022-0019-0001.

Summary of Major Provisions

This rule requires railroads to develop written programs for certifying individuals who work as dispatchers on their territories; to submit those written certification programs to FRA for approval; and, once approved by FRA, to implement such programs. Subpart A of this rule contains general provisions, including a formal statement of the rule's purpose and scope.

Subpart B of this rule covers the review and approval process of certification programs, the implementation schedule for this rule, the certification program requirements, and the eligibility determinations a railroad must make to certify a person as a dispatcher. Class I railroads (including the National Railroad Passenger Corporation) and railroads providing commuter service will have to submit their written certification programs to FRA no later than 240 days after the effective date of this rule. Class II and Class III railroads will be required to submit their written certification plans 480 days after this rule goes into effect. New railroads that begin dispatching operations after this rule's effective date will be required to submit their written certification programs to FRA and obtain FRA approval before commencing dispatching operations. FRA will issue a letter to the railroad when it approves a certification program that explains the basis for approval, and a program will not be considered approved until FRA issues the approval letter. In addition, railroads seeking to materially modify their FRA-approved certification programs must obtain FRA approval prior to implementing such modifications.

Railroads are required to evaluate certification candidates in multiple areas, including prior safety conduct as a motor vehicle operator, prior safety conduct with other railroads, substance abuse disorders and alcohol/drug rules compliance, and visual and hearing acuity.

This rule also contains minimum requirements for the training provided to prospective dispatchers. These requirements are intended to confirm that certified dispatchers have received adequate and sufficient training and testing to ensure that the prospective dispatchers are able to safely perform assigned duties that ensure the safety of train movement before they begin work as dispatchers on the railroad. The requirements are also intended to ensure that certified dispatchers periodically receive training on railroad safety and operating rules and practices, as well as comprehensive training on the use of new dispatching systems and technology before they are introduced on the railroads in revenue service.

Subpart C of this rule addresses how railroads are to administer their dispatcher certification programs. With the exception of individuals designated as certified dispatchers prior to FRA approval of the railroad's dispatcher certification program, this rule prohibits railroads from certifying dispatchers for intervals longer than three years. This three-year limitation, which is consistent with the maximum period for certifying locomotive engineers in 49 CFR 240.217(c) and conductors in 49 CFR 242.201(c), allows for periodic re-evaluation of certified dispatchers to verify their continued compliance with FRA's minimum safety requirements.

Subpart D of this rule addresses the process and criteria for denying and revoking certification. The rule describes the process a railroad must undergo before it denies an individual certification or recertification. This process includes providing the certification candidate with the information that forms the basis for the denial decision and giving the candidate an opportunity to rebut such evidence. The rule also requires that a railroad make any decision to deny an individual certification or recertification in writing and that written decision must meet certain requirements.

A railroad can only revoke a dispatcher's certification if one of seven events occurs. Generally, for the first revocable event that is not related to a dispatcher's use of drugs or alcohol, the person's certification will be revoked for 30 days. If an individual accumulates more of these violations in the time period specified in the final rule, the revocation period (period of ineligibility) becomes increasingly longer.

If a railroad acquires reliable information that a certified dispatcher has violated an operating rule or practice requiring revocation under this rule, it shall suspend the dispatcher's certificate immediately while it determines whether revocation of the certificate is warranted. In such circumstances, dispatchers are entitled to a hearing. Similar to a railroad's decision to deny an individual certification, a railroad's decision to revoke a dispatcher's certification must satisfy certain requirements. Finally, if an intervening cause prevents or materially impairs a dispatcher's ability to comply with a railroad operating rule or practice, the railroad must not revoke the dispatcher's certification.

Subpart E of this rule describes the dispute resolution process for individuals wishing to challenge a railroad's decision to deny certification, deny recertification, or revoke certification. This dispute resolution process mirrors the process used for locomotive engineers and conductors under 49 CFR parts 240 and 242, respectively.

Finally, this rule contains two appendices. Appendix A discusses the procedures that a person seeking certification or recertification should follow to furnish a railroad with information concerning the individual's motor vehicle driving record. Appendix B provides guidance on the procedures railroads should employ in administering the vision and hearing requirements under §§ 245.117 and 245.118.

This rule does not revise 49 CFR part 241, United States Locational Requirement for Dispatching of United States Rail Operations. Furthermore, this rule does not apply to dispatchers located outside of the United States as “[i]t is a longstanding principle of American law `that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.' ”

E.E.O.C.

Arabian American Oil Co.,

499 U.S. 244, 248 (1991) (

quoting Foley Bros., Inc.

Filardo,

336 U.S. 281, 284-85 (1949)).

Benefits and Costs

FRA analyzed the economic impact of this final rule. The primary benefit of this final rule, as presented in the Regulatory Impact Analysis (RIA), is

that it will help ensure that railroads properly train and monitor dispatcher performance to reduce the risk of accidents caused by dispatcher error. This rule will allow railroads to revoke certification of dispatchers who incur serious safety-related violations. This includes failure to properly issue or apply a mandatory directive when warranted or incorrectly granting permission to proceed through a protected track segment.

This rule is expected to reduce the likelihood of an accident occurring due to dispatcher error. FRA has analyzed accidents over the past five years to categorize those where dispatcher training and certification would have impacted the accident. FRA estimated that this rule will prevent 30% of accidents that were caused or likely caused by the dispatcher. FRA estimated that this rule will prevent 10% of accidents where a dispatcher may have contributed to the accident.

The following table shows the estimated 10-year benefits of this rule. The total 10-year estimated benefits would be $0.6 million (PV, 7 percent) and annualized benefits would be $0.1 million (PV, 7 percent).

Total 10-Year Discounted Benefits

[2020 dollars]

Present value 7%

($)

Present value 3%

($)

Annualized 7%

($)

Annualized 3%

($)

620,283

725,177

88,314

85,013

FRA has quantified the monetary impact from accidents reported on FRA accident forms. However, some accident costs are not required to be reported on FRA accident forms (

e.g.,

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

The RIA also presents estimates of the costs likely to occur over the first ten years of the final rule. The analysis includes estimates of costs associated with development of certification programs, initial and periodic training, knowledge testing, and monitoring of operational performance. Additionally, costs are estimated for vision and hearing tests, review of certification determinations made by other railroads, and Government administrative costs.

FRA estimated 10-year costs of $5.4 million discounted at 7 percent. The annualized cost will be approximately $0.8 million discounted at 7 percent. The following table shows the estimated 10-year costs of the final rule.

Total 10-Year Discounted Costs

[2020 dollars]

See also

49 U.S.C. 20103 (providing FRA's general authority to “prescribe regulations and issue orders for every area of railroad safety”).

49 CFR 1.89.

FRA-2022-0019-0001.

II. Background

A. Roles and Responsibilities of Dispatchers

Railroad dispatchers play an integral role in railroad safety and operations. They are responsible for allocating and assigning track use, ensuring that trains are routed safely and efficiently, and ensuring the safety of personnel working on and around railroad track. These are cognitively complex tasks that require integrating multiple sources of information in a dynamic context (

e.g.,

information from train schedules, computer displays of current track state, radio communication with various personnel such as locomotive engineers, and in some cases, projecting into the future (

e.g.,

estimating when the train will arrive)) and balancing multiple demands placed on track use (

e.g.,

balancing the need for maintenance-of-way workers to have time to work on the track with the need to make sure that the track will be clear when a train is anticipated to arrive). Some of the main tasks

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).

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 five to ten years, the job of a railroad dispatcher has become more complex and demanding. Railroads have decreased the number of dispatchers over the years, and the territory for which an individual dispatcher is responsible is expanding as a result. Also, with the advancement of Positive Train Control (PTC), dispatchers must understand the interface between the computer-aided dispatching system and the train control system, with respect to the safe movement of trains and other on-track equipment. Dispatchers need to understand the operating rules applicable to the train control system, including granting permission for movement and protection of roadway workers; unequipped trains; trains with failed or cut-out train control onboard systems; control system fails; and providing for safe operations under the alternative method of operation. Managing PTC failures over the three years since PTC's full implementation has proven to be one of the more challenging new responsibilities for dispatchers because dispatchers must rapidly comprehend malfunctions in PTC systems and implement alternate strategies to ensure continued safety. This represents a significant shift from the traditional responsibilities of dispatchers, positioning them as key figures in the management of crises within railroad systems. To effectively address these challenges, it is imperative that dispatchers undergo specialized training concerning the functionalities of PTC systems and the appropriate protocols for handling failures. The role of dispatchers in coordinating with train crews is essential to secure a unified response to incidents involving PTC failures. This evolution in the responsibilities of dispatchers highlights their role in maintaining safe railroad operations amid the challenges posed by the introduction of sophisticated PTC technologies and the occurrence of system failures.

In addition, the availability of affordable computer systems has made computer-aided dispatching (CAD) feasible for many railroads. The improved communications systems led to the acceptance of radio transmitted directives in place of the traditional paper train orders that had been previously used. These changes in communications and signal technology have also resulted in the closing of block towers and eliminating the job of tower operator, a job that was often on the career path to becoming a dispatcher.

Today, dispatchers are likely to use multiple computer screens and electronic equipment, in addition to a communications system. However, a short line railroad may still use hand-written or verbal authorities to move trains across dark (unsignalled) territory. The industry's adoption of new dispatching technology, changes in operating rules and methods of operation, and railroad industry restructuring all have potential safety consequences. Additionally, excessive workloads and increases in occupational stress could result from any of these factors.

B. FRA History of Certification

On January 4, 1987, an Amtrak train collided with a Conrail train in Chase, Maryland, resulting in 16 deaths and 174 injuries. At the time, it was the deadliest train accident in Amtrak's history. The subsequent investigation by the National Transportation Safety Board concluded that the probable cause of the accident was the impairment of the Conrail engineer who was under the influence of marijuana at the time of the collision.

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 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.

FRA prescribed a certification system where the railroads issue the certificates as opposed to a government-run licensing system. This final rule, published in 49 CFR part 240 (part 240), created certification requirements for engineers that addressed various areas, including vision and hearing acuity; training, knowledge, performance skills; and prior safety conduct.

56 FR 28227 (June 19, 1991).

Seventeen years later, Congress passed the RSIA, which mandated the creation of a certification system for conductors. On November 9, 2011, FRA published a final rule requiring railroads to have certification programs for conductors and to ensure that all certified conductors satisfy minimum Federal safety standards.

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.

76 FR 69801 (Nov. 9, 2011).

C. Statutory Background for Dispatcher Certification

In addition to requiring certification for conductors, the RSIA required the Secretary to submit a report to Congress addressing whether certain other railroad crafts or classes of employees would benefit from certification. Specifically, section 402 of the RSIA required that the Secretary issue a report to Congress “about whether the certification of certain crafts or classes of railroad carrier or railroad carrier contractor or subcontractor employees is necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.” As part of that report, section 402 specifically required the Secretary to consider dispatchers as one of the railroad crafts for certification. Pursuant to the report to Congress, section 402 authorized the Secretary to “prescribe regulations requiring the certification of certain crafts or classes of employees that the Secretary determines . . . are necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.”

D. Report to Congress

On November 4, 2015, the Secretary submitted the report to Congress required under the RSIA. The report stated that, based on FRA's preliminary research, dispatchers and signal repair employees were the most viable candidates for certification. In reaching this determination with respect to dispatchers, the Secretary cited a variety of factors.

The report noted that dispatchers perform safety-sensitive work as shown by dispatchers being covered under the hours-of-service laws; and they are subject to regular and pre-employment random drug and alcohol testing. In 2012 and 2013, dispatchers had the highest pre-employment positive drug testing rate among all crafts. Annual drug and alcohol testing data submitted to FRA in 2012 and 2013 showed a 0.68-percent random positive drug testing rate and a 0.79-percent pre-employment positive drug testing rate for dispatch employees compared to a 0.48-percent random positive drug testing rate and a 0.46-percent pre-employment positive drug testing rate for signal employees; and a 0.49-percent random positive drug testing rate and a 0.55-percent pre-employment positive drug testing rate for train and engine service employees.

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.

As noted in the NPRM, testing results submitted to FRA in 2020 and 2021 showed a 0.94-percent random violation rate (drug and alcohol positives and refusals) and a 0.85-percent pre-employment violation rate for dispatch employees compared to a 0.81-percent random violation rate and a 0.79-percent pre-employment violation rate for signal employees; and a 0.53-percent random positive drug testing rate and a 1.06-percent pre-employment positive drug testing rate for train and engine service employees. Testing results submitted to FRA in 2022 showed a 0.86-percent random violation rate (drug and alcohol positives and refusals) rate and a 5.45-percent pre-employment violation rate for dispatch employees compared to a 1.10-percent random violation rate and a 0.46-percent pre-employment violation rate for signal employees; and a 0.69-percent random positive drug testing rate and a 1.48-percent pre-employment positive drug testing rate for train and engine service employees.

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.

Train dispatchers bear a substantial responsibility for the safety of roadway workers who perform maintenance and repair operations on or near railroad tracks. They engage in detailed coordination with work crews to establish protected work zones and regulate train movements accordingly. Dispatchers issue authorizations granting roadway workers exclusive access to tracks within designated zones and they maintain continuous communication with workers, providing updates on train locations and potential risks.

