[Federal Register Volume 59, Number 29 (Friday, February 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3094]
[[Page Unknown]]
[Federal Register: February 11, 1994]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 207
[FRA Docket No. RPO-1; Notice No. 2]
RIN 2130-AA69
Railroad Police Officers
AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Final rule.
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SUMMARY: FRA is establishing a rule to implement section 1704 of the
Crime Control Act of 1990, which authorizes a railroad employee who is
commissioned as a railroad police officer by any state to enforce, in
accordance with DOT regulations, the laws of any state in which the
railroad police officer's employer owns property for the purpose of
protecting railroad property, personnel, passengers, and cargo.
EFFECTIVE DATES: The rule becomes effective March 14, 1994.
ADDRESSES: Any petition for reconsideration should be submitted to the
Docket Clerk, Office of Chief Counsel, FRA, 400 Seventh Street SW.,
Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: Gareth W. Rosenau, Office of Chief
Counsel, FRA, 400 Seventh Street SW., Washington, DC 20590 (202-366-
9416).
SUPPLEMENTARY INFORMATION:
I. Background
Since 1855, railroads have employed railroad police officers to
protect railroad property, personnel, passengers, and cargo. Today,
there are approximately 3,000 railroad police officers throughout the
United States, the majority of whom are commissioned by a state to
perform the duties of a peace officer. Each state has its own set of
rules governing railroad police officer conduct. Currently, railroad
police officers may not enforce the laws of any state where they are
not commissioned.
Railroad police officers provide protection against vandalism,
trespassing, railroad property and cargo theft, sabotage, terrorism,
and burglaries of company property. They also respond to emergencies
involving fires, derailments, and railroad accidents and incidents.
They are armed and authorized to make apprehensions and arrests.
Railroad police officers sometimes travel with cargo from the place
of origin to final destination, even if this involves accompanying a
train into states where the officers are not commissioned. A railroad
generally has commissioned railroad police officers in each state where
it conducts business and owns property; however, these commissioned
railroad police officers may at times be unavailable when an accident
or incident occurs. Under these circumstances, railroad police officers
who are not commissioned in that state must resort to a citizen's
arrest or wait until a commissioned railroad police officer or a state
or local police officer having appropriate authority arrives. Property
damage or personal injuries may occur during the interim.
On October 27, 1990, Congress addressed these concerns by enacting
section 1704 of the Crime Control Act of 1990, Public Law 101-647 (45
U.S.C. 446) which provides:
A railroad police officer who is employed by a rail carrier and
certified or commissioned as a police officer under the laws of any
State shall, in accordance with regulations issued by the Secretary
of Transportation, be authorized to enforce the laws of any
jurisdiction in which the rail carrier owns property, for the
purpose of protecting--
(1) The employees, passengers, or patrons of the rail carrier;
(2) The property, equipment, and facilities owned, leased,
operated, or maintained by the rail carrier;
(3) Property moving in interstate or foreign commerce in the
possession of the rail carrier; and
(4) Personnel, equipment, and materials moving via railroad that
are vital to the national defense, to the extent of the authority of
a police officer properly certified or commissioned under the laws
of that jurisdiction.
In response, the Secretary has delegated authority to the
Federal Railroad Administrator to promulgate appropriate
regulations.
On June 18, 1993, FRA published a notice of Proposed Rulemaking (58
FR 33593), proposing to amend title 49 of the Code of Federal
Regulations by adding new part 207--Railroad Police Officers. The part
would establish procedures for designation and commissioning of
railroad police officers and notification to state officials. The part
would also establish the authority of railroad police officers in
states where they are not commissioned.
FRA solicited written comments on the proposal. As a result of
those comments and further evaluation of the proposal, FRA now
publishes its final rule, incorporating certain modifications to the
proposed rule.
