# July 22, 2024 Certification of Dispatchers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-09957 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** May 21, 2024 - **Citation:** 89 FR 44766 ## Text 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. 1 FRA subsequently performed outreach with various stakeholders to compile a list of tasks performed by dispatchers. Upon review of this task list, FRA found that the vast majority of dispatcher tasks are critical to railroad safety with potentially catastrophic consequences if they are not performed properly. Certification addresses these safety concerns by creating minimum training standards, establishing safety records for dispatchers, and requiring certain safety and knowledge checks before a person can become certified. Given the safety critical role of dispatchers in facilitating safe railroad operations (which includes the coordination of emergency services in response to accidents and incidents), FRA determined that the number and rate of accidents and incidents would be expected to decrease and railroad safety would be expected to improve if dispatchers were required to satisfy certain standards and be certified. 1 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.' ” 2 2 E.E.O.C. v. Arabian American Oil Co., 499 U.S. 244, 248 (1991) ( quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 284-85 (1949)). 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 $0.8 million discounted at 7 percent. The following table shows the estimated 10-year costs of the final rule. Total 10-Year Discounted Costs [2020 dollars] Category Present value 7% ($) Present value 3% ($) Annualized 7% ($) Annualized 3% ($) Development of Certification Program 982,914 1,010,875 139,945 118,505 Certification Eligibility Requirements 55,345 61,945 7,880 7,262 Recertification Eligibility Requirements 65,831 83,877 9,373 9,833 Training 707,334 812,820 100,708 95,287 Knowledge Testing 233,988 281,581 33,315 33,010 Vision and Hearing 1,586,913 1,909,692 225,941 223,874 Monitoring Operational Performance 256,017 305,956 36,451 35,867 Railroad Oversight Responsibilities 267,530 326,714 38,090 38,301 Certification Card 26,832 32,289 3,820 3,785 Petitions and Hearings 38,667 46,209 5,505 5,417 Government Administrative Cost 1,192,651 1,342,668 169,807 157,402 Total 5,414,022 6,214,626 770,835 728,544 Legal Authority Pursuant to the RSIA, the Secretary was required to submit a report to Congress addressing whether certification of certain crafts or classes of employees, including dispatchers, was necessary to reduce the number and rate of accidents and incidents or to improve railroad safety. 3 If the Secretary determined it was necessary to require the certification of certain crafts or classes of employees to reduce the number and rate of accidents and incidents or to improve railroad safety, section 402 of the RSIA stated the Secretary may prescribe such regulations. The Secretary delegated this authority to the Federal Railroad Administrator. 4 In response to the RSIA, the Secretary submitted a report to Congress on November 4, 2015, 5 stating that, based on FRA's preliminary research, dispatchers and signal employees were potentially the most viable candidate railroad crafts for certification. Based on the analysis in Section II below, the Federal Railroad Administrator has determined that it is necessary to require the certification of railroad dispatchers to improve railroad safety. 3 See also 49 U.S.C. 20103 (providing FRA's general authority to “prescribe regulations and issue orders for every area of railroad safety”). 4 49 CFR 1.89. 5 FRA-2022-0019-0001. II. Background A. Roles and Responsibilities of Dispatchers Railroad dispatchers play an integral role in railroad safety and operations. They are responsible for allocating and assigning track use, ensuring that trains are routed safely and efficiently, and ensuring the safety of personnel working on and around railroad track. These are cognitively complex tasks that require integrating multiple sources of information in a dynamic context ( e.g., information from train schedules, computer displays of current track state, radio communication with various personnel such as locomotive engineers, and in some cases, projecting into the future ( e.g., estimating when the train will arrive)) and balancing multiple demands placed on track use ( e.g., balancing the need for maintenance-of-way workers to have time to work on the track with the need to make sure that the track will be clear when a train is anticipated to arrive). Some of the main tasks 6 dispatchers perform involve: operation monitoring (monitoring a computerized train dispatching model board); information collection and data entry (collecting information about slow orders and any blocking protection required by railroad workers on the track); communication (playing an important role in roadway worker planning and protection); emergency response (working to limit the damage to human life and property during an emergency); and knowledge of territory (knowing the specific characteristics of the territory assigned to them). 6 As part of a contract with FRA, Foster-Miller, Inc., conducted research to develop a tool for assessing railroad dispatcher task load. Task load is defined as the average time demanded of a dispatcher in carrying out all job-related tasks at a particular desk, over a specified period of time ( e.g., one shift). Stephen J. Reinach, Toward the Development of a Performance Model of Railroad Dispatching 2042-46 (Proceedings of the Human Factors and Ergonomics Society 50th Annual Meeting, 2006). A copy of this report can be found at 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. 7 7 Railroad Accident Report: Rear-end Collision of Amtrak Passenger Train 94, the Colonial and Consolidated Rail Corporation Freight Train ENS-121, on the Northeast Corridor, Chase, Maryland, January 4, 1987 144 (Nat'l Transp. Safety Bd. 1988). Following this accident, Congress passed the Rail Safety Improvement Act of 1988, Public Law 100-342, 4, 102 Stat. 624, 625 (1988), which instructed the Secretary to “issue such rules, regulations, orders, and standards as may be necessary to establish a program requiring the licensing or certification of any operator of a locomotive, including any locomotive engineer.” On June 19, 1991, FRA published a final rule establishing a certification system for locomotive engineers and requiring railroads to ensure that they only certify individuals who met minimum qualification standards. 8 FRA prescribed a certification system where the railroads issue the certificates as opposed to a government-run licensing system. This final rule, published in 49 CFR part 240 (part 240), created certification requirements for engineers that addressed various areas, including vision and hearing acuity; training, knowledge, performance skills; and prior safety conduct. 8 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. 9 The conductor certification rule, published in 49 CFR part 242 (part 242), was largely modeled after part 240 with some deviations based on the different job classifications. Part 242 also included some organizational improvements which made the regulation more streamlined than part 240. 9 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. 10 The report noted that 49 CFR parts 240 and 242 require a five-year alcohol and drug background check as well as disqualification of employees for specified alcohol and drug test violations and for refusing such testing. If such requirements were included in a dispatcher certification program, it could help prevent dispatchers with active substance abuse disorders from “job hopping” from one employer to another and reduce the safety risk of having individuals with untreated substance abuse disorders working as dispatchers. 