Additionally, the report cited a “great amount of turnover” in the nationwide train dispatching workforce, resulting in a less experienced workforce, as further support for requiring certification. Finally, the report found that, except for train and engine crews, no function of railroad operations is more critical to safety than dispatching. The accumulation of these factors led to the report's conclusion that dispatchers, along with signal repair employees, were the most viable candidates for certification due to their safety-critical roles.

E. RSAC Working Group

In March 1996, FRA established the Railroad Safety Advisory Committee (RSAC), which provides a forum for collaborative analysis to inform FRA's rulemaking and program development activities. RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task.

On April 21, 2017, a task statement regarding certification of dispatchers was presented to RSAC by email, but no vote was taken. On April 24, 2019, RSAC accepted a task (No. 19-02) entitled “Certification of Train Dispatchers.”

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:

At the same meeting, RSAC also accepted a task (No. 19-03) titled “Certification of Railroad Signal Employees.” A separate RSAC Working Group was formed to address this task, and FRA plans to issue a related final rule that would establish certification requirements for signal employees.

—Review critical tasks performed by dispatching employees for safe train operations, particularly with the introduction of PTC technology.

—Review training, duration, content, and methodology for new hire and continuing education.

—Review background checks designed to prevent dispatching employees with active substance abuse disorders from “job-hopping” from one employer to another.

The task statement also asked the Working Group to address the following issues, if appropriate:

—What requirements for training and experience are appropriate?

—What classifications of dispatchers should be recognized, if any?

—To what extent do existing requirements and procedures for

certification of locomotive engineers and conductor certification provide a model for dispatcher certification?

—What types of unsafe conduct should affect a train dispatcher's certification status?

—Do the existing locomotive engineer and conductor certifications provide an adequate model for handling appeals from decertification decisions of the railroads?

The Working Group, which included representatives from the Association of American Railroads (AAR), the American Public Transportation Association (APTA), the American Short Line and Regional Railroad Association (ASLRRA), the American Train Dispatchers Association (ATDA), the Brotherhood of Railroad Signalmen (BRS), SMART Transportation, Commuter Rail Coalition, and National Railroad Construction & Maintenance Association, held its first and only meeting on September 4, 2019, in Washington, DC. At this meeting, the Working Group reviewed the task statement from the RSAC, discussed some of the safety-critical tasks performed by dispatchers, and debated whether certification of dispatchers would be beneficial to railroad safety. At the end of the meeting, action items were assigned, and the next meeting was tentatively scheduled for January 2020.

However, on December 16, 2019, the presidents of ATDA, BRS, and the International Brotherhood of Electrical Workers (IBEW) sent a letter to the FRA Administrator requesting that this RSAC task be withdrawn from consideration at this time. The letter stated the unions were currently involved in numerous activities and were not able to give the task proper attention. AAR and ASLRRA advised the unions that they were not opposed to this request. In response to this letter, FRA withdrew this task from RSAC, and the Working Group became inactive.

F. Stakeholder Outreach

In 2021, FRA revisited the issue of establishing certification requirements for dispatchers. The agency assembled subject matter experts from FRA, ATDA, IBEW, and BRS to exchange facts and information regarding the tasks performed by dispatchers. These parties met virtually several times between May 5, 2021 and June 30, 2021.

As part of FRA's outreach to these labor organizations, a list of tasks performed by dispatchers was developed. These tasks generally involved: track authorities; mandatory directives; track worker protection; emergency response coordination; or incident management. FRA reviewed each task to determine whether correctly performing the task was critical to railroad safety; what were the potential consequences if errors were made while performing the task; and whether there were any recent examples of issues or concerns with respect to the task. After performing this analysis, FRA concluded that the vast majority of tasks performed by dispatchers (80-90% of the listed tasks) were critical to railroad safety with potentially catastrophic consequences, such as accidents, injuries, and/or deaths, if the tasks were not performed properly. In addition, because dispatchers provide incident management and emergency response coordination, FRA concluded that by properly performing their tasks, dispatchers can help reduce the consequences of accidents and mitigate injuries.

During these virtual meetings, the benefits of certification based on the experience of stakeholders with engineer and conductor certification under 49 CFR parts 240 and 242 were also discussed. Some of the main benefits of certification that were identified included:

—Creating a minimum standard for training to ensure that the training encompasses all skills and proficiencies necessary to properly perform all safety-related dispatcher functions;

—Establishing a record of safety compliance that will follow a dispatcher if they wish to become certified by another railroad and that can be used to review a dispatcher's performance and potential training needs;

—Requiring certain safety checks, such as identifying active substance abuse disorders, that can minimize the risks posed by job hopping; and

—Establishing a system for individuals to dispute a railroad's decision to deny or revoke certification with the aim of creating a fair and consistent process for all parties.

Further, some labor unions noted that they had witnessed industry trends to reduce the length and level of training for dispatchers which would make certification even more beneficial. Based on these meetings, FRA concluded that requiring certification for dispatchers would be an important tool to ensure dispatchers are adequately trained and qualified; have a documented record of performance; and are not able to job hop without a new employer having knowledge of the dispatcher's safety performance record.

Following this initial outreach, FRA held a follow-up conversation with ATDA and IBEW, on March 3, 2022, and ATDA and IBEW informed FRA of elements that they believed would be beneficial in a dispatcher certification program. During this conversation, which was held in videoconference format, FRA asked the attendees to provide individualized feedback on how similar or different a dispatcher certification rule should be to FRA's locomotive engineer and conductor certification rules found in 49 CFR parts 240 and 242.

FRA heard that the agency needs to ensure that comprehensive training is provided to dispatchers, as the current training is inadequate. FRA also heard that railroads are not providing enough training on new technology, and in some cases, training only consists of a PowerPoint presentation or watching a video. It was also noted that dispatchers are often told to ask their managers if they have questions, but managers are not always knowledgeable about the craft and often do not have sufficient expertise to answer such questions.

On March 7, 2022, FRA had a conversation with the railroad industry, including Norfolk Southern Railway (NS), AAR, and ASLRRA. During this conversation, which was conducted in a videoconference format, FRA also asked for individualized feedback on how FRA's locomotive engineer and conductor certification regulations in 49 CFR parts 240 and 242 could be improved upon with respect to dispatcher certification. Specifically, FRA asked for feedback on any regulatory provisions in 49 CFR parts 240 and 242 that, in their experience, may have been difficult to implement, as well as whether FRA should explore any changes to these regulatory provisions.

AAR expressed opposition to FRA's proposal to issue regulations requiring certification of dispatchers, arguing that there was not a safety benefit to certification. In addition, NS questioned the need for certification regulations in the absence of any identified gaps in coverage by existing railroad training programs. ASLRRA expressed concern that FRA's proposal to issue regulations requiring dispatcher certification would result in a large paperwork burden with little benefit.

After this conversation, FRA provided a short list of written questions to AAR and ASLRRA. While AAR did not provide additional feedback in response to FRA's list of questions, ASLRRA responded to FRA's list of written questions by email on April 13, 2022, a

copy of which has been placed in the docket.

FRA-2022-0019-0002.

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

G. Notice of Proposed Rulemaking

On May 31, 2023, FRA published the Notice of Proposed Rulemaking (NPRM) proposing the establishment of dispatcher certification and provided commenters 60 days to file comments.

On July 5, 2023, FRA extended the comment period by an additional 30 days.

On August 22, 2023, FRA extended the comment period again, this time by an additional 15 days, until September 14, 2023.

88 FR 35574 (May 31, 2023).

88 FR 42907 (July 5, 2023).

88 FR 57043 (Aug. 22, 2023).

III. Discussion of Comments and FRA's Conclusions

A. Overview of Comments

FRA received a total of 33 comments from railroads, labor organizations, trade associations, a consulting company, and individual commenters. Of the commenters who stated a clear position either in support of or in opposition to this rule, nine commenters expressed their support for this rule and seven commenters stated their opposition to this rule. The order of the topics or comments discussed in this document is not intended to reflect the significance of the comment raised or the standing of the commenter. Additionally, this summary of comments is intended to provide both a general understanding of the overall scope and themes raised by the commenters, as well as give some specific descriptions to provide context. Not every comment is described in this summary. Comments addressing specific sections of this rule are discussed in the Section-by-Section Analysis. Comments regarding the proposed RIA are addressed in the RIA to the final rule.

B. Comments Supporting the NPRM

FRA received several comments that were generally supportive of requiring dispatcher certification. These comments came from labor organizations, a consulting company, and individual commenters.

1. Labor Organizations and Consulting Company

In stating its support for the proposed rule, the Transportation Trades Department, AFL-CIO (TTD) asserted that safety improvements have occurred as a result of locomotive engineer and conductor certification. TTD also noted that PTC and other technological advancements have increased the complexity of train dispatching, but the training standards applied across railroads are not adequately meeting this challenge. TTD stated that Class I railroads in particular “are not providing a sufficient quality or amount of training for new train dispatchers to learn how to do their jobs” and the end result is that many new dispatchers are having to train themselves.

FRA-2022-0019-0037.

The International Association of Sheet Metal, Air, Rail and Transportation Workers Transportation Division (SMART-TD) also referenced the success of locomotive engineer and conductor certification in its comment. Specifically, it noted that certification has had a positive effect on how engineers and conductors view continuing education. According to SMART-TD, what was previously considered an inconvenience by crew members is now taken seriously as a necessity to maintain their certification status. Additionally, this time spent focusing on continuing education has helped ensure crew members perform their duties as safely as possible.

FRA-2022-0019-0035.

In ATDA's comment, the union acknowledged its long support for dispatcher certification. In doing so, the union noted the safety-critical nature of the dispatcher position that has only increased in recent years with the consolidation of railroad operations, the elimination of certain positions, and expanding use of new technologies such as PTC and wayside equipment defect detectors. These factors have led to dispatchers being assigned larger territories than ever before. ATDA has noted that, despite the increased complexity of the train dispatcher position, there has been “a dramatic de-emphasis by carriers on the importance of these roles and the fundamental training and qualifications necessary to carry out the required duties and responsibilities in a safe and efficient manner.”

ATDA indicated new dispatchers typically receive abbreviated training and are rushed into their positions due to staffing shortages. According to ATDA, “[n]owhere has the inadequacy of proper training and qualifications been more apparent than in the lack of value placed on territory specific qualifications or knowledge of the physical characteristics of the territory the dispatcher is responsible for.”

This was shown by a recent FRA audit of NS that found that NS dispatchers were not familiar with the locations and types of wayside defect detectors on their territory and that NS's dispatcher training program did not have any territory-specific familiarization requirements.

ATDA stated this problem is not confined to NS, as it has received many reports from its members of having to work on territories they were either not trained on or had not worked on in years. ATDA asserts that dispatcher certification will address these concerns by ensuring that railroads place a greater emphasis on training dispatchers especially with respect to physical characteristics knowledge and familiarization.

FRA-2022-0019-0038.

FRA, Norfolk Southern Safety Assessment (2023),

available at railroads.dot.gov/elibrary/norfolk-southern-safety-assessment.

TTD also referred to the deficiencies found during the NS audit as further support for this rulemaking. TTD noted that dispatcher certification would help address these deficiencies by improving the training dispatchers receive, which would have an overall positive effect on railroad safety.

IBEW continued the theme of concern expressed by other labor organizations about the current state of dispatcher training. IBEW mentioned that dispatchers perform safety-sensitive work, and an untrained or undertrained dispatcher is more prone to commit an error which could have grave safety implications. IBEW stated that this rule would provide administrative oversight to dispatchers, to make sure they are trained effectively, practically, and consistently across the industry. In doing so, IBEW contends this rule will provide for a safer rail network.

Network Rail Consulting (NRC) commented that it agreed with the approach FRA took for this rule and it welcomed FRA's development of

minimum standards for training, qualification, and testing of dispatchers.

FRA-2022-0019-0029.

FRA-2022-0019-0039.

FRA-2022-0019-0033.

2. Individual Commenters

One commenter stated that certification will ensure the integrity of train dispatching as a profession, and that dispatchers meet a high standard of knowledge and performance through the training requirements in this rule. This commenter also suggested this rule will encourage the mentorship of younger, less experienced dispatchers by more experienced dispatchers.

Another commenter expressed their support for this rule calling dispatcher certification an “excellent idea” that will help prevent accidents like the 2016 accident in Germany where 11 people died and 80 people were injured when two trains collided because a dispatcher had been playing a game on their cell phone.

One individual supported certification because it enhances public safety by ensuring “that dispatchers are competent in their role and function through standard hiring practices, periodic evaluations, health and safety requirements and exhibited performance.”

This is particularly important given that dispatching is a complex job that is “multi-faceted, mentally demanding, and challenging to perform.”

Another commenter simply stated that dispatchers should be certified.

FRA-2022-0019-0007.

FRA-2022-0019-0032.

FRA-2022-0019-0034.

FRA-2022-0019-0011.

FRA's Response

FRA appreciates the comments received from labor organizations, NRC, and individuals expressing their support for this rule. These comments largely corroborate FRA's background, provided above and in the NPRM, describing the issues dispatchers are facing in the field and why dispatcher certification would be beneficial to railroad safety. In particular, the increasing complexities of railroad dispatching combined with the expressed concerns about the current state of dispatcher training warrant greater oversight. By placing more stringent requirements on the training dispatchers receive and by ensuring that dispatchers are properly qualified on the territories they work on, this rule promotes railroad safety. Also, as TTD and SMART-TD specifically noted, the safety benefits of certification have already been established through the success of locomotive engineer and conductor certification. Therefore, FRA agrees with these commenters that this rule will be beneficial to rail safety.

