[Federal Register: December 10, 2002 (Volume 67, Number 237)]
[Rules and Regulations]
[Page 75937-75964]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de02-7]
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Part III
Department of Transportation
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Federal Railroad Administration
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49 CFR Part 241
U.S. Locational Requirement for Dispatching of U.S. Rail Operations;
Final Rule
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 241
[FRA Docket No. FRA-2001-8728, Notice No. 3]
RIN 2130-AB38
U.S. Locational Requirement for Dispatching of U.S. Rail
Operations
AGENCY: Federal Railroad Administration (FRA), DOT.
ACTION: Final rule.
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SUMMARY: This Final Rule will supplant an interim Final Rule (IFR) that
has been in effect since January 10, 2002, while FRA has gathered
comments on whether to permit extraterritorial dispatching (the act of
dispatching of a railroad operation that occurs on trackage in the
United States by a dispatcher located outside of the United States).
Through January 10, 2003, the IFR generally bars extraterritorial
dispatching with the following three exceptions: extraterritorial
dispatching is permitted in the case of emergencies, but only for the
duration of the emergency; extraterritorial dispatching that was
normally occurring in December of 1999 is allowed to continue
(``grandfathering exception''); and very limited additional
extraterritorial dispatching from Canada or Mexico of railroad track in
the United States immediately adjacent to the borders is authorized
(``fringe border exception''). After considering the comments on the
IFR, FRA has determined that while special treatment is appropriate for
extraterritorial dispatching that was conducted pursuant to the terms
of the IFR, such treatment is better handled through a special waiver
process discussed below.
Effective January 11, 2003, the Final Rule adds a new regulation
that generally requires, in the absence of a waiver, that all
dispatching of railroad operations that occur in the United States be
performed in the United States, with two minor exceptions.
First, a railroad is allowed to conduct extraterritorial
dispatching from Mexico or Canada in emergency situations, but only for
the duration of the emergency. A railroad relying on the exception must
provide 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, a railroad that was normally conducting extraterritorial
dispatching from Canada or Mexico in accordance with the terms of the
IFR may continue to so dispatch these operations for a transitional 90-
day period to permit the railroad to file a waiver petition. This
regulation lists of the four lines of track that meet the terms of the
``grandfathering exception'' of the IFR; FRA is not aware of any
additional operations that have been commenced under the ``fringe
border exception'' of the IFR. If a waiver request is filed within the
transitional period, the railroad may continue to conduct the
extraterritorial dispatching until FRA acts on the waiver petition.
As mentioned above, existing extraterritorial dispatching, as well
as proposed new extraterritorial dispatching from Canada or Mexico of
railroad track in the United States in the area immediately adjacent to
the borders, will be considered under a special fringe border waiver
process. A fringe border waiver request by a railroad will generally be
granted if the railroad has taken adequate steps to ensure the security
of its dispatch center, the railroad has in place specified safety
programs for its extraterritorial dispatchers, a government safety
agency in the country where the dispatching will occur has safety
jurisdiction over the railroad and the dispatchers and is satisfied
with the railroad's safety programs, and the railroad agrees to abide
by the operating restrictions specified in the rule. FRA anticipates
that both Canadian and Mexican railroads can easily meet these
requirements for fringe border dispatching of operations, and that FRA
will be able to work out satisfactory arrangements with the railroads
and the regulatory agencies in Canada and Mexico concerning the
monitoring of the agreed upon safety programs.
Railroads that wish to commence additional extraterritorial
dispatching may apply for a waiver from the domestic locational
requirement. Such a waiver may be granted if an applicant can
demonstrate to the satisfaction of FRA that the waiver can be made
without compromising or diminishing rail safety.
FRA will continue to explore areas of bilateral cooperation with
the governments of Canada and Mexico on extraterritorial dispatching
and other cross-border safety issues. FRA will also continue working
with the railroads in those countries on cross-border safety issues.
DATES: This regulation is effective January 11, 2003, except for
Sec. Sec. 241.7(a), (b), and (c); 241.9(c); 241.11(c); 241.13(c) and
241.15, which contain information collection requirements that have not
been approved by OMB. FRA will publish a document in the Federal
Register announcing the effective date.
ADDRESSES: Any petition for reconsideration should reference the FRA
docket and notice numbers (Docket No. FRA-2001-8728, Notice No. 3). You
may submit your petition 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; or
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. The docket is 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,
Office of Safety, RRS-11, FRA 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, Office of the Chief Counsel, RCC-11, FRA 1120 Vermont Avenue,
NW., Stop 10, Washington, DC 20590 (telephone 202-493-6038); or for
other legal issues, John Winkle, Trial Attorney, Office of the Chief
Counsel, RCC-12, FRA 1120 Vermont Avenue, NW., Stop 10, Washington, DC
20590 (telephone 202-493-6067).
SUPPLEMENTARY INFORMATION:
Table of Contents for Supplementary Information
I. Notice Reopening Comment Period on Alcohol and Drug Testing NPRM
II. Proceedings to Date
III. Concerns Regarding Extraterritorial Dispatching that Led FRA to
Adopt the Interim Final Rule
A. The Importance of Safe Dispatching and the Possibility that
Railroads May Conduct Widespread Extraterritorial Dispatching
[[Page 75939]]
B. Regulatory Oversight and the Potential for a Regulatory Gap
C. Security Concerns
D. Other Safety-Related Concerns
IV. Discussions of Specific Comments and Conclusions
A. Overview of the Comments and FRA's Conclusions
B. Regulatory Oversight
C. Existing Extraterritorially Dispatched Operations
D. Drug and Alcohol Testing
E. Hours of Service
F. Operational Testing
G. Service Disruptions
H. Security Concerns
I. International Trade Implications
J. Economic Impact
K. Language Differences and Units of Measure
L. Definitions of ``Dispatch'' and ``Dispatcher,'' and Special
Relief for Fringe Border Operations
M. Comments from Labor Organizations
V. Section-by-Section Analysis
VI. 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
VII. List of Subjects
I. Notice Reopening Comment Period on Alcohol and Drug Testing NPRM
Elsewhere in today's Federal Register, FRA is publishing a notice
soliciting additional comments on its NPRM to amend its alcohol and
drug testing rule (49 CFR part 219). 66 FR 64000 (Dec. 11, 2001).
(Hereinafter, references to a numbered part are to a part in title 49
of the CFR.) Under the proposed amendments to part 219, employees of a
foreign railroad whose primary reporting point is outside the United
States who perform train or dispatching service in the United States
covered by hours of service laws (``covered service'') would become
subject to all of the requirements of part 219.
II. Proceedings to Date
On December 11, 2001, (66 FR 63942), FRA published an IFR that
prohibited any extraterritorial dispatching for a period of 365 days,
but included exceptions for emergency situations, any United States
track segment that was regularly extraterritorially dispatched in
December of 1999, and fringe border operations, as those operations
were defined in the IFR. The IFR went into effect on January 10, 2002,
and remains in effect through January 10, 2003.
In the IFR, FRA solicited comments on the benefits and costs of
FRA's proposal as well as comments on whether FRA should adopt an
alternative regulatory scheme under which extraterritorial dispatching
of United States rail operations would be permitted and, if so, under
what conditions. The IFR generated ten written comments, which may be
found in the docket and which are discussed below.\1\
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\1\ Canadian Pacific Railway Company (CP) submitted two items to
the docket. Shortly after publication of the IFR, CP submitted a
request to delay the effective date of the rule. CP then followed up
the letter by submitting comments addressing the issues in the IFR.
Thus, there were nine commenters, but FRA considered ten submissions
in determining a course of action.
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One of the commenters, CP, requested that FRA delay indefinitely
the effective date of the IFR. CP requested the delay because it felt
that it was not possible for FRA to resolve all of the issues
surrounding the IFR and the related NPRM revising part 219 in such a
short period of time. CP felt that it would be better to delay the
effective date until written comments could be submitted and FRA's
Railroad Safety Advisory Committee consultations could take place. In
return for the delay, CP pledged to refrain from expanding any
extraterritorial dispatching of United States rail operations.
FRA did not grant the request, however, because CP's operations
were not the sole impetus for the IFR. Instead, as explained below, FRA
concerns were and still are the recent increase in mergers and
acquisitions by and between the larger railroads that has raised the
potential for extensive extraterritorial dispatching, the fact that
present technology enables any railroad operating in the United States
to move its dispatching of United States train operations to any
location in the world, and the safety and security problems associated
with extraterritorial dispatching of domestic rail operations. In order
to preserve the status quo that FRA believed would be jeopardized by
delaying the effective date of the IFR, FRA determined that the safest
course of action would be to proceed with the IFR and then make a final
determination based on the comments received after the IFR had become
effective.
In addition to requesting written comments, FRA held a public
hearing on the IFR in Washington, DC, on February 12, 2002, at which
four parties submitted oral comments. These parties consisted of CP,
Canadian National Railway Company (CN), the Brotherhood of Locomotive
Engineers (BLE), and the American Train Dispatchers Department of the
BLE (ATDD). A transcript of this hearing is available in the public
docket of this rulemaking. After reviewing both the written and oral
comments, FRA has decided that the safety and security issues presented
by extraterritorial dispatching mandate that FRA proceed with this
Final Rule.
III. Concerns Regarding Extraterritorial Dispatching that Led FRA To
Adopt the Interim Final Rule
A. The Importance of Safe Dispatching and the Possibility that
Railroads May Conduct Widespread Extraterritorial Dispatching
Proper dispatching is essential for safe railroad operations of
both freight and passenger trains. Freight trains can be more than a
mile in length, typically carry hazardous materials, and require a mile
or more to stop. Freight trains sometimes carry arms, ammunition, and
implements of war as well as spent nuclear fuel. Shipments of spent
nuclear fuel will dramatically increase once the storage site in
Nevada's Yucca Mountain opens in 2010. As was explained in detail in
the preamble to the IFR, dispatchers are the railroad employees
primarily responsible for the safe movement of trains. See 66 FR 63492.