10 As noted in the NPRM, testing results submitted to FRA in 2020 and 2021 showed a 0.94-percent random violation rate (drug and alcohol positives and refusals) and a 0.85-percent pre-employment violation rate for dispatch employees compared to a 0.81-percent random violation rate and a 0.79-percent pre-employment violation rate for signal employees; and a 0.53-percent random positive drug testing rate and a 1.06-percent pre-employment positive drug testing rate for train and engine service employees. Testing results submitted to FRA in 2022 showed a 0.86-percent random violation rate (drug and alcohol positives and refusals) rate and a 5.45-percent pre-employment violation rate for dispatch employees compared to a 1.10-percent random violation rate and a 0.46-percent pre-employment violation rate for signal employees; and a 0.69-percent random positive drug testing rate and a 1.48-percent pre-employment positive drug testing rate for train and engine service employees. Another important factor in the report was the complicated nature of the work dispatchers perform to ensure the safety and efficiency of railroad operations. Dispatchers are responsible for allocating and assigning main track use to trains from their own employer as well as trains from other railroads. They are also responsible for the safety of roadway workers working on or near track. 11 The report summarized the demanding nature of dispatching by stating that it entails performing cognitively complex tasks that require rapid decision making, projecting into the future, and balancing numerous demands on track use. 11 Train dispatchers bear a substantial responsibility for the safety of roadway workers who perform maintenance and repair operations on or near railroad tracks. They engage in detailed coordination with work crews to establish protected work zones and regulate train movements accordingly. Dispatchers issue authorizations granting roadway workers exclusive access to tracks within designated zones and they maintain continuous communication with workers, providing updates on train locations and potential risks. Additionally, the report cited a “great amount of turnover” in the nationwide train dispatching workforce, resulting in a less experienced workforce, as further support for requiring certification. Finally, the report found that, except for train and engine crews, no function of railroad operations is more critical to safety than dispatching. The accumulation of these factors led to the report's conclusion that dispatchers, along with signal repair employees, were the most viable candidates for certification due to their safety-critical roles. E. RSAC Working Group In March 1996, FRA established the Railroad Safety Advisory Committee (RSAC), which provides a forum for collaborative analysis to inform FRA's rulemaking and program development activities. RSAC includes representatives from all of the agency's major stakeholder groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. When appropriate, FRA assigns a task to RSAC, and after consideration and debate, RSAC may accept or reject the task. If accepted, RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. On April 21, 2017, a task statement regarding certification of dispatchers was presented to RSAC by email, but no vote was taken. On April 24, 2019, RSAC accepted a task (No. 19-02) entitled “Certification of Train Dispatchers.” 12 The purpose of the task was “[t]o consider whether rail safety would be enhanced by developing guidance, voluntary standards, and/or draft regulatory language for the certification of train dispatchers.” The task called for the RSAC Train Dispatcher Certification Working Group (Working Group) to perform the following: 12 At the same meeting, RSAC also accepted a task (No. 19-03) titled “Certification of Railroad Signal Employees.” A separate RSAC Working Group was formed to address this task, and FRA plans to issue a related final rule that would establish certification requirements for signal employees. —Review critical tasks performed by dispatching employees for safe train operations, particularly with the introduction of PTC technology. —Review training, duration, content, and methodology for new hire and continuing education. —Review background checks designed to prevent dispatching employees with active substance abuse disorders from “job-hopping” from one employer to another. The task statement also asked the Working Group to address the following issues, if appropriate: —What requirements for training and experience are appropriate? —What classifications of dispatchers should be recognized, if any? —To what extent do existing requirements and procedures for 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. 13 13 FRA-2022-0019-0002. On March 10, 2022, FRA staff had a follow-up conversation with ATDA and IBEW to receive information on the types of errors and operating practice violations that should result in a railroad revoking a dispatcher's certification. During this conversation, which was conducted in videoconference format, FRA heard that a dispatcher's certification should not be revoked during an operations test, and that a person training a dispatcher should not have their certification revoked if a person they are training commits a revocable offense, as long as the trainer took appropriate action. However, a list of prospective revocable events was not generated during this meeting. G. Notice of Proposed Rulemaking On May 31, 2023, FRA published the Notice of Proposed Rulemaking (NPRM) proposing the establishment of dispatcher certification and provided commenters 60 days to file comments. 14 On July 5, 2023, FRA extended the comment period by an additional 30 days. 15 On August 22, 2023, FRA extended the comment period again, this time by an additional 15 days, until September 14, 2023. 16 14 88 FR 35574 (May 31, 2023). 15 88 FR 42907 (July 5, 2023). 16 88 FR 57043 (Aug. 22, 2023). III. Discussion of Comments and FRA's Conclusions A. Overview of Comments FRA received a total of 33 comments from railroads, labor organizations, trade associations, a consulting company, and individual commenters. Of the commenters who stated a clear position either in support of or in opposition to this rule, nine commenters expressed their support for this rule and seven commenters stated their opposition to this rule. The order of the topics or comments discussed in this document is not intended to reflect the significance of the comment raised or the standing of the commenter. Additionally, this summary of comments is intended to provide both a general understanding of the overall scope and themes raised by the commenters, as well as give some specific descriptions to provide context. Not every comment is described in this summary. Comments addressing specific sections of this rule are discussed in the Section-by-Section Analysis. Comments regarding the proposed RIA are addressed in the RIA to the final rule. B. Comments Supporting the NPRM FRA received several comments that were generally supportive of requiring dispatcher certification. These comments came from labor organizations, a consulting company, and individual commenters. 1. Labor Organizations and Consulting Company In stating its support for the proposed rule, the Transportation Trades Department, AFL-CIO (TTD) asserted that safety improvements have occurred as a result of locomotive engineer and conductor certification. TTD also noted that PTC and other technological advancements have increased the complexity of train dispatching, but the training standards applied across railroads are not adequately meeting this challenge. TTD stated that Class I railroads in particular “are not providing a sufficient quality or amount of training for new train dispatchers to learn how to do their jobs” and the end result is that many new dispatchers are having to train themselves. 