C. Comments Opposing the NPRM

FRA received various comments from trade associations, a policy center, and individuals opposing the NPRM. These comments address a range of categories that are discussed below.

1. Comments Alleging That There Is No Safety Justification for This Rule as the Cost-Benefit Analysis Does Not Support Requiring Dispatcher Certification

FRA received several comments related to the costs and benefits of the proposed rule. Comments were received from AAR, ASLRRA, and the Washington Legal Foundation (WLF) who each commented that the costs of this rule outweighed the benefits. A more detailed response to these comments is provided in the RIA. An individual commenter added that railroad dispatchers are already highly qualified and there is no need for additional costly regulations as he only experienced two incidents in his career where a dispatcher made a mistake that resulted in an investigation.

FRA-2022-0019-0006.

AAR and ASLRRA commented on several of FRA's cost estimates for provisions of the rule. ASLRRA commented that FRA's estimates for the time to develop the certification programs were low. They suggested that it would take 550 hours for ASLRRA to develop a model program and 19 hours per small railroad to implement. For unannounced compliance tests (monitoring operational performance), AAR and ASLRRA estimated that the time per supervisor would be much more than the two hours per year that FRA estimated. Regarding dispute resolution hearings, AAR and ASLRRA noted that the cost assessments for hearings are underestimated, and the actual cost would amount to 22 percent of the total estimated costs of the proposed rule.

AAR and ASLRRA also alleged that FRA underestimated wage-related costs by using the 2020 railroad wage rates which “do not take into account the 24% wage increase that railroad employees received as part of the 2022 collective bargaining process or the 10.7% increase in Federal government employee pay rates.”

FRA-2022-0019-0041.

ASLRRA stated that the rule fails to assess how this rule would impact short lines and failed to include an Initial Regulatory Flexibility Assessment which discussed the burden on small entities. ASLRRA also stated that the rule would have a significant economic impact on a substantial number of small entities.

FRA also received comments pertaining to the estimated benefits from the RIA associated with the proposed rule. AAR and ASLRRA commented that most of the accidents FRA claimed dispatchers may have contributed to in the NPRM RIA either had no dispatcher involvement or were not caused by dispatcher error resulting in an overestimate of the benefit assessment.

AAR and ASLRRA alleged in their joint comment that there was no safety justification for this rulemaking. In support of this contention, they claimed that “[t]he last decade was the safest on record for railroads.”

The associations cited to various statistics showing a reduction in rail accidents since 2000.

FRA-2022-0019-0041.

Lastly, APTA stated in their comment that FRA failed to account for additional pay that dispatchers may receive once certified.

FRA's Response

FRA received several comments regarding cost estimates of certain provisions of the rule. Based on ASLRRA's comment regarding the time to develop a certification program, FRA has revised the estimated time for ASLRRA to develop a model program to 550 hours and increased the estimate for small railroads to implement from 8 hours to 15 hours. FRA has now only accounted for one template program produced by ASLRRA. Holding companies will likely use the template program developed by ASLRRA, instead of producing their own template, as discussed in the RIA associated with the NPRM. In addition, FRA has reassessed the costs for petitions and hearings based on comments from AAR and ASLRRA. The categories of employees have been revised and estimates have been increased. FRA has determined these estimates by looking at the number of petitions and hearings associated with the conductor and engineer certification programs. This baseline was then adjusted for the population size of dispatcher employment. Additionally, government costs for petitions and hearings have been increased, and now include more categories of employees involved in the process.

With respect to AAR and ASLRRA's comment that the time estimate for supervisors on unannounced compliance tests is too low, FRA is maintaining its estimate as supervisors

should already be doing this as part of their regular duties, and to comply with other FRA regulations. The two hours per year is the additional time for paperwork or to organize this monitoring throughout the year. Since the supervisor currently does this monitoring and the dispatcher will be performing their normal duties, no additional time will be required due to this regulation.

In response to AAR and ASLRRA's comments on the 2020 wage rates used in the NPRM, FRA notes that the wage rates used during NPRM drafting were the most recent available data, as provided by the Surface Transportation Board's wage data series and General Schedule pay scales. Regarding ASLRRA's comment on an Initial Regulatory Flexibility Assessment, FRA, in the proposed rule, conducted an Initial Regulatory Flexibility Assessment and estimated the percentage of average annual revenue that the rule would impose on small entities. FRA estimated that 140 railroads would be impacted by this regulation, which may be considered a substantial number, but the impact will not be significant. As stated in the Final Regulatory Flexibility Assessment and Certification, in the final rule, FRA has estimated the costs to be only 0.02% of average annual revenue for Class III railroads. Therefore, FRA is certifying that this final rule will not have a significant economic impact on a substantial number of small entities. On the issue of FRA's estimate of benefits, FRA has decreased the number of accidents/incidents from ten (in the NPRM RIA) to one accident/incident under the “May Have Contributed” category in the RIA associated with this final rule based on the comments received from AAR and ASLRRA.

Turning to the contention from AAR and ASLRRA that there is no safety justification for this rule, FRA disagrees with the premise that because railroad safety has improved over the last 20 years, the agency does not need to take actions that could further improve safety. Moreover, the associations neglected to mention in their comment that one of the changes in the railroad industry over the past few decades has been the introduction of certification requirements. The locomotive engineer certification requirements in part 240 went into effect in 1991,

and the conductor certification requirements in part 242 became effective just over a decade ago in 2012.

Thus, it stands to reason that certification has been one of the factors that has improved railroad safety in recent decades and instituting such requirements for dispatchers could lead to similar improvements in the future.

56 FR 28227, 28228 (June 19, 1991).

76 FR 69802 (Nov. 9, 2011).

Finally, in response to APTA's comment on certification pay, FRA does not think that pay will increase solely due to certification. Salary negotiations are based on many factors and are typically long-term agreements that would not be impacted by one individual regulation.

2. Comments Relating to RSIA Authority

In their joint comments on the proposed rule, AAR and ASLRRA challenge FRA's assertion that section 402 of the RSIA authorized the Secretary to prescribe regulations requiring the certification of dispatchers. AAR and ASLRRA assert that Congress only authorized DOT to issue regulations requiring certification if the Secretary determined in a report to Congress that regulations are “necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.”

AAR and ASLRRA contend the Secretary failed to make such a determination in the 2015 report to Congress.

Rail Safety Improvement Act of 2008, Public Law 110-432, section 402, 122 Stat. 4848, 4884 (2008).

FRA's Response

While section 402 of the RSIA required the Secretary to issue a report to Congress “about whether the certification of certain crafts or classes of railroad carrier or railroad carrier contractor or subcontractor employees is necessary to reduce the number and rate of accidents and incidents or to improve railroad safety,” it did not require the Secretary to make an official determination in this report that the issuance of dispatcher certification regulations was necessary to reduce the number and rate of accidents and incidents or to improve railroad safety, as a necessary precondition to the initiation of this rulemaking.

Section 402 of the RSIA authorizes the Secretary (and by delegation, FRA) to prescribe regulations requiring the certification of certain crafts or classes of railroad carrier employees (or railroad carrier contractor or subcontractor employees) “pursuant to” the report to Congress that was required by section 402(b) of the RSIA. The phrase, “pursuant to,” is defined to mean “in a way that agrees with or follows (something).”

Thus, in section 402 of the RSIA, Congress authorized FRA to prescribe regulations that are consistent with the 2015 report to Congress. In the 2015 report, the Secretary stated that dispatchers were potentially the most viable candidates for certification due to the complex safety-critical work they perform and the high turnover in the dispatching force which was contributing to a less experienced workforce. The report also noted that dispatcher certification could improve safety by preventing individuals with active substance abuse disorders from working as dispatchers.

Based on the report's findings and the agency's outreach to stakeholders,

FRA determined that the number and rate of accidents and incidents would be expected to decrease and railroad safety would be expected to improve if it required certification of dispatchers.

www.britannica.com.

FRA-2022-0019-0001.

See

Section II.F for a discussion of FRA's outreach to stakeholders.

Moreover, FRA notes that it has broad authority to “prescribe regulations and issue orders for every area of railroad safety,” including this regulation.

49 U.S.C. 20103(a). The Secretary has delegated this authority to the Federal Railroad Administrator. 49 CFR 1.89.

3. Comments Stating That Contractors and Subcontractors Should Be Responsible for Certifying Their Own Employees

In AAR and ASLRRA's joint comment, they state that contractors should be responsible for certifying their own employees, as they are in the best position to implement and manage a certification program of their employees, and other parts of FRA's regulations allow for contractors to have their own programs. They further note that dispatching is highly specialized work and that many short line railroads do not have the requisite expertise to oversee a dispatcher certification program. They also contend it would be “an inefficient waste of resources for dozens of railroads to certify the same individual in any given period.”

Lastly, AAR and ASLRRA state that “[r]ailroads are equally incentivized to ensure safety of dispatcher operations no matter which party is responsible for implementing and managing the dispatcher certification program.”

FRA-2022-0019-0041.

In a separate comment, ASLRRA noted that no other part of FRA's regulations requires a railroad to determine whether a non-employee has the necessary qualifications to perform a task. ASLRRA also criticized the NPRM for not providing guidance on how a small railroad should coordinate

with other railroads if a contractor dispatcher gets decertified on their railroad.

FRA-2022-0019-0042.

FRA also received comments regarding this issue that did not express support for or opposition to the NPRM, but requested clarification on how this rule would work in practice. One individual asked why this rule did not apply to training organizations, contractors, and learning institutions. This person also asked whether railroads would be responsible for keeping the performance records of dispatchers who are contractors.

Atlantic Railways submitted a comment asking whether a dispatch center that dispatches for several railroads can create a model program that can be adopted by all the railroads that use that dispatch center and whether such a model program has been proposed.

FRA-2022-0019-0008.

FRA-2022-0019-0043.

FRA's Response

After giving this issue careful consideration, consistent with the NPRM, and consistent with FRA's certification regulations for locomotive engineers and conductors in parts 240 and 242, FRA maintains that railroads are in the best position to be held responsible for establishing and implementing a dispatcher certification program. If a railroad has dispatch tasks being performed over its track, then it should be held responsible for ensuring those tasks are being performed by individuals who meet the necessary qualifications, even if such persons are not employees of the railroad. Even though AAR and ASLRRA stated in their joint comment that railroads would be equally incentivized to make sure their dispatching operations are safe regardless of who is responsible for the certification program, the associations offer no support for this position. To the contrary, it seems that a railroad would make a greater effort to ensure the safety of its dispatching operations if it would be held accountable for any failures to comply with this rule.

With respect to the associations' concern that some railroads, especially short line railroads, do not have the expertise to oversee a dispatcher certification program, part 245 specifically allows for the involvement of third parties in this process. Sections 245.107(b)(1)(iii) and 245.119(b) explicitly note that third parties may perform the training required in a certification program. In fact, there is nothing in this rule that prevents a contractor or other third party from drafting, implementing, and managing a railroad's dispatcher certification program. Therefore, railroads that do not have the requisite internal expertise are allowed to hire a contractor to perform these duties. These contractors can be as actively involved in the railroad's day-to-day compliance with this rule as the railroad desires, but because FRA is in the business of regulating railroads, the agency feels that the responsibility for this compliance should ultimately lie with the railroad. Even though FRA allows for contractors to have their own training programs under 49 CFR part 243 (part 243), certification is different, as will be discussed below, and FRA's other certification regulations in parts 240 and 242 only provide for railroads to have certification programs. Thus, FRA intends to maintain this consistency across its certification regulations.

AAR and ASLRRA also allege that this rule would result in an inefficient waste of resources as dozens of railroads would have to certify the same individual. However, this comment ignores the streamlined process for certifying dispatchers provided by § 245.125 which allows a railroad to rely on certain certification determinations made by another railroad. In such situations, the only determinations that the certifying railroad would be required to make under § 245.125(b) are that the other railroad's certification is still valid; that the dispatcher received training on the physical characteristics of the territory; and that the dispatcher has demonstrated the necessary knowledge of the railroad's operating rules, territory, dispatch systems, and technology. Thus, for many contractor dispatchers who dispatch for dozens of railroads, it should be an expedited process for them to obtain the necessary certifications from other railroads. Furthermore, since many of these contractors dispatch for several railroads from a single facility, it should further expedite the process since most, if not all, of their relevant certification files should be in a central location. Despite the associations' critique of this process, the alternative would be to risk having dispatchers working on territories they have not been trained on and do not have the requisite knowledge to dispatch over.

In response to ASLRRA's comment that no other part of FRA's regulations require railroads to make determinations about a non-employee's qualifications, FRA notes that is inaccurate. FRA acknowledges that while it is more common for railroads to use contractors for dispatching, some railroads hire contractors to serve as locomotive engineers and conductors on their trains. In such situations, the railroad would still have to certify these non-employees under part 240 or part 242. With respect to ASLRRA's comment seeking guidance on how small business railroads should coordinate with other railroads when a contractor dispatcher is decertified, FRA does not see a need to issue such guidance. When a dispatcher's certification is revoked, § 245.213(c)(1) places the onus on the dispatcher, not the revoking railroad, to notify any other railroad the person has a dispatcher certificate with, of the revocation. The only instance where this rule would require a railroad to share information about a dispatcher's revocation with another railroad is if the railroad received a written request pursuant to § 245.113(c). However, in such circumstances, the railroad would be notified in writing of the need to share this information with another railroad, so further guidance from FRA is unnecessary.