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.
Currently, dispatchers located outside of the United States control
only very limited train movements in the United States. Their
operations are listed in appendix A to the rule and are as follows: 1.8
miles from Windsor, Ontario, to Detroit, Michigan (dispatched by CP);
3.1 miles from Sarnia, Ontario, to Port Huron, Michigan (dispatched by
CN); 43.8 miles of the Sprague Subdivision between Baudette, Minnesota,
and International Boundary, Minnesota (dispatched by CN); and 99 miles
between Vanceboro, Maine, and Brownville Junction, Maine (dispatched by
the Eastern Maine Railway Company).\2\
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\2\ The listed distances are the distances dispatched from
Canada and not necessarily the distance that a Canadian crew
operates a train into the United States. A Canadian crew could
operate the train further into the United States than a listed
distance but a U.S.-based dispatcher would control the movement
beyond the listed distance.
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[[Page 75940]]
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 lines throughout the Southeast and Mid-Atlantic. In
addition, nearly all of the dispatching operations for the Union
Pacific Railroad Company (UP), which is the Nation's largest railroad,
are conducted from one facility in Omaha, Nebraska. FRA does not
believe there are any inherent safety risks in this type of centralized
operation, but because current technology allows for such operations,
FRA recognizes that this technology allows railroads operating in the
United States that now dispatch their trains in the United States to
instead dispatch these trains from anywhere in the world.
In addition, FRA is also concerned about the increase in business
combinations in the rail industry. Prior to the imposition of a
moratorium on railroad mergers by the Surface Transportation Board
(STB), there were several high-profile mergers involving both domestic
and Canadian railroads. The mergers involving the Canadian railroads
resulted in a dramatic increase in the amount of domestic track owned
by Canadian railroads. For example, CN acquired the Grand Trunk Western
Railroad, Inc. (GTW) (646 miles of track operated by GTW (1998
figures)), the Illinois Central Railroad Company (2,591 miles of
track), and the 2,500 route miles of United States Class II and III
railroads formerly owned by the Wisconsin Central Transportation
Company. In addition, CP acquired the Soo Line Railroad Company (3225
miles of track operated). Now that the STB moratorium has been lifted,
it is legally possible that more railroads will combine, resulting in
larger multinational railroads and increasing the appeal of cross-
border operations.
B. Regulatory Oversight and the Potential for a Regulatory Gap
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 and the environment; the harm could be
widespread if the trains are carrying hazardous materials such as spent
nuclear fuels. Domestically, there have been accidents resulting from,
for example, a dispatcher failing to relay to a train crew that a grade
crossing was out of service (e.g., on January 9, 2001, a dispatcher at
a CN/Illinois Central Railroad communications facility mistakenly
cleared a grade crossing for normal operations, resulting in a
collision between a train and a motor vehicle at the crossing); a
dispatcher routing a train into the path of another train (e.g., on
June 22, 1997, a dispatcher failed to communicate correct track warrant
information, causing two freight trains to collide head-on in Devine,
Texas, killing four persons); and a dispatcher allowing a train to
enter working limits when roadway workers and equipment were present
(e.g., on January 29, 1988, an Amtrak passenger train struck
maintenance-of-way equipment, resulting in numerous injuries and
substantial property damage; the National Transportation Safety Board
determined that the accident was caused by a dispatcher who was
impaired by drugs).
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, the United States has
established safety requirements that, together with FRA safety
oversight, effectively deal with these problems for railroad
dispatchers located in the United States. 49 U.S.C. ch. 51, 201-213; 49
CFR 1.49. Examples of safety rules and laws governing domestic
dispatchers include operating rules and efficiency testing (part 217),
drug and alcohol testing (part 219), and hours of service restrictions
(49 U.S.C. 21105, and part 228). 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). As previously noted, FRA has issued
an NPRM that would amend part 219 to require drug and alcohol testing
of such an employee. The comment period on the part 219 NPRM has been
extended by a notice published elsewhere in the Federal Register today.
Besides enforcing the Federal railroad safety laws, FRA may also
take other safety-related actions. For example, FRA may conduct
investigations of railroad accidents in the United States, including
those involving dispatching, and may issue reports on the agency
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),\3\ 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
(see discussion under section IV B of the supplementary information
section of the preamble, below).
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\3\ 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 solution to those problems. For more
information see 66 FR 63946.
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With regard to dispatchers located in foreign countries, 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
[[Page 75941]]
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. In either situation,
the rail operations in the United States may not fall completely under
the jurisdiction of any rail safety regulatory body, resulting in a
regulatory gap that could jeopardize the safety and security of
domestic operations.
This potential regulatory gap could significantly interfere with
FRA's ability to ensure that extraterritorial dispatching operations
are conducted with the same level of regulatory oversight that occurs
in the United States and which FRA believes is vital to the safety of
those operations. As noted in the preamble to the IFR, FRA is
particularly concerned that current regulations and statutes applicable
to dispatchers, which govern such areas as hours of service
limitations, operational testing, and drug and alcohol programs, most
notably random drug testing, are not uniform throughout foreign
countries, and may fall below the safety standards established by the
United States statutes and regulations. See 66 FR 63948. 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.
C. Security Concerns
In addition to the above-described potential negative implications
on rail safety of extraterritorial dispatching, FRA is also concerned
about the security of domestic rail operations and how that security
would be impacted if FRA permitted increased extraterritorial
dispatching. As the terrorist attacks of September 11, 2001, vividly
demonstrated, this nation and its citizens are targets of international
terrorists, and railroad dispatch centers are logical terrorist
targets. While those attacks have resulted in increased railroad
security domestically, dispatching centers located in foreign countries
would be outside the jurisdiction of domestic security and law
enforcement agencies. Thus, if FRA permits extraterritorial
dispatching, the United States would increase its exposure to security
threats that exist in foreign countries and be forced to rely upon the
security apparatus of foreign countries. As noted above, current
technology allows dispatching of domestic rail operations from anywhere
in the world, including countries that may not offer the same levels of
security and security measures that are offered by domestic agencies.
In addition, given the threat that terrorists pose to railroad
systems, including their dispatch centers, railroad security measures
(e.g., 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 cargo, 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. In the event that FRA is not satisfied with
the security measures undertaken by a domestic railroad, 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.\4\ FRA may have limited access to and ability to
influence security arrangements at a foreign dispatch center if the
security procedures at that center were not sufficient to protect
domestic rail operations. Furthermore, law enforcement and security
agencies in the United States are not authorized to protect foreign
dispatch facilities.
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\4\ 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
fairly limited. For example, FRA has issued rules on Passenger Train
Emergency Preparedness (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 Sec. 239.7 and 49 U.S.C. 20133(a)(4).)
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FRA does not know, at this time, whether all foreign railroads
employ security measures comparable to those of United States
railroads, or whether foreign governments have enforceable security
requirements that would effectively protect foreign dispatch
facilities. In addition, domestic railroads that locate dispatching
facilities in foreign countries may not necessarily employ the same
security measures that they use in the United States. As a result,
foreign-based facilities, whether owned by a foreign or a domestic
railroad, could be more attractive targets than facilities located in
the United States and be more susceptible to terrorist infiltration or
attack.
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 and weapons and hazardous
materials (including nuclear materials and nuclear waste), 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 38,000
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.
D. Other Safety-Related Concerns
In the preamble to the IFR, FRA also detailed other potential
concerns with regard to extraterritorial dispatching. See 66 FR 63950-
63951. First, 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
[[Page 75942]]
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 the beginning of the last century.
It would be unreasonable to assume that, absent 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.
Second, given the centralized nature of most major railroads'
dispatching facilities, FRA is concerned that a disruption of
communications at a dispatching facility could cause system-wide
problems for a railroad as it scrambles to transfer operations from the
centralized location to local dispatch centers. The preamble to the IFR
notes the two recent occasions where the CSX dispatch center in
Jacksonville, Florida, went off line due to extreme weather conditions.
See 66 FR 63951. As those examples demonstrated, domestic dispatch
centers are not immune to such problems, but FRA is concerned that the
effects of such a disruption could be exacerbated if the dispatching
facility were located in a foreign country far away from the railroad's
infrastructure.
FRA is also concerned about the potential effects that a labor
disruption involving an extraterritorial dispatch facility could have
on domestic rail operations. Dispatchers are typically unionized
employees subject to the Railway Labor Act (45 U.S.C. 151-188)
(``RLA''), which prohibits strikes over contract interpretations.
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.
Dispatchers located in a foreign country, however, are not subject to
the RLA, and Congress may not legislate an end to a labor dispute in
that country despite the fact that such a dispute could severely affect
United States rail operations, and possibly jeopardize transportation
safety.
The implications of a strike that cannot be readily controlled by
government authorities have the potential of being quite severe,
especially to the extent that it affects the shifting of rail freight
and passenger traffic to crowded highways, the delivery of perishable
goods to market, the delivery of coal for energy to parts of the
country in need during extreme weather conditions, and transport of
defense materials needed to ensure national security. 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 of all types,
including spent nuclear waste. By comparison, trucks carry about 29
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, and diverting hazardous
materials from railroads to other modes of transportation, such as
trucks and barges, would increase the exposure of both the public and
the environment to these hazardous materials and could increase the
possibility of accidents.\5\ Furthermore, loaded railroad tank cars
that cannot be delivered to customers and that are stranded on rail
lines pose ready targets for terrorists. 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.
---------------------------------------------------------------------------
\5\ Railroad tank cars can typically carry up to four times the
volume typically carried by truck cargo tanks, so diverting
hazardous material movements to the highways would significantly
increase the highway movements of these dangerous commodities. In
addition, any transloading of hazardous materials from rail tank
cars to truck cargo tanks cars poses additional risks.