17 17 FRA-2022-0019-0037. The International Association of Sheet Metal, Air, Rail and Transportation Workers Transportation Division (SMART-TD) also referenced the success of locomotive engineer and conductor certification in its comment. Specifically, it noted that certification has had a positive effect on how engineers and conductors view continuing education. According to SMART-TD, what was previously considered an inconvenience by crew members is now taken seriously as a necessity to maintain their certification status. Additionally, this time spent focusing on continuing education has helped ensure crew members perform their duties as safely as possible. 18 18 FRA-2022-0019-0035. In ATDA's comment, the union acknowledged its long support for dispatcher certification. In doing so, the union noted the safety-critical nature of the dispatcher position that has only increased in recent years with the consolidation of railroad operations, the elimination of certain positions, and expanding use of new technologies such as PTC and wayside equipment defect detectors. These factors have led to dispatchers being assigned larger territories than ever before. ATDA has noted that, despite the increased complexity of the train dispatcher position, there has been “a dramatic de-emphasis by carriers on the importance of these roles and the fundamental training and qualifications necessary to carry out the required duties and responsibilities in a safe and efficient manner.” 19 ATDA indicated new dispatchers typically receive abbreviated training and are rushed into their positions due to staffing shortages. According to ATDA, “[n]owhere has the inadequacy of proper training and qualifications been more apparent than in the lack of value placed on territory specific qualifications or knowledge of the physical characteristics of the territory the dispatcher is responsible for.” 20 This was shown by a recent FRA audit of NS that found that NS dispatchers were not familiar with the locations and types of wayside defect detectors on their territory and that NS's dispatcher training program did not have any territory-specific familiarization requirements. 21 ATDA stated this problem is not confined to NS, as it has received many reports from its members of having to work on territories they were either not trained on or had not worked on in years. ATDA asserts that dispatcher certification will address these concerns by ensuring that railroads place a greater emphasis on training dispatchers especially with respect to physical characteristics knowledge and familiarization. 19 FRA-2022-0019-0038. 20 FRA-2022-0019-0038. 21 FRA, Norfolk Southern Safety Assessment (2023), available at 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. 22 IBEW continued the theme of concern expressed by other labor organizations about the current state of dispatcher training. IBEW mentioned that dispatchers perform safety-sensitive work, and an untrained or undertrained dispatcher is more prone to commit an error which could have grave safety implications. IBEW stated that this rule would provide administrative oversight to dispatchers, to make sure they are trained effectively, practically, and consistently across the industry. In doing so, IBEW contends this rule will provide for a safer rail network. 23 Network Rail Consulting (NRC) commented that it agreed with the approach FRA took for this rule and it welcomed FRA's development of minimum standards for training, qualification, and testing of dispatchers. 24 22 FRA-2022-0019-0029. 23 FRA-2022-0019-0039. 24 FRA-2022-0019-0033. 2. Individual Commenters One commenter stated that certification will ensure the integrity of train dispatching as a profession, and that dispatchers meet a high standard of knowledge and performance through the training requirements in this rule. This commenter also suggested this rule will encourage the mentorship of younger, less experienced dispatchers by more experienced dispatchers. 25 Another commenter expressed their support for this rule calling dispatcher certification an “excellent idea” that will help prevent accidents like the 2016 accident in Germany where 11 people died and 80 people were injured when two trains collided because a dispatcher had been playing a game on their cell phone. 26 One individual supported certification because it enhances public safety by ensuring “that dispatchers are competent in their role and function through standard hiring practices, periodic evaluations, health and safety requirements and exhibited performance.” 27 This is particularly important given that dispatching is a complex job that is “multi-faceted, mentally demanding, and challenging to perform.” 28 Another commenter simply stated that dispatchers should be certified. 29 25 FRA-2022-0019-0007. 26 FRA-2022-0019-0032. 27 FRA-2022-0019-0034. 28 FRA-2022-0019-0034. 29 FRA-2022-0019-0011. FRA's Response FRA appreciates the comments received from labor organizations, NRC, and individuals expressing their support for this rule. These comments largely corroborate FRA's background, provided above and in the NPRM, describing the issues dispatchers are facing in the field and why dispatcher certification would be beneficial to railroad safety. In particular, the increasing complexities of railroad dispatching combined with the expressed concerns about the current state of dispatcher training warrant greater oversight. By placing more stringent requirements on the training dispatchers receive and by ensuring that dispatchers are properly qualified on the territories they work on, this rule promotes railroad safety. Also, as TTD and SMART-TD specifically noted, the safety benefits of certification have already been established through the success of locomotive engineer and conductor certification. Therefore, FRA agrees with these commenters that this rule will be beneficial to rail safety. C. Comments Opposing the NPRM FRA received various comments from trade associations, a policy center, and individuals opposing the NPRM. These comments address a range of categories that are discussed below. 1. Comments Alleging That There Is No Safety Justification for This Rule as the Cost-Benefit Analysis Does Not Support Requiring Dispatcher Certification FRA received several comments related to the costs and benefits of the proposed rule. Comments were received from AAR, ASLRRA, and the Washington Legal Foundation (WLF) who each commented that the costs of this rule outweighed the benefits. A more detailed response to these comments is provided in the RIA. An individual commenter added that railroad dispatchers are already highly qualified and there is no need for additional costly regulations as he only experienced two incidents in his career where a dispatcher made a mistake that resulted in an investigation. 30 30 FRA-2022-0019-0006. AAR and ASLRRA commented on several of FRA's cost estimates for provisions of the rule. ASLRRA commented that FRA's estimates for the time to develop the certification programs were low. They suggested that it would take 550 hours for ASLRRA to develop a model program and 19 hours per small railroad to implement. For unannounced compliance tests (monitoring operational performance), AAR and ASLRRA estimated that the time per supervisor would be much more than the two hours per year that FRA estimated. Regarding dispute resolution hearings, AAR and ASLRRA noted that the cost assessments for hearings are underestimated, and the actual cost would amount to 22 percent of the total estimated costs of the proposed rule. AAR and ASLRRA also alleged that FRA underestimated wage-related costs by using the 2020 railroad wage rates which “do not take into account the 24% wage increase that railroad employees received as part of the 2022 collective bargaining process or the 10.7% increase in Federal government employee pay rates.” 