Turning to the questions FRA received from other commenters on this topic, a railroad is required to retain all information required under § 245.203 even if a dispatcher is a contractor. As for Atlantic Railways' question, a dispatch center would be allowed to create a model program that could be used by several railroads. FRA is not aware of any model programs currently in development, but FRA imagines that several entities will be creating such programs once this rule goes into effect.

4. Comments Related to Evidence That This Rule Would Limit Job Hopping

In their comments on the proposed rule, AAR and ASLRRA challenged the assertion that dispatchers switch jobs more frequently than other crafts and stated that FRA presented no evidence in support of this claim. They also contended that because dispatchers become experts on the safe movement of trains through a specific territory, there is a strong disincentive for them to change jobs and have to learn a new territory. Lastly, in addition to questioning the accuracy of the positive alcohol and drug test rates for dispatchers referenced in the 2015 report to Congress, AAR and ALSRRA argue that dispatchers with substance abuse disorders are already screened through pre-employment drug and alcohol testing and the railroads' continuous monitoring of dispatchers.

FRA's Response

This final rule is designed to take a proactive approach to minimize (and hopefully eliminate) job hopping among dispatchers. While FRA does not have data showing the frequency of job hopping among dispatchers, it is known throughout the industry that it does occur. AAR and ASLRRA suggest dispatchers are disincentivized to change jobs because it would require them to gain expertise on a new territory. However, FRA is not concerned about dispatchers who voluntarily change jobs; rather this rule is intended to curtail job hopping when a dispatcher loses their job with one railroad due to a substance abuse problem or a rules violation. Given the current lack of regulations requiring previous employment background checks, it is relatively easy for dispatchers to leave their current employer after committing a rules violation and find work on another railroad. Furthermore, while AAR and ASLRRA assert that railroads are well positioned to identify dispatchers with substance abuse problems, there is no guarantee that a person with a substance abuse problem will test positive during a pre-employment test. Additionally, dispatcher certification, through the safety checks required by §§ 245.113 and 245.115, will make it difficult for dispatchers who commit certain safety violations to continue performing safety-sensitive work for another railroad.

5. Comments Relating to Evidence That New Dispatcher Duties Necessitate Requiring Certification

AAR and ASLRRA are critical of FRA's assertion that dispatching has become more complex over the last five to ten years. Specifically, they allege that in making this claim, FRA cites to a report by Foster-Miller, Inc., that was written more than 17 years ago. They also assert that FRA did not provide any data or analysis to show that a dispatcher's job is made more complex by PTC.

FRA's Response

In criticizing FRA's reliance on the 2006 Foster-Miller report, AAR and ALSRRA misconstrue the NPRM. While FRA cited to the Foster-Miller report to provide an overview of some of the tasks dispatchers perform, FRA does not reference the 2006 report as support for its position that dispatching has become more complex over the past five to ten years. In fact, after the NPRM states that “[o]ver the past 5 to 10 years, the job of a railroad dispatcher has become more complex and demanding[,]” there is no further reference to the Foster-Miller report.

Instead, FRA cited to a decrease in the number of dispatchers which has caused an increase in the size of the territories dispatchers are responsible for, as support for its assertion; a point that AAR and ALSRRA do not dispute.

88 FR 35574, 35576 (May 31, 2023).

AAR and ASLRRA also disagree with FRA's characterization that PTC has made dispatching more complex. They argue that it has made dispatching easier because PTC serves as a back-up system to prevent human factor accidents. FRA agrees that PTC has improved railroad safety, but that does not mean it has made dispatching easier. In recent years, dispatchers have had to learn the complexities of implementing numerous new technologies that have been introduced into the industry such as PTC. Today's dispatcher is in a constant state of learning based on the rapid evolution of technologies and processes which makes the dispatcher's job more challenging even if the end result is a safer railroad network.

6. Comments Asserting That the Rule Is Duplicative of Parts 243, 270, and 271

AAR and ASLRRA contend that the gaps in FRA's regulations that this rule is trying to fill are either non-existent or immaterial. They argue that by adding these new certification requirements, FRA is harming railroad safety “by causing confusion and diverting resources from higher priority safety risks.”

They further state that there is significant overlap between this rule and part 243 and that in the NPRM, FRA incorrectly stated that part 243 does not require dispatchers to undergo a performance skill evaluation conducted by a qualified instructor. They cite to 49 CFR 243.201(c)(2) as evidence that performance skill evaluations are required under part 243 to demonstrate on-the-job training (OJT) proficiency. They also note that experienced employees are required to undergo refresher training in accordance with 49 CFR 243.201(e).

FRA-2022-0019-0041.

With respect to the System Safety Program (SSP)/Risk Reduction Program (RRP) requirements in 49 CFR parts 270 and 271 (parts 270 and 271), AAR and ASLRRA take the position that requiring dispatcher certification casts aside the risk analysis performed under parts 270 and 271 and could lead to railroads focusing on lower priority risks associated with dispatchers. In response to FRA's assertion that not all railroads have to comply with parts 270 and 271, they allege that the SSP/RRP requirements apply to more than 83% of the line-haul mileage and 95% of the workers in the industry, making this distinction immaterial.

FRA's Response

As an initial matter, AAR and ASLRRA's narrative that this rule is duplicative of parts 243, 270, and 271 appears to be contradicted by congressional direction. As they note in their joint comment, FRA issued the training regulations in part 243, the SSP regulations in part 270, and the RRP regulations in part 271 because of a statutory mandate in the RSIA.

However, in the same law, Congress explicitly permitted requiring the certification of certain crafts if the Secretary determined it was necessary to improve railroad safety.

Had Congress determined that certification requirements were duplicative of what was already mandated by the RSIA, it would not have required the Secretary to study whether other crafts or classes of employees could benefit from certification, or given the Secretary the statutory authority to issue additional certification regulations.

Rail Safety Improvement Act of 2008, Public Law 110-432, sections 103, 109, 401(a), 122 Stat. 4848, 4853-56, 4866-67, 4883 (2008).

Rail Safety Improvement Act of 2008, Public Law 110-432, section 402, 122 Stat. 4848, 4884 (2008).

Turning to any overlap between this rule and part 243, FRA stands by its position proffered in the NPRM that this rule complements, not duplicates, part 243. FRA concedes that the NPRM statement that part 243 does not require dispatchers to undergo performance skill evaluations is incorrect. However, these skill evaluations required under part 243 only apply to newly hired employees or persons who have been assigned a new safety-related task. Part 245 builds off the initial performance skill evaluations required in part 243 by mandating that dispatchers also receive an unannounced compliance test each calendar year to ensure that dispatchers continue to safely perform their duties after their initial certification. Part 243 has no such continuing compliance testing requirement. While 49 CFR 243.205 requires employers to perform periodic oversight tests and inspections to determine whether their employees are complying with Federal railroad safety laws and regulations, the rule does not require that all employees receive such tests and inspections. In fact, under part 243, an employee could work for decades without being tested

or inspected. Therefore, § 245.123 fills a significant gap in FRA's training rule.

Also, as noted in the NPRM, part 243 does not require railroads to have formal processes in place for promptly removing dispatchers from service if they violate one or more basic regulatory standards that could have a significant negative impact on the safety of rail operations. AAR and ALSRRA failed to address this fact in their comment. Part 245 complements part 243 by mandating that railroads remove dispatchers from service if they commit one of the egregious safety violations enumerated in § 245.303(e). This rule also requires railroads to perform certain safety checks before certifying a person as a dispatcher. These safety checks pertain to a person's prior safety conduct, both working on railroads and as a motor vehicle operator; their history of substance abuse disorders; and their visual and hearing acuity. These are basic safety requirements that are not addressed in part 243. Thus, FRA does not find this new rule duplicative of FRA's training rule.

FRA is also unconvinced by AAR and ALSRRA's argument that this rule is duplicative of parts 270 and 271. As stated in the NPRM and as implicitly acknowledged in their joint comment, there is no guarantee in parts 270 and 271 that railroads will address risks associated with dispatching. Parts 270 and 271 permit railroads to prioritize risks,

thus even if a railroad identifies aspects of dispatching as a risk, the railroad may not implement any mitigation efforts to reduce that risk if it determines other risks are higher priorities. Given this possibility, it is unclear how part 245 can be viewed as duplicative of parts 270 and 271. Moreover, FRA disputes the assertion from the associations that this rule casts aside the risk analysis railroads are required to perform under the parts 270 and 271. Nothing in this rule changes a railroad's responsibilities under those rules. They can continue to perform the risk analysis and the necessary mitigations to comply with parts 270 and 271 while also implementing a dispatcher certification program.

See e.g.,

49 CFR 270.5 (definition of “risk-based hazard management”) and 271.103(b)(3).

In conclusion, FRA does not see this new rule as duplicative or a hindrance to other existing regulations. As stated in the 2015 report to Congress, the purpose of certification is to document and verify that the holder of the certificate has achieved certain training and proficiency and to create a record of safety compliance infractions that can be reviewed when hiring experienced individuals. While developing this rule, FRA has been mindful of other regulations that may touch upon topics covered in this rule, including FRA's training, qualification, and oversight regulations in part 243; SSPs and RRPs in parts 270 and 271; and fatigue risk management programs in parts 270 and 271. However, FRA finds that this rule would complement, rather than duplicate, those regulations.

D. Miscellaneous Comments

FRA received a couple of comments that raised miscellaneous issues. Some commenters felt that FRA should require that certain programs be certified either in addition to or instead of dispatchers. One commenter listed Unified Train Control System, Movement Planner, Trip Optimizer, and PTC as programs that should have to be certified.

Another commenter added that many of the errors that occur in the dispatching field are due to failures in technology, yet there are no requirements “for such programs to be monitored, certified, and overseen to ensure they aren't providing inaccurate information to the train dispatcher.”

FRA appreciates these comments and acknowledges that this is an issue that may warrant consideration by FRA in the future. However, requiring that certain programs be certified is beyond the scope of this rulemaking.

FRA-2022-0019-0010.

FRA-2022-0019-0015.

One individual suggested that screening dispatchers for diabetes had merit, but they also expressed concern that dispatchers would be held out of service for failing a physical.

This commenter did not elaborate on why dispatchers should be screened for diabetes. Since FRA is unaware of any reason why a person's diabetes diagnosis would affect their ability to safely perform the job of a dispatcher, FRA sees no reason to add such a requirement to this rule.

FRA-2022-0019-0020.

IV. Section-by-Section Analysis

This section responds to public comments and identifies any changes made from the provisions as proposed in the NPRM. Provisions that received no comment, and are otherwise being finalized as proposed, are not discussed again here.

Section 245.3 Application and Responsibility for Compliance

This section specifies that this rule applies to all railroads except for those railroads described in paragraph (a). Paragraph (a)(1) of this section exempts those railroads that do not have any dispatch tasks from the requirements of this part. FRA revised this paragraph from what appeared in the NPRM to clarify that “dispatch” is the term defined in § 245.7, not “dispatch tasks.”

Section 245.5 Effect and Construction

This section addresses several legal issues including that FRA does not intend to alter the terms, conditions, or interpretations of existing collective bargaining agreements that use job classification titles other than dispatcher for a person who dispatches a train. AAR and ASLRRA allege that FRA fails to understand that this new rule will require the altering of collective bargaining agreements to satisfy the requirements of this new rule. Based on this comment, it appears the associations are misconstruing paragraph (a) in this section. Paragraph (a) does not state that collective bargaining agreements will not have to be altered as a result of this new rule. To the contrary, FRA understands that, due to the new requirements in this rule, collective bargaining agreements may need to be modified. Paragraph (a) simply states that the rule does not affect the use of job classification titles other than dispatcher in collective bargaining agreements for persons who dispatch trains.

Section 245.7 Definitions

This section defines a number of terms that have specific meaning in this part. As an initial matter, FRA has removed the definition of “controlled track” from this section as that term does not appear in the final rule.

FRA received a number of comments regarding its proposed definition of “dispatch.” TTD, ATDA, and IBEW all requested that FRA provide more specificity to the definition. In particular, all three labor organizations appeared to support ATDA's suggestion that paragraph (1)(iii) of this definition be revised to “[i]ssuing a mandatory directive, including, but not limited to, speed restrictions, highway-rail grade crossing protections, or those which establish working limits for roadway workers.”

FRA agrees with the labor organizations that this proposed revision is an improvement on the NPRM definition, as it more accurately reflects what FRA is trying to convey. FRA therefore adopts this change in the final rule.

FRA-2022-0019-0038.

AAR and ASLRRA submitted a comment requesting that FRA clarify that the definition of “dispatch” only applies to persons covered by the

definition of “dispatching service employee” found in 49 U.S.C. 21101(2), and it does not apply to persons performing

de minimis

dispatching functions. In particular, AAR and ASLRRA wanted to ensure the definition did not apply to positions such as bridge tenders, tower operators, control operators, and yardmasters who have traditionally not been treated as dispatchers, but who sometimes perform

de minimis

dispatching functions. They also expressed concern that FRA was attempting to include certain roadway workers in the definition of “dispatch” without a valid safety justification. They contend that expanding the definition would require railroads to alter their collective bargaining agreements and “would create an expensive, unworkable administrative mess.”