---------------------------------------------------------------------------
Finally, 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 of measurement.
The two currently used standards of measurement 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. 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.\6\
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\6\ 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.
---------------------------------------------------------------------------
Commenters' responses to FRA's concerns leading to the issuance of
the IFR are discussed below.
IV. Discussions of Specific Comments and Conclusions
A. Overview of the Comments and FRA's Conclusions
In the IFR, FRA offered two options with regard to increased
extraterritorial dispatching operations. The first option, which was
reflected in the IFR, is to bar extraterritorial dispatching with the
three minor exceptions explained above (emergencies, grandfather
operations in place since December 1999, and fringe border operations
that met the terms of the IFR). 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
[[Page 75943]]
labor strikes and other disruptions, are adequately addressed. FRA
noted that the second option could be implemented by a more detailed
version of the waiver provision (section 241.7) of the IFR. In the
preamble to the IFR, FRA solicited comments both on the benefits and
costs of the approach advocated by the IFR as well as on the
feasibility of adopting the alternate option and allow extraterritorial
dispatching provided FRA's safety and security concerns are effectively
addressed. FRA indicated that after considering the comments FRA might
make the IFR permanent with any substantive changes FRA determines are
appropriate.
As noted above, nine parties submitted written comments, and four
of those parties offered oral comments, as well. The parties submitting
written comments were CN and CP, which, when appropriate, will be
referred to jointly as ``the Canadian railroads,'' the Brotherhood of
Maintenance of Employes (BMWE), the Northeast Illinois Railroad Company
(METRA), the Brotherhood of Railroad Signalmen (BRS), the BLE, the
Association of American Railroads (AAR), the ATDD, and the Mexican
government.
The Canadian railroads, either individually or collectively,
commented on most of the issues raised in the IFR, so FRA's responses
will focus primarily on those comments. In general, both railroads
objected in principle to the regulation and argued that a better
resolution to this issue would be for FRA and Transport Canada, along
with the individual railroads, to work out problems on a case-by-case
basis, instead of FRA implementing a ``one size fits all'' regulation
for a safety problem that they believe does not currently exist. Both
railroads wanted to retain sufficient flexibility to conduct their
existing operations and, if FRA promulgates part 241, both were in
favor of retaining both the grandfathering provision and the exception
for ``fringe border operations,'' although in a slightly modified form.
In addition, both expressed concern that the definitions of
``dispatch'' and ``dispatcher'' were too broad and could be read to
include employees who should not be included.
The comments from the BLE, the BMWE, METRA, and the BRS were all
fairly general in nature and supported FRA's implementation of a bar on
additional extraterritorial dispatching. The comments from the ATDD
were also generally supportive of the IFR but, in addition, offered
suggestions on specific provisions of the rule that it believes should
be slightly modified. The brief comments from the AAR focused solely on
the definitions of ``dispatch'' and ``dispatcher'' contained in the
IFR. The Canadian government did not submit comments on the IFR, but
did comment on the NPRM on part 219. Some of the Canadian government's
comments are relevant to FRA's position on the necessity of random
testing of dispatchers and will be addressed below. Finally, the
comments from the Mexican government supported the banning of
extraterritorial dispatching and noted that Mexico has banned
extraterritorial dispatching.
Before reviewing the specific comments, FRA notes that all of the
negative comments on the IFR related to the safety and security of
dispatching United States rail operations from Canada, but did not
address extraterritorial dispatching from any other country. Therefore,
the safety and security concerns detailed in the IFR and reiterated
above remain unchallenged with respect to any country other than
Canada. Accordingly, unless otherwise noted, FRA's analysis of the
comments is limited to whether the actions taken by the Canadian
railroads and Canadian authorities adequately address FRA's concerns.
Based on FRA's analysis of the comments, FRA has decided that the
general bar on extraterritorial dispatching, except relief in cases of
emergency, should continue. However, FRA has determined that it is
appropriate to provide special relief for the four existing
extraterritorial dispatching operations (listed in appendix A to the
Final Rule), and for limited new extraterritorial dispatching of fringe
border areas in the United States designed to facilitate the smooth
handoff of dispatching between dispatchers in Canadian and Mexican
dispatching centers and those in the United States. Such relief is best
granted in the context of waivers rather than blanket approvals of the
operations, and a special fringe border waiver process has been
established to facilitate that relief. (The fringe border waiver
process is briefly discussed below and in more detail in the section-
by-section analysis.) The Final Rule provides that existing
extraterritorial dispatching can continue for a transitional period 90-
days to permit the railroads to file a waiver petition under the new
special fringe border waiver provision. If a waiver request is filed
within the transitional period, the railroad may continue to conduct
the extraterritorial dispatching until FRA acts on the waiver petition.
The fringe border waiver process applies to existing
extraterritorial dispatching operations and to new extraterritorial
dispatching of operations that do not extend more than five route miles
into the United States from the Canadian or Mexican border. A fringe
border waiver request by a railroad will generally be granted if (1)
the railroad has taken adequate steps to ensure the security of its
dispatch center, (2) the railroad has in place specified safety
programs for its extraterritorial dispatchers, (3) a government safety
agency in the country where the dispatching will occur has safety
jurisdiction over the railroad and the dispatchers and is satisfied
with the railroad's safety programs, and (4) the railroad agrees to
abide by the operating restrictions specified in the rule. Given the
limited length of these operations, FRA is willing to permit the
operations to be conducted with fewer safety requirements than would be
required for longer operations. FRA anticipates that both Canadian and
Mexican railroads can easily meet these requirements for cross-border
dispatching of operations, and that FRA will be able to work out
satisfactory arrangements with the railroads and the regulatory
agencies in Canada and Mexico concerning the monitoring of the agreed
upon safety programs.
Railroads that wish to commence additional extraterritorial
dispatching may apply for a waiver under subpart C of 49 CFR part 211
from the domestic locational requirement set forth in part 241. Such a
waiver may be granted if an applicant can demonstrate to the
satisfaction of FRA that relief is consistent with safety and in the
public interest. As discussed in the section-by-section analysis, an
applicant will be expected to discuss how it has adequately addressed
the various safety concerns that FRA laid above in section III of the
supplementary information section of the preamble.
FRA believes that the approach that it is adopting is necessary to
ensure the safety and security of United States railroad operations.
B. Regulatory Oversight
CN was the only commenter that directly addressed regulatory
oversight, although CP's comments included many references to the
adequacy of the Canadian regulatory system. The main focus of the
Canadian railroads' comments was that while the regulatory construct in
Canada may be different from that in the United States, there are
sufficient protections in place in Canada to ensure that any United
States rail
[[Page 75944]]
operations dispatched from Canada would be done so safely.
In particular, CN stated that Transport Canada and Human Resources
Development Canada combine to regulate any dispatchers located in
Canada regardless of the territory they dispatch, even territory
located in the United States. In addition, during the public hearing,
CN's representative stated that Transport Canada's regulations would
cover contractors located in Canada who were conducting dispatching
operations for a Canadian railroad. The commenters noted that Transport
Canada's Safety Management Systems regulations require the railroads to
develop a comprehensive plan covering all aspects of rail safety, and
that the Canadian Labour Code, together with the collective bargaining
agreements of the railroads, effectively control the number of hours
that dispatchers may work. Finally, CN claims it would allow FRA access
to CN dispatching facilities located in Canada in order to conduct site
inspections and safety assessments.
There are contrasts between the regulatory systems of the United
States and Canada. Domestically, Congress and FRA have concentrated on
promulgating nationwide safety standards that apply uniformly to all
railroads. Congress has established the maximum number of hours that a
dispatcher may work, has directed FRA to establish comprehensive drug
and alcohol testing for safety-sensitive railroad employees such as
dispatchers, including random drug testing, and has given FRA authority
to regulate all areas of railroad safety. FRA has established minimum
safety standards, and the railroads are required to conduct their own
inspections to ensure that these safety standards are being met. FRA
leads a cadre of approximately 550 Federal and State safety inspectors
and specialists whose role is to monitor the railroad industry and its
own inspection forces for compliance with rail safety laws and to work
with the railroad industry on resolving safety problems that are not
subject to those laws.
FRA's safety oversight has proven effective in identifying and
resolving safety problems that are not directly addressed through FRA's
regulations. For example, in 1997 FRA conducted extensive audits of the
UP's Harriman Dispatch Center which controls operations on
approximately 95 percent of UP's territory. These audits revealed
ineffective and unsafe practices by supervisors and dispatchers. FRA
made specific recommendations that UP 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
dispatching software, and forming a working group consisting of
representatives from FRA, rail labor, and UP management to continually
monitor and address dispatching issues that may arise. This is one just
one example of the United States' more proactive approach to regulatory
oversight, which is intended to ensure that railroad safety does not
fall below an acceptable level.
The Canadian regulatory system, on the other hand, tends to rely
more heavily on acceptance of railway-submitted rules. Under this
approach, railways conduct consultations with government (and often
labor organizations) and submit standards and procedures for approval.
In some cases the rules apply to individual railways, and in other
cases the rules apply in common to the major railways.
Under Transport Canada's Railway Safety Management Systems
regulation, railroads are required to identify the following: (1) Their
company railroad safety rules and orders, and the procedures they will
use in demonstrating compliance with them; (2) systems for accident and
incident reporting, investigation, analysis, and corrective action; (3)
systems for ensuring that employees have appropriate skills and
training and adequate supervision to ensure that they comply with all
safety requirements; and (4) procedures for periodic internal safety
audits. Railroads are also required to do the following: (1) Maintain
accident and incident investigation reports and corrective actions they
take for the purpose of assessing its safety records; (2) report yearly
to the Minister on their safety management system; and (3) keep readily
available all documents mentioned in their safety management system to
enable a railway safety inspector to monitor compliance with Transport
Canada's safety management system regulation. Transport Canada then
monitors the railroads' compliance with their safety programs. The
Safety Management System approach is a new element in the Canadian
regulatory structure, and initial audits are only now underway.