31 31 FRA-2022-0019-0041. ASLRRA stated that the rule fails to assess how this rule would impact short lines and failed to include an Initial Regulatory Flexibility Assessment which discussed the burden on small entities. ASLRRA also stated that the rule would have a significant economic impact on a substantial number of small entities. FRA also received comments pertaining to the estimated benefits from the RIA associated with the proposed rule. AAR and ASLRRA commented that most of the accidents FRA claimed dispatchers may have contributed to in the NPRM RIA either had no dispatcher involvement or were not caused by dispatcher error resulting in an overestimate of the benefit assessment. AAR and ASLRRA alleged in their joint comment that there was no safety justification for this rulemaking. In support of this contention, they claimed that “[t]he last decade was the safest on record for railroads.” 32 The associations cited to various statistics showing a reduction in rail accidents since 2000. 32 FRA-2022-0019-0041. Lastly, APTA stated in their comment that FRA failed to account for additional pay that dispatchers may receive once certified. FRA's Response FRA received several comments regarding cost estimates of certain provisions of the rule. Based on ASLRRA's comment regarding the time to develop a certification program, FRA has revised the estimated time for ASLRRA to develop a model program to 550 hours and increased the estimate for small railroads to implement from 8 hours to 15 hours. FRA has now only accounted for one template program produced by ASLRRA. Holding companies will likely use the template program developed by ASLRRA, instead of producing their own template, as discussed in the RIA associated with the NPRM. In addition, FRA has reassessed the costs for petitions and hearings based on comments from AAR and ASLRRA. The categories of employees have been revised and estimates have been increased. FRA has determined these estimates by looking at the number of petitions and hearings associated with the conductor and engineer certification programs. This baseline was then adjusted for the population size of dispatcher employment. Additionally, government costs for petitions and hearings have been increased, and now include more categories of employees involved in the process. With respect to AAR and ASLRRA's comment that the time estimate for supervisors on unannounced compliance tests is too low, FRA is maintaining its estimate as supervisors should already be doing this as part of their regular duties, and to comply with other FRA regulations. The two hours per year is the additional time for paperwork or to organize this monitoring throughout the year. Since the supervisor currently does this monitoring and the dispatcher will be performing their normal duties, no additional time will be required due to this regulation. In response to AAR and ASLRRA's comments on the 2020 wage rates used in the NPRM, FRA notes that the wage rates used during NPRM drafting were the most recent available data, as provided by the Surface Transportation Board's wage data series and General Schedule pay scales. Regarding ASLRRA's comment on an Initial Regulatory Flexibility Assessment, FRA, in the proposed rule, conducted an Initial Regulatory Flexibility Assessment and estimated the percentage of average annual revenue that the rule would impose on small entities. FRA estimated that 140 railroads would be impacted by this regulation, which may be considered a substantial number, but the impact will not be significant. As stated in the Final Regulatory Flexibility Assessment and Certification, in the final rule, FRA has estimated the costs to be only 0.02% of average annual revenue for Class III railroads. Therefore, FRA is certifying that this final rule will not have a significant economic impact on a substantial number of small entities. On the issue of FRA's estimate of benefits, FRA has decreased the number of accidents/incidents from ten (in the NPRM RIA) to one accident/incident under the “May Have Contributed” category in the RIA associated with this final rule based on the comments received from AAR and ASLRRA. Turning to the contention from AAR and ASLRRA that there is no safety justification for this rule, FRA disagrees with the premise that because railroad safety has improved over the last 20 years, the agency does not need to take actions that could further improve safety. Moreover, the associations neglected to mention in their comment that one of the changes in the railroad industry over the past few decades has been the introduction of certification requirements. The locomotive engineer certification requirements in part 240 went into effect in 1991, 33 and the conductor certification requirements in part 242 became effective just over a decade ago in 2012. 34 Thus, it stands to reason that certification has been one of the factors that has improved railroad safety in recent decades and instituting such requirements for dispatchers could lead to similar improvements in the future. 33 56 FR 28227, 28228 (June 19, 1991). 34 76 FR 69802 (Nov. 9, 2011). Finally, in response to APTA's comment on certification pay, FRA does not think that pay will increase solely due to certification. Salary negotiations are based on many factors and are typically long-term agreements that would not be impacted by one individual regulation. 2. Comments Relating to RSIA Authority In their joint comments on the proposed rule, AAR and ASLRRA challenge FRA's assertion that section 402 of the RSIA authorized the Secretary to prescribe regulations requiring the certification of dispatchers. AAR and ASLRRA assert that Congress only authorized DOT to issue regulations requiring certification if the Secretary determined in a report to Congress that regulations are “necessary to reduce the number and rate of accidents and incidents or to improve railroad safety.” 35 AAR and ASLRRA contend the Secretary failed to make such a determination in the 2015 report to Congress. 35 Rail Safety Improvement Act of 2008, Public Law 110-432, section 402, 122 Stat. 4848, 4884 (2008). FRA's Response While section 402 of the RSIA required the Secretary to issue a report to Congress “about whether the certification of certain crafts or classes of railroad carrier or railroad carrier contractor or subcontractor employees is necessary to reduce the number and rate of accidents and incidents or to improve railroad safety,” it did not require the Secretary to make an official determination in this report that the issuance of dispatcher certification regulations was necessary to reduce the number and rate of accidents and incidents or to improve railroad safety, as a necessary precondition to the initiation of this rulemaking. Section 402 of the RSIA authorizes the Secretary (and by delegation, FRA) to prescribe regulations requiring the certification of certain crafts or classes of railroad carrier employees (or railroad carrier contractor or subcontractor employees) “pursuant to” the report to Congress that was required by section 402(b) of the RSIA. The phrase, “pursuant to,” is defined to mean “in a way that agrees with or follows (something).” 36 Thus, in section 402 of the RSIA, Congress authorized FRA to prescribe regulations that are consistent with the 2015 report to Congress. In the 2015 report, the Secretary stated that dispatchers were potentially the most viable candidates for certification due to the complex safety-critical work they perform and the high turnover in the dispatching force which was contributing to a less experienced workforce. The report also noted that dispatcher certification could improve safety by preventing individuals with active substance abuse disorders from working as dispatchers. 37 Based on the report's findings and the agency's outreach to stakeholders, 38 FRA determined that the number and rate of accidents and incidents would be expected to decrease and railroad safety would be expected to improve if it required certification of dispatchers. 36 www.britannica.com. 37 FRA-2022-0019-0001. 38 See Section II.F for a discussion of FRA's outreach to stakeholders. Moreover, FRA notes that it has broad authority to “prescribe regulations and issue orders for every area of railroad safety,” including this regulation. 39 39 49 U.S.C. 20103(a). The Secretary has delegated this authority to the Federal Railroad Administrator. 