cfr_sections
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37 rows where part_number = 245 and title_number = 49 sorted by section_id
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| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
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| 49:49:4.1.1.1.39.1.137.1 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 245.1 Purpose and scope. | FRA | (a) The purpose of this part is to ensure that only those persons who meet minimum Federal safety standards serve as dispatchers, to reduce the rate and number of accidents and incidents, and to improve railroad safety. (b) This part prescribes minimum Federal safety standards for the eligibility, training, testing, certification, and monitoring of all dispatchers to whom it applies. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements consistent with this part. (c) The dispatcher certification requirements prescribed in this part apply to any person who meets the definition of dispatcher contained in § 245.7, regardless of the fact that the person may have a job classification title other than that of dispatcher. | |||||
| 49:49:4.1.1.1.39.1.137.2 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 245.3 Application and responsibility for compliance. | FRA | (a) This part applies to all railroads except: (1) Railroads that do not have any dispatch (as defined in § 245.7) tasks performed either by dispatchers employed by the railroad or employed by a contractor or subcontractor; (2) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation ( i.e., plant railroads, as defined in § 245.7); (3) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation as defined in § 245.7; or (4) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation. (b) Although the duties imposed by this part are generally stated in terms of the duty of a railroad, each person, as defined in § 245.7, who performs any function required by this part must perform that function in accordance with this part. | |||||
| 49:49:4.1.1.1.39.1.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 245.5 Effect and construction. | FRA | (a) FRA does not intend, by use of the term dispatcher in this part, to alter the terms, conditions, or interpretation of existing collective bargaining agreements that employ other job classification titles when identifying a person who dispatches a train. (b) FRA does not intend, by issuance of the regulations in this part, to alter the authority of a railroad to initiate disciplinary sanctions against its employees, including managers and supervisors, in the normal and customary manner, including those contained in its collective bargaining agreements. (c) Except as provided in § 245.213, nothing in this part shall be construed to create or prohibit an eligibility or entitlement to employment in other service for the railroad as a result of denial, suspension, or revocation of certification under this part. (d) Nothing in this part shall be deemed to abridge any additional procedural rights or remedies not inconsistent with this part that are available to the employee under a collective bargaining agreement, the Railway Labor Act, or (with respect to employment at will) at common law with respect to removal from service or other adverse action taken as a consequence of this part. | |||||
| 49:49:4.1.1.1.39.1.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 245.7 Definitions. | FRA | [89 FR 44806, May 21, 2024, as amended at 90 FR 28128, July 1, 2025] | As used in this part: Administrator means the Administrator of the FRA or the Administrator's delegate. Alcohol means ethyl alcohol (ethanol) and includes use or possession of any beverage, mixture, or preparation containing ethyl alcohol. Blocking device means a method of control that either prohibits the operation of a switch or signal or restricts access to a section of track. Controlled substance has the meaning assigned by 21 U.S.C. 802 and includes all substances listed on Schedules I through V as they may be revised from time to time (21 CFR parts 1301 through 1316). Dispatch means: (1) To perform a function that would be classified as a duty of a “dispatching service employee,” as that term is defined by the hours of service laws at 49 U.S.C. 21101(2), if the function were to be performed in the United States. The term dispatch includes, but is not limited to, by the use of an electrical or mechanical device: (i) Controlling the movement of a train or other on-track equipment by the issuance of a written or verbal authority or permission affecting a railroad operation, or by establishing a route through the use of a railroad signal or train control system but not merely by aligning or realigning a switch; or (ii) Controlling the occupancy of a track by a roadway worker or stationary on-track equipment, or both; or (iii) Issuing a mandatory directive, including, but not limited to, speed restrictions, highway-rail grade crossing protections, or those which establish working limits for roadway workers. (2) The term dispatch does not include the 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 to a roadway worker ( e.g., initiating an interlocking timing device, authorizing a train to enter working limits); or (ii) Operating a function of a signal system designed for use by those personnel; or (iii) Sorting and grouping rail cars inside a railroad yard to asse… | ||||
| 49:49:4.1.1.1.39.1.137.5 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 245.9 Waivers. | FRA | (a) A person subject to a requirement of this part may petition FRA for a waiver of compliance with such requirement. The filing of such a petition does not affect that person's responsibility for compliance with that requirement while the petition is being considered. (b) Each petition for a waiver under this section must be filed in the manner and contain the information required by part 211 of this chapter. (c) If FRA finds that a waiver of compliance is in the public interest and is consistent with railroad safety, FRA may grant the waiver subject to any conditions FRA deems necessary. | |||||
| 49:49:4.1.1.1.39.1.137.6 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 245.11 Penalties and consequences for noncompliance. | FRA | (a) Any person (including a railroad; any manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any employee of such owner, manufacturer, lessor, or lessee; or any independent contractor or subcontractor of a railroad) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty per violation. However, penalties may be assessed against individuals only for willful violations, and a penalty not to exceed the aggravated maximum civil monetary penalty per violation may be assessed, where: (1) A grossly negligent violation, or a pattern of repeated violations, has created an imminent hazard of death or injury to persons; or (2) A death or injury has occurred. See 49 CFR part 209, appendix A. (b) Each day a violation continues constitutes a separate offense. (c) A person who violates any requirement of this part or causes the violation of any such requirement may be subject to disqualification from all safety-sensitive service in accordance with part 209 of this chapter. (d) A person who knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311. (e) In addition to the enforcement methods referred to in paragraphs (a) through (d) of this section, FRA may address violations of this part by use of the emergency order, compliance order, and/or injunctive provisions of the Federal rail safety laws. (f) FRA's website at https://railroads.dot.gov/ contains a schedule of civil penalty amounts used in connection with this part. | |||||
| 49:49:4.1.1.1.39.2.137.1 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.101 Certification program required. | FRA | (a) Each railroad subject to this part shall have a written dispatcher certification program. (b) Each certification program shall include all of the following: (1) A procedure for evaluating prior safety conduct as a motor vehicle operator that complies with the criteria established in § 245.111. (2) A procedure for evaluating prior safety conduct as an employee or certified dispatcher with other railroads that complies with the criteria established in § 245.113. (3) A procedure for evaluating potential substance abuse disorders and compliance with railroad alcohol and drug rules that complies with the criteria established in § 245.115. (4) A procedure for evaluating visual and hearing acuity that complies with the criteria established in §§ 245.117 and 245.118. (5) A procedure for training that complies with the criteria established in § 245.119. (6) A procedure for knowledge testing that complies with the criteria established in § 245.121. (7) A procedure for monitoring operational performance that complies with the criteria established in § 245.123. | |||||