As will be detailed below in the preamble sections on drug and
alcohol testing and hours of service, the safety programs that the
Canadian railroads have developed and the Canadian standards and the
government oversight in these areas are significantly different from
FRA standards. While FRA requires domestic railroads to conduct
efficiency testing of their dispatchers to ensure that they understand
the necessary operating rules, and issues civil penalties against those
railroads for failing to conduct such testing, Transport Canada has no
such requirement (apart from the recently adopted Safety Management
System process). While Canadian carriers have voluntarily conducted
such efficiency testing, they are not assessed monetary fines should
they fail to follow their programs. On the other hand, administrative
officials from the inspector level to the Minister enjoy broad powers
to order changes in operations and address unsafe conditions. Based on
available information, it appears that the Canadian Transportation
Safety Board has broad accident reporting requirements; however, the
means for enforcing those requirements are not immediately evident.
Given the differences in Canadian railway culture, methods of
governance, safety standards (including regulations and rules), safety
data systems, and mechanisms for enforcement, it is extremely difficult
to evaluate the relative equivalence of the two regulatory approaches
in terms of overall safety results, let alone at the level of safety of
dispatching. Without question, cooperation and understanding between
Transport Canada and FRA is maturing at a more rapid pace due to
enhanced communication and joint endeavors; and much remains to be
learned through appropriate consultation. Cooperation with respect to
security presents a new a special challenge, given divisions of
responsibility within both governments and evolving policies in both
countries. Accordingly, it is appropriate that FRA continue
consultations with Transport Canada and develop the necessary factual
predicates and institutional arrangements before giving consideration
to permitting more extensive dispatching of U.S. operations.
Appropriate institutional arrangements might include express mutual
undertakings (which do not currently exist) for each government to look
out for the safety of operations in territory outside its jurisdiction
that are dispatched from anywhere within its jurisdiction.
Mexico also recognized that extraterritorial dispatching poses a
safety risk to rail operations and has addressed the issue by
requiring, in Article 26 of Title III of the Regulatory Law of Railroad
Service (Ley Reglamentaria del Servicio Ferroviario), that railroads
depend on dispatching facilities that must be established within
[[Page 75945]]
Mexico. In addition, Article 96 of Title III of the Railroad Service
Regulations (Reglamento del Servicio Ferroviario) reiterates that a
railroad's system of train control must guarantee the safe and fluid
operation of services and must adhere to what is established by Mexican
law. In comments submitted by the Directorate of Technical Operations
Regulations of Railroad Transportation, the Mexican government
indicated that it believes FRA is acting in the best interests of rail
safety by barring extraterritorial dispatching. The comments
specifically noted the differences in regulations between countries and
the problems that could arise when personnel in foreign countries
dispatching Mexican operations are not subject to Mexican law as
justifications for a bar on extraterritorial dispatching of Mexican
operations.
C. Existing Extraterritorially Dispatched Operations
In the preamble to the IFR, FRA noted that there are several
existing extraterritorially dispatched operations, and then gave the
specifics of those operations. CP commented on both the safety records
of their existing operations as well as the details of those operations
offered by FRA in the preamble while CN's comments only offered
additional information on the specifics of their cross-border
operations. CP's comments noted that they have safely dispatched seven
cross-border operations for some time. Along with their comments, the
Canadian railroads submitted updated lists of their current cross-
border operations and requested clarification on whether those
operations would be grandfathered under the applicable provisions of
the Final Rule. CN acknowledged the three segments listed in the IFR
and added a fourth. CP asserted that it dispatched seven cross-border
operations and listed those operations in an appendix to its comments.
After reviewing those submissions and further researching the track
segments, FRA has concluded that only the four segments listed in
appendix A to the Final Rule are actually dispatched and the other
segments are either controlled by another method of operation or no
longer in service. Operations on six on the track segments are
currently controlled by Rule 105 of the Canadian Rail Operating Rules,
which mandates that trains operate at ``reduced speed.'' Reduced speed
is defined as a speed no faster than that necessary to stop within one-
half the range of vision. No actual permission is required to operate
on the track but, any train that does run on those segments must
operate in accordance with Rule 105. The final track segment was in
operation during December 1999 but has since been abandoned.\7\
---------------------------------------------------------------------------
\7\ One of the segments listed in CN's submission is still in
existence but is now dispatched by CP. That segment is the 1.8 mile
stretch of track between Windsor, Ontario, and Detroit, Michigan.
---------------------------------------------------------------------------
In commenting on the IFR, CP also pointed out that neither the
Federal Motor Carrier Safety Administration nor the Federal Aviation
Administration (FAA) has a locational requirement for dispatchers of
trucks and airliners that come into the United States from another
country. FRA does not find the absence of such regulations instructive
in resolving the question of whether any form of extraterritorial
dispatching of railroad operations is consistent with railroad safety
and the security of the United States. Nevertheless, it should be
recognized that truck dispatchers have virtually no safety role, while
railroad train dispatchers are the primary protectors of safe railroad
operations. As previously discussed train dispatchers actually steer
the train by remotely aligning switches; they determine whether the
train should move or stop by operating signals and issuing train orders
and other forms of movement authority; and they protect roadway workers
from passing trains. Air traffic controllers, as contrasted to truck
dispatchers, do perform a safety role although not as comprehensive as
train dispatchers. FRA recognizes that the FAA permits limited cross-
border dispatching of airlines into the fringe border areas of the
United States to facilitate the safe hand-off of air operations to
domestic air traffic controllers. The final rule provides for waivers
of such fringe border rail operations. Other aircraft operations over/
on U.S. soil are handled by U.S. air traffic controllers at U.S.-based
control centers. There are of course differences between airline and
railroad operations, and each mode of operation presents different
safety concerns requiring different regulatory approaches.
As noted above, FRA has decided not to include a grandfathering
exception for existing lines in the Final Rule. Given the possibility
that railroads could increase extraterritorial dispatching, FRA issued
the IFR in order to preserve the status quo until all the issues
surrounding extraterritorial dispatching could be fully examined. After
reviewing the comments and further examining the issues, FRA has
determined that the safety and security risks inherent in
extraterritorial dispatching are too serious to allow an operation to
continue merely because it was in existence at a certain point in time.
FRA acknowledges the comments from CP attesting to the fact that its
cross-border operations have been safely conducted for many years, but
FRA does not believe that reason alone can justify allowing these
operations, especially since the nature of the operations (such as
traffic levels in general, and volumes of hazardous materials being
handled) can greatly increase in the future, thereby increasing the
safety risk to the areas surrounding that track.\8\ The North American
Free Trade Agreement (NAFTA) has increased trade among the United
States, Mexico, and Canada. This in turn has increased the amount of
transborder rail traffic in the United States. Incoming train crossing
data are collected monthly at border ports by the United States Customs
Service. In 1997, there were 7,479 train crossings into the United
States from Mexico and 30,337 from Canada. This translates into an
average of 104 trains crossing into the United States daily. As
transborder traffic continues to increase on existing rail lines, it is
likely that train speeds, which currently do not exceed 55 miles per
hour at the borders, and train lengths will increase along with the
actual number of trains crossing into the United States. This will
increase the exposure of trains and other rail vehicles to railroad
accidents at or near the borders with Mexico and Canada.\9\ As it faces
this new operating environment with greater risk, the railroad industry
must take precautions
[[Page 75946]]
to avoid an increase in the number of accidents and incidents caused by
human error.
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\8\ Each of the four existing extraterritorial dispatched lines
carries hazardous materials, with the volume on two of the lines
being substantial; unsafe dispatching of any of the four operations
would jeopardize safety. The loaded hazardous materials carloads
carried on the four lines in 2001 were as follows: the CN line from
Sarina, Ontario, to Port Huron, Michigan--41,819 carloads; the CN
Sprague Subdivision line between Baudette, Minnesota, and
International Boundary, Minnesota--25,598 carloads; the CP line from
Windsor, Ontario, to Detroit, Michigan--2,831 carloads; and the
Eastern Maine Railway Company's line between Vanceboro, Maine, and
Brownville Junction, Maine--464 carloads.
\9\ Between 1998 and 2001, the value of rail traffic moving
between the United States and Canada has grown from $49.65 billion
(U.S. dollars) to $60.17 billion, which is a 21.2 percent increase
over the period or an annual rate of 4.9 percent. (Since the traffic
mix has not changed significantly during this period, ``value'' can
be considered a good proxy for physical units such as tons or
carloads.) Traffic attributable to eastern gateways (Customs ports
in United States border states of Michigan and eastward) has grown
slightly more rapidly: $39.69 billion (U.S. dollars) to $49.07
billion, or 23.6 percent overall, or 5.4 percent per year. It is
commonly expected that trade between the United States and Canada
will continue to increase in the future. These data are based on
USDOT, Bureau of Transportation Statistics, Transborder Surface
Freight Data public files.
---------------------------------------------------------------------------
FRA has a responsibility to ensure that existing extraterritorial
dispatching operations will be conducted in accordance with minimum
safety programs for the dispatchers in the areas of efficiency testing,
hours of service, and alcohol and drug abuse that are actively
monitored by a government regulatory agency, that communication by the
foreign-based dispatchers with train crews and maintenance of way
workers in this country are understood and that there is no
misunderstanding with regard to references to units of measurements
such as location, distance, and speed, and that the dispatching
operations will be conducted in a dispatch center that has adequate
security measures in place. The fringe border waiver provision of the
Final Rule is the most effective way for FRA to address these matters.
The section-by-section analysis provides a detailed discussion of the
fringe border waiver process.