49 CFR 1.89. 3. Comments Stating That Contractors and Subcontractors Should Be Responsible for Certifying Their Own Employees In AAR and ASLRRA's joint comment, they state that contractors should be responsible for certifying their own employees, as they are in the best position to implement and manage a certification program of their employees, and other parts of FRA's regulations allow for contractors to have their own programs. They further note that dispatching is highly specialized work and that many short line railroads do not have the requisite expertise to oversee a dispatcher certification program. They also contend it would be “an inefficient waste of resources for dozens of railroads to certify the same individual in any given period.” 40 Lastly, AAR and ASLRRA state that “[r]ailroads are equally incentivized to ensure safety of dispatcher operations no matter which party is responsible for implementing and managing the dispatcher certification program.” 41 40 FRA-2022-0019-0041. 41 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. 42 42 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. 43 Atlantic Railways submitted a comment asking whether a dispatch center that dispatches for several railroads can create a model program that can be adopted by all the railroads that use that dispatch center and whether such a model program has been proposed. 44 43 FRA-2022-0019-0008. 44 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. 45 Instead, FRA cited to a decrease in the number of dispatchers which has caused an increase in the size of the territories dispatchers are responsible for, as support for its assertion; a point that AAR and ALSRRA do not dispute. 45 88 FR 35574, 35576 (May 31, 2023). AAR and ASLRRA also disagree with FRA's characterization that PTC has made dispatching more complex. They argue that it has made dispatching easier because PTC serves as a back-up system to prevent human factor accidents. FRA agrees that PTC has improved railroad safety, but that does not mean it has made dispatching easier. In recent years, dispatchers have had to learn the complexities of implementing numerous new technologies that have been introduced into the industry such as PTC. Today's dispatcher is in a constant state of learning based on the rapid evolution of technologies and processes which makes the dispatcher's job more challenging even if the end result is a safer railroad network. 6. Comments Asserting That the Rule Is Duplicative of Parts 243, 270, and 271 AAR and ASLRRA contend that the gaps in FRA's regulations that this rule is trying to fill are either non-existent or immaterial. They argue that by adding these new certification requirements, FRA is harming railroad safety “by causing confusion and diverting resources from higher priority safety risks.” 46 They further state that there is significant overlap between this rule and part 243 and that in the NPRM, FRA incorrectly stated that part 243 does not require dispatchers to undergo a performance skill evaluation conducted by a qualified instructor. They cite to 49 CFR 243.201(c)(2) as evidence that performance skill evaluations are required under part 243 to demonstrate on-the-job training (OJT) proficiency. They also note that experienced employees are required to undergo refresher training in accordance with 49 CFR 243.201(e). 46 FRA-2022-0019-0041. With respect to the System Safety Program (SSP)/Risk Reduction Program (RRP) requirements in 49 CFR parts 270 and 271 (parts 270 and 271), AAR and ASLRRA take the position that requiring dispatcher certification casts aside the risk analysis performed under parts 270 and 271 and could lead to railroads focusing on lower priority risks associated with dispatchers. In response to FRA's assertion that not all railroads have to comply with parts 270 and 271, they allege that the SSP/RRP requirements apply to more than 83% of the line-haul mileage and 95% of the workers in the industry, making this distinction immaterial. FRA's Response As an initial matter, AAR and ASLRRA's narrative that this rule is duplicative of parts 243, 270, and 271 appears to be contradicted by congressional direction. As they note in their joint comment, FRA issued the training regulations in part 243, the SSP regulations in part 270, and the RRP regulations in part 271 because of a statutory mandate in the RSIA. 47 However, in the same law, Congress explicitly permitted requiring the certification of certain crafts if the Secretary determined it was necessary to improve railroad safety. 48 Had Congress determined that certification requirements were duplicative of what was already mandated by the RSIA, it would not have required the Secretary to study whether other crafts or classes of employees could benefit from certification, or given the Secretary the statutory authority to issue additional certification regulations. 47 Rail Safety Improvement Act of 2008, Public Law 110-432, sections 103, 109, 401(a), 122 Stat. 4848, 4853-56, 4866-67, 4883 (2008). 48 Rail Safety Improvement Act of 2008, Public Law 110-432, section 402, 122 Stat. 4848, 4884 (2008). Turning to any overlap between this rule and part 243, FRA stands by its position proffered in the NPRM that this rule complements, not duplicates, part 243. FRA concedes that the NPRM statement that part 243 does not require dispatchers to undergo performance skill evaluations is incorrect. However, these skill evaluations required under part 243 only apply to newly hired employees or persons who have been assigned a new safety-related task. Part 245 builds off the initial performance skill evaluations required in part 243 by mandating that dispatchers also receive an unannounced compliance test each calendar year to ensure that dispatchers continue to safely perform their duties after their initial certification. Part 243 has no such continuing compliance testing requirement. While 49 CFR 243.205 requires employers to perform periodic oversight tests and inspections to determine whether their employees are complying with Federal railroad safety laws and regulations, the rule does not require that all employees receive such tests and inspections. In fact, under part 243, an employee could work for decades without being tested 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, 49 thus even if a railroad identifies aspects of dispatching as a risk, the railroad may not implement any mitigation efforts to reduce that risk if it determines other risks are higher priorities. Given this possibility, it is unclear how part 245 can be viewed as duplicative of parts 270 and 271. Moreover, FRA disputes the assertion from the associations that this rule casts aside the risk analysis railroads are required to perform under the parts 270 and 271. Nothing in this rule changes a railroad's responsibilities under those rules. They can continue to perform the risk analysis and the necessary mitigations to comply with parts 270 and 271 while also implementing a dispatcher certification program. 49 See e.g., 49 CFR 270.5 (definition of “risk-based hazard management”) and 271.103(b)(3). In conclusion, FRA does not see this new rule as duplicative or a hindrance to other existing regulations. As stated in the 2015 report to Congress, the purpose of certification is to document and verify that the holder of the certificate has achieved certain training and proficiency and to create a record of safety compliance infractions that can be reviewed when hiring experienced individuals. While developing this rule, FRA has been mindful of other regulations that may touch upon topics covered in this rule, including FRA's training, qualification, and oversight regulations in part 243; SSPs and RRPs in parts 270 and 271; and fatigue risk management programs in parts 270 and 271. However, FRA finds that this rule would complement, rather than duplicate, those regulations. D. Miscellaneous Comments FRA received a couple of comments that raised miscellaneous issues. Some commenters felt that FRA should require that certain programs be certified either in addition to or instead of dispatchers. One commenter listed Unified Train Control System, Movement Planner, Trip Optimizer, and PTC as programs that should have to be certified. 