The rule will allow railroad police officers who are designated by
a railroad and commissioned under the laws of any state to enforce laws
of any state in which the railroad owns property and to which the
railroad has provided prior notice. The rule would also allow railroad
police officers to pursue off railroad property a person suspected of
violating the law on railroad property and to engage off railroad
property in law enforcement activities, including investigation and
arrest, if permissible under state law. Pursuant to section 1704 of the
Crime Control Act of 1990, where prior notice has been given for
railroad police officers in accordance with the rule, state law is
preempted with respect to commissioning requirements of states
applicable to railroad police officers.
II. Summary of Public Comments and Analysis
FRA received approximately 40 written comments on the proposed
rule. Comments were filed by individual police departments of various
municipal governments, chief of police associations, police training
centers, a university, police associations, railroad labor unions, and
police departments of railroad companies, including those of commuter
railroad authorities. Extensive comments were also filed by the
National Sheriffs' Association, the Association of American Railroads,
and an individual railroad policeman.
All of the comments provided at least qualified support for the
proposal--some with suggestions for improvements--but the vast majority
of the comments were simple statements of complete support. There were
no statements in opposition to the proposal.
The following comment from the City of Fridley (MN) is typical of
those supporting the proposal:
We believe that interstate authority for railroad police
officers is imperative due to the nature of their work. Property
transported or owned by the railroads travels throughout the
country, and it is essential that railroad police have the ability
to investigate crimes and arrest suspects in whichever states their
assigned duties lead them.
Commenters noted that the proposal would enhance public safety and
provide for more efficient and effective service by giving police the
ability to investigate crimes that occur on railroad property and
arrest suspects in states in which they are assigned to work.
A number of commenters noted that although criminal statutes vary
from state to state, there is general uniformity in what type of
activity constitutes a crime. Accordingly, several of these commenters
expressed the opinion that imposing additional training requirements,
beyond those mandated by their original certifying states, would be
superfluous. One commenter stated that the imposition of such
additional requirements would frustrate the legislative intent of
Congress in enacting section 1704 of the Crime Control Act of 1990. One
commenter, however, stated that states should be permitted to require
passing a rudimentary exam in the unique laws of that particular state,
prior to allowing an officer to make arrests in that state.
FRA believes that the imposition of additional training
requirements beyond those required by the commissioning state would
frustrate the purpose of section 1704 of the Crime Control Act of 1990.
If such additional requirements were imposed, railroad police officers
would not have the authority to enforce the laws of any jurisdiction in
which rail carriers own property (for certain purposes), upon
certification of the ``home'' state, which was envisioned by the Crime
Control Act of 1990. Accordingly, no additional training requirements
are provided in the final rule.
A number of commenters suggested modifications to proposed
subsection 207.5(d) in order to correct a limitation which does not
currently exist in law. As set forth in the Notice of Proposed
Rulemaking (NPRM), railroad police officers' law enforcement powers
would be limited to railroad property, except where an officer is
pursuing off railroad property a person suspected of violating the law
on railroad property. Commenters noted that most states do not limit
the authority of railroad police to the perimeters of the railroad, but
extend their law enforcement powers and investigatory authority off
railroad property. The proposed subsection 207.5(d) would curtail
railroad police officers' ability to investigate crimes committed on
railroad property but not involving active pursuit. This would hamper
law enforcement activities in a manner not consistent with the existing
powers of railroad police officers under most state laws.
The Association of American Railroads suggested simply deleting
subsection 207.5(d), but, in the alternative, suggested adding to
subsection 207.5(d) a clause indicating that an officer may engage off
railroad property in enforcement activities, including, without
limitation, investigation and arrest, if permissible under state law.
FRA has adopted AAR's alternative suggestion of retaining subsection
207.5(d), but including the clarifying language concerning
investigation and arrest powers off railroad property. Clearly, it is
not the intention of the FRA to impose by regulation limitations upon
railroad police power which are not present under existing law.