| 49:49:4.1.1.1.39.2.137.10 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.118 Hearing acuity. | FRA | (a) After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the person meets the standards for hearing acuity prescribed in this section and appendix B to this part. (b) Any examination required under this section shall be performed by or under the supervision of a medical examiner or a licensed physician's assistant. (c) Except as provided in paragraph (d) of this section, each dispatcher shall have hearing acuity that meets or exceeds the following thresholds with or without use of a hearing aid: The person does not have an average hearing loss in the better ear greater than 40 decibels at 500 hertz (Hz), 1,000 Hz, and 2,000 Hz. The hearing test or audiogram used to show a person's hearing acuity shall meet the requirements of one of the following: (1) As required in 29 CFR 1910.95(h) (Occupational Safety and Health Administration); (2) As required in § 227.111 of this chapter; or (3) Conducted using an audiometer that meets the specifications of, and is maintained and used in accordance with, a formal industry standard such as American National Standards Institute (ANSI) S3.6, “Specifications for Audiometers.” (d) A person not meeting the thresholds in paragraph (c) of this section shall, upon request of the certification candidate, be subject to further medical evaluation by a railroad's medical examiner to determine that person's ability to safely perform as a dispatcher. In such cases, the following procedures will apply: (1) In accordance with the guidance prescribed in appendix B to this part, a person is entitled to: (i) One retest without making any showing; and (ii) An additional retest if the person provides evidence that circumstances have changed since the last test to the extent that the person may now be able to safely perform as a dispatcher. (2) The railroad shall provide its medical examiner with a copy of this part, including all appendices. (3) If, after consultation with a railro… | |||||
| 49:49:4.1.1.1.39.2.137.11 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.119 Training requirements. | FRA | (a) After FRA has approved a railroad's certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the person has successfully completed the training, in accordance with the requirements of this section. (b) A railroad that elects to accept responsibility to provide initial dispatcher training to persons who have not been previously certified as dispatchers shall state in its certification program whether it will conduct the training program or employ a training program conducted by some other entity on its behalf but adopted and ratified by the railroad. (c) A railroad that elects to train persons not previously certified as dispatchers shall develop an initial training program which, at a minimum, includes the following: (1) An explanation of how training must be structured, developed, and delivered, including an appropriate combination of classroom, simulator, computer-based, correspondence, on-the-job training, or other formal training. The curriculum shall be designed to impart knowledge of, and ability to comply with, applicable Federal railroad safety laws, regulations, and orders, as well as any relevant railroad rules and procedures promulgated to implement those applicable Federal railroad safety laws, regulations, and orders. This training shall document a person's knowledge of, and ability to comply with, Federal railroad safety laws, regulations, and orders, as well as railroad rules and procedures. (2) An on-the-job training component which shall include the following: (i) A syllabus describing content, required tasks, and related steps the person learning the job shall be able to perform within a specified timeframe; (ii) A statement of the conditions ( e.g., prerequisites, dispatch and related dispatch support systems, documentation, briefings, demonstrations, and practice) necessary for learning transfer; and (iii) A statement of the standards by which proficiency is measured through a combination of task/step accuracy, completeness, an… | |||||
| 49:49:4.1.1.1.39.2.137.12 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.120 Requirements for territorial qualification. | FRA | (a) After FRA has approved a railroad's certification program, a railroad shall not permit or require a person to serve as a dispatcher on a particular territory unless that railroad determines that: (1) The person is a certified dispatcher; and (2) The person either: (i) Possesses the necessary territorial qualifications for the applicable territory pursuant to § 245.119; or (ii) Is assisted by a Dispatcher Pilot who is qualified on the territory. (b) If a person is called to serve on a territory that they are not qualified on, the person must immediately notify the railroad that they are not qualified on the assigned territory. (c) A person shall no longer be considered qualified on a territory if they have not worked on that territory as a dispatcher in the previous 12 months. (d) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section. | |||||
| 49:49:4.1.1.1.39.2.137.13 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.121 Knowledge testing. | FRA | (a) After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate and in accordance with the requirements of this section, that the person has demonstrated sufficient knowledge of the railroad's rules and practices for the safe movement of trains. (b) In order to make the knowledge determination required by paragraph (a) of this section, a railroad shall have procedures for testing a person being evaluated for certification as a dispatcher that are: (1) Designed to examine a person's knowledge of the railroad's operating rules and practices for the safe movement of trains; (2) Objective in nature; (3) In written or electronic form; (4) Covering the following subjects: (i) Safety and operating rules; (ii) Timetable instructions; (iii) Compliance with all applicable Federal regulations; (iv) Physical characteristics of the territory or territories on which a person is currently working or training to qualify as a dispatcher; and (v) Dispatching systems and technology. (5) Sufficient to accurately measure the person's knowledge of the covered subjects; and (6) Conducted without open reference books or other materials except to the degree the person is being tested on their ability to use such reference books or materials. (c) The railroad shall provide the certification candidate with an opportunity to consult with a supervisory employee who possesses territorial qualifications for the territory to explain a test question. (d) If a person fails the test, no railroad shall permit or require that person to work as a dispatcher prior to that person's achieving a passing score during a reexamination of the test. (e) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person … | |||||