50 Another commenter added that many of the errors that occur in the dispatching field are due to failures in technology, yet there are no requirements “for such programs to be monitored, certified, and overseen to ensure they aren't providing inaccurate information to the train dispatcher.” 51 FRA appreciates these comments and acknowledges that this is an issue that may warrant consideration by FRA in the future. However, requiring that certain programs be certified is beyond the scope of this rulemaking. 50 FRA-2022-0019-0010. 51 FRA-2022-0019-0015. One individual suggested that screening dispatchers for diabetes had merit, but they also expressed concern that dispatchers would be held out of service for failing a physical. 52 This commenter did not elaborate on why dispatchers should be screened for diabetes. Since FRA is unaware of any reason why a person's diabetes diagnosis would affect their ability to safely perform the job of a dispatcher, FRA sees no reason to add such a requirement to this rule. 52 FRA-2022-0019-0020. 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.” 53 FRA agrees with the labor organizations that this proposed revision is an improvement on the NPRM definition, as it more accurately reflects what FRA is trying to convey. FRA therefore adopts this change in the final rule. 53 FRA-2022-0019-0038. AAR and ASLRRA submitted a comment requesting that FRA clarify that the definition of “dispatch” only applies to persons covered by the definition of “dispatching service employee” found in 49 U.S.C. 21101(2), and it does not apply to persons performing de minimis dispatching functions. In particular, AAR and ASLRRA wanted to ensure the definition did not apply to positions such as bridge tenders, tower operators, control operators, and yardmasters who have traditionally not been treated as dispatchers, but who sometimes perform de minimis dispatching functions. They also expressed concern that FRA was attempting to include certain roadway workers in the definition of “dispatch” without a valid safety justification. They contend that expanding the definition would require railroads to alter their collective bargaining agreements and “would create an expensive, unworkable administrative mess.” 54 Lastly, AAR and ASLRRA discussed back-office employees who manage and analyze data that is used by dispatchers. They stated that there was no basis for FRA to expand the definition of “dispatch” to these employees. An individual commenter also sought clarification from FRA on what type of work would require certification under this rule. Specifically, would the definition of “dispatch” apply to “Terminal/Supervisors” and trainmasters. 55 Another commenter asked whether it was a person's job title that determined whether they had to be certified or did it depend on the territory they worked on. 56 54 FRA-2022-0019-0041. 55 FRA-2022-0019-0023. 56 FRA-2022-0019-0012. As a general rule, FRA did not intend for this rule to apply to yardmasters, bridge tenders, tower operators, control operators, terminal supervisors, trainmasters, roadway workers, or back-office employees. FRA believes the vast majority of workers with these titles will be excluded from the definition of “dispatch” as it appears in this final rule. As the commenters expressed, these workers typically would not be encompassed in the definition of “dispatch” because either: (1) they do not meet the definition of a “dispatching service employee” as defined by 49 U.S.C. 21101(2); or (2) paragraph (2) of this definition applies to the work they perform. Paragraph (2) of this definition excludes from the definition of “dispatch” actions of personnel in the field: (i) effecting implementation of a written or verbal authority or permission for a railroad operation, including an authority for working limits granted to a roadway worker; 57 (ii) operating a function of a signal system designed for use by those personnel; or (iii) sorting and grouping rail cars inside a railroad yard to assemble or disassemble a train. 57 In this final rule, FRA revised paragraph (2)(i) of this definition to remove a redundancy that appeared in the NPRM, but the substance of the definition is unchanged. While most workers with the job titles listed above will be excluded from this rule under paragraph (2) or because they do not meet the definition of “dispatching service employee” in 49 U.S.C. 21101(2), a person's job title is irrelevant to the determination of whether they must be certified under this rule. Instead, it is the work function being performed that determines whether an individual must be certified. For example, a person could have the job title of “yardmaster” but if they perform functions that meet the definition of “dispatch” in this section, they would have to be certified despite their job title. The American Association of Nurse Practitioners (AANP) submitted a comment on the definition of “medical examiner” in the proposed rule. Noting that approximately 70% of all nurse practitioner graduates deliver primary care, AANP requested that FRA revise the definition of “medical examiner” to include nurse practitioners and thereby authorize them to make determinations in accordance with this rule. AANP asserted that the definition of “medical examiner” in the proposed rule was based on FRA's locomotive engineer certification regulations in 49 CFR part 240, which are now 32 years old and not reflective of the current practice environment where nurse practitioners provide a substantial portion of care. While FRA has not revised the definition of “medical examiner” to specifically include nurse practitioners, FRA clarifies that if a nurse practitioner is a licensed or certified technician, FRA's regulations in 49 CFR parts 240 and 242 (and this final rule) allow the nurse practitioner to perform the vision and hearing examinations required in those parts (and in this rule). However, given the complex nature of this issue and FRA's lack of regulatory requirements for medical examiners, the question of whether nurse practitioners should be allowed to serve as medical examiners (and if so, whether they should be required to comply with specific regulatory or industry standards) is best addressed in a future rulemaking during which comments can be solicited specifically on this issue. Accordingly, only a doctor of medicine or doctor of osteopathy is authorized by this final rule to conduct a medical evaluation to determine whether a person can safely work as a certified dispatcher if the person fails the visual or hearing acuity examination. FRA did revise the last sentence of this definition changing “employee” to “individual” since not all persons examined by a railroad medical examiner will be railroad employees. FRA also received several comments on the proposed definition of “qualified instructor.” TTD, ATDA, and IBEW submitted similar comments addressing paragraph (4) of the proposed definition (paragraphs (2) and (3) of the definition in the final rule) which states that if a railroad has designated employee representation, a qualified instructor must either be selected in concurrence with the designated employee representative or have at least one year of experience as a certified dispatcher. The labor organizations propose to change the “or” in paragraph (4) to an “and” and that the definition require a minimum of two years experience as a certified dispatcher. Therefore, under the organizations' proposal, a qualified instructor for a railroad that had designated employee representation would have to be selected in concurrence with the designated employee representative and have at least two years service as a certified dispatcher. In support of its position, ATDA stated that requiring concurrence from a union representative would be beneficial because its “representatives are typically working train dispatchers themselves, making them some of the best individuals suited to determine a train dispatcher's proficiency and have a vested interest in ensuring that candidates receive the best training and instruction possible.” 