FRA anticipates that the Canadian railroads can easily meet the
requirements for approval of fringe border dispatching. FRA is delaying
the effective date of the rule with respect to these four existing
operations for 90 days to enable the railroads to file a waiver request
under the special fringe border waiver process. If a waiver request is
filed by April 11, 2003, such operations can continue until the waiver
request is acted upon by FRA.
D. Drug and Alcohol Testing
One of FRA's main concerns with regard to extraterritorial
dispatching is the potential lack of an effective drug and alcohol
testing program in other countries. 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. 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, including random testing.'' 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 the testing
requirements in its existing part 219 regulations. See 49 U.S.C. 20140.
As was stated in the preamble to the IFR, under FRA's mandatory
alcohol and drug testing program, dispatchers working in the United
States are now subject to general restrictions on the possession and
use of alcohol and drugs, employer policies covering voluntary referral
and co-worker reporting of drug and alcohol abuse problems, and 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 Sec. Sec. 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 must be removed from covered
service for nine months and must complete a rehabilitation program. See
Sec. Sec. 219.104, 219.107, and 219.213. All dispatchers working in
the United States who are controlling United States railroad operations
are covered by part 219, and FRA believes, with the two exceptions
previously noted, that any extraterritorial dispatcher controlling
domestic operations must be covered by the same or fully equivalent
requirements.\10\ To allow any other 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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\10\ As previously noted, an employee of a foreign railroad
whose primary reporting point is located outside of the United
States and who performs dispatching service in the United States is
exempt from certain part 219 requirements. See Sec. 219.3(c). FRA
has published an NPRM that would revise part 219 to require drug and
alcohol testing of such employees. Elsewhere in today's edition of
the Federal Register, FRA is publishing a notice extending the
comment period on the NPRM.
---------------------------------------------------------------------------
The Canadian Government, in its comments on part 219 NPRM, and CN
and CP in their comments in both the part 219 and part 241 rulemakings
argued that the Canadian regulatory system, together with the
railroads' voluntary drug and alcohol programs provide a functional
equivalent to part 219. They cite to the following as five elements of
the Canadian rail safety program: (1) The Canadian railroads' operating
Rule G (Canadian Rule G), which prohibits the use of intoxicants or
narcotics by employees subject to duty, or their possession or use
while on duty; (2) the Canadian railroads' voluntary implementation of
comprehensive drug and alcohol programs that provide for pre-employment
and pre-placement (or pre-assignment) drug testing to risk-sensitive
positions, reasonable cause testing, and return-to-service testing; (3)
the Railway Safety Management System Regulations, which require
Canadian railroads to implement and maintain safety programs; (4) the
Canadian Railway Safety Act, which mandates regular medical examination
every three to five years, depending upon the age of the employee, for
all persons occupying safety-critical positions (including dispatchers
and train crews), and which requires physicians and optometrists to
notify the employing railroad's Chief Medical Officer if the employee
has a medical condition that could be a threat to safe railroad
operations; (5) Transport Canada's role in monitoring compliance with
Canadian Rule G and auditing railroad safety programs; and (6) criminal
prosecutions--under the Canadian Criminal Code it is an offense to
operate railway equipment while impaired by alcohol or a drug, or to
have a blood alcohol concentration level greater than .08 percent.\11\
---------------------------------------------------------------------------
\11\ Under the Canadian criminal code police officers (including
railway police officers) are entitled to test for presence of
alcohol through approved breathalyser machines on reasonable cause.
Penalties for violation of the criminal code include the possibility
of fines and imprisonment. CN reported that over the past five years
there have been four CN employees charged with this offense, one of
which was a member of a train crew; the others were engineering or
mechanical employees operating on or off-track equipment. CP
reported that , between January 1998 and February 2002, five of its
employees were charged with this offense; seven others were
investigated but no charges were filed after an arrest, or the
individuals were cleared of the charge.
---------------------------------------------------------------------------
CN indicated that despite the drug and alcohol measures that have
been adopted in Canada, it believed that random drug testing is also
needed. CN urged FRA to continue to press Transport Canada to adopt a
random drug testing requirement. However, both CN and CP expressed
concern that, under current Canadian human rights legislation,
employees could challenge implementation of part 219's random drug
testing requirement to Canadian railroad employees (such as Canadian
train crews operating in the United States), and such challenges would
lead to significant costs and potential disruption to their rail
operations.
FRA commends the Canadian railroads and Canadian Government for
their efforts to stem drug and alcohol abuse by Canadian railroad
employees. However, FRA believes that the measures that have been
implemented to date in Canada are neither
[[Page 75947]]
comparable to the requirements of part 219, nor adequate to safeguard
United States railroad operations were Canadian dispatching of these
operations to become widespread. FRA also notes that since July 1,
1997, Canadian trucking companies with drivers assigned to operate
commercial motor vehicles in the United States have had to comply with
United States Department of Transportation substance-testing
requirements similar to part 219, and that compliance with part 219 (in
the case of Canadian train crews that operate in the United States) may
not be as troublesome as CN and CP anticipate.
Transport Canada has approved Canadian Rule G, which was developed
by the Canadian railroad industry, but Transport Canada has not
reviewed and approved individual railroad plans implementing Canadian
Rule G.\12\ Like other aspects of the Canadian regulatory scheme,
Canadian Rule G relies very much on self-regulation and implementation
with broad oversight by the Canadian government. Such an approach is in
stark contrast to part 219, which mandates very specific requirements
that the testing plans of domestic railroads must include.
---------------------------------------------------------------------------
\12\ The Canadian 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.
---------------------------------------------------------------------------
Canadian Rule G has several significant differences compared to
part 219. First, it fails to provide for alcohol and drug testing of
railroad employees to detect and deter violations. Prior experience
with a Rule G approach in the United States has revealed that such a
rule alone, without the random and other tests required by part 219, is
not effective in detecting and deterring drug and alcohol abuse among
safety sensitive railroad employees. Second, Canadian Rule G does not
directly prohibit the off-duty use of drugs and abuse of alcohol by
dispatchers, in contrast to 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 Sec. Sec. 219.101(a)(3) and
219.102.
Prior to the adoption of part 219 in 1985, railroads in the United
States had attempted to deter alcohol and drug use by their employees
by their Rule G, which prohibited operating employees from possessing
and using alcohol and drugs while on duty, and from consuming alcoholic
beverages while subject to being called for duty. The customary
sanction for violation of Rule G was dismissal. Unfortunately, accident
reports revealed that the United States railroads' Rule G efforts were
not effective in curbing alcohol and drug abuse by railroad employees.
47 FR 30726 (1983). Railroads were able to detect only a relatively
small number of Rule G violations owing, primarily, to their practice
of relying on observations by supervisors and co-workers to enforce the
rule. FRA found that there was a ``conspiracy of silence'' among
railroad employees concerning alcohol and drug use. 49 FR 24281 (1984).
Despite Rule G, industry participants confirmed that alcohol and drug
use occurred on the United States railroads with unacceptable
frequency. Available information from all sources ``suggest[ed] that
the problem includ[ed] `pockets' of drinking and drug use involving
multiple crew members (before and during work), sporadic cases of
individuals reporting to work impaired, and repeated drinking and drug
use by individual employees who were chemically or psychologically
dependent on those substances.'' Id. at 24253-24254. FRA identified
multiple accidents, fatalities, injuries and property damage that
resulted from the errors of alcohol- and drug-impaired railroad
employees. Id. at 24254. Some of these accidents involved the release
of hazardous material and, in one case, the release required the
evacuation of an entire Louisiana community. Id. at 24254, 24259. These
findings led FRA to promulgate the initial version of part 219 in 1985.
The regulations do not restrict a railroad's authority to impose more
stringent requirements. 50 FR 31538 (1985).
A review of the Canadian Rule G violations reported by CP indicates
that the Canadian Rule G has resulted in the identification of an
extremely low number of operating crew violators. CP reported that in
the period 1995-2001, when there were between 3,900 to 4,700 operating
crew employees per year, there was a total of only 26 Canadian Rule G
operating crew violators for the period. It is likely that the true
level of drug and alcohol abuse among Canadian operating crew employees
was much higher. For example, a 1987 survey commissioned by a Canadian
Task Force on the Control of Drug and Alcohol Abuse in the Railway
Industry revealed that 20 percent of 1,000 randomly-selected Canadian
railway workers admitted that they had come to work feeling the effects
of alcohol, and 2.5 percent admitted that they had used illegal drugs
during their shift. In addition, CN's drug screening of its employees
has shown a significant level of drug abuse among its employees.\13\
Furthermore, alcohol and drug testing of safety sensitive railroad
employees in the United States found a significantly higher level of
substance abuse prior to the introduction of random testing.
---------------------------------------------------------------------------
\13\ CN's submission to a Canadian Standing Committee on
Transportation noted that CN had utilized pre-employment drug
screening of job applicants since 1986, and these tests yielded a
positive rate of 12 percent; similar testing of CN employees
transferring to safety-sensitive positions (``pre-placement
testing''), such as dispatcher positions, also yielded a positive
rate of 12 percent. 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, decision of Arbitrator Michel G.
Picher at 56 (July 18, 2000). CN drug screening results from of all
sources (pre-placement, reasonable cause, medical examinations,
promotions and transfer, reinstatement, and EAP follow-ups) in 1995,
showed a 6.4 percent positive test rate in the Eastern Canada, and a
10 percent positive rate in Western Canada. Id. At 59-60.