| 49:49:4.1.1.1.39.2.137.14 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.123 Monitoring operational performance. | FRA | (a) Each railroad's certification program shall describe how it will monitor the operational performance of its certified dispatchers by including procedures for: (1) Giving each certified dispatcher at least one unannounced railroad and Federal rules, territorial and dispatch systems compliance test each calendar year, except as provided for in paragraph (c) of this section; (2) Giving unannounced compliance tests to certified dispatchers who return to dispatcher service after performing service that does not require certification pursuant to this part, as described in paragraph (c) of this section; and (3) What actions the railroad will take if it finds deficiencies in a dispatcher's performance during an unannounced compliance test. (b) An unannounced compliance test shall: (1) Test certified dispatchers for compliance with one or more operational tests in accordance with the provisions of § 217.9 of this chapter; (2) Be performed by a railroad officer who meets the requirements of § 217.9(b)(1) of this chapter; and (3) Be given to each certified dispatcher at least once each calendar year, except as provided for in paragraph (c) of this section. (c) A certified dispatcher who is not performing service that requires certification pursuant to this part does not need to be given an unannounced compliance test. However, when the certified dispatcher returns to service that requires certification pursuant to this part after not being given an unannounced compliance test in a calendar year, the railroad shall: (1) Give the certified dispatcher an unannounced compliance test within 30 days of their return to dispatcher service; and (2) Retain a written record that includes the following information: (i) The date the dispatcher stopped performing service that required certification pursuant to this part; (ii) The date the dispatcher returned to service that required certification pursuant to this part; and (iii) The date and the result of the unannounced compliance test that was performed following the d… | |||||
| 49:49:4.1.1.1.39.2.137.15 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.125 Certification determinations made by other railroads. | FRA | (a) A railroad that is considering certification of a person as a dispatcher may rely on certain determinations made by another railroad concerning that person's certification. (b) A railroad relying on certification determinations made by another railroad shall still be responsible for determining that: (1) The prior certification is still valid in accordance with the provisions of §§ 245.201 and 245.307; (2) The person has received training on the physical characteristics of the new territory in accordance with § 245.119; and (3) The person has demonstrated the necessary knowledge concerning the railroad's operating rules, territory, dispatch systems and technology in accordance with § 245.121. | |||||
| 49:49:4.1.1.1.39.2.137.2 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.103 FRA review of certification programs. | FRA | (a) Certification program submission schedule for railroads with current dispatching operations. Each railroad with current dispatching operations, as of July 22, 2024, shall submit its dispatcher certification program to FRA, in accordance with the procedures and requirements contained in § 245.107, according to the following schedule: (1) All Class I railroads (including the National Railroad Passenger Corporation) and railroads providing commuter service shall submit their programs to FRA no later than March 17, 2025. (2) All Class II railroads and Class III railroads (including a switching and terminal or other railroad not otherwise classified) shall submit their programs to FRA no later than November 12, 2025. (b) Certification program submission for new dispatching railroads. For each railroad that commences dispatching operations after July 22, 2024, the railroad shall submit its written dispatcher certification program to, and obtain approval from, FRA in accordance with the procedures and requirements contained in § 245.107, prior to commencing dispatching operations. (c) Method for submitting certification programs to FRA. Railroads must submit their written certification programs and their requests for approval (described in § 245.107(a)) by emailing the documents to FRADISPATCHCERTPROG@dot.gov. (d) Notification requirements. Each railroad that submits a program to FRA must: (1) Simultaneously with its submission, provide a copy of the program and the request for approval (as described in § 245.107(a)) to the president of each labor organization that represents the railroad's dispatchers and to all of the railroad's dispatchers that are subject to this part; and (2) Include in its submission to FRA, a statement affirming that the railroad has provided a copy of the program and the request for approval to the president of each labor organization that represents the railroad's dispatchers and to all of the railroad's dispatchers that are subject to this part, along with a list of the nam… | |||||
| 49:49:4.1.1.1.39.2.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.105 Implementation schedule for certification programs. | FRA | (a) Each railroad that submits its dispatcher certification program to FRA in accordance with § 245.103(a), may continue dispatching operations while it awaits approval of its program by FRA. However, if FRA disapproves a railroad's program on two occasions and the railroad continues dispatching operations, FRA may consider such actions to be a failure to implement a program. (b) Each railroad that submits its dispatcher certification program to FRA in accordance with § 245.103(b), must have its program approved by FRA prior to commencing dispatching operations. If such railroad commences dispatching operations before its program is approved by FRA, FRA may consider such actions to be a failure to implement a program. (c) By March 17, 2025, each railroad shall: (1) In writing, designate as certified dispatchers all persons authorized by the railroad to perform the duties of a dispatcher as of March 17, 2025; and (2) Issue a certificate that complies with § 245.207 to each person that it designates. (d) Between March 17, 2025 and the date FRA approves the railroad's certification program, each railroad shall: (1) In writing, designate as a certified dispatcher any person who has been authorized by the railroad to perform the duties of a dispatcher between March 17, 2025 and the date FRA approves the railroad's certification program; and (2) Issue a certificate that complies with § 245.207 to each person that it designates. (e) After March 17, 2025, no railroad shall permit or require a person to perform service as a dispatcher unless that person is a certified dispatcher. (f) No railroad shall permit or require a person, designated as a certified dispatcher under the provisions of paragraph (c) or (d) of this section, to perform service as a certified dispatcher for more than three years after the date FRA approves the railroad's certification program unless that person has been tested and evaluated in accordance with procedures that comply with subpart B of this part. (1) Except as provided in paragraph… | |||||
| 49:49:4.1.1.1.39.2.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.107 Requirements for certification programs. | FRA | (a) Railroad's certification program submission. (1) A railroad's certification program submission must include a copy of the certification program and a request for approval. If a railroad is submitting a material modification to its program, the copy of the certification program must incorporate all of the material modifications the railroad would like to make. (2) For a railroad's initial certification program submission, the request for approval can be in letter or narrative format and shall include a statement that the railroad is seeking approval of its program by FRA. (3) If a railroad is making a material modification to a program that has been previously approved by FRA, the request for approval can be in letter or narrative format and shall include an explanation of all of the material modifications that the railroad is making to its program. (4) A railroad will receive approval or disapproval notices from FRA by email. (5) FRA may electronically store any materials required by this part. (b) Organization of the certification program. Each program must be organized to present the required information in paragraphs (b)(1) through (6) of this section. Each section of the certification program must begin by giving the name, title, telephone number, and email address of the person to be contacted concerning the matters addressed by that section. If a person is identified in a prior section, it is sufficient to merely repeat the person's name in a subsequent section. (1) Section 1 of the program: general information and elections. (i) The first section of the certification program must contain the name of the railroad, the person to be contacted concerning the request for approval (including the person's name, title, telephone number, and email address) and a statement electing either to accept responsibility for training persons not previously certified as dispatchers or to not accept this responsibility. (ii) If a railroad elects not to provide initial dispatcher training, the railroad will be … | |||||