Lastly, AAR and ASLRRA discussed back-office employees who manage and analyze data that is used by dispatchers. They stated that there was no basis for FRA to expand the definition of “dispatch” to these employees. An individual commenter also sought clarification from FRA on what type of work would require certification under this rule. Specifically, would the definition of “dispatch” apply to “Terminal/Supervisors” and trainmasters.

Another commenter asked whether it was a person's job title that determined whether they had to be certified or did it depend on the territory they worked on.

FRA-2022-0019-0041.

FRA-2022-0019-0023.

FRA-2022-0019-0012.

As a general rule, FRA did not intend for this rule to apply to yardmasters, bridge tenders, tower operators, control operators, terminal supervisors, trainmasters, roadway workers, or back-office employees. FRA believes the vast majority of workers with these titles will be excluded from the definition of “dispatch” as it appears in this final rule. As the commenters expressed, these workers typically would not be encompassed in the definition of “dispatch” because either: (1) they do not meet the definition of a “dispatching service employee” as defined by 49 U.S.C. 21101(2); or (2) paragraph (2) of this definition applies to the work they perform. Paragraph (2) of this definition excludes from the definition of “dispatch” actions of personnel in the field: (i) effecting implementation of a written or verbal authority or permission for a railroad operation, including an authority for working limits granted to a roadway worker;

(ii) operating a function of a signal system designed for use by those personnel; or (iii) sorting and grouping rail cars inside a railroad yard to assemble or disassemble a train.

In this final rule, FRA revised paragraph (2)(i) of this definition to remove a redundancy that appeared in the NPRM, but the substance of the definition is unchanged.

While most workers with the job titles listed above will be excluded from this rule under paragraph (2) or because they do not meet the definition of “dispatching service employee” in 49 U.S.C. 21101(2), a person's job title is irrelevant to the determination of whether they must be certified under this rule. Instead, it is the work function being performed that determines whether an individual must be certified. For example, a person could have the job title of “yardmaster” but if they perform functions that meet the definition of “dispatch” in this section, they would have to be certified despite their job title.

The American Association of Nurse Practitioners (AANP) submitted a comment on the definition of “medical examiner” in the proposed rule. Noting that approximately 70% of all nurse practitioner graduates deliver primary care, AANP requested that FRA revise the definition of “medical examiner” to include nurse practitioners and thereby authorize them to make determinations in accordance with this rule. AANP asserted that the definition of “medical examiner” in the proposed rule was based on FRA's locomotive engineer certification regulations in 49 CFR part 240, which are now 32 years old and not reflective of the current practice environment where nurse practitioners provide a substantial portion of care. While FRA has not revised the definition of “medical examiner” to specifically include nurse practitioners, FRA clarifies that if a nurse practitioner is a licensed or certified technician, FRA's regulations in 49 CFR parts 240 and 242 (and this final rule) allow the nurse practitioner to perform the vision and hearing examinations required in those parts (and in this rule). However, given the complex nature of this issue and FRA's lack of regulatory requirements for medical examiners, the question of whether nurse practitioners should be allowed to serve as medical examiners (and if so, whether they should be required to comply with specific regulatory or industry standards) is best addressed in a future rulemaking during which comments can be solicited specifically on this issue. Accordingly, only a doctor of medicine or doctor of osteopathy is authorized by this final rule to conduct a medical evaluation to determine whether a person can safely work as a certified dispatcher if the person fails the visual or hearing acuity examination. FRA did revise the last sentence of this definition changing “employee” to “individual” since not all persons examined by a railroad medical examiner will be railroad employees.

FRA also received several comments on the proposed definition of “qualified instructor.” TTD, ATDA, and IBEW submitted similar comments addressing paragraph (4) of the proposed definition (paragraphs (2) and (3) of the definition in the final rule) which states that if a railroad has designated employee representation, a qualified instructor must either be selected in concurrence with the designated employee representative or have at least one year of experience as a certified dispatcher. The labor organizations propose to change the “or” in paragraph (4) to an “and” and that the definition require a minimum of two years experience as a certified dispatcher. Therefore, under the organizations' proposal, a qualified instructor for a railroad that had designated employee representation would have to be selected in concurrence with the designated employee representative and have at least two years service as a certified dispatcher. In support of its position, ATDA stated that requiring concurrence from a union representative would be beneficial because its “representatives are typically working train dispatchers themselves, making them some of the best individuals suited to determine a train dispatcher's proficiency and have a vested interest in ensuring that candidates receive the best training and instruction possible.”

The unions also agreed that one year of dispatching experience was insufficient for someone to be a qualified instructor, and pointed to the fact that many railroads do not consider a dispatcher to be fully proficient until they have five years of experience. TTD alleged that some Class I railroads are having newly certified conductors train conductor candidates, and this is creating dangerous conditions that this rule should aim to avoid with respect to dispatchers by requiring two years of dispatching experience.

FRA-2022-0019-0038.

In contrast, APTA submitted a comment requesting that paragraph (4) of this definition be deleted altogether. APTA contends selecting a qualified instructor is inherently the responsibility of the railroad and should not be subject to another party's

consent. Alternatively, APTA suggests a railroad could list its minimum standards to become a qualified instructor in its certification program.

After review of these comments, FRA has decided not to adopt these proposals. FRA disagrees with APTA that railroads with designated employee representation should not have to obtain concurrence from labor. The required concurrence of the designated employee representative has been retained to facilitate input by labor, specifically in situations involving qualified instructor candidates with minimal experience (

i.e.,

less than 12 months experience working as a dispatcher).

While FRA agrees with the labor organizations that it would be beneficial for qualified instructors to have more than one year of dispatching experience and FRA encourages railroads to select qualified instructors with more than one year of dispatching experience, FRA is concerned that requiring two years of experience would be too burdensome for some railroads especially given the high turnover rate among dispatchers. Furthermore, FRA does not have sufficient support to justify imposing a two-year requirement. FRA also does not concur with requiring that all qualified instructors on railroads with designated employee representation have both concurrence from labor and at least one year of dispatcher experience. This revision would essentially give a designated employee representative veto power over any person the railroad chooses as a qualified instructor. The goal of this definition is to provide for the involvement and consultation of labor in the selection of qualified instructors while also maintaining the railroad's autonomy. The proposal by the organizations would fail to strike that balance.

Even though FRA is not instituting any of the proposed changes to this definition suggested by APTA and the labor organizations, it is revising the definition that was in the proposed rule. The definition in the NPRM had some redundancies, and after careful consideration, FRA has decided to change the format of this definition so that it mirrors the definition of qualified instructor in part 242. FRA has determined that this version of the definition is more comprehensible and it clarifies that when a railroad has designated employee representation, the railroad must first attempt to obtain labor's concurrence of the railroad's selection of a qualified instructor. Only if the railroad is unable to obtain labor's concurrence, may it move to paragraph (3) of the definition and select a person, without such concurrence, who has at least one year of service working as a dispatcher.

Section 245.11 Penalties and Consequences for Noncompliance

This section acknowledges FRA's authority to issue civil penalties for any violations of this part. IBEW expressed its support for the proposed language in this section and its agreement that individuals should only receive penalties for willful violations.

Section 245.103 FRA Review of Certification Programs

This section covers FRA's process for reviewing and approving certification programs. ATDA and TTD submitted comments contending that paragraph (a) of this section should be revised so that Class II railroads must submit their certification programs to FRA within eight months of the effective date of the final rule instead of 16 months as stated in the NPRM. These labor organizations contend that Class II railroads have sufficient resources to complete their programs within this reduced timeframe, and that the 16-month timeframe is excessive and would delay the implementation of this important safety requirement. IBEW submitted a similar comment stating that those Class II railroads who have the resources to complete their programs within eight months should do so to avoid unnecessary delays in implementing this rule.

Despite these comments, FRA has decided not to make any changes to the program submission schedule from the proposed rule. In the 240 days between the deadlines referenced in paragraphs (a)(1) and (2) of this section, FRA will be devoting its resources to reviewing approximately 41 certification programs from Class I and commuter railroads

and is unlikely to have the capacity to begin its review of Class II programs until after the date referenced in paragraph (a)(2). Also, FRA is concerned that the eight-month deadline proposed by the labor organizations may put too much of a strain on some Class II railroads. Thus, while FRA shares the organizations' desire for a speedy implementation of this rule, FRA does not believe that giving Class II railroads this additional time to submit their certification programs will delay implementation.

Federal Railroad Administration, “Certification of Dispatchers Final Rule Regulatory Impact Analysis.”

Paragraph (b) of this section states that railroads that begin dispatching operations after this rule goes into effect, cannot commence such dispatching operations until FRA has reviewed and approved the railroad's certification program. FRA made some minor revisions to this paragraph from the proposed rule to make it clearer, but these changes did not affect the substance of the paragraph. Paragraph (c) of this section provides the method railroads must use to submit their certification programs to FRA. In the NPRM, this paragraph stated that dispatcher certification programs should be uploaded to a secure document submission site. However, after further consideration, FRA determined it would be easier for both railroads and the agency if programs were submitted by email. Paragraph (c) has been revised accordingly in this final rule.

With respect to paragraph (d) of this section, which requires railroads to notify certain parties when it submits its certification program to FRA, AAR and ASLRRA commented that railroads should not have to have their certification programs approved by the labor union president and all of the railroad's dispatcher employees. AAR and ASLRRA claim such a requirement would be a substantial change from what is required in the locomotive engineer and conductor certification rules and is arbitrary and capricious. Specifically, they are concerned that a labor union president could hold up their approval causing the railroad to miss the deadline for submitting the certification program to FRA.

AAR's and ASLRRA's concern with respect to paragraph (d) of this section is unwarranted as this rule does not require railroads to obtain approval of their programs from labor union presidents or their dispatching employees. This rule only provides these individuals with the opportunity to review and comment on these programs. FRA believes the source of AAR and ASLRRA's confusion is the reference to a “request for approval” in paragraph (d)(1). However, this document, which is described in greater detail in § 245.107(a), is a request for approval from FRA, not from a labor union president or dispatching employee. In an effort to avoid further confusion, FRA is adding a reference to § 245.107(a) in paragraph (d)(1).

Several labor organizations, including ATDA, IBEW, and TTD, expressed concerns about the comment period in paragraph (e) only being 45 days. They are particularly concerned about the initial influx of programs they will have to review after this rule first goes into effect, and that 45 days will not be enough time to review these programs and provide comments. Therefore, the unions are requesting that the comment

period be extended to 90 days. TTD also noted that unions would likely receive these certification programs shortly after they receive Positive Train Control Safety Plan Requests for Information to review. This would put a strain on their resources and rushed feedback from stakeholders will not be as beneficial to FRA.

Based on these comments from the labor organizations, FRA has extended the comment period from 45 days to 60 days. This change will provide commenters with additional time to draft and submit meaningful comments that will assist FRA in its review of these programs. However, in an effort to avoid further delays to the implementation of this rule, FRA is declining to extend the comment period to 90 days. FRA understands that labor organizations are particularly concerned about the initial influx of programs they will need to review when this rule first goes into effect, but once the effective date of this rule is established, the unions will have several months to plan how to efficiently allocate their resources during the timeframes when they can expect to receive a large number of programs to review. Also, FRA will consider late-filed comments to the extent practicable and will extend comment periods on a case-by-case basis if circumstances warrant (especially during these initial periods where there is a high volume of programs to review).

AAR and ASLRRA are also opposed to the FRA review and approval process that is described in paragraph (f). Specifically, they contend that the proposed process allows for FRA “to arbitrarily hold railroads in limbo for an indefinite time period even if their programs are fully compliant”

and does nothing to ensure that FRA's review process is handled expeditiously. Instead, AAR and ASLRRA contend that FRA should implement the same review and approval process found in parts 240 and 242 where a certification program or material modification is considered approved 30 days after it is submitted unless FRA notifies the railroad in writing that its program has been disapproved.

FRA-2022-0019-0041.

FRA is declining to adopt this suggestion as it is untenable following a 2020 decision from the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). In

Brotherhood of Locomotive Engineers and Trainmen

Federal Railroad Administration,

the D.C. Circuit invalidated FRA's passive approval of a modification to Kansas City Southern Railway's locomotive engineer certification program. In its decision, the court noted that the Administrative Procedure Act “requires agencies to reasonably explain to reviewing courts the bases for the actions they take and the conclusions they reach.”

The court found FRA's passive approval system allowed for a “complete absence of any accompanying explanation for the agency's approval” of the certification program.

Since the administrative record did not contain any explanation or reasoning for the determinations made by FRA in approving the program, the court vacated and remanded the case for FRA to provide a more complete explanation of the agency's action or to take new agency action altogether.

Brotherhood of Locomotive Engineers & Trainmen

Fed. R.R. Admin.,

972 F.3d 82, 115 (D.C. Cir. 2020).

Brotherhood of Locomotive Engineers & Trainmen,

972 F.3d at 116-17.

Brotherhood of Locomotive Engineers & Trainmen,

972 F.3d at 117.

Given the D.C. Circuit's criticism of the passive approval system in part 240, FRA will not include a similar system in this rule. Therefore, paragraph (f) of this section creates a new system where a program is not considered approved by FRA until the agency issues an approval letter to the railroad. Contrary to AAR and ASLRRA's comment, FRA will not arbitrarily hold railroads in limbo for an indefinite period of time. FRA will make every effort to meet its goal of issuing a decision on a program within 120 days of submission. This goal was 90 days in the NPRM but because FRA extended the comment period in paragraph (e) of this section, it felt that 120 days was a more realistic goal to complete its review of these programs. However, FRA acknowledges that meeting this goal will not always be feasible and will be especially difficult during the initial implementation of this rule when FRA receives several programs to review at the same time. During this time, railroads will be able to continue to operate as they did prior to this rule going into effect so it is unclear how railroads will be harmed by such delays.