58 The unions also agreed that one year of dispatching experience was insufficient for someone to be a qualified instructor, and pointed to the fact that many railroads do not consider a dispatcher to be fully proficient until they have five years of experience. TTD alleged that some Class I railroads are having newly certified conductors train conductor candidates, and this is creating dangerous conditions that this rule should aim to avoid with respect to dispatchers by requiring two years of dispatching experience. 58 FRA-2022-0019-0038. In contrast, APTA submitted a comment requesting that paragraph (4) of this definition be deleted altogether. APTA contends selecting a qualified instructor is inherently the responsibility of the railroad and should not be subject to another party's consent. Alternatively, APTA suggests a railroad could list its minimum standards to become a qualified instructor in its certification program. After review of these comments, FRA has decided not to adopt these proposals. FRA disagrees with APTA that railroads with designated employee representation should not have to obtain concurrence from labor. The required concurrence of the designated employee representative has been retained to facilitate input by labor, specifically in situations involving qualified instructor candidates with minimal experience ( i.e., less than 12 months experience working as a dispatcher). While FRA agrees with the labor organizations that it would be beneficial for qualified instructors to have more than one year of dispatching experience and FRA encourages railroads to select qualified instructors with more than one year of dispatching experience, FRA is concerned that requiring two years of experience would be too burdensome for some railroads especially given the high turnover rate among dispatchers. Furthermore, FRA does not have sufficient support to justify imposing a two-year requirement. FRA also does not concur with requiring that all qualified instructors on railroads with designated employee representation have both concurrence from labor and at least one year of dispatcher experience. This revision would essentially give a designated employee representative veto power over any person the railroad chooses as a qualified instructor. The goal of this definition is to provide for the involvement and consultation of labor in the selection of qualified instructors while also maintaining the railroad's autonomy. The proposal by the organizations would fail to strike that balance. Even though FRA is not instituting any of the proposed changes to this definition suggested by APTA and the labor organizations, it is revising the definition that was in the proposed rule. The definition in the NPRM had some redundancies, and after careful consideration, FRA has decided to change the format of this definition so that it mirrors the definition of qualified instructor in part 242. FRA has determined that this version of the definition is more comprehensible and it clarifies that when a railroad has designated employee representation, the railroad must first attempt to obtain labor's concurrence of the railroad's selection of a qualified instructor. Only if the railroad is unable to obtain labor's concurrence, may it move to paragraph (3) of the definition and select a person, without such concurrence, who has at least one year of service working as a dispatcher. Section 245.11 Penalties and Consequences for Noncompliance This section acknowledges FRA's authority to issue civil penalties for any violations of this part. IBEW expressed its support for the proposed language in this section and its agreement that individuals should only receive penalties for willful violations. Section 245.103 FRA Review of Certification Programs This section covers FRA's process for reviewing and approving certification programs. ATDA and TTD submitted comments contending that paragraph (a) of this section should be revised so that Class II railroads must submit their certification programs to FRA within eight months of the effective date of the final rule instead of 16 months as stated in the NPRM. These labor organizations contend that Class II railroads have sufficient resources to complete their programs within this reduced timeframe, and that the 16-month timeframe is excessive and would delay the implementation of this important safety requirement. IBEW submitted a similar comment stating that those Class II railroads who have the resources to complete their programs within eight months should do so to avoid unnecessary delays in implementing this rule. Despite these comments, FRA has decided not to make any changes to the program submission schedule from the proposed rule. In the 240 days between the deadlines referenced in paragraphs (a)(1) and (2) of this section, FRA will be devoting its resources to reviewing approximately 41 certification programs from Class I and commuter railroads 59 and is unlikely to have the capacity to begin its review of Class II programs until after the date referenced in paragraph (a)(2). Also, FRA is concerned that the eight-month deadline proposed by the labor organizations may put too much of a strain on some Class II railroads. Thus, while FRA shares the organizations' desire for a speedy implementation of this rule, FRA does not believe that giving Class II railroads this additional time to submit their certification programs will delay implementation. 59 Federal Railroad Administration, “Certification of Dispatchers Final Rule Regulatory Impact Analysis.” Paragraph (b) of this section states that railroads that begin dispatching operations after this rule goes into effect, cannot commence such dispatching operations until FRA has reviewed and approved the railroad's certification program. FRA made some minor revisions to this paragraph from the proposed rule to make it clearer, but these changes did not affect the substance of the paragraph. Paragraph (c) of this section provides the method railroads must use to submit their certification programs to FRA. In the NPRM, this paragraph stated that dispatcher certification programs should be uploaded to a secure document submission site. However, after further consideration, FRA determined it would be easier for both railroads and the agency if programs were submitted by email. Paragraph (c) has been revised accordingly in this final rule. With respect to paragraph (d) of this section, which requires railroads to notify certain parties when it submits its certification program to FRA, AAR and ASLRRA commented that railroads should not have to have their certification programs approved by the labor union president and all of the railroad's dispatcher employees. AAR and ASLRRA claim such a requirement would be a substantial change from what is required in the locomotive engineer and conductor certification rules and is arbitrary and capricious. Specifically, they are concerned that a labor union president could hold up their approval causing the railroad to miss the deadline for submitting the certification program to FRA. AAR's and ASLRRA's concern with respect to paragraph (d) of this section is unwarranted as this rule does not require railroads to obtain approval of their programs from labor union presidents or their dispatching employees. This rule only provides these individuals with the opportunity to review and comment on these programs. FRA believes the source of AAR and ASLRRA's confusion is the reference to a “request for approval” in paragraph (d)(1). However, this document, which is described in greater detail in § 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” 60 and does nothing to ensure that FRA's review process is handled expeditiously. Instead, AAR and ASLRRA contend that FRA should implement the same review and approval process found in parts 240 and 242 where a certification program or material modification is considered approved 30 days after it is submitted unless FRA notifies the railroad in writing that its program has been disapproved. 