U.S. Locational Requirement for Dispatching of U.S. Rail Operations

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: December 11, 2001 (Volume 66, Number 238)]
[Rules and Regulations]
[Page 63942-63963]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de01-17]

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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 241
[FRA Docket No. FRA-2001-8728, Notice No. 1]
RIN 2130-AB38

U.S. Locational Requirement for Dispatching of U.S. Rail
Operations

AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Interim final rule and request for comments.

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SUMMARY: This Interim Final Rule adds a new regulation that requires
all dispatching of railroad operations that occur in the United States
to be performed in the United States, with three minor exceptions.
First, a railroad is allowed to conduct dispatching of railroad
operations in the United States from a point outside the United States
(``extraterritorial dispatching'') in emergency situations for the
duration of the emergency if the railroad provides prompt written
notification of its action to the FRA Regional Administrator of each
FRA region in which the railroad operation occurs; such notification is
not required before addressing the emergency situation. Second, the
rule permits continued extraterritorial dispatching of the very limited
track segments in the United States that were regularly being so
dispatched in December 1999. This grandfathering covers the four
domestic operations that are dispatched from Canada. Third, the rule
would allow for extraterritorial dispatching from Canada or Mexico of
fringe border operations. Such operations are acceptable provided the
United States trackage being dispatched does not exceed 100 miles, each
train is under the control of the same assigned crew for the entire
trip over that trackage, and the rail line encompassing the trackage
either both originates and terminates in either Canada or Mexico
without the pick up, set out, or interchange of cars in the United
States or is under the exclusive control of a single dispatching
district and that portion of the line being dispatched extends no
further into the United States than specified types of locations close
to the border.
In addition, railroads that wish to commence additional
extraterritorial dispatching may apply for a waiver under certain other
provisions from the domestic locational requirement set forth in this
regulation. Such a waiver may be granted if, inter alia, an

[[Page 63943]]

applicant can demonstrate to the satisfaction of FRA a program to
assure safety oversight of the dispatching function comparable to that
provided by FRA regulators for dispatchers located in the United
States.
FRA is interested in receiving public comments on possible benefits
and costs of this Interim Final Rule and comments on whether FRA should
adopt an alternative regulatory scheme under which extraterritorial
dispatching of United States railroad operations would be permitted
and, if so, under what conditions. The Interim Final Rule will be in
effect for a period of 365 days to provide FRA with time to analyze
these comments. Based on the comments, FRA may: Issue final rule
amendments to the Interim Final Rule making the Interim Final Rule
permanent with any substantive changes FRA determines are appropriate;
issue a notice proposing a new rule (a notice of proposed rulemaking),
and possibly a final rule amendment extending the deadline of the
Interim Final Rule while FRA completes this new rulemaking; or decide
that no Federal regulation is appropriate and issue a final rule
removing the Interim Final Rule.

DATES: (1) Effective Date: This regulation is effective January 10,
2002 through January 10, 2003.
(2) Written Comments: Written comments must be received by February
11, 2002. Comments received after that date will be considered to the
extent possible without incurring additional expense or delay.
(3) Public Hearing: FRA is planning to conduct at least one public
hearing to be held in Washington, DC, in order to provide all
interested parties the opportunity to comment on the provisions
contained in the Interim Final Rule. FRA will issue a separate document
in the Federal Register in the very near future to inform all
interested parties as to the exact date and location where the public
hearing(s) will be held.

ADDRESSES: Anyone wishing to file a comment should refer to the FRA
docket and notice numbers (Docket No. FRA-2001-8728, Notice No. 1). You
may submit your comments and related material by only one of the
following methods:
By mail to the Docket Management System, United States Department
of Transportation, room PL-401, 400 7th Street, SW., Washington, DC
20590-0001;
Electronically through the Web site for the Docket Management
System at http://dms.dot.gov. For instructions on how to submit
comments electronically, visit the Docket Management System Web site
and click on the ``Help'' menu.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments, and documents as indicated in this preamble, will
become part of this docket and will be available for inspection or
copying at room PL-401 on the Plaza Level of the Nassif Building at the
same address during regular business hours. You may also obtain access
to this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: For technical issues related to
alcohol and controlled substance matters, Lamar Allen, Alcohol and Drug
Program Manager, FRA Office of Safety, RRS-11, 1120 Vermont Avenue,
NW., Stop 25, Washington, DC 20590 (telephone 202-493-6313); or for
other technical issues, Dennis Yachechak, Railroad Safety Specialist,
FRA Office of Safety, RRS-11, 1120 Vermont Avenue, NW., Stop 25,
Washington, DC 20590 (telephone 202-493-6260). For legal issues related
to alcohol and controlled substance matters, Patricia Sun, Trial
Attorney, FRA Office of the Chief Counsel, RCC-11, 1120 Vermont Avenue,
NW., Stop 10, Washington, DC 20590 (telephone 202-493-6038); or for
other legal issues, John Winkle, Trial Attorney, FRA Office of the
Chief Counsel, RCC-12, 1120 Vermont Avenue, NW., Stop 10, Washington,
DC 20590 (telephone 202-493-6067).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Railroad Dispatchers Are Essential to the Safety of Railroad
Operations
II. Potential for Location of Dispatchers outside United States
Borders
III. Dispatchers Must Comply with the Federal Railroad Safety Laws
to Move Traffic Safely in the United States
A. Hours of Service, Operating Rules and Efficiency Testing, and
Drug and Alcohol Testing Requirements
B. FRA's Oversight and Enforcement Activities
IV. Foreign Regulatory Jurisdiction
V. Hours of Service, Operating Rules Compliance, and Substance Abuse
Concerns
VI. Security Issues
VII. Language Differences
VIII. Units of Measure
IX. Other Concerns
X. Options
XI. The Interim Final Rule
XII. Section-by-Section Analysis
XIII. Regulatory Impact
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Unfunded Mandates Reform Act of 1995
G. Energy Impact

I. Railroad Dispatchers Are Essential to the Safety of Railroad
Operations

Proper dispatching is essential for safe railroad operations.
Because trains have long stopping distances, train operations are not
conducted by line of sight. Rather, the route ahead must be cleared for
the train's movement. Switches must be aligned properly along the
route. Potentially conflicting movements must be guarded against in
order to prevent collisions. Dispatchers actually ``steer'' the train
by remotely aligning switches. They determine whether the train should
stop or move, and if so, at what speed, by operating signals and
issuing train orders and other forms of movement authority or speed
restriction. In addition, dispatchers protect track gangs and other
roadway workers from passing trains by issuing authorities for working
limits. Train crews on board locomotives carry out the dispatchers'
instructions and are responsible for actually moving the train, but
dispatchers make it possible to do so safely.
FRA is aware that, depending upon the ``method of operation'' in
effect on a particular territory and the availability of computer-aided
dispatching (CAD) systems, electrical or electronic systems may
constitute significant checks on inadvertent dispatcher error. However,
the possibility for error remains within any method of operation. For
instance, there are a variety of scenarios in which dispatchers can
override CAD system warnings. Even in traffic control territory, where
vital signal logic nominally protects against conflicting movements,
roadway workers and their equipment may lack protection due to
dispatcher error; and it may be necessary to issue authorities for
train movements past stop signals in a variety of circumstances. Thus,
a dispatcher's judgment must be sound if railroad operations are to be
conducted safely.
It is commonplace in today's railroad operations for dispatchers to
be located at a significant distance from the trackage and operations
they control. For example, CSX Transportation, Inc, (CSX) dispatchers
in Jacksonville, Florida, control the operations of CSX, Amtrak, and
commuter rail trains throughout the Southeast and Mid-Atlantic. This
does not create any additional safety risk. FRA does not mean to
suggest, in the discussion of dispatch locational issues, that mere
distance from the physical site of rail operations poses a safety
hazard.

[[Page 63944]]

II. Potential for Location of Dispatchers outside United States
Borders

Currently, dispatchers located outside the United States control
only very limited train movements in the United States. Specifically,
the Canadian National Railway Company (CN) uses Canadian-based
dispatchers to control trains operating from Ontario, Canada, into the
United States on the following trackage in the United States: 1.8 miles
to Detroit, Michigan; and 3 miles to Port Huron, Michigan. CN also uses
Canadian-based dispatchers located in Edmonton, Alberta, Canada, to
control trains operating into Minnesota on 40 miles of track on the
Sprague Subdivision, which accommodates 10 trains daily.\1\ Finally,
the Eastern Maine Railway Company operates track between McAdam, New
Brunswick, Canada, to Brownville Junction, Maine, 99 miles of which are
in the United States. Operations on this trackage are dispatched from
St. John, New Brunswick, Canada. These limited rail operations do not
cover any trackage that has been designated by FRA and the Military
Traffic Management Command of the Department of Defense (DOD) as vital
to the national defense. In addition, there is no evidence that these
extremely limited operations have adversely affected safety. No
dispatchers located in Mexico control railroad operations in the United
States.\2\
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\1\ Canadian railroads also operate on the following three lines
from Canada into the United States without the use of a dispatcher:
1 miles to Buffalo, New York (CN); 1 mile to Niagara Falls, New York
(Canadian Pacific Railway Company (CP); and 1.5 miles to Niagara
Falls, New York (CN).
\2\ There are currently five interchange operations between
Mexican and United States railroads along the Texas-Mexico border
and one on the Arizona-Mexico border involving Mexican-based train
crews. These movements, however, are not controlled by a dispatcher.
They are all within yard limits and are controlled by yard rules.
These operations are located in Texas at Brownsville, Laredo, Eagle
Pass, Presidio, and El Paso, and in Arizona at Nogales. Only the
Eagle Pass operation is greater than one-fourth of a mile (length of
haul on United States soil), and even that operation covers less
than one mile.
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However, there is the prospect of increased use of dispatchers
located outside the United States. Specifically, CP, which owns the
Delaware and Hudson Railway Company (D&H), is interested in relocating
from the United States to Canada dispatching functions involving the
dispatching of approximately 32 D&H trains per day operating over the
546-mile D&H system in the United States. CN's previous acquisitions of
the Grand Trunk Western Railroad, Inc. (GTW) (646 miles of track
operated by GTW (1998 figures)), the Illinois Central Railroad Company
(2591 miles of track) and the 2,500 route miles of U.S. Class II and
III railroads formerly owned by the Wisconsin Central Transportation
Company raise the possibility of additional extraterritorial
dispatching at some future date.\3\ In addition, CP's earlier
acquisition of the Soo Line Railroad Company also presents future
exposure of the same kind. FRA is aware that the merged or consolidated
railroads (other than CP in the case of D&H) disclaim (or are silent
regarding) any current intention to transfer dispatching work outside
the country. The railroads have the discretion, however, to act in
their own best interests and are under no obligation to continue to
refrain from extraterritorial dispatching, and those interests may
change as circumstances change.
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\3\ Likewise, although The Kansas City Southern Railway Company
remains independent, it ``has entered into a comprehensive alliance
with CN and IC.'' STB Ex Parte No. 582 (Sub-No. 1), advance notice
of proposed rulemaking, n.7, 65 FR 18021 (April 6, 2000). ``Joint
marketing arrangements enable railroads to offer joint-line service
almost as seamless as single-line service * * * .'' Id. at n.10.
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With regard to Mexico, the Texas Mexican Railroad (TM) and
Transportacion Ferroviaria Mexicana (TFM) are currently exploring the
feasibility of obtaining trackage rights over trackage owned by the
Union Pacific Railroad Company (UP) that extends between Laredo and San
Antonio and between Laredo and Houston. Finally, because of present
technology, railroads operating in the United States that now dispatch
their trains in the United States could dispatch these trains from
anywhere in the world.

III. Dispatchers Must Comply With the Federal Railroad Safety Laws
To Move Traffic Safely in the United States

As noted above, proper dispatching is essential to conducting safe
railroad operations. With respect to railroad dispatchers located in
the United States, Federal statutes and regulations and oversight
actions by FRA, as the agency charged with administering the Federal
rail safety laws, together safeguard United States railroad operations
when railroad dispatchers are located in the United States. 49 U.S.C.
ch. 51, 201-213; 49 CFR 1.49. Examples of safety rules and laws
affecting dispatchers include operating rules and efficiency testing
(49 CFR part 217), drug and alcohol testing (49 CFR part 219), and
hours of service (49 U.S.C. 21105 and 49 CFR part 228). (Hereinafter,
references to a numbered part are to a part in title 49 of the CFR
unless otherwise stated.) To promote compliance, FRA may conduct
inspections and investigations and impose sanctions for violations of
its safety standards against both railroads and individuals, including
dispatchers, if the individual or railroad is located in the United
States. See, e.g., 49 U.S.C. 20107; 49 U.S.C. ch. 213; and part 209,
appendix A (a description of FRA's safety enforcement program and
policy). However, paragraph (c) of Sec. 219.3 currently exempts
employees of a foreign railroad, including dispatchers, whose primary
reporting point is located outside of the United States and who perform
service in the United States covered by the hours of service laws from
subparts E (identification of troubled employees), F (pre-employment
testing), and G (random testing) of Sec. 219.3. Drug and alcohol
testing of such employees is addressed in detail in an FRA Notice of
Proposed Rulemaking (NPRM) published elsewhere in the Federal Register
today that proposes revisions to Part 219 requiring that such employees
be tested. The provisions of part 241 along with the provisions of the
NPRM will ensure that dispatchers controlling the bulk of rail
operations in the United States are covered by effective drug and
alcohol testing regulations.
Besides enforcing the Federal railroad safety laws, FRA also can
take other safety-related actions. Further, FRA may conduct
investigations of railroad accidents in the United States, including
those involving dispatching, and may issue reports on the agency's
findings, including its determination of probable cause. See, e.g., 49
U.S.C. 20107, 20902; 49 CFR 225.31. In addition, FRA may conduct
research and development as necessary for every area of railroad
safety, including dispatching. 49 U.S.C. 20108. Moreover, FRA may issue
rules and orders, as necessary, for every area of railroad safety,
including dispatching. See 49 U.S.C. 20103. Such orders may include
emergency orders to eliminate or reduce an unsafe condition or
practice, identified through testing, inspecting, investigation, or
research, that causes an emergency situation involving a hazard of
death or injury to persons. See 49 U.S.C. 20104. Finally, FRA has
recently taken a pro-active approach in its ability to influence non-
regulated aspects of dispatching operations through its Safety
Assurance and Compliance Program (SACP), through its safety advisories
published in the Federal Register, and through its visits to
dispatching centers to ensure that dispatching is being safely
conducted whether or not specific federal standards are being violated.