---------------------------------------------------------------------------
FRA's own data, compiled from domestic railroad reports, shows a
significantly higher level of substance abuse among safety-sensitive
railroad employees in the United States prior to the introduction of
random testing. For example, in 1988, the industry positive rates for
reasonable cause testing were 4.7 percent for drugs and 4.5 percent for
alcohol. After the introduction of random testing in 1989, these rates
declined respectively to 2.02 percent and 1.32 percent. While the
positive rates for reasonable cause testing have continued to fall, a
comparison of the data for post-accident testing reveals an even
stronger impact on positive testing rates. In 1988 the positive rate
for drugs after qualifying accident events was 5.6 percent. After the
commencement of random testing in 1990, this rate fell to 1.1 percent
positive. There was a corresponding reduction in post-accident
positives from 41 in 1988 to 17 in 1990.
The Canadian Government and CN and CP also rely heavily on the
medical assessment that is required for dispatchers under the new
Medical Rules for Safety Critical Employees as providing a functional
equivalent to random testing. Under these rules, an assessment must be
performed every
[[Page 75948]]
three to five years, depending on the age of the employee, and include
a medical examination. CP notes that the required intervals between
assessments result in approximately 25 percent of Canadian employees
being examined annually, and it argues that this is approximately the
same number of United States rail employees that receive random drug
testing per year under part 219.\14\
---------------------------------------------------------------------------
\14\ CP is not entirely correct in making this assertion.
Section 219.602 currently sets a minimum random drug testing rate of
25 percent, but this does not mean that 25 percent of covered
employees must be tested each year. The requirement is for each
railroad to conduct a sufficient number of random drug tests to
equal at least 25 percent of it is covered employees. For example, a
railroad with 1,000 covered employees must conduct at least 250
random drug tests during the year, but this should not result in 250
employees being tested, since in a truly random program, some
employees will be tested more than once while others will not tested
at all. In addition, 25 percent is the minimum random drug testing
rate required; railroads remain free to conduct random testing at a
higher annual rate.
---------------------------------------------------------------------------
Throughout the preamble to the IFR, FRA emphasized the importance
of random drug and alcohol testing in detecting and deterring substance
abuse by railroad employees. The deterrent effect of random testing,
which was implemented by FRA in 1988-1989, most certainly influenced
the dramatic reduction in post-accident positives between the 41 that
were recorded in 1988 to the 17 that were recorded in 1990. FRA does
not believe that the periodic medical assessments Canadian railroad
employees must undergo are the functional equivalent of random testing.
The medical model relies primarily on medical examinations that are
scheduled in advance. The employees know well beforehand that they will
be undergoing an exam, giving them the opportunity to refrain from any
activity that may reveal a substance abuse problem. Experience in
similar programs in the United States (e.g., in the aviation and motor
carrier industries) indicates that routine medical examinations will
seldom be successful in identifying alcohol or drug use problems except
perhaps in the most advanced stages of chemical dependancy when an
employee's remaining work life is often limited and major damage has
been done to vital organs. Even if an employee is forthcoming in
offering that he or she is misusing drugs in his or her personal life,
this would apparently not be a disqualifying condition absent medical
diagnosis of a specific substance abuse disorder; however, one does not
have to be chemically dependant to constitute a threat to public
safety. Much of the alcohol and drug use that threatens transportation
safety has a voluntaristic component, and random testing is appropriate
as a deterrent. Further, Transport Canada is in the early stages of
implementing this program and has not yet had the opportunity to
determine program outcomes. For these reasons, it would not be
appropriate for FRA to rely upon this program as a full substitute for
key DOT program elements, including a prohibition on non-medical use of
controlled substance and random testing.
In CP's written comments, it argued that the lack of random testing
is the only component of a testing program that would create part 241
compliance problems for the Canadian railroads. These comments were
filed before the issuance of the Canadian Human Rights Commission
Policy on Alcohol and Drug Testing (CHR Policy) in June of this year.
The CHR Policy indicates that pre-employment drug testing is not
acceptable, throwing into doubt CN and CP's voluntary pre-employment
drug testing programs; pre-employment drug testing for safety-sensitive
positions (such as dispatchers) is required by part 219. See Sec.
219.501. The CHR Policy does note that Canadian trucking and bus
companies wishing to do business in the United States are required to
develop drug and alcohol testing programs that comply with U.S.
regulations (which include pre-employment drug testing), and that not
being banned from driving in the United States may be bona fide
occupational requirement.
Aside from the fact that FRA believes that random testing is the
most important aspect of any testing program and that pre-employment
testing is important, FRA is also concerned about two other significant
differences between part 219 and the Canadian railroads' testing
programs.
First, the criteria for post-accident testing are much more
subjective under the Canadian programs than under part 219. In the
United States, post-accident testing is required for a dispatcher who
is directly and contemporaneously involved in the circumstances of any
qualifying train accident. See Sec. 219.203. Under the Canadian
programs, however, a dispatcher is not automatically tested when he or
she is involved in an accident. Instead, the railroad must have
independent evidence of impairment before a dispatcher involved in an
accident may be tested. Thus, a dispatcher under the influence of drugs
or alcohol may contribute to an accident and yet must not be tested if
he or she does not exhibit some physical manifestation of impairment.
That dispatcher may continue to work without undergoing additional
scrutiny that may reveal a dependency problem that could continue to
negatively impact his or her job performance. CN did indicate in its
written comments that it plans to revise its policy this year to add
mandatory post-accident testing using criteria identical to that in
part 219. The CHR Commission Policy Statement endorses the right of
Canadian companies to impose such testing for safety-sensitive
employees.
Second, a Canadian rail employee may currently decline to be tested
and not suffer adverse consequences unless the employer has an
independent basis for concluding that the employee is impaired by drugs
or alcohol. Under part 219, however, a dispatcher in the United States
who refuses a test is immediately suspended for a period of nine months
and must follow specified procedures, including return-to-duty and
follow-up testing, before being allowed to return to dispatching
service. Obviously, the effectiveness of a testing program is severely
compromised if an employee is permitted to simply decline to be tested.
E. Hours of Service
Like alcohol or drug impairment, fatigue can cause dispatchers to
make mistakes that lead to catastrophic railroad accidents. Both
Canadian railroads acknowledged that Transport Canada does not regulate
the total hours that dispatchers are allowed to work, but they pointed
out that hours of service are covered generally by the Canada Labour
Code, and more specifically by collective bargaining agreements between
the railroads and their employees. The Labour Code mandates either a
48-hour weekly limit or an 80-hour biweekly limit, although the Code
does not mandate a maximum daily limit. With the Code as guidance, both
railroads have negotiated similar agreements with their respective
labor organizations that limit the number of hours a dispatcher may
work per day to 12. Through collective bargaining agreements,
dispatchers on both CN and CP may work no more than 48 hours in one
week. In addition, on CP, any time worked in excess of 40 hours in one
week must be offset by reducing the total hours worked in the next
week. Finally, although not included in the comments from either
railroad, FRA has learned that Transport Canada is reexamining Canada's
hours of service regulations and may introduce comprehensive revisions
sometime in the next year.
Despite the apparent flexibility of the hours of service
arrangements for Canadian dispatchers, FRA is concerned by the lack of
a daily limit for
[[Page 75949]]
dispatcher's working hours. In contrast, 49 U.S.C. 21105 mandates
strict daily limits on the hours that a dispatcher may work in the
United States. 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. As a practical matter, most domestic railroads,
including the Class I and commuter railroads, operate 24-hour
dispatching facilities where at least two shifts are employed. The only
railroads that might employ a one-shift dispatching operation would be
very small short line railroads, although most of those railroads use
two shifts, as well. In addition, the fact that many of the limits on
hours of service for Canadian dispatchers are dictated by collective
bargaining agreements is troublesome to FRA as these agreements are
fluid and may change. Although FRA is aware that the duration of daily
assignments may be less significant in the onset of fatigue than
cumulative effects and biological rhythms, this material difference
between U.S. and Canadian practice warrants further review before
consideration of expanded cross-border dispatching.
F. Operational Testing
Human performance is critically important to railroad safety. Every
year, human factors cause about a third of all train accidents and a
large portion of railroad employee injuries in the United States. Under
part 217, FRA requires railroads operating in the United States to have
operating rules, to periodically instruct dispatchers on those rules,
to periodically conduct operational tests (or ``efficiency tests,'' as
they are widely known), and inspections on 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. As with most other
regulations, FRA may fine railroads for failure to comply with part
217.
Similar to Transport Canada's regulatory approach to hours of
service, Transport Canada does not regulate efficiency testing for
dispatchers and, in their comments, the Canadian railroads acknowledged
as much. Both railroads, however, use extensive voluntary testing
programs and then report the results of the testing to Transport
Canada. According to CP's comments, its program provides for the
testing of more of the Canadian Rail Operating Rules than is common in
the United States. For Canadian-based employees, including dispatchers,
CN uses an extensive efficiency testing program called Performance
Monitoring and Rule Compliance, which is virtually identical to the
United States testing requirements that CN uses for United States-based
dispatching offices. Once the Canadian railroads have reported test
results to Transport Canada, Transport Canada then has the authority to
audit all railroad activities and, according to CP, has conducted
several in-depth audits of CP, the most recent of which occurred in
December 2001. CP's comments also noted that the number of accident
precursors, or ``near misses,'' on CP attributable to CP dispatchers is
very small and has been declining.
Obviously, FRA's proactive approach to ensuring rail safety is very
different from Transport Canada's method of encouraging voluntary self-
evaluation by the Canadian railroads. Based on FRA's review of the
comments, the Canadian railroads' testing program may very well be
adequate if continually and evenly applied, but, unlike in the United
States, there are no assurances that Transport Canada will provide the
regulatory oversight to ensure continued compliance. FRA does not
believe it is prudent to rely upon the voluntary efforts of foreign
railroads to protect domestic rail safety. As previously noted, FRA
will continue to discuss its safety concerns with Transport Canada in
an attempt to reach an arrangement that is satisfactory to both
countries.