60 FRA-2022-0019-0041. FRA is declining to adopt this suggestion as it is untenable following a 2020 decision from the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit). In Brotherhood of Locomotive Engineers and Trainmen v. Federal Railroad Administration, the D.C. Circuit invalidated FRA's passive approval of a modification to Kansas City Southern Railway's locomotive engineer certification program. In its decision, the court noted that the Administrative Procedure Act “requires agencies to reasonably explain to reviewing courts the bases for the actions they take and the conclusions they reach.” 61 The court found FRA's passive approval system allowed for a “complete absence of any accompanying explanation for the agency's approval” of the certification program. 62 Since the administrative record did not contain any explanation or reasoning for the determinations made by FRA in approving the program, the court vacated and remanded the case for FRA to provide a more complete explanation of the agency's action or to take new agency action altogether. 63 61 Brotherhood of Locomotive Engineers & Trainmen v. Fed. R.R. Admin., 972 F.3d 82, 115 (D.C. Cir. 2020). 62 Brotherhood of Locomotive Engineers & Trainmen, 972 F.3d at 116-17. 63 Brotherhood of Locomotive Engineers & Trainmen, 972 F.3d at 117. Given the D.C. Circuit's criticism of the passive approval system in part 240, FRA will not include a similar system in this rule. Therefore, paragraph (f) of this section creates a new system where a program is not considered approved by FRA until the agency issues an approval letter to the railroad. Contrary to AAR and ASLRRA's comment, FRA will not arbitrarily hold railroads in limbo for an indefinite period of time. FRA will make every effort to meet its goal of issuing a decision on a program within 120 days of submission. This goal was 90 days in the NPRM but because FRA extended the comment period in paragraph (e) of this section, it felt that 120 days was a more realistic goal to complete its review of these programs. However, FRA acknowledges that meeting this goal will not always be feasible and will be especially difficult during the initial implementation of this rule when FRA receives several programs to review at the same time. During this time, railroads will be able to continue to operate as they did prior to this rule going into effect so it is unclear how railroads will be harmed by such delays. AAR and ASLRRA also commented that FRA should provide more clarity to its definition of “material modification” found in paragraph (g)(1) as they allege the vagueness of the proposed definition could result in stifling innovations in safety systems. In particular, they want FRA to “allow railroads to use different delivery methods and to incorporate new technology without treating those changes as material modifications. Likewise, they state that FRA should limit material modifications to significant content-based changes that are likely to impact safety and not treat edits to test questions, structure, and timelines as material modifications.” 64 64 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” 65 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. 65 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. 66 66 Paragraph (c) of this section applies to all persons who have been authorized to perform dispatcher duties on or before March 17, 2025. NRC's comment on paragraph (f) of this section is that all dispatchers should be certified within 6 to 12 months after FRA approves a railroad's program. FRA interprets this comment to mean that NRC thinks an individual should have to get recertified in accordance with the requirements of subpart B of part 245 within 6 to 12 months after FRA approves the railroad's program. FRA is electing not to adopt this suggestion as it thinks NRC's proposal would place too great a burden on large railroads in particular and may not be administratively feasible. As was stated in the NPRM, FRA sees a benefit to railroads (especially large railroads) spacing out the recertification process for its dispatchers so they recertify approximately one-third of their dispatchers each year. 67 This suggested approach would not be allowed under NRC's proposal as all dispatchers would have to be recertified within that first year after FRA approves the railroad's program. This would create a cycle where every three years, the majority of the railroad's dispatchers would be due for recertification and the railroad would have to complete the recertification process in a short period of time. Such a system would likely have a deleterious effect on the quality of the recertification process and thus, would be harmful to railroad safety. 67 See 88 FR 35574, 35585 (May 31, 2023). Finally, AAR and ASLRRA think FRA should eliminate paragraphs (f)(1) through (3) which allow dispatchers who are approaching retirement age to submit a request to their railroad that they not be recertified, in accordance with subpart B of part 245, until three years from the date the railroad's program is approved by FRA. They contend this provision is contrary to FRA's safety rationale for this rule and would allow a dispatcher to forego the full certification process for up to six years. They also argue this would be more burdensome on the railroads as they would have to keep track of a special category of employees and establish special protocols for them. FRA is choosing to keep paragraphs (f)(1) through (3) in this final rule. These paragraphs simply allow dispatchers who meet the requirements of paragraph (f)(1) to make a request that the railroad not make them go through the full recertification process until their initial certification expires (three years after FRA approves the railroad's certification program). FRA included these paragraphs under the assumption that it would not be an efficient use of a railroad's resources to perform the full recertification process on a designated dispatcher who is going to retire before the end of their designation period. However, if, as AAR and ASLRRA suggest, a railroad finds that it would be more burdensome to keep track of this special category of employees, the railroad may deny these requests. The only obligation these paragraphs put on a railroad to grant these requests is found in paragraph (f)(2) which states that if a railroad grants any such request, it must grant all other requests “to every extent possible.” In addition, this paragraph does not create a loophole where a dispatcher could go six years without having to go through the full recertification process. Paragraph (f) 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. 68 68 FRA-2022-0019-0020. The intent of this section is to obtain and review motor vehicle records to identify candidates for dispatcher certification and recertification who may have an active substance abuse disorder so they can be referred for evaluation and any necessary treatment before they are allowed to perform safety sensitive service. As explained in paragraph (m) of this section, the only motor vehicle incidents railroads may consider are related to being under the influence of, or impaired by, alcohol or a controlled substance. Railroads may not consider a person's speeding violations or other aspects of their motor vehicle driving record that are not related to alcohol or drug use when making a determination on dispatcher certification. In the NPRM, paragraph (h)(2) of this section required all persons seeking certification or recertification to request dr [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-09957. Public record. Not legal advice.