AAR and ASLRRA also commented that FRA should provide more clarity to its definition of “material modification” found in paragraph (g)(1) as they allege the vagueness of the proposed definition could result in stifling innovations in safety systems. In particular, they want FRA to “allow railroads to use different delivery methods and to incorporate new technology without treating those changes as material modifications. Likewise, they state that FRA should limit material modifications to significant content-based changes that are likely to impact safety and not treat edits to test questions, structure, and timelines as material modifications.”

FRA-2022-0019-0041.

FRA disagrees with the AAR and ASLRRA suggestion to limit what is considered a material modification under this rule. The term “material modification” is specifically triggered when there is a change in an approved certification program that significantly affects the certification process. This can include alterations in the training curriculum, modifications to the testing or assessment methods, changes to the duration of the program or program components such as training, changes in the number of test questions or the scoring system, or any other changes that would substantially impact the way dispatchers are trained, evaluated, and certified. It is vital that FRA have the opportunity to review these proposed changes to a certification program to ensure they align with the overall goals of maintaining safety and compliance.

AAR's and ASLRRA's desire to not include the incorporation of new technologies as material modifications is unworkable. There are significant safety concerns at play when incorporating new technologies, and if these new technologies do not receive the proper level of regulatory oversight, that could lead to safety risks being introduced into the system which could undermine public confidence in railroad safety. New technologies also have the potential to affect working conditions and the environment which is why it is vital that stakeholders are engaged in the process of modifying a certification program based on new technologies as is provided for in paragraph (e) of this section. Therefore, FRA determined it would be inappropriate to allow railroads to introduce new technologies into their previously approved certification programs without considering them to be material modifications to such programs.

NRC commented that there should be a standard process for submitting material modifications where railroads explain the reason for the modification and discuss the dynamic risk assessments, training impact, desired outcomes, and mitigations resulting from the modification. Railroads are welcome to include this information in their request for approval (described in § 245.107(a)(3)), but it is not required. FRA is concerned that NRC's proposal would be unduly burdensome and

could stifle innovation and hinder a railroad's freedom to make business decisions that are in its best interest by creating a new requirement that the railroad justify its decision to modify its program. While railroads are encouraged to make modifications to their programs that will optimize railroad safety, ultimately the only requirement for a modification is that it complies with part 245. FRA is, however, amending paragraph (g) of this section to include a reference to the request for approval discussed in § 245.107(a)(3).

Lastly, TTD expressed its support for paragraph (h)(3) of this section, which requires that railroads with current dispatching operations, as of the effective date of this final rule, resubmit their certification program within 30 days of being notified by FRA that their program has been disapproved. TTD cited to instances of railroads not bringing their certification programs into compliance with parts 240 and 242, and specifically referenced recent accidents involving NS as support for their position. TTD recommended that FRA “amend this section to propose fines for railroads that repeatedly are not compliant with the certification requirements”

in this rule. FRA appreciates TTD's comment; however, such an amendment is unnecessary as § 245.11 already provides for FRA to issue civil penalties for violations of this part. FRA will publish a civil penalty schedule for this part on its website. FRA is revising paragraph (h)(3)(iii) of this section to refer to “paragraph (g)(4) of this section” as the proposed rule incorrectly referenced paragraph (g)(3) instead.

FRA-2022-0019-0037.

Section 245.105 Implementation Schedule for Certification Programs

This section contains the timetable for the implementation of this final rule. APTA submitted a comment that railroads should be allowed to designate those individuals who are in an initial training program when this rule goes into effect so that they can become certified dispatchers upon completion of the training program, pursuant to paragraph (c)(1) of this section. APTA contends that implementing certification requirements in the middle of a training program would be disruptive to the participants and instructors.

In response to APTA's comment, paragraph (d) of this section allows railroads to continue to designate as certified dispatchers, those individuals who have been authorized by the railroad to perform the duties of a dispatcher, until the date that FRA approves the railroad's certification program. Therefore, all railroads will be able to continue to designate individuals as certified dispatchers for several months after the effective date of this rule which should include any person who is in a dispatcher training program on the effective date of this rule. Railroads will no longer be able to designate persons as certified dispatchers under paragraph (d) once FRA approves the railroad's program. FRA understands that some individuals will likely be in the middle of a training program when this occurs, but railroads will have several months to prepare for this occurrence and to figure out the best way to minimize any disruption.

FRA is revising paragraph (d) from the proposed rule to clarify that railroads are only allowed to “designate” persons as certified dispatchers in accordance with paragraph (d) between March 17, 2025 and the date FRA approves the railroad's certification program. Once FRA approves a railroad's certification program, the designation system described in paragraph (d) is terminated, and a person must go through the full certification process described in subpart B of this rule. Paragraph (d)(1) has also been revised from the proposed rule because the NPRM stated that paragraph (d) applied to persons authorized by a railroad to perform the duties of a dispatcher between the effective date of the final rule and the date FRA approves the railroad's certification program. However, paragraph (d) only applies to persons authorized by a railroad to perform the duties of a dispatcher between March 17, 2025 and the date FRA approves the railroad's certification program.

Paragraph (c) of this section applies to all persons who have been authorized to perform dispatcher duties on or before March 17, 2025.

NRC's comment on paragraph (f) of this section is that all dispatchers should be certified within 6 to 12 months after FRA approves a railroad's program. FRA interprets this comment to mean that NRC thinks an individual should have to get recertified in accordance with the requirements of subpart B of part 245 within 6 to 12 months after FRA approves the railroad's program. FRA is electing not to adopt this suggestion as it thinks NRC's proposal would place too great a burden on large railroads in particular and may not be administratively feasible. As was stated in the NPRM, FRA sees a benefit to railroads (especially large railroads) spacing out the recertification process for its dispatchers so they recertify approximately one-third of their dispatchers each year.

This suggested approach would not be allowed under NRC's proposal as all dispatchers would have to be recertified within that first year after FRA approves the railroad's program. This would create a cycle where every three years, the majority of the railroad's dispatchers would be due for recertification and the railroad would have to complete the recertification process in a short period of time. Such a system would likely have a deleterious effect on the quality of the recertification process and thus, would be harmful to railroad safety.

See

88 FR 35574, 35585 (May 31, 2023).

Finally, AAR and ASLRRA think FRA should eliminate paragraphs (f)(1) through (3) which allow dispatchers who are approaching retirement age to submit a request to their railroad that they not be recertified, in accordance with subpart B of part 245, until three years from the date the railroad's program is approved by FRA. They contend this provision is contrary to FRA's safety rationale for this rule and would allow a dispatcher to forego the full certification process for up to six years. They also argue this would be more burdensome on the railroads as they would have to keep track of a special category of employees and establish special protocols for them.

FRA is choosing to keep paragraphs (f)(1) through (3) in this final rule. These paragraphs simply allow dispatchers who meet the requirements of paragraph (f)(1) to make a request that the railroad not make them go through the full recertification process until their initial certification expires (three years after FRA approves the railroad's certification program). FRA included these paragraphs under the assumption that it would not be an efficient use of a railroad's resources to perform the full recertification process on a designated dispatcher who is going to retire before the end of their designation period. However, if, as AAR and ASLRRA suggest, a railroad finds that it would be more burdensome to keep track of this special category of employees, the railroad may deny these requests. The only obligation these paragraphs put on a railroad to grant these requests is found in paragraph (f)(2) which states that

a railroad grants any such request, it must grant all other requests “to every extent possible.” In addition, this paragraph does not create a loophole where a dispatcher could go six years without having to go through the full recertification process. Paragraph (f)

plainly states, with no exceptions, that no person shall be allowed to serve as a dispatcher more than three years after their railroad's program is approved without going through the full recertification process described in subpart B of part 245. Nothing in paragraphs (f)(1) through (3) contradicts this language in paragraph (f).

Section 245.107 Requirements for Certification Programs

This section provides the organizational requirements and a narrative description of what must be included in a railroad's certification program. After further review of the proposed rule, FRA determined more guidance was needed on material modifications to a previously approved program and on the request for approval that must accompany a railroad's submission to FRA. In paragraph (a)(1) in this final rule, FRA clarified that when a railroad submits a material modification to its program, it must provide FRA with a copy of the complete certification program with all the material modifications incorporated. This will assist FRA's review in determining whether the program as a whole (with the incorporated material modifications) satisfies the requirements of this part. In paragraph (a)(2), FRA added language stating that a railroad's request for approval of an initial program submission shall include a statement that the railroad is seeking approval of its program. FRA also added a paragraph describing what a railroad must include in its request for approval when making a material modification. Paragraph (a)(3) in the final rule states that such request for approval must include an explanation of all the material modifications the railroad wants to make to its program. This requirement will ease FRA's burden in identifying the changes the railroad is making to its previously approved program.

With respect to paragraph (b)(2)(ii), FRA mistakenly referred to § 245.119(g) in the NPRM. For the final rule, FRA has changed this reference to § 245.119(i) which contains the continuing education requirements for a training program. Lastly, FRA moved what was § 245.125(b) in the NPRM into this section by adding paragraphs (b)(2)(vi) and (b)(4)(iv). Paragraph (b)(2)(vi) of this section states that Section 2 of a railroad's program shall address how it will administer the training of previously certified dispatchers who have had their certification expire. Paragraph (b)(4)(iv) of this section states that Section 4 of the program must address how the railroad will administer the training of previously uncertified persons with extensive dispatching experience. If Sections 2 and 4 of a program do not address these issues, such persons will be required to undergo the railroad's entire training program.

Section 245.111 Prior Safety Conduct as Motor Vehicle Operator

This section contains the requirements and procedures that railroads are required to follow when evaluating the motor vehicle records of a candidate for dispatcher certification or recertification. TTD, ATDA, and IBEW submitted comments on this section expressing concern that a 60-day time period may not allow enough time to request and obtain driving records as part of the recertification process, due to administrative delays outside the recertification candidate's control. However, paragraph (c) requires candidates for dispatcher recertification to request their driving records at least 60 days prior to the date on which their certification expires. Therefore, at least 120 days will elapse between the date on which candidates for recertification requests their driving records and the end of the 60-day “grace period” authorized by paragraph (c). However, if a candidate for certification or recertification is unable to obtain their driving records, despite the grace period provided in paragraphs (b) and (c), paragraph (e) authorizes either the railroad or the candidate to submit a waiver petition for regulatory relief.

FRA also received comments from IBEW and NRC expressing concern that requiring railroads to include a review of driving records in their certification programs may inadvertently result in barring candidates who have unsatisfactory driving records from obtaining dispatcher certification and recertification. An individual commenter added that reviewing driving records to discover substance abuse issues is warranted but railroads should not review such records for speeding violations.

FRA-2022-0019-0020.

The intent of this section is to obtain and review motor vehicle records to identify candidates for dispatcher certification and recertification who may have an active substance abuse disorder so they can be referred for evaluation and any necessary treatment before they are allowed to perform safety sensitive service. As explained in paragraph (m) of this section, the only motor vehicle incidents railroads may consider are related to being under the influence of, or impaired by, alcohol or a controlled substance. Railroads may not consider a person's speeding violations or other aspects of their motor vehicle driving record that are not related to alcohol or drug use when making a determination on dispatcher certification.

In the NPRM, paragraph (h)(2) of this section required all persons seeking certification or recertification to request driving records from the chief of the driver licensing agency of any jurisdiction, including states or foreign countries, that issued or reissued that person a driver's license in the past five years. This paragraph mirrored 49 CFR 240.111(c)(2).

However, FRA determined that a five-year lookback period was unnecessary in this final rule since paragraph (l)(2) of this section only allows railroads to consider motor vehicle driving incidents that occurred within the three years prior to the date of the railroad's certification decision. Thus, FRA changed the lookback period to three years. Furthermore, rather than focusing on when a jurisdiction

issued or reissued

a driver's license, FRA thought the more appropriate inquiry was whether a person

held

a driver's license from a jurisdiction within the previous three years. This paragraph has been revised in accordance with these changes.

The Rail Safety Improvement Act of 1988 required the five-year lookback period for persons seeking locomotive engineer certification. Public Law 100-342, 4, 102 Stat. 624, 625 (1988). However, no such requirement applies to this rule.

Paragraph (k) of this section requires certified dispatchers and candidates seeking dispatcher certification to notify their certifying railroad

of any drug or alcohol related motor vehicle incidents described in paragraph (m) of this section within 48 hours of conviction or completed state action to cancel, revoke, suspend, or deny a motor vehicle driver's license for operating a motor vehicle while under the influence of, or impaired by, alcohol or a controlled substance or refusal to undergo such testing. Paragraph (k) also provides that, for purposes of dispatcher certification, a railroad cannot have a more restrictive company rule requiring a dispatcher to report a conviction or completed state action to cancel, revoke, or deny a motor vehicle driver's license in less than 48 hours.

In the NPRM, paragraph (k) of this section said certified dispatchers and candidates seeking certification must notify their “employing railroad” of any motor vehicle incident described in paragraph (m) of this section. However, because not all dispatchers are employed by a railroad, FRA is revising paragraph (k) in this final rule so that such incidents must be reported to the “certifying railroad.”