[[Page 63945]]

A. Hours of Service, Operating Rules and Efficiency Testing, and Drug
and Alcohol Testing Requirements

Congress has established hours of service standards for safety-
sensitive domestic railroad employees, including railroad dispatchers.
In order to prevent fatigue which could adversely affect job
performance, 49 U.S.C. 21105 mandates that dispatchers in the United
States may not work more than nine hours during a 24-hour period in a
location where two or more shifts are employed, or 12 hours during a
24-hour period where only one shift is employed. Part 228 requires
railroads to retain written hours of service records for dispatchers
and allows for access to those records by FRA inspectors.
In addition, domestic railroad dispatchers are subject to FRA
safety standards. Under part 217, railroads operating in the United
States are required to have operating rules, to periodically instruct
employees (including dispatchers) on those rules, to periodically
conduct operations tests and inspections on employees (including
dispatchers) to determine the extent of their compliance with the
rules, and to keep records of the individual tests and inspections for
review by FRA.
Under part 219, dispatchers and other safety-sensitive railroad
employees located in the United States are subject to random,
reasonable suspicion, return-to-duty, follow-up, and post-accident drug
and alcohol testing, as well as pre-employment testing for drugs.\4\
See subparts B, C, D, F, and G of part 219. Post-accident testing is
required for a dispatcher who is directly and contemporaneously
involved in the circumstances of any train accident meeting FRA testing
thresholds. See subpart C. A dispatcher found to have violated FRA's
drug and alcohol rules, or who refuses to submit to testing, is
required to be immediately removed from dispatching service for a nine-
month period, and the railroad must follow specified procedures
including return-to-duty and follow-up testing requirements before
returning the dispatcher to dispatching service. See subpart B.
Additionally, domestic-based employers must provide self-referral and
co-worker reporting (self-policing) programs for their employees
(subpart E), submit random alcohol and drug testing plans for approval
by FRA (subpart G), conduct random testing under part 219 and DOT
procedures found in part 40 (subpart H), submit annual reports (subpart
I), and maintain program records (subpart J).\5\
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\4\ In the Omnibus Transportation Employee Testing Act of 1991,
Pub. L. 102-143, Congress found that--(1) Alcohol abuse and illegal
drug use pose significant dangers to the safety and welfare of the
Nation;
(2) millions of the Nation's citizens utilize transportation by
aircraft, railroads, trucks, and buses, and depend on the operators
of aircraft, trains, trucks, and buses to perform in a safe and
responsible manner;
(3) the greatest efforts must be expended to eliminate the abuse
of alcohol and use of illegal drugs, whether on or off duty, by
those individuals who are involved in the operation of aircraft,
trains, trucks, and buses;
(4) the use of alcohol and illegal drugs has been demonstrated
to affect significantly the performance of individuals, and has
proven to have been a critical factor in transportation accidents;
(5) the testing of uniformed personnel of the Armed Forces has
shown that the most effective deterrent to abuse of alcohol and use
of illegal drugs is increased testing, including random testing;
(6) adequate safeguards can be implemented to ensure that
testing for abuse of alcohol or use of illegal drugs is performed in
a manner which protects an individual's right to privacy, ensures
that no individual is harassed by being treated differently from
other individuals, and ensures that no individual's reputation or
career development is unduly threatened or harmed; and
(7) rehabilitation is a critical component of any testing
program for abuse of alcohol or use of illegal drugs, and should be
made available to individuals, as appropriate. 49 U.S.C. app. 1434
note. FRA's random testing regulations respond to Congress'
directive in the Act (49 U.S.C. 20140) to issue random testing
regulations relating to alcohol and drug use in railroad operations.
\5\ For example, Subpart I requires that certain information on
a railroad's tests and inspections related to enforcement of the
company's rules on alcohol and drug use be reported annually to FRA
for review.
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FRA's broad-based, multi-component alcohol and drug program has
reduced alcohol and drug abuse in the railroad industry since FRA's
original alcohol and drug regulations were implemented in 1986.
In 1987, testing for cause conducted under FRA and
railroad programs resulted in a 4.0 percent positive rate for alcohol
and a 6.9 percent positive rate for drugs. These rates have declined
each year, with the 1998 testing for cause resulting in a 0.36 percent
positive rate for alcohol and a 0.95 percent rate for drugs.
Random drug testing began in 1989. The first full year's
data for 1990 indicated a 1.04 percent rate, declining to a 0.77
percent rate in 1998.
Random alcohol testing began in 1994, with the first full
year's data for 1995 resulting in a 0.42 percent rate, which has
declined each year to a 0.003 percent rate for 1998.
FRA post-accident testing data provide perhaps the most stark and
compelling proof of the decline in alcohol and drug abuse in the
railroad industry. In its post-accident testing program, in which
testing is triggered only by significant accidents, FRA may use lower
drug detection levels (cutoffs) and test for more substances than those
tested for in other types of FRA testing. Post-accident testing data
are the most scrutinized because FRA reviews each testing event, and
tests each specimen in a designated contract laboratory, which FRA
inspects quarterly. Furthermore, because the program has been in effect
since 1987, post-accident testing data provide the longest trend line.
An analysis of the post-accident testing data in the chart below
demonstrates how positive test results have dramatically declined since
FRA's program started. In 1987, the first year of the program, 42
employees produced a positive specimen, resulting in a post-accident
positive rate of 0.4 percent for alcohol and 5.1 percent for drugs. By
1998, only four employees produced a positive specimen, resulting in
positive rates of 0.0 percent for alcohol and 2.6 percent for drugs.
As shown in the post-accident testing chart below, in each of the
fields--``Qualifying Events,'' ``Employees Tested,'' and ``Employees
Positive One/More Substances [Number (A=Alcohol; D=Drug)]''--FRA has
achieved a desired reduction, despite a significant increase in rail
traffic. The deterrent effect of random drug testing, which was
implemented in 1988-1989, most certainly influenced the dramatic
reduction in post-accident positives from 41 in 1988 to only 17 in
1990. Additionally, in the eight years from 1987 through 1994, there
were 20 post-accident alcohol positives, but only two post-accident
alcohol positives in the succeeding four years after implementation of
random alcohol testing in 1994. While some refinement of regulatory
requirements over the years has reduced the class of qualifying events
(cost criteria for two of the qualifying events have been increased),
the remaining events are those for which higher positive rates would be
expected due to a higher component of likely human factor involvement.
FRA is aware that many factors have contributed to these results
and probably influenced movement in both directions. The number of
employees tested has decreased due to fewer qualifying events and crew
consist reductions. For other than FRA post-accident testing, the
Department of Health and Human Services (DHHS) has reduced the
detection cut-off level for marijuana metabolites and has increased the
detection levels for opiates used in Federal workplace detection
programs such as FRA's. Another factor likely to have contributed to
higher industry positive rates is the constant improvement in railroad
random testing

[[Page 63946]]

programs. Nonetheless, testing data remain the best indicator of the
success that the comprehensive programs mandated by FRA have had in
significantly reducing alcohol and drug abuse in the railroad industry.

FRA Post-Accident Toxicological Testing Results (1987-1998)
----------------------------------------------------------------------------------------------------------------
Qualifying Employees Employees positive one/more substances
Year events tested [number (A=Alcohol; D=Drug)]
----------------------------------------------------------------------------------------------------------------
1987.................................... 179 770 42 (3A-39D)
1988.................................... 178 682 41 (3A-38D)
1989.................................... 161 607 24 (6A-18D)
1990.................................... 149 524 17 (1A-16D)
1991.................................... 157 552 8 (2A-6D)
1992.................................... 109 332 7 (1A-6D)
1993.................................... 128 403 8 (2A-6D)
1994.................................... 115 294 7 (2A-5D)
1995.................................... 82 225 2 (0A-2D)
1996.................................... 73 197 1 (0A-1D)
1997.................................... 86 240 3 (2A-1D)
1998.................................... 68 153 4 (0A-4D)
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Note on this chart, concerning 49 CFR 219, subpart C--Post-Accident
Toxicological Testing:
The positives reflected in the chart indicate the presence of drugs
or alcohol in a covered employee during the event. A positive result
does not necessarily indicate a causal relationship with the accident.
Causal determinations are made only after a thorough review of all
factors that may have contributed to the accident.
With certain stated exceptions, post-accident toxicological tests
are required to be conducted for the following events:
1. Major Train Accident (involving damage exceeding the current FRA
reporting threshold ($6,600 in 1998)) involving:
(a) A fatality;
(b) A release of hazardous material lading from railroad equipment
resulting in either an evacuation or a reportable injury; or
(c) Damage to railroad property of $1,000,000 or more.
2. Impact Accident (as defined in Sec. 219.5 involving damage
exceeding the FRA reporting threshold) involving:
(a) A reportable injury; or
(b) Damage to railroad property of $150,000 or more.
3. Fatal Train Incident: fatality to any on-duty railroad employee
involving movement of on-track equipment with damage not exceeding the
reporting threshold.
4. Passenger Train Accident: passenger train involved in an
accident that exceeds the reporting threshold and results in an injury
reportable to FRA under 49 CFR part 225.
See 49 CFR 219.201(a). Rail/highway grade crossing accidents and
accidents wholly resulting from natural causes (e.g., tornado),
vandalism, or trespassing are exempt from FRA post-accident testing.
See 49 CFR 219.201(b). For a major train accident, all train
crewmembers must be tested, but any other covered employees (e.g.,
dispatchers, signalmen) determined not to have had a role in the cause
or severity of the accident are not to be tested. See 49 CFR
219.201(c)(2).

B. FRA's Oversight and Enforcement Activities

In order to effectively promote safety in all areas of railroad
operations, including dispatching, FRA has additional tools and
programs at its disposal other than the strictly regulatory framework
described above. FRA's SACP is an approach to safety that emphasizes
the active partnership of FRA, rail labor representatives, and railroad
management in identifying current safety problems and jointly
developing effective solutions to those problems. One fundamental
principle of this approach is tracing a safety problem to its root
cause and attacking that root cause instead of its symptoms. Where a
problem is determined to be system-wide, SACP allows for a system-wide
approach rather than individual, uncoordinated actions. So far, SACP
has demonstrated significant capacity for identifying and eliminating
the root cause of system-wide rail safety problems, including
dispatching-related problems, by enlisting those most directly affected
by such problems--railroad employees and managers--in a partnership
effort.
For example, in 1997, FRA effectively used SACP to address system-
wide problems on the UP and Southern Pacific Transportation Company
(SP) (collectively UP/SP) during the period that the two railroads were
in the process of merging with each other.\6\ Between June 22 and
August 31, 1997, UP/SP experienced five major train collisions that
resulted in the deaths of five UP/SP employees and two trespassers.
These accidents were in addition to a series of yard switching
accidents that claimed the lives of four UP/SP train service employees.
On August 23, under the auspices of the SACP, FRA launched a
comprehensive safety review of UP/SP's operations, including its
dispatching, and in the ensuing two-week period, as many as 80 FRA and
state safety inspectors were on UP/SP property to determine the
magnitude and extent of safety problems and to recommend measures to
address those problems. In November, following two non-fatal
collisions, FRA sent a team of 87 Federal and state inspectors onto UP/
SP property for one week to ensure that the safety deficiencies
identified in the initial review were being dealt with at the highest
levels of the organization.
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\6\ SP merged into UP effective February 1, 1998.
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As a result of the safety reviews, FRA concluded that a fundamental
breakdown existed in some of the basic railroad operating procedures
and practices essential to maintain a safe operation, particularly in
the area of dispatching. As part of the SACP process, FRA conducted a
comprehensive safety audit of UP/SP's Harriman Dispatch Center, which
is the railroad's main dispatching facility and which dispatches
operations on approximately 95 percent of UP/SP's territory. During the
initial phase of the safety audit, FRA inspectors and safety
specialists spent a total of 31 days at the dispatching center
observing and analyzing UP/SP dispatching practices

[[Page 63947]]

and procedures. Later, FRA inspectors headquartered within a few miles
of the dispatching center made frequent follow-up visits to the
dispatching center. FRA observed inefficient and unsafe practices by
supervisors and dispatchers at the dispatching center, and correctly
attributed those practices to inadequate training and extreme work
overload. FRA made specific recommendations, which UP/SP accepted, such
as creating additional dispatch positions, realigning dispatchers'
territories to better balance the workload, hiring new dispatchers,
tripling the number of dispatching supervisors, making improvements to
the software in the UP/SP's CAD system, and forming a working group
consisting of representatives from FRA, rail labor, and UP/SP
management to continually monitor and address dispatching issues that
may arise.\7\ As a result of FRA's SACP efforts, UP/SP's safety
performance recovered rapidly. During the year following FRA's
dispatching initiative, UP/SP saw fatalities due to train collisions
drop by 100 percent, from seven in 1997 to none in 1998. Such an
immediate response could not have been effectuated without FRA's
ability to obtain access to its facilities, which would not have been
guaranteed if UP/SP's dispatching facilities were located outside the
United States.
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\7\ FRA's SACP program on the post-merger UP continues today,
and dispatching is still an important aspect of the program. As a
result of the continued monitoring of UP's activities, UP hired 114
new dispatchers in 1998 and, as of mid-year 1999, planned to hire
124 new dispatchers by the end of 1999. In part as a result of this
effort, problems with rail traffic congestion and accidents have
been addressed.
---------------------------------------------------------------------------

Another safety tool FRA has at its disposal is the safety
advisory.\8\ Safety advisories are issued by FRA and published in the
Federal Register to disseminate important information on critical
safety concerns. By publishing safety advisories in the Federal
Register, FRA is able to reach the entire regulated community instead
of just the railroad whose actions prompted the safety advisory.
Previous safety advisories have concerned problems with train control
systems, train handling procedures, equipment securement procedures,
and procedures for reducing the risk of damage to tracks and bridges
from flash floods. For example, on December 23, 1996, FRA published a
Notice of Safety Bulletin in the Federal Register (61 FR 64191)
addressing recommended safety practices for Direct Train Control (DTC),
an umbrella term that refers to methods of operation used by
dispatchers to control train movements that are known variously as
Direct Traffic Control, Track Warrant Control (TWU), Track Permit
Control System (TICS), and Form D Control System (DCS), and similar
means of authorizing train movements. The safety bulletin was issued as
a result of FRA's investigation of a head-on collision between two
freight trains operated by CSX, and included three recommended safety
practices for operations in DTC territory. Although railroad compliance
with safety advisories is voluntary, the effectiveness of the
advisories is greatly influenced by FRA's ability to determine the
nature of the railroad's responsive action through on-site inspections
and the ability to issue regulations and emergency orders should the
railroad refuse to abide by the safety advisory.
---------------------------------------------------------------------------

\8\ Safety advisories are also known as safety directives and
safety bulletins. All three serve the same purpose--to advise the
regulated community of critical safety information.
---------------------------------------------------------------------------

Another safety tool FRA utilizes to promote rail safety is the site
inspection, which is more closely associated with FRA's regulatory
enforcement program than either SACP or safety advisories but can be an
integral element in either. See, e.g., 49 U.S.C. 20107. Through site
inspections, FRA's safety inspectors are able to observe a railroad's
practices first-hand and, if warranted, write reports and recommend
that civil penalties be assessed for violations. FRA frequently
conducts inspections of railroad dispatching centers to monitor
operating practices and dispatching procedures. As FRA's experience
during the UP/SP SACP investigations demonstrates, site inspections are
invaluable in investigating and addressing safety problems and can be
used to quickly improve a railroad's operating practices.
These inspections may also reveal the need for an emergency order,
especially if the railroad is unwilling to take corrective action. 49
U.S.C. 20104 (superseding 45 U.S.C. 432). FRA's emergency orders
provide an example of the kind of dramatic action the agency takes in
response to hazards discovered during routine site inspections. FRA
received the statutory authority to issue emergency orders in 1970. Of
the 22 emergency orders that FRA has issued since then, at least nine
have been issued primarily as a result of such routine inspections (as
opposed to FRA investigations of railroad accidents or other forms of
inquiry).
All of these tools, both regulatory and non-regulatory, are
strengthened by FRA's ability to readily gain access to railroad
facilities. Such tools as SACP activities, railroad site visits, and
emergency orders depend, to a significant degree, on easy access to
railroad facilities. For these tools to work, FRA must be assured of
such access. FRA is not certain at this time whether access can be
assured outside the borders of the United States, or whether the laws
of foreign countries will adequately safeguard United States rail
operations. While FRA has the power to issue an emergency order under
49 U.S.C. 20104(a) against a railroad that does not have in place a
program imposing adequate safety requirements for extraterritorial
persons that dispatch domestic railroad operations, FRA would need to
meet the high burden of proof entailed in sustaining such an order if
it is challenged.\9\
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\9\ In order to justify an emergency order, FRA must establish
that ``an unsafe condition or practice, or a combination of unsafe
conditions and practices, causes an emergency situation involving a
hazard of death or personal injury.'' See 49 U.S.C. Sec. 20104(a).
---------------------------------------------------------------------------