G. Service Disruptions
As FRA noted above, domestic dispatchers are usually unionized
employees subject to the provisions of the Railway Labor Act, which
prohibits strikes over contract interpretations. Congress has the power
to legislate an end to a strike by United States railroad employees,
but not to strikes by foreign-based railroad employees who do not enter
the United States. Both Canadian railroads felt that the Canada Labour
Code will protect against service disruptions arising from labor
disputes in Canada.
Canadian dispatchers are subject to the provisions of the Canada
Labour Code. In the event of a strike, if the Canadian Industrial
Relations Board determines that a strike or lockout could pose an
immediate and serious threat to the safety or health of the public, it
may order the continuation of services to prevent the danger.
Furthermore, if a strike or lockout occurs while Parliament is not in
session, and the Governor in Council determines the strike or lockout
would adversely affect national interests, the Council may issue an
order deferring the strike or lockout during the period between
Parliaments. In addition, CN's comments noted that CN has contingency
plans for any labor disruption, including those involving dispatchers.
In the event of a disruption, CN is prepared to use supervisory
personnel as dispatchers or, in the event of another type of
disruption, to move dispatching operations to an alternate location.
While FRA acknowledges that the Canadian Labour Code grants
sufficient power to the Canadian government to end labor disruptions in
Canada, there is no guarantee that the Code would cover dispatchers
controlling track in the United States, even if they were dispatching
for a Canadian railroad. The Code clearly gives governing bodies in
Canada the authority to take action to protect safety in Canada, but it
is not clear that the law covers the safety of United States rail
operations or that the Canadian government would take steps to stop
labor disputes that disrupt only United States operations. Even if
Canadian law authorized the Canadian government to stop labor disputes
that disrupt only United States operations, the Canadian government
would only exercise that authority as a volunteer, not as a body
charged with serving the people of the United States. Neither of the
Canadian railroads addressed this critical issue in their comments. As
a result, FRA remains concerned that a labor disruption involving
extraterritorial dispatchers who control United States territory could
cause severe domestic service problems and, as previously discussed,
possibly jeopardize transportation safety.
H. Security Concerns
The security of transportation infrastructure has taken on greater
significance in the wake of the terrorist attacks of September 11,
2001. As FRA noted in the preamble to the IFR and again in the above
discussion, the security of domestic rail operations involves the
following two aspects: (1) The security of, and access to, the actual
dispatching facilities; and (2) the safety and national security
implications involved with allowing foreign dispatch centers to have
access to information on movements of military goods and extremely
hazardous materials and control over the movement of these items,
particularly on the STRACNET.
Both Canadian railroads indicate that they employ security measures
that are similar to those employed by domestic railroads. For example,
access to dispatching facilities is controlled by multiple levels of
security, including card readers and monitored security cameras. Both
Canadian railroads are
[[Page 75950]]
members of the North American Association of Railroad Chiefs of Police,
and both work closely with the Royal Canadian Mounted Police and other
North American law enforcement organizations to ensure an effective
exchange of information related to security issues. In addition,
following the attacks of September 11, both Canadian railroads, along
with the domestic railroads, have participated in AAR security working
groups and have begun implementing the recommendations made by those
groups. CP also noted that they have a fully equipped back-up
dispatching facility that can be utilized in the event of an emergency.
Neither CN nor CP directly addressed the security issues surrounding
the foreign dispatch centers having access to information regarding the
shipment of military goods and hazardous materials, including
radioactive substances, in the United States and having the ability to
control the movement of these items.
FRA recognizes the efforts undertaken by the Canadian railroads to
secure their dispatch centers. However, in light of the increased
awareness of the need for heightened transportation security following
the attacks of September 11, FRA is concerned about allowing foreign
dispatch centers to have access to information on movements of military
goods and hazardous materials, and to have control over the movements
of these items, particularly on the STRACNET.
Furthermore, many of the commodities that railroads transport in
large quantities across the United States are extremely dangerous and,
if accidentally or intentionally released in urban or environmentally
sensitive areas, could cause catastrophic damage. FRA is particularly
concerned that these commodities could prove to be tempting targets for
terrorist attacks. Moreover, the projected large rail movements of
spent nuclear waste will provide even more dangerous targets for
terrorists. Finally, given the rapidly changing world-wide terrorism
problem confronting the United States, it is of the utmost importance
that the domestic railroad network be fully responsive to national
defense needs and priorities, including the need to quickly and
secretly move military items.
I. International Trade Implications
CP was the only commenter that raised free trade as an issue. CP
indicated that part 241 might violate Articles 906 to 911 of Part 3 of
NAFTA. These provisions concern Technical Barriers to Trade, and while
CP did not make any express statements to that effect, the comments
seemed to imply that part 241 could potentially run afoul of NAFTA. In
addition, CP noted that, under the NAFTA, the Land Transportation
Standards Subcommittee (LTSS) has authority to address regulatory
issues related to cross-border rail operations. CP directed FRA's
attention to the latest report from the LTSS, which noted current
arrangements do not impede the flow of passenger or freight traffic in
North America. CP argued that if FRA believes extraterritorial
dispatching to be a legitimate safety threat, the LTSS should first
examine the issue before FRA takes any other action. CP also proposed
as an alternative to part 241 the formal adoption of a ``border zone''
that would provide a limited distance on both sides of the Canada-
United States border where all railway safety regulations of the other
country would be recognized as equivalent.
FRA does not believe that part 241 is contrary to NAFTA, which
prohibits Parties to NAFTA from creating unnecessary obstacles to trade
between each other. NAFTA requires the Parties to strive to establish
compatible standards-related measures so as to facilitate trade in a
good or service, and to treat technical standards adopted by the other
Parties as equivalent to its own where these standards adequately
fulfill the importing Party's legitimate objectives. Under Article 904
of NAFTA, however, each Party retains the right to adopt and enforce
any safety measure it considers appropriate to address legitimate
safety objectives, including prohibiting the provision of service by a
service provider of another Party that fails to comply with the safety
measure. Furthermore, under Article 2102, each Party has the right to
take any actions that it considers necessary for the protection of its
essential security interests.
Under Article 2101, a NAFTA Party has the right to bar access to
information which it determines to be contrary to its security. A NAFTA
Party also has the right to take other actions it considers necessary
for the protection of its essential security interests relating to the
traffic in arms, ammunition, and implements of war and to such traffic
and transactions in other goods, materials, services, and technology
undertaken directly or indirectly for the purpose of supplying a
military or other security establishment. As such, part 241 serves to
control access to information the disclosure of which would be contrary
to national security. Allowing extraterritorial dispatching would also
increase the possibility that train movement of spent nuclear waste and
portions of the STRACNET would be controlled by foreign-based
dispatchers. Some of the rail lines that make up the STRACNET include
lines that aid in routing shipments to and from military bases. Part
241 is clearly permissible under NAFTA.
Finally, FRA notes that Mexico has indicated that extraterritorial
dispatching of rail operations in the United States poses a safety risk
that justifies the promulgation of a bar to such dispatching. Mexico
itself has in place a law requiring that all dispatching of Mexican
rail operations occur in Mexico.
In this rulemaking document, FRA has articulated legitimate safety
concerns, including security concerns, that would result from
extraterritorial dispatching, and that support the issuance of the
Final Rule. FRA disagrees with the suggestion that it should have
submitted its safety concerns to the LTSS rather than proceeding to
resolve these concerns in the manner that it has. The rail working
group of the LTSS was set up under NAFTA to evaluate the then existing
safety regulations of the three countries to determine if they
represented impediments to cross-border rail operations. After a
thorough review, the group determined that there were no significant
impediments. Once that objective had been met, the group was re-formed
as the Rail Safety and Economics group of the Transportation
Consultative Group (TCG), a sister group of the LTSS that continues to
meet to discuss issues of mutual interest. The TCG, like the LTSS, has
no power to mandate any changes to a country's regulations--it is an
advisory body only.
NAFTA recognized that the signatories might decide, in the future,
to institute changes to their respective regulatory regimes; therefore,
the treaty mandates that a country wishing to impose or remove a
regulation consult with its partners and offer an opportunity for
comment. The United States has met its burden in that regard, through
discussions with its NAFTA partners during TCG meetings and other bi-
lateral meetings with Transport Canada and Mexican officials, and
through the formal notice and comment process followed in the issuance
of this Final Rule, where both Mexico and Canada, as well as all other
interested parties were specifically given the opportunity to comment
on the issue of whether FRA should limit extraterritorial dispatching.
The Final Rule that is being adopted attempts to balance United
States' safety standards with the safety standards of its NAFTA
partners and their railroads
[[Page 75951]]
in order to facilitate cross-border railroad operations. FRA has
approved a fringe border waiver process that would permit existing
extraterritorial dispatching to continue and that would permit new
extraterritorial dispatching from Canada and Mexico in the areas in the
United States immediately surrounding the Canadian and Mexican borders,
without these dispatchers having to fully comply with all of FRA's
safety standards for domestic dispatchers. FRA has also provided for a
transitional period for existing extraterritorial dispatching to
continue while the railroads qualify the operations under the fringe
border waiver provision. FRA does not believe that the Canadian
commenters have sufficiently made the case that any broader relief is
appropriate, or that FRA needed to take any additional steps in
promulgating this Final Rule. FRA has pledged its willingness to
continue discussing extraterritorial dispatching with its NAFTA
partners and their railroads, as well as all other cross-border safety
issues; these discussions, together with the safety experience gained
under the rule with respect to extraterritorial dispatching, well may
lead to future changes to the Final Rule.
J. Economic Impact
CN was the only commenter that questioned the economic analysis and
disagreed that the railroads will experience a savings over the next 20
years as a result of part 241 because of the number of unknown factors
associated with the ultimate Final Rule. CN argues that until the rule
becomes final, costs associated with eliminating the grandfathering and
fringe border operations cannot be measured. Even if these provisions
are maintained, CN suggests that the costs do not accurately portray
the costs of adding FRA programs or of losing flexibility that would
follow from the rule. CN also disagrees that the rule will prevent
injuries or fatalities and challenges FRA to support that assertion.