AAR and ASLRRA criticized this provision for precluding railroads from having more restrictive company rules requiring dispatchers to report a conviction or completed State action to cancel, revoke, or deny a motor vehicle driver's license in less than 48 hours. AAR and ASLRRA asserted that, as a practical matter, railroads should be able to request notification in less than 48 hours as a matter of company policy if they determine notification is in the safety interest of the railroad. The associations further asserted that they could easily envision a scenario where safety would be decreased because a person takes advantage of the 48-hour grace period after being convicted to delay notification. After considering these concerns from AAR and ASLRRA, FRA is declining to adopt this requested change. By keeping this requirement in paragraph (k), a railroad cannot revoke, deny, or otherwise make a person ineligible for certification until that person has received due process from the state agency taking the action against their motor vehicle license. This aligns with a central tenet of the U.S. judicial system that a person is considered innocent until proven guilty. Furthermore, this restriction only applies to actions taken against a person's certificate and has no effect on a person's right to be employed by a railroad. Also, by keeping this language, this paragraph maintains its consistency with 49 CFR 240.111(h) and 242.111(l).

This issue was also addressed and discussed 25 years ago when FRA was amending its locomotive engineer certification rule.

See

63 FR 50626, 50639 (Sept. 22, 1998).

Paragraph (l) of this section prohibits railroads from considering motor vehicle driving incidents that occurred prior to the effective date of this rule or more than three years before the date of the railroad's certification decision. AAR and ASLRRA commented that there is no safety reason for these restrictions as they make it difficult to establish a pattern of safety abuses. However, the three-year limit on motor vehicle driving records that can be reviewed for purposes of this rule is based on practical considerations. The three-year limit in paragraph (l) is intended to be consistent with minimum record retention practices of state driver licensing agencies. The three-year limit is also consistent with 49 CFR parts 240 and 242.

With respect to FRA's decision not to allow railroads to consider safety conduct that occurred prior to the effective date of this rule, FRA is guided both by fairness and by the law. While retroactive effects are not completely prohibited by the Administrative Procedure Act, the U.S. Supreme Court has stated that “[r]etroactivity is not favored in the law.”

Moreover, even if there were a substantial justification for the retroactive application of a rulemaking, “courts should be reluctant to find such authority absent an express statutory grant.”

Given that there is no such express statutory grant of authority for this rule to have retroactive effects, FRA has decided not to allow railroads to consider safety conduct that occurred prior to the effective date of this rule.

Bowen

Georgetown University Hosp.,

488 U.S. 204, 208 (1988).

Bowen,

488 U.S. at 208-09.

Section 245.115 Substance Abuse Disorders and Alcohol Drug Rules Compliance

This section addresses active substance abuse disorders and specific alcohol/drug regulatory violations. FRA is making a minor revision to paragraph (f) of this section from what appeared in the proposed rule. FRA is removing the reference to 49 CFR 219.1003(j) because that provision only applies to locomotive engineers and conductors.

Section 245.117 Visual Acuity

This section contains the requirements for visual acuity testing that a railroad must incorporate into its dispatcher certification program. As an initial matter, in the NPRM, FRA used the terms “visual acuity” and “vision acuity.” In the interest of consistency, FRA is using the term “visual acuity” throughout this final rule including changing the name of this section's title to “visual acuity.”

“Visual acuity” appears to be the term used in the medical field.

See

Visual Acuity, American Optometric Association, found at

https://www.aoa.org/healthy-eyes/vision-and-vision-correction/visual-acuity?sso=y.

FRA solicited comments in the NPRM on whether visual acuity standards are necessary for dispatchers and if so, whether they should be as stringent as the existing standards for locomotive engineers and conductors. FRA received comments in support and opposition to the proposed rule's visual acuity standards. Some commenters also suggested revisions to the proposed standards.

NRC supported this section and contended that vision is critical to a dispatcher's job performance. In contrast, an individual commenter opposed this section, stating that over the course of his railroad career, he was not aware of any accident being caused by poor vision. APTA, ATDA, and IBEW also recommended removing the visual acuity requirements from this rule. These commenters felt that visual acuity requirements are unnecessary based on a dispatcher's job duties and the office setting they work in, where they primarily interact with computer screens, books, and other written materials.

Specifically, APTA argued that the distance and color vision tests described in paragraphs (c)(1) and (3) of this section are unnecessary and that the “[a]llowance provided by the proposed [§ ] 245.117(d)(3) should be maintained if dispatchers are able to reliably distinguish the different indications presented on the computer-aided dispatch system or other control systems used by their railroad.”

APTA also noted that dispatchers who are nearsighted, but not farsighted, may prefer not to use their corrective lenses when they are reading a computer screen or written materials up close. However, such action would render them non-compliant with paragraph (f) of this section. Thus, APTA is suggested that paragraph (f) be revised, so that dispatchers are only required to have their corrective lenses available, instead of in use, while on duty.

FRA-2022-0019-0036.

In its opposition to this section, IBEW noted that vision impairment can be corrected with corrective lenses or by adjusting computer monitors. IBEW also expressed concern that this section gives too much discretion to railroad medical examiners.

ATDA suggested that if FRA does not remove this requirement altogether, it should revise paragraph (c)(1) “to measure intermediate vision acuity—measured at approximately 24 to 40 inches, or the typical distance between a user and a computer monitor—of 20/40 in at least one eye, with or without corrective lenses.”

TTD agreed with ATDA's suggestion that visual acuity be measured at a distance of 24 to 40 inches, to ensure that no person is excluded by “a vision requirement that is not necessary to perform the associated job duties.”

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AAR and ASLRRA did not state any opposition to FRA's inclusion of visual acuity requirements in this rule, but they criticized FRA's use of the same visual acuity standards found in parts 240 and 242. They noted that dispatchers have different responsibilities, perform different tasks, and work in a different environment than engineers and conductors. Thus, FRA should not “pluck” the visual acuity requirements from parts 240 and

242 and place them into this rule. Instead, “FRA needs to analyze the components of a dispatcher's duties,” address how visual acuity impacts a dispatcher's ability to safely perform their job, and then specifically tailor the vision requirements in part 245 to the work performed by dispatchers.

FRA-2022-0019-0041.

The Southeastern Pennsylvania Transportation Authority (SEPTA) agreed with AAR and ASLRRA that the visual acuity requirements in this rule should not be identical to the standards in parts 240 and 242, due to the nature of a dispatcher's work being different than that of an operating crew member. In particular, SEPTA noted that vision issues due to digital eye strain or prolonged computer use are more relevant to determining whether a person can perform the job of a dispatcher than distance vision.

In response to these comments, FRA closely reviewed the tasks performed by dispatchers and determined that a dispatcher's visual acuity is a critical component of a dispatcher's roles and responsibilities. In recent years, CAD systems have evolved significantly, and are heavily reliant on visual cues and prompts presented to the dispatcher requiring acknowledgement or action.

Historically, dispatchers utilized manual techniques such as paper train sheets with handwritten entries, time, distance, and communications to determine the status of and monitor trains, equipment, and employees in their purview. Dispatchers were required to interpret timetables, manuals, railroad standards, and basic track circuitry in their centers with minimal color variations on the older boards. Current systems provide visual alarms, electronic logging and status updates of equipment, track, and safety appliances. The visual references range from computer text in pop-ups to a plethora of color indications with sometimes minute variations and visual cues requiring immediate action or acknowledgement. Therefore, it is critical that today's dispatchers meet certain visual acuity standards and can distinguish between any variation of colors and text prompts presented.

After closely reviewing the safety-sensitive tasks performed by dispatchers, FRA has decided to retain the visual acuity standards proposed in the NPRM. Such visual acuity standards are consistent with requirements for other modal professionals throughout the transportation industry. In fact, air traffic controllers, who perform a similar function in the air travel industry that train dispatchers perform in the railroad industry, have even more strict visual acuity requirements than are included in this rule.

See

Federal Aviation Administration, Order 3930.3C,

available at https://www.faa.gov/documentLibrary/media/Order/Order_3930.3C_withCHG1.pdf.

With respect to APTA's concern that dispatchers who are nearsighted may prefer not to wear corrective lenses while reading written materials or a computer screen up close but would be prevented from doing so under paragraph (f), this concern is misplaced, as dispatchers in such a scenario have an available remedy. These dispatchers can seek an opinion from the railroad's medical examiner, as provided for by paragraph (f), stating they can safely perform the work of a dispatcher without corrective lenses.

FRA disagrees with IBEW's comment that this section provides too much discretion to railroad medical examiners. First, since whether an individual has the proper visual acuity to safely perform as a dispatcher is a medical determination, it is appropriate for the decision to be made by a medical professional. Second, a medical examiner only exercises discretion if a person does not satisfy the objective vision criteria in paragraph (c) of this section. Finally, railroad medical examiners have been handling these issues for over 30 years for locomotive engineer certification and for over 10 years for conductor certification. To date, FRA is unaware of any significant problems involving their exercise of this discretion.

Section 245.118 Hearing Acuity

FRA received two comments in support of the hearing acuity requirements in the proposed rule, two comments opposing these requirements, and one comment suggesting the hearing acuity requirements should be revised. SEPTA and NRC both voiced their support for this section. SEPTA described the hearing requirements in the proposed rule as “sufficient”

while NRC stated it agreed with this section as it appeared in the NPRM and noted that hearing is critical to the job of a dispatcher and the standards should be identical to those in parts 240 and 242.

FRA-2022-0019-0025.

FRA-2022-0019-0033.

In contrast, IBEW expressed its opposition to part 245 containing any hearing acuity requirements. The labor organization felt such requirements were unnecessary as a dispatcher's hearing could be corrected with hearing aids and/or volume controls. IBEW also stated it was concerned this section gave too much discretion to a railroad's medical examiner.

An individual commenter also opposed these requirements claiming that in his 18 years of railroading, he was not aware of any accident caused by poor hearing. He said this section imposes an unnecessary burden on dispatchers and railroads.

Lastly, AAR and ASLRRA's comments on revising § 245.117 also apply to this section.

FRA-2022-0019-0039.

FRA-2022-0019-0020.

In response to these comments, FRA closely reviewed the tasks performed by dispatchers and determined that a dispatcher's hearing acuity is critical to their job of protecting the safety of the railroad and its employees. A dispatcher must be able to communicate clearly with peer dispatchers and field personnel to ensure on-track safety has been properly established, making a dispatcher's ability to hear a vital part of these clear and concise communications. Dispatchers rely heavily on communications from field employees in the performance of their tasks and often have to discern between relevant information and distracting background noises.

Dispatchers communicate safety sensitive instructions to countless entities in their day-to-day functions. As an example, providing protection for field employees often requires listening to read backs and repeats of instructions. The accuracy and proper understanding of these communications is vital to railroad safety, and thus, FRA concludes that dispatchers should have to satisfy certain hearing acuity standards.

Furthermore, removing the hearing acuity requirements would introduce several potential issues. First, a person may need a hearing aid to safely work as a dispatcher, but without a regulation requiring them to wear such hearing aid, they could choose not to wear one for various reasons. Second, a hearing aid amplifies all sounds; however, if a person has lost the ability to discern sounds at certain frequencies, no hearing aid, no matter how sophisticated, can restore that ability. Thus, it would be possible for a dispatcher to miss critical information that was conveyed at a frequency that they had lost the ability to hear. Third, railroad radios are notoriously noisy making it difficult to detect critical information and ignore other sounds such as radio feedback.

Therefore, after close review of the safety-sensitive tasks performed by dispatchers, FRA decided to retain the hearing acuity standards proposed in

the NPRM. For the reasons explained in the Section-by-Section Analysis for § 245.117 above, FRA does not share IBEW's concern that this section gives too much discretion to a railroad medical examiner.

Section 245.119 Training Requirements

This section requires railroads to provide initial and periodic training to dispatchers. As an initial matter, FRA deleted paragraph (b) of this section in the NPRM. In the NPRM, paragraph (b) noted that a railroad's certification program must state whether the railroad elects to obtain authority for initially certifying a person as a dispatcher or to only recertify those persons who have been previously certified by other railroads. FRA removed this language from this section as it is duplicative of what is already required under § 245.107(b)(1)(i).

Several commenters requested that FRA incorporate more specific details into the requirements for this section. For example, ATDA and TTD submitted similar comments requesting FRA more clearly define a minimum standard training curriculum to include classroom instruction and training with field personnel. These labor organizations feel such training should entail time spent with roadway workers from signal and maintenance of way departments, train crews, and terminal personnel such as yardmasters and car inspectors, for prospective dispatchers to gain a proper understanding of the duties and responsibilities of these workers.

ATDA, IBEW, TTD, and SMART-TD all commented that FRA should require, in paragraph (c)(2) of this section in the final rule (paragraph (d)(2) in the proposed rule), a minimum of 160 hours of OJT for all candidates seeking initial certification. TTD, ATDA, and IBEW also contended that OJT should include requiring dispatchers to perform a physical, in-person review of a territory before they can become qualified on the territory. Their rationale is that an in-person review provides dispatchers with a better understanding of the territory that they will be dispatching over that cannot be achieved by other means such as maps, videos, and simulators. TTD and ATDA also believe physical reviews should be required once every two years for a dispatcher to maintain their qualification on a territory. An individual commenter made a similar suggestion, that a person should have a mandatory week of “road days” before they can qualify on a new territory, and they should have five road days per year to maintain their qualification on the territory.