IV. Foreign Regulatory Jurisdiction

FRA may be unable to rely on foreign laws and rules governing
dispatchers, in themselves, to ensure safety in accordance with FRA
requirements. There can be a number of complexities in the ways foreign
laws and regulations apply to dispatching. First, although dispatching
can be performed from any country in the world, not every country in
the world has an entity that regulates rail transportation safety.
Second, even if the host country has established a transportation
regulatory entity, that entity may well lack full safety jurisdiction
over the railroad operations in the United States that are being
dispatched from the host country.
With respect to a host country regulatory agency's level of
regulatory authority over the individual dispatchers who conduct
extraterritorial dispatching, there appear to be at least four
different levels of jurisdiction over these dispatchers, depending on
their relevant duties. For jurisdiction purposes, an extraterritorial
dispatcher could likely fall into one of at least four categories:
Type 1--a dispatcher who controls both operations in the host
country and operations in the United States during a single tour of
duty for every tour of duty;
Type 2--a dispatcher who controls both operations in the host
county and operations in the United States during a single tour of duty
but not during every tour of duty;
Type 3--a dispatcher who sometimes controls operations in the host
country and sometimes controls operations in the United States, but
never operations

[[Page 63948]]

in both countries during a single tour of duty; and
Type 4--a dispatcher who controls only operations in the United
States and never controls operations in the host country.
For example, if the host country's hours of service restrictions
(if any) apply in the same manner as FRA has traditionally interpreted
those of the United States (49 U.S.C. ch. 211), then those restrictions
would normally apply only if the nexus to railroad safety in the host
country is clear because the dispatcher controls railroad operations
that occur in the host country at least at some point during his or her
duty tour. Several conclusions result. First, the host country's rules
would always apply to a Type 1 dispatcher (because he or she is
controlling operations in the host country and thus performing service
subject to those rules during each of his or her duty tours). Second,
the host country's rules would apply only sometimes to a Type 2 or Type
3 dispatcher (only during the duty tours when he or she controls
operations in the host country). Third, the host country's rules would
never apply to a Type 4 dispatcher (because he or she does not control
operations in the host country during his or her duty tour). Of course,
the necessity for the Type 2 and Type 3 dispatcher to comply with the
host country's rules during some of his or her duty tours might benefit
the safety of United States railroad operations, but not as much as if
the rules applied to all of his or her duty tours. In the case of the
Type 4 dispatcher, who controls only operations in the United States
and none in the host country, the probable inapplicability of the host
country's safeguards against fatigue to any of his or her dispatching
would mean that he or she could legally be required to work for
dangerously long periods of time, which would increase the risk of
human error that could lead to train accidents and train incidents in
the United States. Similar typologies and scenarios could be created
with respect to the dispatching centers themselves (e.g., security
measures) and to other aspects of the dispatching function, such as
training in the railroad company's operating rules paralleling part
217.
FRA invites comments on this potential regulatory gap and how it
could be addressed if extraterritorial dispatching is allowed.

V. Hours of Service, Operating Rules Compliance, and Substance
Abuse Concerns

Moreover, current regulations and statutes governing hours of
service limitations, operational testing, and drug and alcohol programs
applicable to dispatchers are not uniform throughout foreign countries,
and may fall below the safety standards established by the United
States' statutes and regulations. Therefore, even if a foreign
country's regulations and statutes applied to and completely covered
cross-border dispatching of United States rail operations, the safety
of the United States rail operations may not be protected to the same
degree as when dispatchers are subject to United States statutory and
regulatory requirements or their equivalents. Any dispatcher, wherever
located, who controls rail operations while under the influence of
alcohol or drugs, exhausted because of working excessive hours, or not
properly trained and tested on railroad operating rules could issue
incorrect directions or could fail to issue directions, thereby
jeopardizing the safety of railroad employees or causing a train
collision or derailment with resulting injuries or death to train
crews, passengers, or both, and possible harm to surrounding
communities. Because problems such as fatigue, drug and alcohol abuse,
and lack of effective job training seriously compromise the safety-
critical performance of employees who dispatch trains, FRA is concerned
that foreign railroads, or domestic railroads that may employ or enter
into a contract for services of a foreign-based dispatcher who would
control a domestic train movement, must comply with the substantive
requirements of the United States hours of service laws, FRA hours of
service recordkeeping regulations, FRA operational testing regulations,
and FRA drug and alcohol testing regulations, or their equivalents.
At present, it does not appear that, for example, Canadian hours of
service and drug testing requirements are the full equivalents of
United States statutory and regulatory requirements. For example, under
United States law, dispatchers may work no more than twelve hours in a
location where only one shift is employed and no more than nine hours
in a location where two or more shifts are employed, but Canada does
not regulate hours of service for dispatchers. The lengths of their
shifts are determined by labor agreements between the applicable union
and the respective railroads.\10\ In addition, FRA regulations require
that United States dispatchers undergo operational testing, but Canada
has no such requirement. United States alcohol and drug testing
requirements are also more comprehensive and stringent than most other
countries' standards.
---------------------------------------------------------------------------

\10\ It is arguable whether the hours of service laws of the
United States (49 U.S.C. ch. 211) may be applied extraterritorially.
In the past, FRA has not done so. If in the future FRA does apply
the United States hours of service laws to activity outside of the
United States, FRA's monitoring and enforcement actions would be
subject to all of the problems discussed in Section IV and elsewhere
in this preamble.
---------------------------------------------------------------------------

In the Omnibus Transportation Employee Testing Act of 1991, Pub. L.
102-143 (the Act), Congress recognized the importance of drug and
alcohol testing in protecting the safety of domestic transportation
systems. See, supra, note 4. As stated in the fifth Congressional
finding in that Act, Congress believed that ``the most effective
deterrent to abuse of alcohol and use of illegal drugs is increased
testing, especially random testing.'' Id. Given that the misuse of
alcohol and drugs has proven to be a critical factor in transportation
accidents, testing is integral to ensuring that domestic transportation
systems, including railroads, operate in the safest possible manner. In
response to Congress' directives in the Act, FRA expanded its existing
regulations relating to drug and alcohol use in railroad operations.
Under FRA's mandatory alcohol and drug testing program, dispatchers
working in the United States are subject to random, reasonable
suspicion, return-to-duty, follow-up, and post-accident drug and
alcohol testing as well as pre-employment testing for drugs. Post-
accident testing is required for a dispatcher who is directly and
contemporaneously involved in the circumstances of any train accident
meeting FRA thresholds. See Sec. 219.203. A dispatcher found to have
violated FRA's drug and alcohol rules at Secs. 219.101 or 219.102 is
required to be removed from covered service and is required to complete
a rehabilitation program. See Sec. 219.104. A dispatcher who refuses to
submit a required sample is required to be removed from covered service
for nine months and to complete a rehabilitation program. See
Secs. 219.104, 219.107, and 219.213. Additionally, covered employers
must provide self-referral and co-worker report (self-policing)
programs for their employees. See subpart E.
All dispatchers working in the United States who are controlling
United States railroad operations are covered by these regulations, and
FRA believes that any extraterritorial dispatcher controlling railroad
operations in the United States must be covered by the same or fully
equivalent requirements.\11\ To allow any

[[Page 63949]]

dispatchers who are not subject to the comprehensive and stringent
testing requirements that DOT and FRA believe are necessary for rail
safety to control domestic operations would be contrary to FRA's safety
efforts.
---------------------------------------------------------------------------

\11\ As previously noted, dispatchers of a foreign railroad
whose primary reporting point is located outside of the United
States and who perform service in the United States are currently
exempt from certain Part 219 requirements. See 49 CFR 219.3(c).
Elsewhere in the Federal Register, FRA is publishing an NPRM that
proposes revisions to Part 219 requiring drug and alcohol testing of
such employees.
---------------------------------------------------------------------------

Drug and alcohol abuse by railroad workers is not limited to the
United States.\12\ While some countries, such as Canada, have addressed
the serious threat that alcohol and drug use poses to the safety of
railroad operations, they have done so in a less comprehensive manner
than FRA's approach in implementing our statutory scheme. For example,
Transport Canada has doubts whether Canadian Constitutional law permits
it to implement our regulatory scheme. To date, Transport Canada has
not imposed drug and alcohol rules like those of DOT, although motor
carriers in Canada have implemented DOT drug and alcohol rules with
respect to drivers who enter the United States. Transport Canada has
approved Rule G, which was developed by the Canadian railroad industry,
but has not reviewed and approved individual railroad plans
implementing Rule G.\13\ Rule G does not directly prohibit off-duty use
of drugs and abuse of alcohol by dispatchers as contrasted with FRA's
regulations, which prohibit any off-duty use of drugs and which
prohibit use of alcohol within four hours of reporting for covered
service or after receiving notice to report for covered service since
such usage may ultimately affect an individual's performance on the
job. See Secs. 219.101(a)(3) and 219.102. Furthermore, unlike the FRA's
part 219, Rule G also does not provide for alcohol and drug testing of
railroad employees. In certain cases, railroads have developed their
own testing plans.
---------------------------------------------------------------------------

\12\ In 1987, a Canadian survey commissioned by a federally
appointed Task Force on the Control of Drug and Alcohol Abuse in the
Railway Industry interviewed by telephone 1,000 randomly selected
Canadian railway workers who held positions identified as ``safety-
sensitive,'' including dispatchers. The information was collected to
assist the Task Force in making recommendations to the Canadian
government on steps needed to address any problems of substance
abuse in the railroad industry.
The survey revealed, among other things, that 20.6 percent of
those surveyed had come to work feeling the effects of alcohol and
9.2 percent felt that their use of alcohol had at some time
compromised job safety. In addition, 3.8 percent admitted using
illegal drugs, 2.5 percent admitted to using illegal drugs during
their shift, and 4 percent were aware of other workers taking drugs
during working shifts. As the following passage from a recent
Canadian arbitration award involving CN illustrates, drug and
alcohol abuse problems continue to exist in Canada:
``* * * As related in the submission of the employer's counsel,
CN has extensive experience in drug and alcohol testing over the
past decade, including circumstances of hiring, promotion,
reasonable cause and post accident testing. Its data confirm a
relatively high incidence of positive test results across Canada,
exceeding ten per cent over all categories of testing in Western
Canada. While positive drug tests obviously do not confirm that
individuals in the railway industry have necessarily used illegal
drugs while at work, a substantial number of awards of the Canadian
Railway Office of Arbitration provide a well-documented record of
cases which reveal the unfortunate willingness of some employees to
have drugs or alcohol in their possession while at work, to use them
while at work, or to report for work under their influence * * *.''
In the Matter of an Arbitration Between Canadian National
Railway Company and National Automobile, Aerospace, Transportation
and General Workers Union of Canada (Union) and Canadian Council of
Railway Operating Unions (Intervener), Re: the Company's Drug and
Alcohol Policy at 123-24, Arbitrator Michel G. Picher (July 18,
2000).
The drug and alcohol abuse problem in Canada is relevant to the
current problem posed by extraterritorial dispatching and helps
demonstrate the need for more comprehensive drug and alcohol testing
of extraterritorial dispatchers controlling railroad operations in
the United States.
\13\ Rule G provides that:
(a) The use of intoxicants or narcotics by employees subject to
duty, or their possession or use while on duty, is prohibited.
(b) The use of mood altering agents by employees subject to
duty, or their possession or use while on duty, is prohibited except
as prescribed by a doctor.
(c) The use of drugs, medication or mood altering agents,
including those prescribed by a doctor, which, in any way, will
adversely affect their ability to work safely, by employees subject
to duty, or on duty is prohibited.
(d) Employees must know and understand the possible effects of
drugs, medication or mood altering agents, including those
prescribed by a doctor, which, in any way, will adversely affect
their ability to work safely.
---------------------------------------------------------------------------

FRA has reviewed the Canadian railroads' drug and alcohol testing
plans implementing Rule G and found that they are not fully equivalent
to FRA's rules. For example, CP's current plan does not provide for
random testing, which is a key part of a program to deter drug and
alcohol abuse; nor are CP's provisions with respect to pre-employment
testing, reasonable suspicion testing, post-accident testing, and
refusal to provide a sample equivalent to FRA's more stringent
rules.\14\ In fact, the only aspect of CP's plan that would be
acceptable to FRA is the self-referral and co-worker report (self-
policing) programs, and FRA believes that even those programs would
need changes before they would be completely acceptable.
---------------------------------------------------------------------------

\14\ Problems with CP's plan are as follows. First, CP's plan
does not provide for random testing, which Congress found, and FRA's
experience has shown to be, so integral to preventing drug and
alcohol abuse in the United States. Credible research indicates that
a ``broad-based'' approach (with a credible random deterrence
program), like FRA's is the only effective methodology to reduce the
adverse effects of substance abuse.
Second, CP will not conduct post-accident testing unless there
is independent evidence that causes the railroad to suspect
impairment of the dispatcher. By contrast, a dispatcher in the
United States who is directly and contemporaneously involved in the
circumstances of any train accident meeting FRA thresholds as
determined by a train supervisor must be tested or else face a nine-
month suspension from covered service and the requirement to
complete a rehabilitation program and return-to-duty testing before
returning to dispatcher service. CP will not use equivalent
sanctions against an employee for failing to provide a sample; the
problem with this approach is discussed below.
Third, while CP's plan does provide for reasonable suspicion
testing, CP will not require an employee to provide a sample for
testing. If CP's investigation fails to establish that the employee
was impaired, the employee may go back to work without penalty or
rehabilitation. Obviously, in many instances, establishing
impairment would be difficult without a sample. In contrast, if a
dispatcher in the United States refuses a test, he or she is
Federally prohibited from performing service as a dispatcher for
nine months and must complete required rehabilitation before being
allowed to return to dispatching service. Even if FRA were able to
apply the disqualification requirements of part 219 to a foreign-
based dispatcher who refused a random, for cause, or post-accident
test, and if the railroad were able to honor this sanction under
foreign law, that sanction might be wholly ineffective because the
railroad could legally reassign the dispatcher to a desk handling
only host-country traffic, where he or she would suffer no loss of
pay. The result would be a near-total loss of the deterrent effect
associated with testing.
Fourth, FRA regulations require that new applicants and existing
employees seeking to transfer for the first time from non-covered
service to duties involving covered service (e.g., dispatching) must
undergo pre-employment testing for drugs. CP would make such testing
a condition of employment for new employees, but would not apply it
to incumbent employees within the department under which dispatchers
fall who apply for dispatching jobs. It is sometimes difficult to
detect and document drug use in an employee population and,
therefore, it is important to do the screening test for anyone who
is moving into a safety-sensitive position.
---------------------------------------------------------------------------

In addition, some drugs, such as codeine, which have adverse
effects on judgment and reaction time and are available only with a
prescription in the United States are available over-the-counter in
foreign countries, and over-the-counter formulations may have stronger
sedative effects than their United States equivalents.