| 49:49:4.1.1.1.39.2.137.5 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.109 Determinations required for certification and recertification. | FRA | (a) After FRA has approved a railroad's dispatcher certification program, the railroad, prior to initially certifying or recertifying any person as a dispatcher, shall, in accordance with its FRA-approved program, determine in writing that: (1) The individual meets the prior safety conduct eligibility requirements of §§ 245.111 and 245.113; (2) The individual meets the eligibility requirements of §§ 245.115 and 245.303; (3) The individual meets the visual and hearing acuity standards of §§ 245.117 and 245.118; (4) The individual has the necessary knowledge, as demonstrated by successfully completing a test that meets the requirements of § 245.121; and (5) If applicable, the individual has completed a training program that meets the requirements of § 245.119. (b) Nothing in this section, § 245.111, or § 245.113 shall be construed to prevent persons subject to this part from entering into an agreement that results in a railroad obtaining the information needed for compliance with this subpart in a different manner than that prescribed in § 245.111 or § 245.113. | |||||
| 49:49:4.1.1.1.39.2.137.6 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.111 Prior safety conduct as motor vehicle operator. | FRA | (a) Except as provided in paragraphs (b) through (e) of this section, after FRA has approved a railroad's dispatcher certification program, the railroad, prior to initially certifying or recertifying any person as a dispatcher, shall determine that the person meets the eligibility requirements of this section involving prior conduct as a motor vehicle operator. (b) A railroad shall initially certify a person as a dispatcher for 60 days if the person: (1) Requested the information required by paragraph (g) of this section at least 60 days prior to the date of the decision to certify that person; and (2) Otherwise meets the eligibility requirements provided in § 245.109(a)(1) through (5). (c) A railroad shall recertify a person as a dispatcher for 60 days from the expiration date of that person's certification if the person: (1) Requested the information required by paragraph (g) of this section at least 60 days prior to the date of the decision to recertify that person; and (2) Otherwise meets the eligibility requirements provided in § 245.109(a)(1) through (5). (d) Except as provided in paragraph (e) of this section, if a railroad who certified or recertified a person for 60 days pursuant to paragraph (b) or (c) of this section does not obtain and evaluate the information requested pursuant to paragraph (g) of this section within those 60 days, that person will be ineligible to perform as a dispatcher until the information can be evaluated by the railroad. (e) If a person requests the information required pursuant to paragraph (g) of this section but is unable to obtain it, that person or the railroad certifying or recertifying that person may petition for a waiver of the requirements of paragraph (a) of this section in accordance with the provisions of part 211 of this chapter. A railroad shall certify or recertify a person during the pendency of the waiver request if the person otherwise meets the eligibility requirements provided in § 245.109(a)(1) through (5). (f) Except for persons designated as dis… | |||||
| 49:49:4.1.1.1.39.2.137.7 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.113 Prior safety conduct with other railroads. | FRA | (a) After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the certification candidate meets the eligibility requirements of this section. (b) If the certification candidate has not been employed or certified by any other railroad in the previous five years, they do not have to submit a request in accordance with paragraph (c) of this section, but they must notify the railroad of this fact in accordance with procedures established by the railroad in its certification program. (c) Except as provided for in paragraph (b) of this section, each person seeking certification or recertification under this part shall submit a written request to each railroad that employed or certified the person within the previous five years to provide the following information to the railroad that is considering whether to certify or recertify that person as a dispatcher: (1) Information about that person's compliance with § 245.111 within the three years preceding the date of the request; (2) Information about that person's compliance with § 245.115 within the five years preceding the date of the request; and (3) Information about that person's compliance with § 245.303 within the five years preceding the date of the request. (d) Each person submitting a written request required by paragraph (c) of this section shall: (1) Submit the request no more than one year before the date of the railroad's decision on certification or recertification; and (2) Take any additional actions, including providing any consent required by State or Federal law to make information concerning their service record available to the railroad. (e) Within 30 days after receipt of a written request that complies with paragraph (c) of this section, a railroad shall provide the information requested to the railroad designated in the written request. (f) If a railroad is unable to provide the information requested within 30 days after receipt of a writt… | |||||
| 49:49:4.1.1.1.39.2.137.8 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.115 Substance abuse disorders and alcohol drug rules compliance. | FRA | (a) Eligibility determination. After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the person meets the eligibility requirements of this section. (b) Documentation. In order to make the determination required under paragraph (c) of this section, a railroad shall have on file documents pertinent to that determination, including a written document from its DAC which states their professional opinion that the person has been evaluated as not currently affected by a substance abuse disorder or that the person has been evaluated as affected by an active substance abuse disorder. (c) Fitness requirement. (1) A person who has an active substance abuse disorder shall be denied certification or recertification as a dispatcher. (2) Except as provided for in paragraph (f) of this section, a certified dispatcher who is determined to have an active substance abuse disorder shall be ineligible to hold certification. Consistent with other provisions of this part, certification may be reinstated as provided in paragraph (e) of this section. (3) In the case of a current employee of a railroad evaluated as having an active substance abuse disorder (including a person identified under the procedures of § 245.111), the employee may, if otherwise eligible, voluntarily self-refer for substance abuse counseling or treatment under the policy required by § 219.1001(b)(1) of this chapter; and the railroad shall then treat the substance abuse evaluation as confidential except with respect to ineligibility for certification. (d) Prior alcohol/drug conduct; Federal rule compliance. (1) In determining whether a person may be or remain certified as a dispatcher, a railroad shall consider conduct described in paragraph (d)(2) of this section that occurred within a period of five consecutive years prior to the review. A review of certification shall be initiated promptly upon the occurrence and documentation of any incident of … | |||||
