[Federal Register Volume 66, Number 238 (Tuesday, December 11, 2001)]
[Rules and Regulations]
[Pages 63942-63963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30185]


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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)
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                                            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)
----------------------------------------------------------------------------------------------------------------

    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.
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    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.
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    \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\
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    \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).
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    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\
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    \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: 
[email protected].
    (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: [email protected].
    (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: [email protected].
    (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: [email protected].
    (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: [email protected].
    (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: 
[email protected].
    (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: 
[email protected].
    (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: 
[email protected].

    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