VI. Security Issues

No nation is immune from criminal actions affecting workplaces or
the potential for terrorism. In the United States, occasional workplace
shootings by angry or unhinged employees and major incidents like the
Oklahoma City and 1993 World Trade Center bombings have heightened
awareness of the need for security measures, particularly at critical
facilities or with respect to the movement of extremely hazardous
materials (e.g., radioactive substances or military munitions). This
nation

[[Page 63950]]

experienced a much more extreme example of a security breach on
September, 11, 2001, when terrorists slipped through security forces at
three major U.S. airports and subsequently hijacked four airliners. Two
of the planes were intentionally flown into the World Trade Center,
resulting in the collapse of the Twin Towers, one was intentionally
flown into the Pentagon, and the fourth crashed in rural Pennsylvania,
presumably before reaching its intended target. As a result of these
attacks, over 3,800 people were killed and the landscape of this
country was changed forever as not only did the attacks cause an
incredible amount of destruction but they also proved unequivocally
that citizens of the United States are targets for terrorists and that
those terrorists view modes of transportation, including railroads, as
a means of carrying out their murderous agendas.\15\
---------------------------------------------------------------------------

\15\ According to the testimony of a convicted terrorist,
terrorism training in Afghanistan included ```how to blow up the
infrastructure of a country'--such as military installations,
electric plants, corporations, airports and railroads,'' Convicted
Terrorist Testified on Deadly Training, Wash. Times, September 27,
2001, at A14 (emphasis added).
---------------------------------------------------------------------------

Given the threat that terrorists pose to railroads systems,
including their dispatch centers, railroad security measures such as
guards that control access to railroad facilities, proximity cards that
allow access to dispatching locations, use of railroad police to detect
unauthorized persons on railroad property, and background checks on
applicants for employment as dispatchers and train crew members are
increasingly important to protect railroad property, railroad
employees, and railroad passengers from violent actions. FRA is working
with domestic railroads as they review the adequacy of their security
plans and expects that the railroads will voluntarily take whatever
steps are needed to safeguard their systems from terrorists. However,
FRA has the authority to require, through regulations and orders,
additional security measures that FRA determines are necessary to
protect the security of domestic railroad operations against potential
terrorist threats.\16\
---------------------------------------------------------------------------

\16\ Section 20103(a) of title 49, United States Code, gives the
Secretary of Transportation plenary authority to address any hazards
to life and property that may arise in the context of railroad
operations. To date, FRA's exercise of this authority has been
limited. FRA has issued rules on Passenger Train Emergency
Preparedness (49 CFR part 239) that require passenger railroads to
conduct detailed planning for emergency situations, which are
defined to include ``security situations'' such as bomb threats.
(See 49 CFR Sec. 239.7 and 49 U.S.C. Sec. 20133(a)(4).)
---------------------------------------------------------------------------

Law enforcement and security agencies in the United States cannot
protect extraterritorial dispatch facilities, and FRA has neither the
access to such facilities to investigate instances of violence nor the
authority to require additional security measures that FRA determines
are necessary to protect the security of domestic railroad operations
against potential terrorist threats. FRA does not know, at this time,
whether foreign railroads employ security measures comparable to those
of United States railroads or whether foreign governments have
enforceable security requirements that would effectively protect
dispatch facilities. As a result, foreign-based facilities could be
more attractive targets than facilities located in the United States
and be more susceptible to terrorist infiltration or attack.\17\ FRA
believes it could not approve a railroad's stationing of dispatchers in
a foreign country absent a showing that the security protections
afforded the dispatching function were equivalent to those at United
States dispatch facilities, and FRA had access to investigate incidents
of violence occurring at these facilities.
---------------------------------------------------------------------------

\17\ FRA's concern is not limited to Third World countries or
countries where terrorists are traditionally expected to operate. A
recent article in the Washington Post highlighted the threat that
currently exists in Canada. According to the article, ``Canada's
intelligence agency has identified more than 50 terrorist groups and
350 individual terrorists who live, work and raise money in
Canada.'' Deneen L. Brown, Attacks Force Canadians to Face Their Own
Threat, The Washington Post, Sept. 23, 2001, at A36. The article
went on to note that some of those terrorists were from countries in
the Middle East, which is the region of the world from which the
terrorists who masterminded the September 11, 2001, attacks are
believed to have come.
---------------------------------------------------------------------------

There is also a national defense aspect to the security of railroad
operations. There are both railroad safety and national defense risks
posed by extraterritorial dispatch centers having access to information
regarding the shipment of military goods (e.g., nuclear weapons and
armored vehicles) and extremely hazardous materials (e.g., radioactive
materials), and having the capability to control the movement of these
items. The Military Traffic Management Command of the Department of
Defense (DOD) and FRA have worked together to identify and designate a
Strategic Rail Corridor Network (STRACNET). STRACNET consists of more
than 30,000 miles of interconnected network of rail corridors (not
actual rail lines) in the United States that the agencies have deemed
vital to national defense. In the event of a large-scale military
mobilization, it is very important that this network be fully
responsive to national defense needs and priorities. In any arrangement
locating dispatchers abroad, FRA believes, there would have to be
effective provisions to ensure that this national defense need can be
met. FRA seeks comment on whether, and how, this goal could be
accomplished.

VII. Language Differences

There are also safety concerns that are more likely to arise
specifically because dispatchers are located in a foreign country.
There would need to be a satisfactory resolution to such issues before
FRA would be comfortable in permitting dispatchers to be located
abroad. For example, it is essential for safe railroad operations that
employees involved with directing and effectuating train movements be
able to communicate clearly with each other. The railroad personnel
most directly involved with train movements are the dispatchers who
transmit written and oral instructions to train crews and the train
crews who are responsible for carrying out the dispatchers'
instructions and for operating trains in accordance with railroad
traffic control devices. In addition, dispatchers must also be able to
communicate with roadway workers who may control entry onto the
stretches of track on which they are working. If it is allowed,
extraterritorial dispatching raises the possibility that some of these
employees may not be able to communicate with each other because they
speak different languages.
FRA's primary safety concern is that one of the parties (either the
train crew or the dispatcher) involved in an extraterritorially
dispatched operation may not be proficient in the language that is
being used to conduct train operations. Thus, there is the potential
for miscommunication where one of the parties, unbeknownst to the
other, fails to convey necessary safety-critical information,
inadvertently conveys false or misleading information, or fails to
properly understand safety-critical information that has been conveyed.
The results of such a miscommunication could be disastrous. Such a lack
of understanding would be even more problematic if railroad operations
crossed more than one border (e.g., Canada, the United States, and
Mexico).
Another problem related to communication that could arise if
extraterritorial dispatching is allowed concerns possible differences
in railroad terminology between one country and another. The railroad
industry in the United States is both a highly technical industry that
uses modern terms and an industry that has existed for 170 years and
uses terms that have existed since at least the turn of the century. It
would be unreasonable to assume that, absent

[[Page 63951]]

appropriate training, railroad employees in other countries would be
familiar with terms used in the United States. Given the immediacy with
which problems sometimes develop while trains are on the tracks, it
would be dangerous to discover such a miscommunication at a time when
lives and property are in the balance. This problem would be compounded
if the dispatcher and the train crew were having problems communicating
because of language differences.
The Federal Aviation Administration also recognized that
international operations cause communication problems. That agency,
however, has addressed the problem through regulations requiring that
all domestic air traffic controllers speak English and that all foreign
air carriers who operate in the United States have personnel in
domestic air traffic control towers who, in the event that no member of
a foreign air crew can communicate with ground personnel, speak both
English and their native language. See 14 CFR 65.33 and 129.21. In
addition, FAA is currently considering a requirement that would mandate
that flight attendants understand sufficient English to communicate,
coordinate, and perform all safety-related duties. That requirement is
part of a comprehensive flight attendant training Notice of Proposed
Rulemaking that FAA anticipates publishing in the near future. See 65
FR 23153 (Apr. 24, 2000).
FRA recognizes that there may be solutions to these problems and
therefore requests comments on how to resolve these issues so that
domestic rail safety is not compromised. FRA believes solutions to
these problems would have to be found before extraterritorial
dispatching could be permitted.

VIII. Units of Measure

It is also essential for safe railroad operations in the United
States that certain railroad communications concerning such operations
that relate to measurements of such critical factors as location,
distance, and speed, use a common standard. The two currently used
standards are English units, used predominately in the United States,
and the International System of Units (``SI''), which is more commonly
known as the ``metric system'' and is used by most of the rest of the
world, including Canada and Mexico. Because a kilometer (roughly
3,280.8 feet) is approximately six-tenths the length of a mile (5,280
feet), the potential for confusion is obvious, especially where a
measurement of such matters as speed, location, or distance is
concerned. If a dispatcher instructs a train and engine crew to travel
a specified number of kilometers at a certain speed measured in
kilometers per hour and the crew mistakenly thinks that the dispatcher
is referring to either or both measurements in miles, the consequences
could be at best problematic and, at worst, devastating.\18\ FRA
requests comments on how to resolve the measurement issue so domestic
rail safety is not compromised.

IX. Other Concerns
---------------------------------------------------------------------------

\18\ FRA recognizes that the Hazardous Materials Regulations
require that most measurements regarding the transportation of
hazardous materials be given in metric units. Under 49 CFR 171.10,
in order to ensure compatibility with international transportation
standards, most units of measurement in the hazardous materials
regulations are expressed using the SI. This requirement should have
no impact on extraterritorial dispatching, however, as SI is
currently the standard for domestic railroad operations involving
hazardous materials.
---------------------------------------------------------------------------

Communications and computing systems at centralized dispatching are
extremely complex. When the operations of a dispatching center are
disrupted, the main remedy is changing to local dispatching. This
typically results in a considerable disruption of service. For example,
in recent years the CSX dispatch center in Jacksonville, Florida went
off line twice, because of a lightning strike and a hurricane
evacuation. This resulted in significant delays and cancellations of
freight and passenger service throughout much of the East Coast. It is
theoretically possible for a railroad to establish a backup dispatching
center that would be used in the event of such a disruption, but it is
unlikely railroads would consider doing so, cost-effective. FRA
believes that the greater the number of miles of track controlled by a
dispatching center and the higher the volume of traffic involved, the
less likely it is that normal dispatching operations could be continued
by alternative means, resulting in more pervasive or longer-lived
service disruptions. FRA has some concern that this problem could be
exacerbated if primary dispatching centers were located out of the
country.
With regard to labor issues, dispatchers are typically unionized
employees subject to the Railway Labor Act (45 U.S.C. 151-188)
(``RLA''), which prohibits strikes over contract interpretation. Under
the RLA, Congress has the power to legislate an end to a strike by
United States railroad employees, and has done so in 13 rail labor
contract disputes. Dispatch employees based in a foreign country,
however, are not subject to the RLA and a labor dispute in that country
could severely affect United States rail operations, and possibly
jeopardize transportation safety.
The railroad industry carries nearly 40 percent of United States
intercity freight traffic in terms of ton-miles (over 1 trillion ton-
miles a year), including huge quantities of hazardous materials. By
comparison, trucks carry about 28 percent of the ton-miles, and
pipelines and inland water transport account for the remainder. In
addition, railroads provide commuter rail service in and around many of
the nation's large cities; provide the infrastructure Amtrak uses for
its intercity passenger operations outside the Northeast Corridor; and
provide freight service to military facilities across the country.
Other modes would be able to replace only a small portion of the
transportation services provided by the railroads in the short term in
the event of a disruption of service affecting the national major
freight railroads. A disruption affecting any one of the major
railroads could, of course, have a critical impact over time through
cascading impacts across the national rail system because of the
extensive interchange of rail traffic among the railroads and the
impact on other railroads of service disruptions on lines where they
enjoy trackage or haulage rights.

X. Options

When deciding on how to address the issue of extraterritorial
dispatching and all of the safety, including security concerns
discussed above, FRA examined two possible options. The first option,
which is reflected in the Interim Final Rule, is to bar
extraterritorial dispatching with the three minor exceptions explained
above. The second option is to permit extraterritorial dispatching so
long as (1) the foreign-based dispatchers are subject to the same
safety standards applicable to dispatchers located in the United States
(and enforced by FRA or by the host country with supplementary FRA
oversight), and (2) the additional safety concerns previously
identified, such as security, language differences, possible labor
strikes and other disruptions, are adequately addressed.
The FRA has chosen the first option as the basis for this Interim
Final Rule. Banning new dispatching of United States rail traffic by
dispatchers stationed outside the country except for limited fringe
border operations is a simple, understandable, straightforward,
``bright line'' approach that will clearly preclude disruptions to
service or safety problems resulting from the various issues discussed
above and provide greater security for dispatching

[[Page 63952]]

facilities. Implementing this approach is more certain, particularly in
the short term, because it will not require the exercise of judgment,
negotiations over the details of a variety of issues with railroads
(and perhaps with foreign governments), or the creation of new rules or
mechanisms to deal with these issues. We seek comment, however, on
whether there are costs or disadvantages to this approach that FRA
should consider in choosing and implementing this option, and on
whether any modifications would be beneficial.
The second option could be implemented by, for example, a provision
allowing a railroad to apply to FRA for a waiver of the prohibition of
dispatching from abroad. The waiver mechanism might, for example, be a
more detailed version of the Interim Final Rule's Sec. 241.7. FRA would
grant such a waiver only if it were satisfied (1) that the dispatchers
involved in controlling United States rail traffic were subject to
safety requirements (e.g., with respect to drug and alcohol testing,
hours of service, and efficiency testing) fully equivalent to United
States standards; (2) that FRA had full and open access to dispatch
facilities located abroad, on the same basis as it has to United States
facilities; (3) that, as a matter of law or binding agreement with FRA,
the railroad would be subject to FRA enforcement actions with respect
to the dispatching function, such as civil penalties, emergency and
compliance orders, orders disqualifying employees from service for
safety violations, court injunctions, etc., on an equivalent basis to
railroads whose facilities were located in the United States; and (4)
that measures were in place that adequately addressed security issues,
labor disputes, language and other communication issues, and
measurement issues. It would also be necessary to include a provision
for the revocation of the waiver in the event the railroad could no
longer meet its conditions, which would have the effect of reimposing
the ban on dispatching United States rail traffic from abroad.
As can readily be seen, such an option is much more complex and
uncertain than the first option, and it is not clear that any railroad
could meet the conditions involved in such an option today. FRA seeks
comment on whether it would be useful to include such a provision in
the future, or whether it would be essentially futile to do so.
FRA believes that the problems with allowing widespread
extraterritorial dispatching are substantial enough and are not
sufficiently addressed at the present time to allow such dispatching.
However, FRA recognizes that there may be reasonable solutions to these
problems that may result in extraterritorial dispatching being
performed as safely as domestic dispatching. Therefore, FRA is
soliciting comments from interested parties on how to effectively
address these concerns so that the safety of domestic rail operations
is not compromised.
While FRA is soliciting comments, however, FRA believes that it is
necessary to issue this Interim Final Rule in order to block the
movement of dispatcher positions to foreign countries, other than for
limited fringe border operations, while FRA is determining whether more
extensive extraterritorial dispatching should be allowed. Given the
safety-critical role that dispatchers play in railroad operations, the
safety problems identified with extraterritorial dispatching, and the
definite potential that some D&H dispatching functions could be moved
to Canada in the very near future, extended notice-and-comment
procedures are ``impracticable, unnecessary, or contrary to the public
interest'' within the meaning of section 4(b)(3)(B) of the
Administrative Procedure Act, 5 U.S.C. 553(b)(3)(B). The safety
concerns, including security, that this rule is designed to eliminate
could very well materialize in the near future before a typical notice-
and-comment rulemaking process could be completed. As a consequence,
FRA is proceeding directly to an Interim Final Rule.
However, in accordance with Executive Order 12866, FRA is allowing
60 days for comments. FRA believes that a 60-day comment period is
appropriate to allow the public to comment on this Interim Final Rule.
The Interim Final Rule will terminate on December 11, 2002 unless FRA
takes future action to extend the sunset date. FRA solicits written
comments on all aspects of this Interim Final Rule, and possible
alternatives to the locational requirement of part 241. Parties
favoring alternative approaches should provide detailed rationale for
their recommended approach together with specific regulatory language
they would like FRA to issue. FRA is also soliciting comments on
whether the exception for the track segments that were
extraterritorially dispatched as of December 1999 should be permanent
or for a set period of time. Finally, FRA is soliciting comments on
whether dispatching of fringe border operations permitted under the
Interim Final Rule should be made permanent.
Based on the comments, FRA may: (1) Issue final rule amendments to
the Interim Final Rule making the Interim Final Rule permanent with any
substantive changes FRA determines are appropriate; (2) issue a notice
proposing a new rule (a notice of proposed rulemaking), and possibly a
final rule amendment extending the deadline of the Interim Final Rule
while FRA completes this new rulemaking; or (3) decide that no Federal
regulation is appropriate and issue a final rule removing the Interim
Final Rule.
FRA also directs commenters' attention to certain issues related to
the possible application of part 219 to extraterritorial dispatchers.
As noted earlier, these issues are addressed in detail in an FRA notice
published in the Federal Register today proposing amendments to part
219 concerning employees of a foreign railroad who are based outside
the United States and engage in train or dispatching service in the
United States.