| 49:49:4.1.1.1.39.2.137.9 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.117 Visual acuity. | FRA | (a) After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the person meets the standards for visual acuity prescribed in this section and appendix B to this part. (b) Any examination required under this section shall be performed by or under the supervision of a medical examiner or a licensed physician's assistant. (c) Except as provided in paragraph (d) of this section, each dispatcher shall have visual acuity that meets or exceeds the following thresholds: (1) For distant viewing, either: (i) Distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses; or (ii) Distant visual acuity separately corrected to at least 20/40 (Snellen) with corrective lenses and distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses; (2) A field of vision of at least 70 degrees in the horizontal meridian in each eye; and (3) The ability to recognize and distinguish between the colors of railroad signals as demonstrated by successfully completing one of the tests in appendix B to this part. (d) A person not meeting the thresholds in paragraph (c) of this section shall, upon request of the certification candidate, be subject to further medical evaluation by a railroad's medical examiner to determine that person's ability to safely perform as a dispatcher. In such cases, the following procedures will apply: (1) In accordance with the guidance prescribed in appendix B to this part, a person is entitled to: (i) One retest without making any showing; and (ii) An additional retest if the person provides evidence that circumstances have changed since the last test to the extent that the person may now be able to safely perform as a dispatcher. (2) The railroad shall provide its medical examiner with a copy of this part, including all appendices. (3) If, after consultation with a railroad officer, the medical examiner concludes that, despite not meeting t… | |||||
| 49:49:4.1.1.1.39.3.137.1 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 245.201 Time limitations for certification. | FRA | (a) After FRA approves a railroad's dispatcher certification program, that railroad shall not certify or recertify a person as a dispatcher if the railroad is making: (1) A determination concerning eligibility under §§ 245.111, 245.113, 245.115, and 245.303 and the eligibility data being relied on was furnished more than one year before the date of the railroad's certification decision; (2) A determination concerning visual or hearing acuity and the medical examination being relied on was conducted more than 450 days before the date of the railroad's certification decision; or (3) A determination concerning demonstrated knowledge and the knowledge examination being relied on was conducted more than one year before the date of the railroad's certification decision, or more than two years before the date of the railroad's certification decision if the railroad administers a knowledge testing program pursuant to § 245.121 at intervals that do not exceed two years. (b) The time limitations of paragraph (a) of this section do not apply to a railroad that is making a certification decision in reliance on determinations made by another railroad in accordance with § 245.125. (c) Except if a person is designated as a certified dispatcher under § 245.105(c) or (d), no railroad shall certify a person as a dispatcher for an interval of more than three years. (d) Each railroad shall issue each certified dispatcher a certificate that complies with § 245.207 no later than 30 days from the date of its decision to certify or recertify that person. | |||||
| 49:49:4.1.1.1.39.3.137.2 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 245.203 Retaining information supporting determinations. | FRA | (a) After FRA approves a railroad's dispatcher certification program, any time the railroad issues, denies, or revokes a certificate after making the determinations required under § 245.109, it shall maintain a record for each certified dispatcher and certification candidate. Each record shall contain the information, described in paragraph (b) of this section, that the railroad relied on in making the determinations required under § 245.109. (b) A railroad shall retain the following information: (1) Relevant data from the railroad's records concerning the person's prior safety conduct and eligibility; (2) Relevant data furnished by another railroad; (3) Relevant data furnished by a governmental agency concerning the person's motor vehicle driving record; (4) Relevant data furnished by the person seeking certification concerning their eligibility; (5) The relevant test results data concerning visual and hearing acuity; (6) If applicable, the relevant data concerning the professional opinion of the railroad's medical examiner on the adequacy of the person's visual or hearing acuity; (7) Relevant data from the railroad's records concerning the person's success or failure on knowledge test(s) under § 245.121; (8) A sample copy of the written knowledge test or tests administered; and (9) The relevant data from the railroad's records concerning the person's success or failure on unannounced tests the railroad performed to monitor the dispatcher's performance in accordance with § 245.123. (c) If a railroad is relying on successful completion of an approved training program conducted by another entity, the relying railroad shall maintain a record for each certification candidate that contains the relevant data furnished by the training entity concerning the person's demonstration of knowledge and relied on by the railroad in making its determinations. (d) If a railroad is relying on a certification decision initially made by another railroad, the relying railroad shall maintain a record for each certificatio… | |||||
| 49:49:4.1.1.1.39.3.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 245.205 List of certified dispatchers and recordkeeping. | FRA | (a) After a railroad's certification program has received its initial approval from FRA, pursuant to § 245.103(f)(1), the railroad must maintain a list of each person who is currently certified as a dispatcher by the railroad. The list must include the date of the railroad's certification decision and the date the person's certification expires. (b) The list shall: (1) Be updated at least annually; (2) Be made available, upon request, to FRA representatives in a timely manner; and (3) Be available either: (i) In electronic format pursuant to paragraph (c) of this section; or (ii) At the divisional or regional headquarters of the railroad. (c) If a railroad elects to maintain its list in an electronic format, it must: (1) Maintain an information technology security program adequate to ensure the integrity of the electronic data storage system, including the prevention of unauthorized access to the program logic or the list; (2) Have its program and data storage system protected by a security system that utilizes an employee identification number and password, or a comparable method, to establish appropriate levels of program access meeting all of the following standards: (i) No two individuals have the same electronic identity; and (ii) An entry on the list cannot be deleted or altered by any individual after the entry is certified by the employee who created the entry; (3) Have any amendment to the list either: (i) Electronically stored apart from the entry on the list that it amends; or (ii) Electronically attached to the entry on the list as information without changing the original entry; (4) Ensure that each amendment to the list uniquely identifies the person making the amendment; and (5) Ensure that the system employed for data storage permits reasonable access and retrieval of the information which can be easily produced in an electronic or printed format that can be: (i) Provided to FRA representatives in a timely manner; and (ii) Authenticated by a designated representative of the railr… | |||||