A further, technical point has been made by AAR with respect to
subsection 207.5(d). The subsection is made expressly applicable to
``commissioned'' railroad police officers. However, Sec. 207.5 itself
applies to the scope of authority in states where an officer is not
commissioned. Therefore, subsection 207.5(d), as written, is subject to
the unintended interpretation that it does not apply to officers
designated under Sec. 207.3 and for which notice has been properly
given under Sec. 207.4. These are the very officers for which the rule
is intended to provide out-of-state authority. AAR's suggestion, which
has been adopted, is to delete the word ``commissioned'' in subsection
207.5(d).
Similarly, subsection 207.5(c), as drafted, expressly refers to
``commissioned'' railroad officers and, therefore, suggests that it
does not apply to officers designated under Sec. 207.3 and for which
notice has been properly given under Sec. 207.4. FRA has clarified the
rule by providing that officers for whom a railroad has provided notice
in accordance with Sec. 207.4 have the same authority as railroad
police officers commissioned in that state.
III. Regulatory Impact
The rule has been evaluated in accordance with existing regulatory
policies and is not considered to be significant under Executive Order
12866. The rule is considered significant under section 5(a)(2)(f) of
DOT's Regulatory Policies and Procedures (``the Procedures'')(44 FR
11034, February 26, 1979) because it implements a substantial
regulatory program or change in policy.
In accordance with section 10(a) of the Procedures, FRA has
determined that a Regulatory Analysis is not required because the rule
does not meet any of the criteria mandating the preparation of such an
analysis. In accordance with sections 10(e) and 10(f), FRA has prepared
a Regulatory Evaluation which includes a brief analysis of the economic
consequences of the proposed regulation and analysis of its anticipated
benefits and impacts. The Regulatory Evaluation cites a minor cost
burden to the railroad industry associated with notification and
recordkeeping. Copies of the evaluation are contained in the docket for
this proceeding.
Regulatory Flexibility Act
FRA certifies that this rule will not have a significant impact on
a substantial number of small entities. There are no adverse economic
impacts for small units of government, businesses, or other
organizations.
Paperwork Reduction Act
This rule contains information collection requirements. These
requirements are being submitted to the Office of Management and Budget
(OMB) for approval under the provisions of the Paperwork Reduction Act
of 1980 (44 U.S.C. 3501 et seq.).
FRA has endeavored to keep the burden associated with this rule as
simple and minimal as possible. The only section that contains
information collection requirements is section 207.4, which requires
notice to state officials of each railroad police officer's commission.
The estimated time to fulfill the requirement is 15 minutes for each
officer. This estimate includes time for reviewing instructions,
searching existing data sources, gathering or maintaining data needed,
and completing and reviewing the collection of information.
Environmental Impact
As required by the National Environmental Policy Act and related
directives, FRA has evaluated this rule in accordance with FRA
procedures for ensuring full consideration of the potential
environmental impacts of FRA's actions. This rule meets the criteria
that establish this as a non-major action for environmental purposes.
Federalism Implications
FRA certifies that this action has been analyzed in accordance with
the principles, criteria and requirements contained in Executive Order
12612 and accords with the policies set forth therein. This rulemaking
implements a general statutory mandate from Congress that provides the
Secretary, acting through FRA, some discretion in formulating the
statute's implementing regulations. Therefore, in accordance with
Executive Order 12612, FRA has prepared a Federalism Assessment, which
includes a brief analysis of the consequences of the rule upon the
states' prerogatives in commissioning railroad police officers. The
rule would permit railroad police officers commissioned in one state to
practice their profession in other states without having to be
commissioned in those other states, provided prior notice has been
given, in accordance with the rule. Copies of the evaluation are
contained in the docket for this proceeding.
List of Subjects in 49 CFR Part 207
Investigations, Penalties, Railroad safety, Railroads.
IV. The Rule
In consideration of the foregoing, FRA adds to title 49 of the Code
of Federal Regulations the following new part 207, to read as follows:
PART 207--RAILROAD POLICE OFFICERS
Sec.