XI. The Interim Final Rule

FRA is issuing this Interim Final Rule prohibiting extraterritorial
dispatching of United States rail operations, with three minor
exceptions. Under the first exception, a railroad would be allowed to
conduct extraterritorial dispatching in an emergency situation for the
duration of the emergency if it promptly notified the appropriate FRA
Regional Administrator(s) in writing of its actions. Under the second
exception, FRA would permit the continued extraterritorial dispatching
of the very limited track segments in the United States that were
regularly being so dispatched in December 1999. Under the third
exception, railroads would be permitted to dispatch ``fringe border
operations,'' as defined in the rule, from either Canada or Mexico. In
addition, railroads that propose to conduct additional extraterritorial
dispatching of railroad operations in the United States may apply for a
waiver from the prohibitions of part 241 under subpart C of part 211.

XII. Section-By-Section Analysis

This section-by-section analysis is intended to explain the
provisions of the Interim Final Rule. A number of these provisions and
issues related to these provisions have been addressed earlier in this
preamble. Accordingly, the preceding discussions should be considered
in conjunction with those below and will be referred to as appropriate.
Section 241.1 Purpose and scope. Paragraph (a) states that the
purpose of the rule is to prevent railroad accidents and incidents, and
consequent injuries, deaths, and property damage, that would result
from improper dispatching

[[Page 63953]]

of railroad operations in the United States by persons located outside
of the United States. As noted earlier in the preamble, dispatchers are
responsible for establishing a train's route and ensuring that the
train has a clear track in front of it. As such, it is essential that
dispatching be conducted as safely as possible in order to avoid
incidents such as collisions and derailments that endanger train crews,
other railroad employees, and the general public.
Paragraph (b) states that the rule prohibits extraterritorial
dispatching of railroad operations, conducting railroad operations that
are extraterritorially dispatched, and allowing track to be used for
such operations, subject to certain stated exceptions. Because FRA
believes that extraterritorial dispatching presents serious safety
problems and because proper dispatching is such an integral part of
safe railroad operations, FRA believes that widespread extraterritorial
dispatching of United States rail operations should be prohibited. FRA
also wants to address every possible situation by prohibiting any kind
of contracting relationship that would entail extraterritorial
dispatching. These prohibitions will be more fully explained elsewhere
in this section-by-section analysis. Of course, railroads subject to
this part may adopt and enforce additional or more stringent
requirements provided they are not inconsistent with this part.
Section 241.3 Application and responsibility for compliance. This
section employs what is essentially standardized regulatory language
that FRA plans to use in most of its rules. Paragraphs (a) and (b) mean
that railroads whose entire operations are conducted on track within an
installation that is outside of the general railroad system of
transportation in the United States (in this paragraph, ``general
system'') are not covered by this part. Tourist, scenic or excursion
operations that occur on tracks that are not part of the general
railroad system would, therefore, not be subject to this part. The word
``installation'' is intended to convey the meaning of physical (and not
just operational) separateness from the general system. A railroad that
operates only within a distinct enclave that is connected to the
general system only for the purposes of receiving or offering its own
shipments is within an installation. Examples of such installations are
chemical and manufacturing plants, most tourist railroads, mining
railroads, and military bases. However, a rail operation conducted over
the general system in a block of time during which the general system
railroad is not operating is not within an installation and,
accordingly, not outside of the general system merely because of the
operational separation.
Paragraph (c) clarifies FRA's position that the requirements
contained in this final rule are applicable not only to any
``railroad'' subject to this part but also to any ``person,'' as
defined in Sec. 241.5, that performs any function required by this
final rule. Although various sections of the final rule address the
duties of a railroad, FRA intends that any person who performs any
action on behalf of a railroad or any person who performs any action
covered by the final rule is required to perform that action in the
same manner as required of a railroad or be subject to FRA enforcement
action. For example, contractors that perform duties covered by these
regulations would be required to perform those duties in the same
manner as required of a railroad.
Section 241.5 Definitions. This section contains a set of
definitions intended to clarify the meaning of important terms as they
are used in the text of the rule. Several of the definitions involve
fundamental concepts that require further discussion.
Dispatch. The first sentence of this definition is an abstract
statement of its scope. FRA intends for the verb ``dispatch'' to
encompass all of the functions of a ``dispatching service employee'' as
that term is defined by the hours of service laws at 49 U.S.C.
21101(2), were these functions to be performed in the United States.
Under 49 U.S.C. 21101(2), a ``dispatching service employee'' is defined
as ``an operator, train dispatcher, or other train employee who by the
use of an electrical or mechanical device dispatches, reports,
transmits, receives, or delivers orders related to or affecting train
movements.'' This statutory provision has been interpreted by FRA in a
statement of agency policy and interpretation codified at part 209,
appendix A. Consistent with that interpretation, both the statutory
definition and part 241's definition of ``dispatch'' are functional,
meaning that an individual's job title is irrelevant in determining
whether he or she is dispatching. In addition, whether the individual
is employed by a railroad is irrelevant. However, unlike the statutory
definition of ``dispatch,'' the regulatory definition makes clear that
the location of the individual performing the dispatching is irrelevant
to the determination of the function the individual is performing.
Thus, an individual located in a foreign country who, because of his or
her job duties, would be covered by the statutory definition if he or
she were located in the United States would be dispatching within the
meaning of Sec. 241.5. In addition, although FRA specifically mentions
yardmasters under the definition of ``dispatcher,'' FRA does not intend
for this rule to cover yardmasters as a job category. Instead,
yardmasters are only covered by this part when they are performing
dispatching functions.
The remainder of the regulatory definition repeats or attempts to
make more explicit the meaning of the statutory language. One aspect of
the act of dispatching is to use hand delivery or ``an electrical or
mechanical device'' to control certain movements or to issue a certain
authority. The quoted phrase has been interpreted by FRA in its hours
of service record keeping regulations at 49 CFR 228.5(c) as including a
``telegraph, telephone, radio, or any other electrical or mechanical
device.''
Subsection (i) of the definition of ``dispatch'' clarifies the
types of movements that one who dispatches controls. One such movement
that FRA intends to include is the ``movement of a train,'' which is
defined in another paragraph of this section as a movement of on-track
equipment requiring a power brake test under parts 232 or 238. Another
type of movement that FRA intends to include is the movement of certain
other on-track equipment, such as specialized maintenance-of-way
equipment, that is not subject to the power brake regulations; again,
however, FRA intends to exclude movements of on-track equipment used in
the process of sorting and grouping rail cars inside a railroad yard in
order to assemble or disassemble a train.
The definition of ``dispatch'' also makes explicit that the control
of the movements within the scope of the definition is accomplished in
one of two ways. The first way is by the issuance of a written or
verbal authority or permission that affects a railroad operation such
as through movement authorities and speed restrictions and includes the
following:
Track Warrants, Track Bulletins, Track and Time Authority, Direct
Traffic Control Authorities, and any other methods of conveying
authority for trains and engines to operate on a main track, controlled
siding, or other track controlled by a [dispatcher]. OP-97-34, p. 7.
``Railroad operation'' is defined in another paragraph of this
section as the movement of a train or other on-track equipment (except
as specified earlier) or ``the activity that is the subject of an
authority issued to a roadway worker for working limits.''

[[Page 63954]]

The second way that control of the movements within the scope of
the definition of ``dispatch'' is achieved is ``by establishing a route
through the use of a signal or train control system but not merely by
aligning or realigning a switch.'' The act of aligning or realigning a
switch alone is not sufficient to constitute dispatching. In order to
constitute dispatching within Sec. 241.5, aligning or realigning a
switch must be accompanied by the act of setting a signal authorizing
movement over a track segment. This exclusion is consistent with FRA's
interpretation in Operating Practices Technical Bulletin (OP-96-04) and
Operating Practices Safety Advisory (OPSA-96-03), reissued as OP-97-34
(hereinafter, ``OP-97-34'').
Subsection (ii) of the definition of ``dispatch'' clarifies that
those railroad employees who issue an authority for either a roadway
worker or stationary on-track equipment, or both, to occupy a certain
stretch of track while performing repairs, inspections, etc., will also
be covered by this rule. FRA included this section to distinguish this
activity from that of authorizing movement of trains or other on-track
equipment onto track.
Subsection (iii) of the definition of ``dispatch'' states another
function of a dispatcher, which is to issue an authority for working
limits to a roadway worker. As defined in another paragraph of this
section,
[w]orking limits means a segment of track with definite boundaries
established in accordance with part 214 of this chapter upon which
trains and engines may move only as authorized by the roadway worker
having control over that defined segment of track. Working limits may
be established through ``exclusive track occupancy,'' ``inaccessible
track,'' ``foul time'' or ``train coordination'' as defined in part 214
of this chapter.
Finally, the definition of ``dispatch'' makes explicit that the
term excludes the activity of individuals carrying out a written or
verbal authority or permission or an authority for working limits or
operating a function of a signal system intended to be used by those
individuals, such as initiating an interlocking timing device.
Dispatcher. The definition of ``dispatcher'' makes clear that the
term is intended to refer to an individual who performs the function of
dispatching, regardless of the individual's job title.
Emergency. An ``emergency'' under this part must be unexpected and
unforeseeable and must interfere with a railroad's ability to dispatch
a United States railroad operation domestically to the extent that if
the operation is not dispatched extraterritorially there would be a
substantial disruption in rail traffic or a significant safety risk.
Planned shortages of domestic dispatchers relating to vacation
scheduling or the railroad's failure to maintain an adequate list of
extraboard employees and foreseeable train delays due to substandard
maintenance and repair of rail equipment are not emergencies.
Typical examples of emergencies are the following: the sudden
illness of a domestic dispatcher about to begin working the next duty
shift when there is no other domestic employee nearby who could be
called to substitute; the delay of a train operating on mainline track
in reaching its station when the delay is due to the derailment of
another train and the domestic dispatching office was scheduled to
close until the next day after the domestic dispatcher completed his or
her tour of duty; and unforeseeable system failures resulting in
significant train delays when the available pool of domestic relief
dispatchers is insufficient to safely handle the increased traffic
density. In addition, other situations may constitute part 241
emergencies, depending on all the facts involved. The determination of
whether a situation is an emergency must always be made on a case-by-
case basis.
Finally, if extraterritorial dispatching service needed to abate an
emergency is concluded before the end of a duty tour, the emergency
provision does not provide license to continue the extraterritorial
dispatching if an emergency no longer exists.
Extraterritorial dispatcher. The definition of ``extraterritorial
dispatcher'' explains that the term refers to an individual who, while
performing the function of a dispatcher from a country other than the
United States, dispatches a railroad operation that takes place in the
United States.
Movement of a train. This term is intended to have the same meaning
as does the term ``train'' in 49 CFR 220.5.
Occupancy of a track by a roadway worker or stationary on-track
equipment or both. This term refers to the physical presence of a
roadway worker or stationary on-track equipment on a track for the
purpose of making a repair, an inspection, or another activity not
associated with the movement of a train or other on-track equipment. It
is intended to cover situations where a stretch of track is being
occupied for a certain period of time by roadway workers, with or
without on-track equipment, for purposes not related to the movement of
a train.
Roadway worker. This term is intended to have the meaning it has in
49 CFR Secs. 214.7 and 220.5.
Section 241.7 Waivers. This section sets forth the procedures for
seeking waivers of compliance with the prohibitions and requirements of
this rule. Requests for such waivers may be filed by any interested
party. In reviewing such requests, FRA conducts investigations to
determine if a deviation from the general prohibitions and requirements
can be made without compromising or diminishing rail safety. This
section is consistent with the general waiver provisions contained in
other Federal regulations issued by FRA. FRA recognizes that
circumstances may arise when conduct of extraterritorial dispatching
that does not fall within one of the exceptions to the prohibition
contained in this rule is appropriate and in the public interest.
Section 241.9 Prohibition against extraterritorial dispatching;
exceptions.
Section 241.11 Prohibition against conducting a railroad operation
dispatched by an extraterritorial dispatcher; exceptions.
Section 241.13 Prohibition against track owner's requiring or
permitting use of its line for a railroad operation dispatched by an
extraterritorial dispatcher; exceptions.
These sections contain a series of three prohibitions, each
containing three exceptions and a provision on liability for violation
of the prohibition. To promote compliance, each provision imposes a
strict liability standard. Actual or constructive knowledge of the
facts constituting the violation is not required to establish a
violation. For example, it is not necessary for a railroad conducting a
railroad operation to know that the operation is being
extraterritorially dispatched in order for the railroad to violate
Sec. 241.11.
Section 241.9(a) establishes a general rule barring a railroad from
requiring or permitting one of its employees or one of its contractors'
employees to dispatch a railroad operation that occurs in the United
States while the railroad's employee (or railroad contractor's
employee) is located outside the United States. A separate violation
occurs for each railroad operation so dispatched; each day the
violation continues is a separate offense. ``Railroad operation'' is
defined in Sec. 241.5. A dispatcher working in a foreign country and
controlling only railroad operations in that country would not violate
Sec. 241.9(a). Likewise, a dispatcher located in the United States and
controlling train operations in another country would not violate
Sec. 241.9(a), although nothing in this rule authorizes