| 49:49:4.1.1.1.39.3.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 245.207 Certificate requirements. | FRA | (a) Each person who becomes a certified dispatcher in accordance with this part shall be issued a paper or electronic certificate that must: (1) Identify the railroad or parent company that is issuing the certificate; (2) Indicate that it is a dispatcher certificate; (3) Provide the following information about the certified person: (i) Name; (ii) Employee identification number; and (iii) Either a physical description or photograph of the person; (4) Identify any conditions or limitations, including conditions to ameliorate visual or hearing acuity deficiencies, that restrict, limit, or alter the person's abilities to work as a dispatcher; (5) Show the effective date of the certification; (6) Show the expiration date of the certification unless the certificate was issued pursuant to § 245.105(c) or (d); (7) Be signed by an individual designated in accordance with paragraph (b) of this section; and (8) Be electronic or be of sufficiently small size to permit being carried in an ordinary pocket wallet. (b) Each railroad shall designate in writing any person it authorizes to sign the certificates described in this section. The designation shall identify such persons by name or job title. (c) Nothing in this section shall prohibit any railroad from including additional information on the certificate or supplementing the certificate through other documents. (d) It shall be unlawful for any railroad to knowingly or any individual to willfully: (1) Make, cause to be made, or participate in the making of a false entry on a certificate; or (2) Otherwise falsify a certificate through material misstatement, omission, or mutilation. (e) Except as provided for in paragraph (g) of this section, each certified dispatcher shall: (1) Have their certificate in their possession while on duty as a dispatcher; and (2) Display their certificate upon a request from: (i) An FRA representative; (ii) A state inspector authorized under part 212 of this chapter; (iii) An officer of the issuing railroad; or (iv) An offi… | |||||
| 49:49:4.1.1.1.39.3.137.5 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 245.213 Multiple certifications. | FRA | (a) A person who holds a dispatcher certificate may also be certified in other crafts, such as a locomotive engineer or conductor. (b) A railroad that issues multiple certificates to a person, shall, to the extent possible, coordinate the expiration date of those certificates. (c) Paragraphs (c)(1) through (3) of this section apply to persons who are currently certified as a dispatcher for multiple railroads or are seeking to become certified dispatchers for multiple railroads. (1) A person who holds a current dispatcher certificate from more than one railroad shall immediately notify the other certifying railroad(s) if they are denied dispatcher certification or recertification under § 245.301 by another railroad or has their dispatcher certification suspended or revoked under § 245.307 by another railroad. (2) If a person has their dispatcher certification suspended or revoked by a railroad under § 245.307, they may not work as a dispatcher for any other railroad during the period that their certification is suspended or revoked. (3) If a person has their dispatcher certification suspended or revoked by a railroad under § 245.307, they must notify any railroad that they are seeking dispatcher certification from that their dispatcher certification is currently suspended or revoked by another railroad. (d) Paragraphs (d)(1) through (4) of this section apply to persons who are currently certified as a dispatcher and also currently certified in another craft, such as a locomotive engineer or conductor. (1) If a person's dispatcher certification is revoked under § 245.307 for a violation of § 245.303(e)(7), they may not work in another certified craft, such as a locomotive engineer or conductor, for any railroad during the period of revocation. (2) If a person's dispatcher certification is revoked under § 245.307 for a violation of § 245.303(e)(1) through (6), they may work in another certified craft, such as a locomotive engineer or conductor, during the period of revocation. (3) If any of a person's non-d… | |||||
| 49:49:4.1.1.1.39.3.137.6 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 245.215 Railroad oversight responsibilities. | FRA | (a) No later than March 31 of each year (beginning in calendar year 2027), each Class I railroad (including the National Railroad Passenger Corporation), each railroad providing commuter service, and each Class II railroad shall conduct a formal annual review and analysis concerning the administration of its program for responding to detected instances of poor safety conduct by certified dispatchers during the prior calendar year. (b) Each review and analysis shall involve: (1) The number and nature of the instances of detected poor safety conduct including the nature of the remedial action taken in response thereto; (2) The number and nature of FRA reported train accidents attributed to poor safety performance by dispatchers; and (3) The number and type of operational monitoring test failures recorded by railroad officers who meet the requirements of § 217.9(b)(1) of this chapter. (c) Based on that review and analysis, each railroad shall determine what action(s) it will take to improve the safety of railroad operations to reduce or eliminate future incidents of that nature. (d) If requested in writing by FRA, by the president of a labor organization that represents the railroad's dispatchers, or by a railroad's certified dispatcher that is not represented by a labor organization, the railroad shall provide a report of the findings and conclusions reached during such annual review and analysis effort. (e) For reporting purposes, information about the nature of detected poor safety conduct shall be capable of segregation for study and evaluation purposes into the following categories: (1) Incidents involving failure to properly issue or apply mandatory directives when warranted. (2) Incidents involving improperly authorizing a train or on-track equipment to enter into an out-of-service or blue flag protected track. (3) Incidents involving granting permission for a train or on-track equipment to enter into established RWIC limits without authority or permission from the RWIC. (4) Incidents involving rem… | |||||
| 49:49:4.1.1.1.39.4.137.1 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | D | Subpart D—Denial and Revocation of Certification | § 245.301 Process for denying certification. | FRA | (a) A railroad shall notify a candidate for certification or recertification of information known to the railroad that forms the basis for denying the person certification and provide the person a reasonable opportunity to explain or rebut that adverse information in writing prior to denying certification. A railroad shall provide the dispatcher candidate with any documents or records, including written statements, related to failure to meet a requirement of this part which support its pending denial decision. (b) If a railroad denies a person certification or recertification, it shall issue a decision that complies with all of the following requirements: (1) It must be in writing. (2) It must explain the basis for the railroad's denial decision. (3) It must address any explanation or rebuttal information that the certification candidate provided pursuant to paragraph (a) of this section. (4) It must include the date of the railroad's decision. (5) It must be served on the candidate no later than 10 days after the railroad's decision. (c) A railroad shall not deny the person's certification for failing to comply with a railroad operating rule or practice which constitutes a violation under § 245.303(e)(1) through (6) if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the dispatcher's ability to comply with that railroad operating rule or practice. | |||||