207.1 Application.
207.2 Definitions.
207.3 Designation and Commissioning.
207.4 Notice to State Officials.
207.5 Authority in States Where Officer Not Commissioned.
Authority: 45 U.S.C. 446; 49 CFR Sec. 1.49(ff).
Sec. 207.1 Application.
This part applies to all railroads, as such term is defined in
section 202(e) of the Federal Railroad Safety Act of 1970, as amended,
Public Law 91-458 (45 U.S.C. 431(e)).
Sec. 207.2 Definitions.
As used in this part:
(a) Railroad police officer means a peace officer who is
commissioned in his or her state of legal residence or state of primary
employment and employed by a railroad to enforce state laws for the
protection of railroad property, personnel, passengers, and/or cargo.
(b) Commissioned means that a state official has certified or
otherwise designated a railroad employee as qualified under the
licensing requirements of that state to act as a railroad police
officer in that state.
(c) Property means rights-of-way, easements, appurtenant property,
equipment, cargo, facilities, and buildings and other structures owned,
leased, operated, maintained, or transported by a railroad.
Sec. 207.3 Designation and commissioning.
(a) A railroad may designate employees to be commissioned by a
state authority as railroad police officers to serve in the states in
which the railroad owns property.
(b) The designated railroad police officer shall be commissioned by
the railroad police officer's state of legal residence or the railroad
police officer's state of primary employment.
Sec. 207.4 Notice to State Officials.
(a) After the designated railroad police officer is commissioned by
a state or states, the railroad shall send, by certified mail, written
notice to appropriate officials of every other state in which the
railroad police officer shall protect the railroad's property,
personnel, passengers, and cargo. The notice of commission shall
contain the following information:
(1) The name of the railroad police officer;
(2) The badge number, identification number, rank, code, or other
identifying information assigned to the railroad police officer;
(3) The date of commission;
(4) The state or states where the railroad police officer is
commissioned;
(5) The date the railroad police officer received training or
retraining regarding the laws of such state or states;
(6) The name of the railroad official who designated the employee
as a railroad police officer; and
(7) Color photographs of the types of badges, identification cards,
and other identifying materials the railroad uses to identify its
railroad police officers.
(b) The railroad shall keep copies of all such notices at a central
location.
(c) The authority set forth in Sec. 207.5 shall be effective upon
receipt by such state(s) of written notice conforming to the
requirements of this section.
Sec. 207.5 Authority in States where officer not commissioned.
(a) A railroad police officer who is designated by a railroad and
commissioned under the laws of any state is authorized to enforce the
laws (as specified in paragraph (b) of this section) of any state in
which the railroad owns property and to which the railroad has provided
notice in accordance with Sec. 207.4.
(b) Under the authority of paragraph (a) of this section, a
railroad police officer may enforce only relevant laws for the
protection of--
(1) The railroad's employees, passengers, or patrons;
(2) The railroad's property or property entrusted to the railroad
for transportation purposes;
(3) The intrastate, interstate, or foreign movement of cargo in the
railroad's possession or in possession of another railroad or non-rail
carrier while on the railroad property; and
(4) The railroad movement of personnel, equipment, and materials
vital to the national defense.
(c) The authority exercised under this part by an officer for whom
the railroad has provided notice in accordance with Sec. 207.4 shall be
the same as that of a railroad police officer commissioned under the
laws of that state.
(d) The railroad police officer's law enforcement powers shall
apply only on railroad property, except that an officer may pursue off
railroad property a person suspected of violating the law on railroad
property, and an officer may engage off railroad property in law
enforcement activities, including, without limitation, investigation
and arrest, if permissible under state law.
Issued in Washington, DC on February 4, 1994.
Jolene M. Molitoris,
Federal Railroad Administrator.
[FR Doc. 94-3094 Filed 2-10-94; 8:45 am]
BILLING CODE 4910-06-P