[[Page 63955]]

such a practice where it contravenes the domestic law or policy of the
country where the railroad operations are conducted.
Section 241.11(a) creates a general prohibition against performing
a railroad operation on track in the United States if the railroad
operation is dispatched by an individual located outside the United
States. A separate violation occurs for each railroad operation
performed that was so dispatched; each day the violation continues is a
separate offense.
Section 241.13(a) generally forbids a track owner from requiring or
permitting a segment of track that it owns to be used for a railroad
operation in the United States that is controlled by a dispatcher in
another country. A separate violation occurs for each railroad
operation so dispatched that was permitted to occur on the owner's
track; each day the violation continues is a separate offense.
There are three basic exceptions to each of these three general
prohibitions. First, under paragraph (b) of Secs. 241.9-241.13,
extraterritorial dispatching of railroad operations that occur in the
United States is permitted in the event of an emergency. The term
``emergency'' is defined in Sec. 241.5, which has been discussed
earlier. The railroad must notify the FRA Regional Administrator for
the region in which the railroad operation occurs, in writing as soon
as feasible, either on paper or by electronic mail, that the railroad
is conducting such extraterritorial dispatching. If the operation
occurs in more than one region, the FRA Regional Administrator for each
of the regions in which the operation occurs must be notified.
Notification need not necessarily be in advance of the performance of
the extraterritorial dispatching. The exception is allowed only for the
period of time that the emergency exists. If a railroad continues
extraterritorial dispatching after the emergency is over, the railroad
is in violation of Sec. 241.9(a).
Second, under paragraph (c) of Secs. 241.9-241.13, extraterritorial
dispatching of railroad operations that occur in the United States is
allowed on the very limited segments of track that were regularly being
so dispatched in December 1999, if the extraterritorial dispatching of
those track segments is conducted from the same foreign country or
territory or possession of the United States where the extraterritorial
dispatching was done in December 1999. Paragraph (c) does not impose a
limit on the volume of railroad operations over such track segments
that may be dispatched extraterritorially.
Third, under paragraph (d) of Secs. 241.9-241.13, dispatching from
Canada or Mexico of a rail line located in the United States is
permissible provided the length of the United States trackage being
extraterritorially dispatched is no more than 100 miles, any train
being so dispatched is under the control of the same assigned crew for
the entire trip over U.S. trackage, and the train movement either both
originates and terminates in the foreign country without the pick up,
set out, or interchange of cars in the U.S. or is under the exclusive
control of a single dispatching district, or ``desk'', and the portion
of the line being extraterritorially dispatched extends no farther into
the U.S. than the first of any of the following locations: an
interchange point; signal control point; junction of two rail lines;
established crew change point; yard or yard limits location, inspection
point for U.S. Customs, Immigration and Naturalization Service,
Department of Agriculture, or other government inspection; or location
where there is a change in the method of train operations. In addition,
FRA recognizes an exception to the single train crew requirement if an
unforeseen circumstance, such as an equipment failure, accident, or
casualty or incapacitation of a crew member necessitates another crew
assuming control of the train while it is operating on U.S. track.
Essentially, paragraph (d) recognizes that it will not always be
practical or economical to conduct a ``hand-off'' of train operations
between a U.S. and a foreign dispatcher that normally would be required
under Part 241, especially when the length of U.S. trackage involved is
small and the train movements on that trackage make no stops in the
U.S. FRA believes that the safety and security risks posed by these
``fringe border operations'' are minimal and, therefore, in order to
promote the smooth flow of commerce across international borders, they
should be permitted, but only to the extent necessary.
Paragraph (e) of Secs. 241.9-241.13 discusses liability for
violations of those sections. As provided in Sec. 241.9(e), liability
for extraterritorial dispatching of a railroad operation in the United
States in violation of Sec. 241.9 is on the entity that employs the
individual who performed the extraterritorial dispatching, typically a
railroad or a contractor to a railroad (if any), and if the employing
entity is a contractor to a railroad, liability is also on the
railroad. For example, if an employee of a railroad contractor performs
the extraterritorial dispatching, FRA may hold either the contractor or
the railroad or both liable for the violation (in addition to the
individual employee and any other entity that committed the violation
or caused the violation, as provided in Sec. 241.3(c)).
As stated in Sec. 241.11(e), liability for conducting a railroad
operation that is extraterritorially dispatched in violation of
Sec. 241.11 is on the entity that conducts the operation, typically a
railroad or a contractor to a railroad. For example, if employees of a
railroad contractor engage in the movement of a train that is
extraterritorially dispatched and not within the exceptions of
paragraphs (b), (c), or (d), then FRA may hold either the contractor or
the railroad or both liable for the violation (in addition to the
individual train crewmembers and any other entity that committed the
violation or caused the violation, as provided in Sec. 241.3(c)).
Finally, as provided in Sec. 241.13(e), liability for requiring or
permitting the conduct of a railroad operation that is so dispatched
over a segment of track is on the owner of the track segment. For
purposes of Sec. 241.13, the track owner includes the owner of the
track segment, a person assigned responsibility for the track segment
under Sec. 213.5(c), and a railroad operating the track segment
pursuant to a directed service order issued by the STB under 49 U.S.C.
11123, during the time that the directed service order is in effect.
FRA may hold the track owner, the assignee, or the railroad operating
the track under a directed service order, or some or all of such
entities liable for a violation of Sec. 241.13 (in addition to the
individuals and any other entity that committed the violation or caused
the violation, as provided in Sec. 241.3(c)). For example, if the track
owner (Company A) has assigned responsibility for the track under
Sec. 213.5(c) to Company B and the track is used by a train that is
dispatched by a dispatcher located outside of the United States, not
within the exceptions of paragraphs (b), (c), or (d), then FRA may
assess a civil penalty for violation of Sec. 241.13 against either
Company B or Company A, or both.
In a given instance in which an individual outside the United
States dispatches a railroad operation that takes place in the United
States (not within the exceptions of paragraphs (b), (c), or (d)),
three regulatory prohibitions have been violated: Secs. 241.9, 241.11,
and 241.13. If one single entity dispatches and conducts the railroad
operation and owns the track on which the railroad operation occurs,
that entity may be assessed a separate civil penalty for each of the
three sections violated.

[[Page 63956]]

On the other hand, if the three functions are performed by a total of
three different entities, the entity that performed the function would
be assessed a penalty only for the section it violated. As a matter of
discretion, FRA may also cite the dispatching railroad for causing the
violation of Sec. 241.11(a) by the operating railroad or Sec. 241.13(a)
by the track owner in cases where the dispatching railroad fails to
notify the FRA Regional Administrator of each region where the track is
located of an emergency, and in other cases.
Section 241.15 Geographical boundaries of FRA's regions and
addresses of FRA's regional headquarters.
Under Secs. 241.9(b), 241.11(b), and 241.13(b), FRA requires a
railroad that, because of an emergency situation, must
extraterritorially dispatch a domestic railroad operation to inform the
Regional Administrator of the FRA region(s) where the track over which
the operation was conducted is located. The written notification must
summarize the circumstances of the emergency and the extraterritorial
dispatching and must be made either on paper or by electronic mail. In
order to facilitate the notification process, Appendix B lists FRA's
eight regions and the States that are included in those regions as well
as the addresses of the eight regional headquarters where the
notification(s) must be sent. If the emergency situation requires
extraterritorial dispatching of a railroad operation that takes place
in more than one of FRA's regions, the railroad conducting the
emergency dispatching must provide this written notification of the
emergency to the Regional Administrator for each of the affected
regions.
Section 241.17 Penalties and other consequences for noncompliance.
This section identifies three of the sanctions that may be imposed
upon a person for violating a requirement of part 241: civil penalties,
disqualification, and criminal penalties.
Paragraph (a) on civil penalties parallels the civil penalty
provisions included in numerous other safety regulations issued by FRA.
Essentially, any person who violates any requirement of this part or
causes the violation of any such requirement will be subject to a civil
penalty of at least $500 and not more than $11,000 per violation. Civil
penalties may be assessed against individuals only for willful
violations, and where a grossly negligent violation or a pattern of
repeated violations creates an imminent hazard of death or injury to
persons, or causes death or injury, a penalty not to exceed $22,000 per
violation may be assessed. See part 209, appendix A. In addition, each
day a violation continues will constitute a separate offense. Civil
penalties for violation of part 241 are authorized by 49 U.S.C. 21301,
21302, and 21304 and by the Federal Civil Penalties Inflation
Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461
note), as amended by the Debt Collection Improvement Act of 1996 (Pub.
L. 104-134, 110 Stat. 1321-358, 378, Apr. 26, 1996), which requires
agencies to adjust for inflation the maximum civil monetary penalties
within the agencies' jurisdiction. Consequently, the resulting $11,000
and $22,000 maximum penalties were determined by applying the criteria
set forth in sections 4 and 5 of the statute to the maximum penalties
otherwise provided for in the Federal railroad safety laws. In addition
to the civil penalty provision at Sec. 241.17(a), this final rule
includes a schedule of civil penalties for specific violations of part
241 as appendix A to this part.
Paragraph (b) provides that an individual who fails to comply with
a provision of this part or causes the violation of a provision of this
part may be prohibited from performing safety-sensitive service in
accordance with FRA's enforcement procedures found in subpart D, part
209.
Paragraph (c) of Sec. 241.17 provides that a person may be subject
to criminal penalties under 49 U.S.C. 21311 for knowingly and willfully
falsifying a report required by these regulations, here, a report to
the appropriate FRA Regional Administrator(s) concerning
extraterritorial dispatching performed under a claim that it was
performed to deal with an emergency. Section 21311(a) of title 49,
United States Code, reads as follows:
(a) Records and Reports Under Chapter 201.--A person shall be fined
under title 18, imprisoned for not more than 2 years, or both, if the
person knowingly and willfully--
(1) makes a false entry in a record or report required to be made
or preserved under chapter 201 of this title;
(2) destroys, mutilates, changes, or by another means falsifies
such a record or report;
(3) does not enter required specified facts and transactions in
such a record or report;
(4) makes or preserves such a record or report in violation of a
regulation prescribed or order issued under chapter 201 of this title;
or
(5) files a false record or report with the Secretary of
Transportation.
FRA believes that the inclusion of these provisions for failure to
comply with the regulations is important in ensuring that compliance is
achieved.
Section 241.19 Preemptive effect. Section 241.17 informs the public
of FRA's views regarding what will be the preemptive effect of the
Interim Final Rule. While the presence or absence of such a section
does not in itself affect the preemptive effect of an interim final
rule, it informs the public about the statutory provision that governs
the preemptive effect of the rule. Section 20106 of title 49 of the
United States Code provides that all regulations prescribed by the
Secretary relating to railroad safety preempt any State law,
regulation, or order covering the same subject matter, except a
provision necessary to eliminate or reduce an essentially local safety
hazard which provision is not incompatible with a Federal law,
regulation, or order and does not unreasonably burden interstate
commerce. With the exception of a provision that is not incompatible
with Federal law, not an unreasonable burden on interstate commerce,
and directed at an essentially local safety hazard, 49 U.S.C. 20106
will preempt any State regulatory agency rule covering the same subject
matter as the regulations in this final rule.
Section 241.21 Information collection. This provision shows which
sections of this part have been approved by the Office of Management
and Budget (OMB) for compliance with the Paperwork Reduction Act of
1995. See 44 U.S.C. 3501 et seq. A more detailed discussion of the
information collection requirements in this part is provided below.
Section 241.23 Termination of this part.
This provision provides that the Interim Final Rule will terminate
365 days after its effective date unless this date is extended by FRA.
Based on the comments, FRA may: (1) Issue final rule amendments to the
Interim Final Rule making the Interim Final Rule permanent with any
substantive changes FRA determines are appropriate; (2) issue a notice
proposing a new rule (a notice or proposed rulemaking), and possibly
final rule amendments to the Interim Final Rule extending the deadline
of the Interim Final Rule while FRA completes this new rulemaking; or
(3) decide that no Federal regulation is appropriate, allow the Interim
Final Rule to terminate, and perhaps issue a final rule removing the
Interim Final Rule.

Appendix A--Schedule of Civil Penalties

This appendix contains a schedule of civil penalties to be used in
connection

[[Page 63957]]

with this part. Because the penalty schedule is a statement of agency
policy, notice and comment are not required prior to its issuance. See
5 U.S.C. 553(b)(3)(A). Commenters are invited to submit suggestions to
FRA describing the types of actions or omissions under each regulatory
section that should subject a person to the assessment of a civil
penalty. Commenters are also invited to recommend what penalties may be
appropriate, based upon the relative seriousness of each type of
violation.

Appendix B--Geographic Boundaries of FRA's Regions and Addresses of
FRA's Regional Headquarters

This appendix contains a list of FRA's eight regions and the States
that are included in those regions as well as the addresses of the
eight regional headquarters where notification of emergency
extraterritorial dispatching of domestic operations must be sent.

XIII. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This rule has been evaluated in accordance with existing policies
and procedures, and determined to be significant under both Executive
Order 12866 and DOT policies and procedures (44 FR 11034; Feb. 26,
1979). FRA has prepared and placed in the docket a regulatory
evaluation addressing the economic impact of this rule. Document
inspection and copying facilities are available at 1120 Vermont Avenue,
NW., 7th Floor, Washington, DC 20590. Photocopies may also be obtained
by submitting a written request to the FRA Docket Clerk at Office of
Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue,
NW., Washington, DC 20590. Access to the docket may also be obtained
electronically through the Web site for the Docket Management System at
http://dms.dot.gov. FRA invites comments on this regulatory evaluation.
Public and private initiatives have successfully improved the
safety of rail operations by reducing the number and severity of
incidents, accidents, and resulting casualties. However, dilution of
these standards and initiatives to accommodate increasing transborder
rail traffic creates the potential for an increase in injuries and
fatalities resulting from rail accidents. FRA expects that the
locational requirement for dispatching of United States rail operations
contained in the Interim Final Rule, or any future program permitting
dispatching from abroad under equivalent standards, will prevent the
dilution of the standards and initiatives that have led to safety
levels currently experienced in the United States.
FRA expects that overall the rule will not impose a significant
cost on the rail industry over the next twenty years. FRA believes it
is reasonable to expect that several injuries and fatalities will be
avoided as a result of implementing this Interim Final Rule. FRA also
believes that the safety of rail operations will be compromised if this
rule is not implemented.
The following table presents estimated twenty-year monetary impacts
associated with the new locational requirement for dispatching of
United States rail operations.