| 49:49:4.1.1.1.39.4.137.2 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | D | Subpart D—Denial and Revocation of Certification | § 245.303 Criteria for revoking certification. | FRA | (a) It shall be unlawful to fail to comply with any of the railroad rules or practices described in paragraph (e) of this section. (b) A certified dispatcher who fails to comply with a railroad rule or practice described in paragraph (e) of this section shall have their certification revoked. (c) A certified dispatcher who is assigned to monitor, pilot, or instruct a dispatcher and fails to take appropriate action to prevent a violation of a railroad rule or practice described in paragraph (e) of this section shall have their certification revoked. Appropriate action does not mean that a supervisor, pilot, or instructor must prevent a violation from occurring at all costs; the duty may be met by warning the dispatcher of a potential or foreseeable violation. (d) A certified dispatcher who is called by a railroad to perform a duty other than that of a dispatcher shall not have their dispatcher certification revoked based on actions taken or not taken while performing that duty except for violations described in paragraph (e)(7) of this section. (e) When determining whether to revoke a dispatcher's certification, a railroad shall only consider violations of its operating rules or practices that involve: (1) Failure to properly issue or apply a mandatory directive when warranted. (2) Improperly authorizing a train or on-track equipment to enter into an out-of-service or blue flag protected track. (3) Granting permission for a train or on-track equipment to enter into established RWIC limits without authority or permission from the RWIC. (4) Removal of blocking devices or established protection of RWIC working limits prior to the RWIC releasing the limits. (5) Failure to properly apply blocking devices or establish proper protection for specified working limits or movements of trains or on-track equipment. (6) Granting permission for a train to enter PTC or Cab Signal limits with inoperative or malfunctioning PTC or Cab Signal equipment. (7) Failure to comply with § 219.101 of this chapter. However, such i… | |||||
| 49:49:4.1.1.1.39.4.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | D | Subpart D—Denial and Revocation of Certification | § 245.305 Periods of ineligibility. | FRA | (a) The starting date for a period of ineligibility described in this section shall be: (1) For a person not currently certified, the date of the railroad's written determination that the most recent incident has occurred; or (2) For a person currently certified, the date of the railroad's notification to the person that recertification has been denied or certification has been suspended. (b) A period of ineligibility shall be determined according to the following standards: (1) In the case of a single incident involving a violation of one or more of the operating rules or practices described in § 245.303(e)(1) through (6), the person shall have their certificate revoked for a period of 30 calendar days. (2) In the case of two separate incidents involving a violation of one or more of the operating rules or practices described in § 245.303(e)(1) through (6), that occurred within 24 months of each other, the person shall have their certificate revoked for a period of six months. (3) In the case of three separate incidents involving violations of one or more of the operating rules or practices, described in § 245.303(e)(1) through (7), that occurred within 36 months of each other, the person shall have their certificate revoked for a period of one year. (4) In the case of four separate incidents involving violations of one or more of the operating rules or practices, described in § 245.303(e)(1) through (7), that occurred within 36 months of each other, the person shall have their certificate revoked for a period of three years. (5) Where, based on the occurrence of violations described in § 245.303(e)(7), different periods of ineligibility may result under the provisions of this section and § 245.115, the longest period of revocation shall control. (c) Any or all periods of revocation provided in paragraph (b) of this section may consist of training. (d) A person whose certification is denied or revoked shall be eligible for grant or reinstatement of the certificate prior to the expiration of the initial… | |||||
| 49:49:4.1.1.1.39.4.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | D | Subpart D—Denial and Revocation of Certification | § 245.307 Process for revoking certification. | FRA | (a) If a railroad determines that a dispatcher, who is currently certified by the railroad, has violated a railroad operating rule or practice described in § 245.303(e), the railroad shall revoke the dispatcher's certification in accordance with the procedures and requirements of this section. (b) Except as provided for in § 245.115(f), if a railroad acquires reliable information that a dispatcher, who is currently certified by the railroad, has violated a railroad operating rule or practice described in § 245.303(e) or § 245.115(d), the railroad shall undertake the following process to determine whether revocation of the dispatcher's certification is warranted: (1) The dispatcher's certification shall be suspended immediately. (2) Prior to or upon suspending the dispatcher's certification, the railroad shall provide the dispatcher with notice of: the reason for the suspension; the pending revocation; and an opportunity for a hearing before a presiding officer other than the investigating officer. This notice may initially be given either orally or in writing. If given orally, the notice must be subsequently confirmed in writing in a manner that conforms with the notification provisions of the applicable collective bargaining agreement. If there is no applicable collective bargaining agreement notification provision, the written notice must be made within four days of the date the certification was suspended. (3) The railroad must convene the hearing within the time frame required under the applicable collective bargaining agreement. If there is no applicable collective bargaining agreement or the applicable collective bargaining agreement does not include such a requirement, the hearing shall be convened within ten days of the date the certification is suspended unless the dispatcher requests or consents to a delay to the start of the hearing. (4) Except as provided for in paragraph (c) of this section, the railroad shall provide the dispatcher with a copy of the written information and a list of witnesses … | |||||
| 49:49:4.1.1.1.39.5.137.1 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 245.401 Review board established. | FRA | (a) Any person who has been denied certification, denied recertification, or has had their certification revoked and believes that a railroad incorrectly determined that they failed to meet the certification requirements of this part when making the decision to deny or revoke certification, may petition the Administrator to review the railroad's decision. (b) The Administrator has delegated initial responsibility for adjudicating such disputes to the Certification Review Board (Board). The Board shall be composed of FRA employees. | |||||
| 49:49:4.1.1.1.39.5.137.2 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 245.403 Petition requirements. | FRA | (a) To obtain review of a railroad's decision to deny certification, deny recertification, or revoke certification, a person shall file a petition for review that complies with this section. (b) Each petition shall: (1) Be in writing; (2) Be filed no more than 120 days after the date the railroad's denial or revocation decision was served on the petitioner, except as provided for in paragraph (d) of this section; (3) Be filed on https://www.regulations.gov. (4) Include the following contact information for the petitioner and petitioner's representative (if petitioner is represented): (i) Full name; (ii) Daytime telephone number; and (iii) Email address; (5) Include the name of the railroad; (6) Contain the facts that the petitioner believes constitute the improper action by the railroad and the arguments in support of the petition; and (7) Include all written documents in the petitioner's possession or reasonably available to the petitioner that document the railroad's decision. (c) If requested by the Board, the petitioner must provide a copy of the information under 49 CFR 40.329 that laboratories, medical review officers, and other service agents are required to release to employees. The petitioner must provide a written explanation in response to a Board request if written documents, that should be reasonably available to the petitioner, are not supplied. (d) The Board may extend the petition filing period in its discretion provided that the petitioner provides good cause for the extension and: (1) The request for an extension is filed before the expiration of the period provided for in paragraph (b)(2) of this section; or (2) The failure to timely file was the result of excusable neglect. (e) A party aggrieved by a Board decision to deny a petition as untimely or not in compliance with the requirements of this section may file an appeal with the Administrator in accordance with § 245.411. | |||||