FRA-2022-0019-0020.

After reviewing these comments, FRA acknowledges the commenters' concerns and suggestions and is taking this opportunity to clarify the requirements of this section. FRA agrees that recent industry trends have resulted in declining quality and/or quantity of training and testing, a concern FRA has voiced to the industry on multiple occasions including recent disapproval of conductor certification programs. These instances reveal that some railroads have misinterpreted the discretion provided to them in parts 240 and 242 as permission to submit certification programs that are sparse on details. Such railroads are mistaken as to what is required under parts 240 and 242, and FRA audits have highlighted the significant issues with these programs and underscored the critical need for railroads to provide detailed and comprehensive submissions.

While FRA believes that railroads should be provided some flexibility in their program design to address their specific operational risks and unique needs, FRA's review and approval process outlined in § 245.103 is meant to ensure that railroads do not abuse this discretion with respect to their dispatcher certification programs. This rule requires a railroad to document the details of its training and testing program, including a determination as to how the program will ensure that prospective dispatchers are able to safely perform their assigned duties. Specifically, § 245.107 mandates that each railroad submission include sufficient detail for FRA evaluation. FRA will disapprove programs that are vague or insufficiently detailed, in accordance with § 245.103(f)(2).

In addition, this section codifies rigorous training requirements for dispatchers to ensure safe operations. Railroads must develop programs that include comprehensive training and continuous education, with detailed documentation of the methods of dispatcher training, the level of proficiency, and the frequency of refresher training.

While every railroad is different and the training needed to be a dispatcher for a Class I railroad may vary significantly from what is needed to dispatch for a short line railroad, FRA will review each railroad's program and determine on a case-by-case basis whether the program contains sufficient OJT. Thus, in accordance with § 245.107(b)(4) and paragraph (c) of this section, the burden will be on the railroad to state how many hours of OJT is required in its training program and to justify why that amount of OJT is sufficient to certify that their dispatchers are adequately trained to safely perform their dispatching duties. Pursuant to § 245.103, FRA will then determine whether the railroad has provided enough detail and support for its position on how much OJT it will require. Likewise, with respect to in-person territory reviews, some railroads may have territories where such in-person reviews would be greatly beneficial to the trainee while other railroads have territories where such reviews would be superfluous. Regardless, railroads will have to provide enough detail in their programs to show that the training they are requiring satisfies the requirements of this part and will ensure that their certified dispatchers are sufficiently trained.

Paragraph (b) of this section (paragraph (c) in the proposed rule) allows for third parties to conduct a training program on behalf of the certifying railroad. NRC requested that this rule require any third party instructor to be certified and to “have met the same certification standards as the railroad for which he or she is delivering training.”

If a third party is overseeing the OJT portion of a railroad's training program, then any person the third party provides as a qualified instructor would have to be a certified dispatcher as required by § 245.7. However, FRA does not see a need to expand the certification requirement beyond qualified instructors, such as to classroom instructors. Furthermore, since NRC did not provide a supporting rationale for its position, FRA is unpersuaded to make any such change.

FRA-2022-0019-0033.

NRC also commented that it agrees with the approach FRA took to the training requirements in paragraph (c) of this section (paragraph (d) in the proposed rule), and it recommends that FRA issue a circular or appendix that assists the industry with meeting these minimum standards. FRA does not plan to issue a separate circular or appendix at this time because § 245.107 addresses NRC's concern. Section 245.107, which is derived from Appendix B to part 240 and Appendix B to part 242, provides railroads with more information on how to design and structure their programs. This includes a description of what information should be included in each section of the program. FRA has found through its experience with locomotive engineer and conductor certification

that issuing a separate circular or appendix is unnecessary as railroads can instead look to the appendices in parts 240 and 242 for guidance on how to satisfy the requirements of those rules. Thus, FRA does not see a need for issuing a separate circular or appendix with respect to dispatcher certification. However, FRA is revising paragraph (c)(2)(i) of this section to change the reference to an “employee” in the NPRM to a “person” in this final rule since not all dispatchers are employees of the certifying railroad.

FRA received several comments on paragraph (e)(2) (paragraph (f)(2) in the NPRM) which provided that a certification candidate who is demonstrating OJT proficiency may perform such tasks under the supervision of a person with at least one year of experience as a dispatcher. Some commenters, such as TTD, ATDA, IBEW, NRC, and SMART-TD, stated this requirement should be increased to two years of experience. NRC added that the person providing the supervision should have no safety-related incidents in the previous two years. In contrast, APTA and SEPTA think FRA should remove the “one year of experience” requirement altogether. They argue that it should be left to the railroad to determine the minimum requirements for a dispatcher to perform the supervision described in this paragraph, since each railroad is unique and has different dynamics within its workforce. SEPTA also noted that “[m]ost railroads are in transition and may have inexperienced dispatchers that may not have the railroad experience to sufficiently train a student on OJT.”

FRA-2022-0019-0025.

FRA has decided to revise this paragraph so that certification candidates may only perform OJT tasks under the direct onsite supervision of a qualified instructor. This also represents a change from the analogous provision in 49 CFR 242.119(e)(2) which allows candidates for conductor certification to perform OJT tasks under the supervision of a person with “the necessary operating experience.” In this rule, FRA wanted to provide railroads with more guidance about what would constitute “necessary dispatching experience” as the agency was concerned that the vagueness of such term could have negative safety implications. Thus, the proposed rule included a one year of experience requirement. However, after further consideration, FRA determined that the safety purposes of this rule would be best served if only qualified instructors were allowed to supervise OJT tasks. While a qualified instructor is not required to have two years of experience, many qualified instructors will have at least two years of experience and even those who do not, still must have demonstrated adequate knowledge and the necessary dispatching experience to effectively instruct in the field. Likewise, while FRA is not adopting NRC's suggestion that a person performing this supervision must not have any safety-related incidents in the previous two years, FRA believes that requiring that OJT tasks be supervised by a qualified instructor addresses NRC's concern about the safety record of the person doing the supervision. FRA disagrees with APTA and SEPTA that this requirement should be removed altogether. FRA thinks it is important to place restrictions on who can supervise certification candidates performing their OJT. Otherwise, a railroad could allow a dispatcher with very little experience (for example, two weeks on the job or even less) to supervise a dispatcher candidate during OJT. This would present a significant safety concern.

Finally, with respect to paragraph (h) of this section (paragraph (i) in the proposed rule) which addresses transfers of railroad ownership, NRC suggests that instead of saying that the acquiring company's dispatchers “may receive familiarization training” from the selling company, the rule should say they “will receive training from the selling company.”

Whether a selling company will provide familiarization training to the acquiring company's dispatchers is a decision that should be made between the two parties. If FRA were to make the permissive language in this paragraph mandatory, it would essentially be entangling itself in the contract negotiations between the two parties which is not FRA's role. FRA's main concern with respect to this issue is that the training is performed properly, not who performs the training. FRA does not see a compelling reason for mandating that the selling company provide this training and since NRC did not provide a rationale for this requested change, FRA is not adopting this suggestion.

FRA-2022-0019-0033.

NRC also contends paragraph (h) should apply when there is a change in the private operator of a commuter railroad. Since NRC did not provide a rationale for why such a change would be necessary or beneficial, FRA does not see a justification for making such change to the final rule. However, FRA notes that in situations involving a change in the operator of a commuter railroad, there is nothing in part 245 that would prohibit the prior operator from providing familiarization training to the new operator.

Section 245.120 Requirements for Territorial Qualification

This section explains the requirements for territorial qualifications. TTD and ATDA requested that this section be revised to require that a dispatcher have 80 hours of OJT on a territory before they can become qualified on that territory. The provided rationale for this proposal is that OJT is essential to ensuring dispatchers are properly trained on their territories. TTD, ATDA, and IBEW also commented that FRA should revise paragraph (c) of this section, which stated that to retain their qualification on a territory, a dispatcher could not be absent from that territory for more than 12 months. The unions believe this should be reduced to six months, as they contend that absences of six months or more lead to a “loss of familiarity with the specifics of a territory such as locations of crossing, wayside defect detectors, and emergency response access points.”

Additionally, these labor organizations requested that FRA set minimum OJT requirements for requalification on a territory, of at least 16 hours of OJT if a dispatcher is absent from a territory for 6-12 months; at least 24 hours of OJT if a dispatcher is absent from a territory for 12-24 months; and if a dispatcher is absent from a territory for 24 months or more, he or she should have to go through the same process as a dispatcher seeking their initial qualification on the territory.

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FRA is declining to adopt the suggested change by the labor organizations to require a minimum of 80 hours of OJT to become qualified on a territory for reasons similar to its decision not to add more specific requirements to § 245.119. Just as every railroad is different, every territory is different, and railroads, not FRA, are in the best position to determine what requirements must be met to become qualified on a particular territory. In certain situations, requiring 80 hours of OJT on a particular territory may be unnecessary. For example, some territories may be relatively small or uncomplex so requiring 80 hours of OJT would be excessive, especially for an experienced dispatcher. Therefore, FRA thinks it would be unwise to add such a requirement to this rule, especially since the labor organizations have not provided any data or analysis to support their position that a minimum of 80

hours of OJT is necessary to become qualified on a territory. Likewise, FRA is also not adopting the suggestion from the labor organizations that the rule set minimum amounts of OJT for a dispatcher to get requalified on a territory. FRA thinks these decisions should be left with the railroads and that this dispatcher certification system will work best if FRA creates the regulatory framework and the railroads have the discretion to determine how its dispatchers can become qualified on a territory within that framework. In addition, railroads are required to submit their dispatcher certification programs to FRA for approval. Therefore, FRA will evaluate railroad plans to provide OJT as part of their dispatcher certification programs on a railroad-by-railroad basis. This rule also requires railroads to provide a copy of the programs and the request for FRA approval to the president of each labor organization that represents the railroad's dispatchers and to all of the railroad's dispatchers that are subject to this part. Therefore, impacted labor unions and dispatchers who are not represented by a labor union will also have the opportunity to comment on the program.

FRA also received a comment from an individual requesting that this rule include restrictions on territory size and traffic. According to the commenter, technological advances have led railroads to “consolidate and expand territory sizes beyond what is manageable.”

The commenter expressed concern about more mistakes occurring on these large and busy territories especially among new, inexperienced dispatchers. Setting restrictions on the size of, and traffic on, a railroad's territories is beyond the scope of this rulemaking. Whether current railroad territory size and traffic is posing a significant safety threat is a subject that would require substantial review and analysis by FRA before proceeding with a rulemaking. Such analysis has not taken place, and thus, it would be improper for FRA to include any such restrictions in this rule.

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Section 245.121 Knowledge Testing

This section requires railroads to provide for the initial and periodic testing of dispatchers. Paragraph (b)(4) of this section lists the subjects that a railroad's test must cover to determine whether an individual has the requisite knowledge to be a certified dispatcher. Both TTD and ATDA recommended revising the language in proposed paragraph (b)(4)(iv) as they alleged it would allow railroads to test dispatchers and dispatcher candidates on the physical characteristics of territories that they have not received training on and have no familiarity with. In this final rule, FRA has removed the reference to territories the person “will be” working on and instead states the test must cover the physical characteristics of the territory or territories that the person is currently working on or is receiving training to become qualified on, to address the organizations' concern. FRA also added “or territories” to this paragraph to acknowledge that a test may cover more than one territory.

AAR and ASLRRA recommended that FRA revise paragraph (b)(6) of this section to allow for greater use of open reference books and other materials. The associations noted that “[r]ailroads currently train, teach, and encourage their employees to use reference materials in their daily activities. Railroad safety would be better served if FRA adopted the same approach for knowledge testing.”

FRA agrees that reference materials play an important role in the work dispatchers perform, however, no changes to this paragraph are needed to address the issue. The regulation allows for the use of reference materials if a person is being tested on their ability to use such materials. Whether a test question is testing a person's ability to use reference materials is a determination made by the railroad, and the railroad is given some flexibility on this issue. For example, if a test question involves a scenario where a dispatcher may consult with reference materials if faced with the situation in the field, paragraph (b)(6) gives the railroad the discretion to allow the person seeking certification to use reference materials. Therefore, a railroad could make a substantial portion of its test “open book.” However, FRA thinks some dispatching principles and concepts are so essential that they should be memorized by the dispatcher and not require reference materials. Thus, FRA sees a benefit to having at least a portion of these knowledge tests be “closed book.”

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FRA also received comments requesting that the agency establish minimum passing scores for tests given in association with a railroad's training program. ATDA and IBEW recommended that FRA set 80% as a passing score. NRC suggested that 100% be the passing score for the physical characteristics portion of the exam and 90% be the passing score for the rest of the exam. TTD did not opine on what a passing score should be, but stated FRA should set a standard passing score so there are not many instances where a person's test score would constitute a passing grade for one railroad, but a failing grade for another railroad.

Despite these comments, FRA declines to set a minimum passing score for knowledge testing. The railroads are in the best position to determine what is an appropriate passing score for the tests they administer since they are more familiar with their dispatching operations, operating rules, and the physical characteristics of their territories. Furthermore, it is unclear what safety benefit would derive from FRA setting a minimum passing score for railroads. If a railroad felt the passing score FRA set was too high, it could make easier test questions to increase the likelihood that individuals will pass. This could have a negative safety effect if railroads make their knowledge tests too easy because

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