------------------------------------------------------------------------
Estimated 20-
Description year costs (NPV)
------------------------------------------------------------------------
Labor rate differential (foregone savings)--.......... $7,386,569
Additional dispatcher supervisors (cost of rule)--.... 220,398
Emergency situation notification (cost of rule)--..... 3,811
Dismissed employee compensation (avoided cost)--...... (9,433,880)
Total Net Cost (NPV rounded).......................... (1,823,102)
------------------------------------------------------------------------

The basis for these dollar figures is found in section 7.0 of the
regulatory evaluation on file at FRA in the docket for this rulemaking.
Certain costs resulting from the inability to achieve economies of
scale are not quantified in this analysis. The savings from avoiding
severance payments are finite and are incurred in the early years; the
costs in terms of cost reductions not achieved are experienced in every
year and potentially infinitely. The longer the term of the analysis,
the higher the level of costs would be relative to benefits. For the
twenty-year term of this analysis, net costs are expected to be
negative. However, FRA believes that the safety benefits of the rule
justify the long-term costs (the costs incurred after the first twenty
years of this analysis).
As previously noted in this preamble, FRA has pointed out that the
problems associated with permitting extraterritorial dispatching of
United States rail operations include the following: hours of service,
operating rules compliance, substance abuse, differences in language
and units of measurement, security issues, and other concerns. Because
FRA has no assurance that these problems can be satisfactorily
addressed, FRA believes that the locational requirement imposed by the
Interim Final Rule is the best way to ensure railroad safety.
Railroad accidents caused by error in human judgment or other human
factors account for approximately a third of all reportable train
accidents each year. Whereas errors on the part of train operators are
typically limited in scope to the train the operator controls, errors
by dispatchers, who usually control vast territories and the movements
of many trains, can be truly disastrous.\19\ In the absence of the
protections afforded by current Federal statutory and regulatory
requirements covering domestic dispatchers, FRA believes that
additional dispatcher error-related accidents would occur were trains
to be controlled by extraterritorial dispatchers. Given that the total
costs of this Interim Final Rule are expected to be very low, the
avoidance of only a few minor accidents or one major accident would
justify this rule. A more detailed explanation of the benefits of this
rule as well as a summary of the cost-benefit analysis can be found in
Sections 8 and 9 of the regulatory evaluation on file at FRA in the
docket for this rulemaking.
---------------------------------------------------------------------------

\19\ For example, on June 22, 1997, two freight trains collided
head-on in Devine, Texas. The trains were operating on single main
track with passing sidings in nonsignalized territory in which train
movement was governed by conditional track warrant control authority
through a dispatcher. A conductor, an engineer, and two unidentified
individuals were killed in the derailment and subsequent fire. The
National Transportation Safety Board determined that the probable
cause of the accident was the failure of the third-shift dispatcher
to communicate the correct track warrant information to one of the
train crews and to verify the accuracy of the read-back information.
---------------------------------------------------------------------------

B. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of proposed and final rules to assess their impact on
small entities. FRA has prepared and placed in the docket a Regulatory
Flexibility Assessment (RFA), which assesses the small entity impact.
Document inspection and copying facilities are available at 1120
Vermont Avenue, NW., 7th Floor, Washington, DC 20590. Photocopies may
also be obtained by submitting a written request to the FRA Docket
Clerk at Office of Chief Counsel, Stop 10, Federal Railroad
Administration, 1120 Vermont Avenue, NW., Washington, DC 20590. Access
to the docket may also be obtained electronically through the Web site
for the Docket Management System at http://dms.dot.gov.
Pursuant to Section 312 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121) (RFA), FRA has
published an interim policy that formally establishes ``small
entities'' as being railroads that meet the line-haulage revenue
requirements of a

[[Page 63958]]

Class III railroad. 62 FR 43024 (Aug. 11, 1997). For other entities,
the same dollar limit in revenues governs whether a railroad,
contractor, or other respondent is a small entity.
The RFA concludes that this final rule would not have a significant
economic impact on a substantial number of small entities. FRA further
certifies that this Interim Final Rule is not expected to have a
significant economic impact on a substantial number of small entities.
About 645 of the approximately 700 railroads in the United States
are considered small businesses by FRA. The Interim Final Rule applies
to all railroads except (1) railroads that operate only on track that
is within an installation that is not part of the general railroad
system of transportation and (2) urban rapid transit operations that
are not connected to the general railroad system. Approximately 25
tourist and museum railroads that are small businesses do not operate
on the general railroad system. Therefore, this rule will affect
approximately 620 small entities. Small railroads that will be affected
by the final rule provide less than 10 percent of the industry's
employment, own about 10 percent of the track, and operate less than 10
percent of the ton-miles.
The American Shortline and Regional Railroad Association (ASLRRA)
represents the interests of most small freight railroads and some
excursion railroads operating in the United States. According to the
ASLRRA, none of its members has shown any interest in relocating their
dispatching to foreign countries or in contracting out their
dispatching functions to entities in foreign countries. Because
tourist, scenic, historic, excursion, and other small railroads
generally do not own the right-of-way on which they operate and rely on
the host railroad to dispatch their trains, these small railroads would
not be affected by the United States locational requirement for
dispatching of United States rail operations. Nevertheless, small rail
operators have an opportunity to comment on this Interim Final Rule.
FRA field offices and the ASLRRA engage in various outreach
activities with small railroads. For instance, when new regulations are
issued that affect small railroads, FRA briefs the ASLRRA, which in
turn disseminates the information to its members and provides training
as appropriate. When a new railroad is formed, FRA safety
representatives visit the operation and provide information regarding
applicable safety regulations. The FRA regularly addresses questions
and concerns regarding regulations raised by railroads. Because this
rule is not anticipated to affect small railroads, FRA is not providing
alternative treatment for small railroads under this rule.

C. Paperwork Reduction Act

The information collection requirements in this Interim Final Rule
have been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new information collection requirements
and the estimated time to fulfill each requirement are as follows:

--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual Average time per Total annual burden Total annual burden
49 CFR Section Respondent universe responses response hours cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
241.7--Waivers..................... 5 railroads........... 1 waiver petition..... 4 hours.............. 4 hours.............. $152.
241.9--Prohibition against 5 railroads........... 1 notification........ 8 hours.............. 8 hours.............. $360.
extraterritorial dispatching;
exceptions.
241.11--Prohibition against 5 railroads........... Included under Sec. Included under Sec. Included under Sec. Included under Sec.
conducting a railroad operation 241.9. 241.9. 241.9. 241.9.
dispatched by an extraterritorial
dispatcher; exceptions.
241.13--Prohibitions against track 5 railroads........... Included under Sec. Included under Sec. Included under Sec. Included under Sec.
owner's requiring or permitting 241.9. 241.9. 241.9. 241.9.
use of its line for a railroad
operation dispatched by an
extraterritorial dispatcher;
exceptions.
--------------------------------------------------------------------------------------------------------------------------------------------------------

All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. Pursuant to 44 U.S.C.
3506(c)(2)(B), the FRA solicits comments concerning: whether these
information collection requirements are necessary for the proper
performance of the functions of FRA, including whether the information
has practical utility; the accuracy of FRA's estimates of the burden of
the information collection requirements; the quality, utility, and
clarity of the information to be collected; and whether the burden of
collection of information on those who are to respond, including
through the use of automated collection techniques or other forms of
information technology, may be minimized. For information or a copy of
the paperwork package submitted to OMB, contact Mr. Robert Brogan at
202-493-6292.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan, Federal Railroad Administration, 1120 Vermont Avenue, NW., Mail
Stop 17, Washington, DC 20590.
OMB is required to make a decision concerning the collection of
information requirements contained in this interim final rule between
30 and 60 days after publication of this document in the Federal
Register. Therefore, a comment to OMB is best assured of having its
full effect if OMB receives it within 30 days of publication. The final
rule will respond to any OMB or public comments on the information
collection requirements contained in this Interim Final Rule.
FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of a final rule. The
OMB control number, when assigned, will be announced by separate notice
in the Federal Register, and text will be added to Sec. 241.21,
Information collection.

D. Federalism Implications

Executive Order 13132, entitled, ``Federalism,'' issued on August
4, 1999, requires that each agency ``in a separately identified portion
of the

[[Page 63959]]

preamble to the regulation as it is to be issued in the Federal
Register, provide[]
to the Director of the Office of Management and
Budget a federalism summary impact statement, which consists of a
description of the extent of the agency's prior consultation with State
and local officials, a summary of the nature of their concerns and the
agency's position supporting the need to issue the regulation, and a
statement of the extent to which the concerns of the State and local
officials have been met * * *.''
When issuing the Interim Final Rule in this proceeding, FRA has
adhered to Executive Order 13132. Normally, FRA engages in the required
Federalism consultation during the early stages of the rulemaking
through meetings of the full Railroad Safety Advisory Committee
(``RSAC''), on which several representatives of groups representing
State and local officials sit. However, FRA determined that, because
the possibility exists that at least one railroad may engage in
extensive extraterritorial dispatching in the very near future, these
issues have been addressed without the benefit of a presentation to the
full RSAC. In order to comply with Executive Order 13132, FRA sent a
letter soliciting comment on the Federalism implications of this
Interim Final Rule and the NPRM involving part 219 that FRA is
currently working on nine groups designated as representatives for
various State and local officials. The nine organizations were as
follows: the American Association of State Highway and Transportation
Officials (AASHTO), the Association of State Rail Safety Managers, the
Council of State Governments, The National Association of Counties, the
National Association of Towns and Townships, the National Conference of
State Legislatures, the National Governors' Association, the National
League of Cities, and the U.S. Conference of Mayors. In addition, FRA
representatives had informal discussions with representatives of some
of those groups. During one such consultation, a representative of
AASHTO expressed confidence that FRA and State interests would closely
coincide on these issues. He noted that the September 2000 meeting of
AASHTO's Standing Committee on Rail Transportation would include a
significant discussion of the pending STB proceeding (involving the
proposed consolidation of CN and BNSF), with the implication that FRA's
rulemakings may be a current topic at that time. To date, FRA has
received no indication of concerns about the Federalism implications of
this rulemaking from these representatives.

E. Environmental Impact

FRA has evaluated this regulation in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this regulation is not a major FRA action (requiring
the preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
64 FR 28545, 28547, May 26, 1999. Section 4(c)(20) reads as follows:
(c) Actions Categorically Excluded. Certain classes of FRA actions
have been determined to be categorically excluded from the requirements
of these Procedures as they do not individually or cumulatively have a
significant effect on the human environment. * * * The following
classes of FRA actions are categorically excluded: * * *
(20) Promulgation of railroad safety rules and policy statements
that do not result in significantly increased emissions of air or water
pollutants or noise or increased traffic congestion in any mode of
transportation.
In accordance with section 4(c) and (e) of FRA's Procedures, the
agency has further concluded that no extraordinary circumstances exist
with respect to this regulation that might trigger the need for a more
detailed environmental review. As a result, FRA finds that this
regulation is not a major Federal action significantly affecting the
quality of the human environment.

F. Unfunded Mandates Reform Act of 1995

Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement'' detailing the
effect on State, local, and tribal governments and the private sector.
The Interim Final Rule would not result in the expenditure, in the
aggregate, of $100,000,000 or more in any one year, and thus
preparation of such a statement is not required.

G. Energy Impact

Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 ( May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) that is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this NPRM in accordance with Executive Order
13211. FRA has determined that this NPRM is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. Consequently, FRA has determined that this regulatory action is
not a ``significant energy action'' within the meaning of Executive
Order 13211.

List of Subjects in 49 CFR Part 241

Communications, Penalties, Railroad safety, Reporting and
recordkeeping requirements.

The Rule

For the reasons set forth in the preamble, FRA amends chapter II,
subtitle B of title 49, Code of Federal Regulations, by adding Part 241
to read as follows:

PART 241--UNITED STATES LOCATIONAL REQUIREMENT FOR DISPATCHING OF
UNITED STATES RAIL OPERATIONS

Sec.
241.1 Purpose and scope.
241.3 Application and responsibility for compliance.
241.5 Definitions.
241.7 Waivers.

[[Page 63960]]

241.9 Prohibition against extraterritorial dispatching;
exceptions.
241.11 Prohibition against conducting a railroad operation
dispatched by an extraterritorial dispatcher; exceptions.
241.13 Prohibition against track owner's requiring or permitting
use of its line for a railroad operation dispatched by an
extraterritorial dispatcher; exceptions.
241.15 Geographical boundaries of FRA's regions and addresses of
FRA's regional headquarters.
241.17 Penalties and other consequences for noncompliance.
241.19 Preemptive effect.
241.21 Information collection.
241.23 Termination of this part.
Appendix A to Part 241--Schedule of Civil Penalties
Appendix B to Part 241--Geographical Boundaries of FRA's Regions and
Addresses of FRA's Regional Headquarters

Authority: 49 U.S.C. 20103, 20107, 21301, 21304, 21311; 28
U.S.C. 2461, note; 49 CFR 1.49.

Sec. 241.1 Purpose and scope.

(a) The purpose of this part is to prevent railroad accidents and
incidents, and consequent injuries, deaths, and property damage, that
would result from improper dispatching of railroad operations in the
United States by individuals located outside of the United States.
(b) This part prohibits extraterritorial dispatching of railroad
operations, conducting railroad operations that are extraterritorially
dispatched, and allowing track to be used for such operations, subject
to certain stated exceptions. This part does not restrict a railroad
from adopting and enforcing additional or more stringent requirements
not inconsistent with this part.

Sec. 241.3 Application and responsibility for compliance.

(a) Except as provided in paragraph (b) of this section, this part
applies to all railroads.
(b) This part does not apply to--
(1) A railroad that operates only on track inside an installation
that is not part of the general railroad system of transportation; or
(2) Rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
(c) Although the duties imposed by this part are generally stated
in terms of a duty of a railroad, each person, including a contractor
for a railroad, who performs a function covered by this part, shall
perform that function in accordance with this part.

Sec. 241.5 Definitions.

As used in this part:
Administrator means the Administrator of the Federal Railroad
Administration or the Administrator's delegate.
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. In particular, dispatch means to use a
telegraph, telephone, radio, or any other electrical or mechanical
device, or hand delivery--
(i) To control 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 signal or train control system but not merely by aligning or
realigning a switch; or
(ii) To control the occupancy of a track by a roadway worker or
stationary on-track equipment, or both; or
(iii) To issue an authority for working limits to a roadway worker.
(2) The term dispatch does not include the action of personnel in
the field effecting implementation of a written or verbal authority or
permission affecting a railroad operation or an authority for working
limits to a roadway worker, or operating a function of a signal system
designed for use by those personnel (e.g., initiating an interlocking
timing device).
Dispatcher means a train dispatcher, control operator, yardmaster,
or other individual who dispatches.
Emergency means an unexpected and unforeseeable event or situation
that affects a railroad's ability to use a dispatcher in the United
States to dispatch a railroad operation in the United States and that,
absent the railroad's use of an extraterritorial dispatcher to dispatch
the railroad operation, would either materially disrupt rail service or
pose a substantial safety hazard.
Employee means an individual who is engaged or compensated by a
railroad or by a contractor to a railroad to perform any of the duties
defined in this part.
Extraterritorial dispatcher means a dispatcher who, while located
outside of the United States, dispatches a railroad operation that
occurs in the United States.
Extraterritorial dispatching means the act of dispatching, while
located outside of the United States, a railroad operation that occurs
in the United States.
FRA means the Federal Railroad Administration, United States
Department of Transportation.
Movement of a train means the movement of one or more locomotives
coupled with or without cars, requiring an air brake test in accordance
with part 232 or part 238 of this chapter, except during switching
operations or where the operation is that of classifying and assembling
rail cars within a railroad yard for the purpose of making or breaking
up trains.
Occupancy of a track by a roadway worker or stationary on-track
equipment or both refers to the physical presence of a roadway worker
or stationary on-track equipment, or both, on a track for the purpose
of making an inspection, repair, or another activity not associated
with the movement of a train or other on-track equipment.
Person means an entity of a type covered under 1 U.S.C. 1,
including but not limited to the following: a railroad; a manager,
supervisor, official, or other employee or agent of a railroad; an
owner, manufacturer, lessor, or lessee of railroad equipment, track, or
facilities; an independent contractor providing goods or services to a
railroad; and an employee of such owner, manufacturer, lessor, lessee,
or independent contractor.
Railroad means any form of nonhighway ground transportation that
runs on rails or electromagnetic guideways and any person providing
such transportation, including--
(1) Commuter or other short-haul railroad passenger service in a
metropolitan or suburban area and commuter railroad service that was
operated by the Consolidated Rail Corporation on January 1, 1979; and
(2) High speed ground transportation systems that connect
metropolitan areas, without regard to whether those systems use new
technologies not associated with traditional railroads; but does not
include rapid transit operations in an urban area that are not
connected to the general railroad system of transportation.
Railroad contractor means a contractor to a railroad or a
subcontractor to a contractor to a railroad.
Railroad operation means the movement of a train or other on-track
equipment (other than on-track equipment used in a switching operation
or where the operation is that of classifying and assembling rail cars
within a railroad yard for the purpose of making or breaking up a
train), or the activity that is the subject of an authority issued to a
roadway worker for working limits.
Roadway worker means any employee of a railroad, or of a contractor
to a railroad, whose duties include

[[Page 63961]]

inspection, construction, maintenance, or repair of railroad track,
bridges, roadway, signal and communication systems, electric traction
systems, roadway facilities, or roadway maintenance machinery on or
near track or with the potential of fouling a track, and flagmen and
watchmen/lookouts.
State means a State of the United States of America or the District
of Columbia.
United States means all of the States.
Working limits means a segment of track with definite boundaries
established in accordance with part 214 of this chapter upon which
trains and engines may move only as authorized by the roadway worker
having control over that defined segment of track. Working limits may
be established through ``exclusive track occupancy,'' ``inaccessible
track,'' ``foul time'' or ``train coordination'' as defined in part 214
of this chapter.