| 49:49:4.1.1.1.39.5.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 245.405 Processing certification review petitions. | FRA | (a) Each petition shall be acknowledged in writing by FRA. The acknowledgment shall be sent to the petitioner (if an email address is provided), petitioner's representative (if any), and the railroad. The acknowledgment shall contain the docket number assigned to the petition and will notify the parties where the petition can be accessed. (b) Within 60 days from the date of the acknowledgment provided in paragraph (a) of this section, the railroad may submit to FRA any information that the railroad considers pertinent to the petition and shall supplement the record with any relevant documents in its possession, such as hearing transcripts and exhibits, that were not submitted by the petitioner. Late filings will only be considered to the extent practicable. A railroad that submits such information shall: (1) Identify the petitioner by name and the docket number for the petition; (2) Provide the railroad's email address; (3) Serve a copy of the information being submitted to the petitioner and petitioner's representative, if any; and (4) File such information on https://www.regulations.gov. (c) The petition will be referred to the Board for a decision after a railroad's response is received or 60 days from the date of the acknowledgment provided in paragraph (a) of this section, whichever is earlier. Based on the record, the Board shall have the authority to grant, deny, dismiss, or remand the petition. If the Board finds that there is insufficient basis for granting or denying the petition, the Board may issue an order affording the parties an opportunity to provide additional information or argument consistent with its findings. (d) When considering procedural issues, the Board will grant the petition if the petitioner shows: (1) That a procedural error occurred; and (2) The procedural error caused substantial harm to the petitioner. (e) When considering factual issues, the Board will grant the petition if the petitioner shows that the railroad did not provide substantial evidence to support its decis… | |||||
| 49:49:4.1.1.1.39.5.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 245.407 Request for a hearing. | FRA | (a) If adversely affected by the Board's decision, either the petitioner before the Board or the railroad involved shall have a right to an administrative proceeding as prescribed by § 245.409. (b) To exercise that right, the adversely affected party shall file a written request for a hearing within 20 days of service of the Board's decision on that party. The request must be filed in the docket on https://www.regulations.gov that was used when the case was before the Board. (c) A written request for a hearing must contain the following: (1) The name, telephone number, and email address of the requesting party and the requesting party's designated representative (if any); (2) The name, telephone number, and email address of the respondent; (3) The docket number for the case while it was before the Board; (4) The specific factual issues, industry rules, regulations, or laws that the requesting party alleges need to be examined in connection with the certification decision in question; and (5) The signature of the requesting party or the requesting party's representative (if any). (d) Upon receipt of a hearing request complying with paragraph (c) of this section, FRA shall arrange for the appointment of a presiding officer who shall schedule the hearing for the earliest practicable date. (e) If a party fails to request a hearing within the period provided in paragraph (b) of this section, the Board's decision will constitute final agency action. | |||||
| 49:49:4.1.1.1.39.5.137.5 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 245.409 Hearings. | FRA | (a) An administrative hearing for a dispatcher certification petition shall be conducted by a presiding officer, who can be any person authorized by the Administrator. (b) The presiding officer shall convene and preside over the hearing. The hearing shall be a de novo hearing to find the relevant facts and determine the correct application of this part to those facts. The presiding officer may determine that there is no genuine issue covering some or all material facts and limit evidentiary proceedings to any issues of material fact as to which there is a genuine dispute. (c) The presiding officer may exercise the powers of the Administrator to regulate the conduct of the hearing for the purpose of achieving a prompt and fair determination of all material issues in controversy. (d) The presiding officer may authorize discovery of the types and quantities which in the presiding officer's discretion will contribute to a fair hearing without unduly burdening the parties. The presiding officer may impose appropriate non-monetary sanctions, including limitations as to the presentation of evidence and issues, for any party's willful failure or refusal to comply with approved discovery requests. (e) Every petition, motion, response, or other authorized or required document shall be signed by the party filing the same, or by a duly authorized officer or representative of record, or by any other person. If signed by such other person, the reason therefor must be stated and the power of attorney or other authority authorizing such other person to subscribe the document must be filed with the document. The signature of the person subscribing any document constitutes a certification that they have read the document; that to the best of their knowledge, information, and belief, every statement contained in the document is true and no such statements are misleading; and that it is not interposed for delay or to be vexatious. (f) After the request for a hearing is filed, all documents filed or served upon one party must … | |||||
| 49:49:4.1.1.1.39.5.137.6 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 245.411 Appeals. | FRA | (a) Any party aggrieved by the presiding officer's decision may file an appeal in the presiding officer's docket. The appeal must be filed within 35 days of issuance of the decision. A copy of the appeal shall be served on each party. The appeal shall set forth objections to the presiding officer's decision, supported by reference to applicable laws and regulations and with specific reference to the record. If no appeal is timely filed, the presiding officer's decision constitutes final agency action. (b) A party may file a reply to the appeal within 25 days of service of the appeal. The reply shall be supported by reference to applicable laws and regulations and with specific reference to the record, if the party relies on evidence contained in the record. (c) The Administrator may extend the period for filing an appeal or a reply for good cause shown, provided that the written request for extension is served before expiration of the applicable period provided in this section. (d) The Administrator has sole discretion to permit oral argument on the appeal. On the Administrator's own initiative or written motion by any party, the Administrator may grant the parties an opportunity for oral argument. (e) The Administrator may remand, vacate, affirm, reverse, alter, or modify the decision of the presiding officer and the Administrator's decision constitutes final agency action except where the terms of the Administrator's decision (for example, remanding a case to the presiding officer) show that the parties' administrative remedies have not been exhausted. (f) An appeal from a Board decision pursuant to § 245.403(e) must be filed in the Board's docket within 35 days of issuance of the decision. A copy of the appeal shall be served on each party. The Administrator may affirm or vacate the Board's decision, and may remand the petition to the Board for further proceedings. An Administrator's decision to affirm the Board's decision constitutes final agency action. |
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