Sec. 241.7 Waivers.

(a) A person subject to a requirement of this part may petition the
Administrator 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 waiver under this section shall be filed in
the manner and contain the information required by part 211 of this
chapter.
(c) If the Administrator finds that a waiver of compliance is in
the public interest and is consistent with railroad safety, the
Administrator may grant the waiver subject to any conditions that the
Administrator deems necessary.

Sec. 241.9 Prohibition against extraterritorial dispatching;
exceptions.

(a) General. Except as provided in paragraphs (b), (c) and (d) of
this section, a railroad subject to this part shall not require or
permit a dispatcher located outside the United States to dispatch a
railroad operation that occurs in the United States if the dispatcher
is employed by the railroad or by a contractor to the railroad.
(b) Emergencies. (1) In an emergency situation, a railroad may
require or permit one of its dispatchers located outside the United
States to dispatch a railroad operation that occurs in the United
States, provided that:
(i) The dispatching railroad notifies the FRA Regional
Administrator of each FRA region where the railroad operation was
conducted, in writing as soon as practicable, of the emergency, and
(ii) The extraterritorial dispatching is limited to the duration of
the emergency.
(2) Written notification may be made either on paper or by
electronic mail.
(c) Grandfathering. A railroad may require or permit one of its
dispatchers located in a foreign country or in a territory or
possession of the United States to dispatch a railroad operation that
occurs on a track segment located in the United States, the operation
of which track segment was normally controlled during the month of
December 1999 by a dispatcher located in that foreign country or that
territory or possession of the United States.
(d) Fringe border operations. In order to facilitate the safety and
efficiency of international train movements, railroad dispatchers
located in Canada and Mexico may dispatch additional railroad
operations in the United States immediately adjacent to their borders
if all of the following conditions apply:
(1) The United States trackage being dispatched does not exceed 100
route miles;
(2) Except for unforeseen circumstances such as equipment failure,
accident, casualty or incapacitation of a crew member, each train must
be under the control of the same assigned crew for the entire trip over
the trackage; and
(3)(i) Train movements on the rail line both originate and
terminate in either Canada or Mexico without the pick up, set out, or
interchange of cars in the United States; in other words, the traffic
on the rail line is ``bridge traffic'' only; or
(ii) In the case of any other rail line, the rail line involved
is--
(A) Under the exclusive control of a single dispatching district
(``desk''); and
(B) The portion of the line being dispatched extends no farther
into the United States than the first of any of the following
locations: interchange point; signal control point; junction of two
rail lines; established crew change point; yard or yard limits
location; inspection point for U.S. Customs, Immigration and
Naturalization Service, Department of Agriculture, or other
governmental inspection; or location where there is a change in the
method of train operations.
(e) Liability. The Administrator may hold either the railroad that
employs the dispatcher or the railroad contractor that employs the
dispatcher, or both, responsible for compliance with this section and
subject to civil penalties under Sec. 241.17.

Sec. 241.11 Prohibition against conducting a railroad operation
dispatched by an extraterritorial dispatcher; exceptions.

(a) General. Except as provided in paragraphs (b), (c) and (d) of
this section, a railroad subject to this part shall not conduct, or
contract for the conduct of, a railroad operation in the United States
that is dispatched from a location outside of the United States.
(b) Emergencies. (1) In an emergency situation, a railroad may
conduct, or contract for the conduct of, a railroad operation in the
United States that is dispatched from a location outside of the United
States, provided that:
(i) The dispatching railroad notifies the FRA Regional
Administrator of each FRA region where the railroad operation was
conducted, in writing as soon as practicable, of the emergency and
(ii) The extraterritorial dispatching is limited to the duration of
the emergency.
(2) Written notification may be made either on paper or by
electronic mail.
(c) Grandfathering. A railroad may conduct, or contract for the
conduct of, a railroad operation on a track segment in the United
States that is dispatched from a foreign country or from a territory or
possession of the United States if the railroad operation occurs on a
track segment located in the United States, the operation of which
track segment was normally controlled during the month of December 1999
by a dispatcher located in that foreign country or that territory or
possession of the United States.
(d) Fringe border operations. In order to facilitate the safety and
efficiency of international train movements, a railroad may conduct, or
contract for the conduct of, the dispatching of railroad operations in
the United States from Canada or Mexico immediately adjacent to their
borders if all of the following conditions apply:
(1) The United States trackage being dispatched does not exceed 100
route miles;
(2) Except for unforeseen circumstances such as equipment failure,
accident, casualty or incapacitation of a crew member, each train must
be under the control of the same assigned crew for the entire trip over
the trackage; and
(3)(i) Train movements on the rail line both originate and
terminate in either Canada or Mexico without the pick up, set out, or
interchange of cars in the United States; in other words, the traffic
on the rail line is ``bridge traffic'' only; or
(ii) In the case of any other rail line, the rail line involved
is--
(A) Under the exclusive control of a single dispatching district
(``desk''); and
(B) The portion of the line being dispatched extends no farther
into the United States than the first of any of the following
locations: interchange point;

[[Page 63962]]

signal control point; junction of two rail lines; established crew
change point; yard or yard limits location; inspection point for U.S.
Customs, Immigration and Naturalization Service, Department of
Agriculture, or other governmental inspection; or location where there
is a change in the method of train operations.
(e) Liability. The Administrator may hold either the railroad that
conducts the railroad operation or the railroad contractor that
conducts the operation, or both, responsible for compliance with this
section and subject to civil penalties under Sec. 241.17.

Sec. 241.13 Prohibition against track owner's requiring or permitting
use of its line for a railroad operation dispatched by an
extraterritorial dispatcher; exceptions.

(a) General. Except as provided in paragraphs (b), (c) and (d) of
this section, an owner of railroad track located in the United States
shall not require or permit the track to be used for a railroad
operation that is dispatched from outside the United States.
(b) Emergencies. (1) In an emergency situation, an owner of
railroad track located in the United States may require or permit the
track to be used for a railroad operation that is dispatched from
outside the United States, provided that:
(i) The dispatching railroad notifies the FRA Regional
Administrator of each FRA region where the operation was conducted, in
writing as soon as practicable, of the emergency, and
(ii) The extraterritorial dispatching is limited to the duration of
the emergency.
(2) Written notification may be made either on paper or by
electronic mail.
(c) Grandfathering. An owner of a track segment located in the
United States, the operation of which track segment was normally
controlled during the month of December 1999 by a dispatcher located in
a foreign country or in a territory or possession of the United States,
may require or permit the track segment to be used for a railroad
operation that is dispatched from that foreign country or that
territory or possession of the United States.
(d) Fringe border operations. In order to facilitate the safety and
efficiency of international train movements, an owner of railroad track
located in the United States immediately adjacent to the border of
either Canada or Mexico may require or permit the track to be used for
a railroad operation that is dispatched from Canada or Mexico if all of
the following conditions apply:
(1) The United States trackage being dispatched does not exceed 100
route miles;
(2) Except for unforeseen circumstances such as equipment failure,
accident, casualty or incapacitation of a crew member, each train must
be under the control of the same assigned crew for the entire trip over
the trackage; and
(3)(i) Train movements on the rail line both originate and
terminate in either Canada or Mexico without the pick up, set out, or
interchange of cars in the United States; in other words, the traffic
on the rail line is ``bridge traffic'' only; or
(ii) In the case of any other rail line, the rail line involved
is--
(A) Under the exclusive control of a single dispatching district
(``desk''); and
(B) The portion of the line being dispatched extends no farther
into the United States than the first of any of the following
locations: interchange point; signal control point; junction of two
rail lines; established crew change point; yard or yard limits
location; inspection point for U.S. Customs, Immigration and
Naturalization Service, Department of Agriculture, or other
governmental inspection; or location where there is a change in the
method of train operations.
(e) Liability. The Administrator may hold either the track owner or
the assignee under Sec. 213.5(c) of this chapter ( if any), or both,
responsible for compliance with this section and subject to civil
penalties under Sec. 241.17. A common carrier by railroad that is
directed by the Surface Transportation Board to provide service over
the track in the United States of another railroad under 49 U.S.C.
11123 is considered the owner of that track for the purposes of the
application of this section during the period that the directed service
order remains in effect.

Sec. 241.15 Geographical boundaries of FRA's regions and addresses of
FRA's regional headquarters.

For purposes of providing emergency notification to the appropriate
FRA Regional Administrator(s) as required by Secs. 241.9(b), 241.11(b),
and 241.13(b), the geographical boundaries of FRA's eight regions and
the addresses for the regional headquarters of those regions are listed
in Appendix B to this part.

Sec. 241.17 Penalties and other consequences for noncompliance.

(a) Any person who violates any requirement of this part or causes
the violation of any such requirement is subject to a civil penalty of
at least $500 and not more than $11,000 per violation, except that:
Penalties may be assessed against individuals only for willful
violations, and, where a grossly negligent violation or a pattern of
repeated violations has created an imminent hazard of death or injury
to persons, or has caused death or injury, a penalty not to exceed
$22,000 per violation may be assessed. Each day a violation continues
shall constitute a separate offense.
(b) An individual who violates any requirement of this part or
causes the violation of any such requirement may be subject to
disqualification from safety-sensitive service in accordance with part
209 of this chapter.
(c) 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.

Sec. 241.19 Preemptive effect.

Under 49 U.S.C. 20106, issuance of the regulations in this part
preempts any State law, regulation, or order covering the same subject
matter, except an additional or more stringent law, regulation, or
order that is necessary to eliminate or reduce an essentially local
safety hazard; is not incompatible with a law, regulation, or order of
the United States Government; and does not impose an unreasonable
burden on interstate commerce.

Sec. 241.21 Information collection. [Reserved]

Sec. 241.23 Termination of this part.

(a) This part is effective from January 10, 2002 through January
10, 2003.

Appendix A to part 241

Schedule of Civil Penalties \1\
------------------------------------------------------------------------
Willful
Section \2\ Violation violation
------------------------------------------------------------------------
241.9:
(a) Requiring or permitting $7,500 $11,000
extraterritorial dispatching of a
railroad operation.......................
(b) Failing to notify FRA about 5,000 7,500
extraterritorial dispatching of a
railroad operation in an emergency
situation................................

[[Page 63963]]

241.11 Conducting a railroad operation that is
extraterritorially dispatched:
(a)(i) Generally.......................... 7,500 11,000
(a)(ii) In an emergency situation--where 2,500 5,000
dispatching railroad fails to notify FRA
of the extraterritorial dispatching......
241.13 Requiring or permitting track to be
used for the conduct of a railroad operation
that is extraterritorially dispatched:
(a)(i) Generally.......................... 7,500 11,000
(a)(ii) In an emergency situation--where 2,500 5,000
dispatching railroad fails to notify FRA
of the extraterritorial dispatching......
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
violation. The Administrator reserves the right to assess a penalty of
up to $22,000 for any violation where circumstances warrant. See 49
U.S.C. 21301, 21304 and 49 CFR part 209, appendix A.
\2\ Further designations for certain provisions, not found in the CFR
citation for those provisions, are FRA Office of Chief Counsel
computer codes added as a suffix to the CFR citation and used to
expedite imposition of civil penalties for violations. FRA reserves
the right, should litigation become necessary, to substitute in its
complaint the CFR citation in place of the combined designation cited
in the civil penalty demand letter.

Appendix B to part 241-Geographical Boundaries of FRA'S Regions and
Addresses of FRA'S Regional Headquarters

The geographical boundaries of FRA's eight regions and the
addresses for the regional headquarters of those regions are as
follows:
(a) Region 1 consists of Maine, Vermont, New Hampshire, New
York, Massachusetts, Rhode Island, Connecticut, and New Jersey. The
mailing address of the Regional Headquarters is: 55 Broadway, Room
1077, Cambridge, Massachusetts 02142. The electronic mail (E-mail)
address of the Regional Administrator for Region 1 is:
Mark.McKeon@fra.dot.gov.
(b) Region 2 consists of Pennsylvania, Delaware, Maryland, Ohio,
West Virginia, Virginia, and Washington, DC The mailing address of
the Regional Headquarters is: Two International Plaza, Suite 550,
Philadelphia, Pennsylvania 19113. The E-mail address of the Regional
Administrator for Region 2 is: David.Myers@fra.dot.gov.
(c) Region 3 consists of Kentucky, Tennessee, North Carolina,
South Carolina, Georgia, Alabama, Mississippi, and Florida. The
mailing address of the Regional Headquarters is: Atlanta Federal
Center, 61 Forsythe Street, S.W., Suite 16T20, Atlanta, Georgia
30303. The E-mail address of the Regional Administrator for Region 3
is: Fred.Dennin@fra.dot.gov.
(d) Region 4 consists of Minnesota, Wisconsin, Michigan,
Illinois, and Indiana. The mailing address of the Regional
Headquarters is: 111 North Canal Street, Suite 655, Chicago,
Illinois 60606. The E-mail address of the Regional
Administrator for Region 4 is: Laurence.Hasvold@fra.dot.gov.
(e) Region 5 consists of New Mexico, Oklahoma, Arkansas,
Louisiana and Texas. The mailing address of the Regional
Headquarters is: 8701 Bedford-Euless Road, Suite 425, Hurst, Texas
76053. The E-mail address of the Regional Administrator for Region 5
is: John.Megary@fra.dot.gov.
(f) Region 6 consists of Nebraska, Iowa, Colorado, Kansas, and
Missouri. The mailing address of the Regional Headquarters is: 1100
Maine Street, Suite 1130, Kansas City, Missouri 64105. The E-mail
address of the Regional Administrator for Region 6 is:
Darrell.Tisor@fra.dot.gov.
(g) Region 7 consists of California, Nevada, Utah, Arizona, and
Hawaii. The mailing address of the Regional Headquarters is: 801 I
Street, Suite 466, Sacramento, California 95814. The electronic mail
(E-mail) address of the Regional Administrator for Region 7 is:
Alvin.Settje@fra.dot.gov.
(h) Region 8 consists of Washington, Idaho, Montana, North
Dakota, Oregon, Wyoming, South Dakota, and Alaska. The mailing
address of the Regional Headquarters is: Murdock Executive Plaza,
703 Broadway, Suite 650, Vancouver, Washington 98660. The E-mail
address of the Regional Administrator for Region 8 is:
Dick.Clairmont@fra.dot.gov.

Issued in Washington, DC, on November 30, 2001.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 01-30185 Filed 12-10-01; 8:45 am]
BILLING CODE 4910-06-P

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