FRA has examined the economic impact of the Final Rule and the
results of this analysis are set forth in section VI (Regulatory
Impact) of the supplementary information below.
K. Language Differences and Units of Measure
Based on the comments submitted by CN and CP, FRA is satisfied that
these two railroads have taken steps that address FRA's concerns
regarding language differences and designation of units of measurement
with respect to dispatching of United States railroad operations from
Canada. Eastern Maine Railway Company did not file comments, and FRA is
not aware of how it is handling language and unit of measurement
issues.
Both CN and CP use English units and not metric units for all units
of measurement, including distance, speed, and locations. In addition,
both railroads assured FRA that any dispatching of United States track
from Canada would be conducted in the English language. According to CN
and CP, the only territory where dispatching is conducted in French is
in the Quebec province, and both CN and CP use only bilingual
dispatchers and train crews in Quebec. Finally, with only a few minor
differences, both Canadian railroads use the same terminology as that
used by domestic railroads. FRA notes, however, that while the comments
from CN and CP may alleviate FRA's concerns with regard to these
railroads, they do not address the potential implications of other
railroads dispatching from Canada or of railroad dispatching operations
in a country other than Canada.
L. Definitions of ``Dispatch'' and ``Dispatcher,'' and Special Relief
for Fringe Border Operations
Both Canadian railroads as well as the AAR raised concerns over the
possible interpretation of the definitions of ``dispatch'' and
``dispatcher'' in Sec. 241.5. In addition, CN and CP also argued that
the ``fringe border operations'' exception in Sec. Sec. 241.9, 241.11,
and 241.13, while intended by FRA to promote flexibility in allowing
minor cross-border operations in the future, actually had just the
opposite effect as the language was too narrow to permit many
operations that might fall under the exception.\15\
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\15\ In the IFR, FRA had suggested possible parameters for a
fringe border exception. In their comments, both CN and CP suggested
modifications that would have expanded the scope of the exception.
Both railroads recognized that FRA was trying to promote flexibility
but argued that the exactness of the language in the rule had just
the opposite effect. CP pointed out that, many times, the only
purpose of a cross-border operation is to set off, pick up, or
interchange cars, but the language of the rule could be read
narrowly in order to prohibit that. CN questioned both the ``bridge
traffic'' and ``hand-off'' operations and offered suggestions to
change those operational parameters to make them more practicable.
Specifically, CN noted that existing Canadian-based dispatching
operations have not presented problems in the past and are of
minimal risk, but under the exception as written, very few
additional operations would be permissible and suggested that a more
reasonable approach would be to allow hand-offs to proceed to a crew
change point or a change in traffic control method (not including
yard limits) with an overall limit of 15 miles.
---------------------------------------------------------------------------
After reviewing the comments, FRA agrees that some of the changes
to the definitions of ``dispatch'' and ``dispatcher'' suggested by the
commenters would improve the rule. As the comments concern specific
language in the rule, FRA will fully address them and explain the
rationale for the changes in the section-by-section analysis to follow.
CN and CP supported the concept of a fringe border exception but
have asked for greater relief than FRA has determined is appropriate to
adequately protect railroad safety. As noted above, the Final Rule does
not contain a fringe border operations exception per se, but rather
contains a special fringe border waiver process that will permit
railroads flexibility in dispatching cross-border operations from
Canada or Mexico. See the discussion of the fringe border waiver
process in the section-by-section analysis to follow.
M. Comments From Labor Organizations
As noted above, three labor organizations--the BLE, BMWE and ATDD--
submitted comments on part 241. The comments from the BLE and the BMWE
were general in nature and supported the position taken by FRA in
proposing to bar any additional extraterritorial dispatching, although
the BMWE did offer one specific comment with regard to the
grandfathered operations. Both the BLE and BMWE also supported the
comments from the ATDD, which also supported FRA's position but
included suggestions to change specific provisions in the rule. After
reviewing the ATDD's comments, FRA has decided not to make any of the
changes suggested by the ATDD.
The ATDD suggested four changes to the IFR. First, with regard to
the operations that are grandfathered, the ATDD wanted FRA to require
extraterritorial dispatchers controlling those operations to
demonstrate, at least semi-annually, familiarity with the operations
they are dispatching. Second, the ATDD suggested that the
grandfathering exception apply only to current operations and should
terminate when ownership of the United States track changes or when
operations over that track change. Similarly, the BMWE suggested that
any grandfathered track segment that is abandoned and then restarted
should lose the exception. Third, the ATDD wanted to eliminate waivers
for part 241. Finally, the ATDD argued that a railroad's ability to
move dispatching operations to another country should be limited to
situations where the railroad can prove that such operations could not
be transferred to another location in the United States. In addition,
railroads should have plans in place to provide a domestic alternative
to a foreign location.
[[Page 75952]]
As noted above, FRA is not including the grandfathering exception
in the Final Rule. Therefore, the ATDD's comments on the grandfathered
operations are no longer relevant. With regard to waivers, FRA believes
that waivers are necessary in order to maintain flexibility. If a
railroad can address all of the concerns that militate in favor of part
241, FRA will definitely consider a waiver. Likewise, in an emergency
situation, railroads should be allowed a maximum amount of flexibility
in order to safely conduct their operations. By limiting the duration
of the permissible extraterritorial dispatching to the duration of the
emergency, FRA is effectively balancing the railroads' need for
flexibility with the need to maintain domestic rail safety.
V. Section-by-Section Analysis
This section-by-section analysis will explain the provisions of the
Final Rule and the changes made from the IFR. Of course, a number of
the issues and provisions involving this rule have been discussed and
addressed in detail in the preceding discussions. Accordingly, the
preceding discussions should be considered in conjunction with those
below and will be referred to as appropriate. Also, as the majority of
the rule text introduced in the IFR remains unchanged in this Final
Rule and there were no comments on the other portions of the section-
by-section analysis, much of the section-by-section analysis included
in the IFR is repeated here.
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 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 is generally prohibiting any
extraterritorial dispatching of United States rail operations, except
in cases of emergencies. However, FRA has determined that it is
appropriate to provide special relief for the four existing
extraterritorial dispatching operations (listed in appendix A to the
rule), and for limited new extraterritorial dispatching of fringe
border areas in the United States designed to facilitate the smooth
handoff of dispatching between dispatchers in Canadian and Mexico and
those in the United States. Such relief is best granted in the context
of waivers rather than blanket approvals of the operations; the special
waiver process is discussed below. 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 uses 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. See 49 CFR part 209, appendix A
for a discussion of ``general railroad system of transportation.''
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. Based on the comments received from the Canadian
railroads and the AAR, FRA is modifying the definitions of both
``dispatch'' and ``dispatcher'' in order to avoid confusion about the
job categories that could potentially be covered by the definition. FRA
intended the definition of ``dispatch'' to be function-specific, not
job-specific, but recognizes that the definitions, as written in the
IFR and if not read in conjunction with the preamble, could be
misinterpreted to include employees, such as yardmasters, performing
tasks that FRA did not intend to be included. The commenters agreed
with the preamble language but were troubled by the fact that the
language was not included in the rule text.
In the IFR, FRA stated that ``dispatch'' means to control the
movement of a train or other on-track equipment by the issuance of a
written or verbal authority. In addition, the definition of
``dispatcher'' could include, among other specifically mentioned job
categories, yardmasters. The Canadian railroads were understandably
concerned that a yardmaster performing a duty other than dispatching
could fall under the definition merely by virtue of his or her job
title. Likewise, the AAR was concerned that a track foreman giving
permission to a train to enter working limits would be considered
``controlling the movement of a train'' by issuance of a track
authority to the train and, thus, could fall under the definition. The
AAR suggested that the problem could be corrected by eliminating the
enumeration of the types of employees who may at times perform
dispatching functions and asked that FRA clarify that a track foreman
giving authority to a train to
[[Page 75953]]
proceed is not considered dispatching. CP suggested that the definition
of ``dispatch,'' along with the definition of ``dispatcher,'' be
revised to more closely parallel the definition used in the hours of
service regulations found at part 228.
FRA agrees that the definitions could lead to confusion and has
decided to modify both. Therefore, FRA is more explicitly limiting the
functions that would fall under the definition of ``dispatch'' to only
those duties that would be performed by 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. To that effect, FRA has removed the portion of the definition
providing that ``'dispatch'' means to use a telegraph, telephone,
radio, * * *'' and ``* * * hand delivery,'' but has retained the
provisions for ``electrical or mechanical device'' as an example of how
someone who is dispatching can control train movement. FRA retained
this portion of the definition to clarify that the definition is
intended to more closely track both the statutory definition of
``dispatching service employee'' as well as previous agency
interpretations on hours or service. Unlike in the IFR where the first
sentence of the definition is an abstract statement of the scope of
``dispatch,'' this sentence now sets the limits of what constitutes
dispatching and the remainder of the definition is merely clarification
language providing examples of the types of activities FRA intends to
cover and to not cover under the definition.
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 228,
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. Finally, as FRA stated in the preamble to the
IFR and wants to make perfectly clear in this Final Rule, FRA does not
intend that yardmasters as a job category fall within the scope of the
definition. Instead, yardmasters are only covered by this part when
they are performing dispatching functions.
Subsection (i) of the definition gives specific examples of the
types of functions that one who dispatches would perform in order to be
considered dispatching. In particular, FRA intends that anyone
controlling 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, would be considered
dispatching and, therefore, would fall within the scope of the rule.
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. FRA
still 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.
Subsection (i) also explicitly notes two methods of controlling
movements that fall within the scope of the definition. The first
method that FRA considers dispatching under part 241 is controlling
movements 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].
Operating Practices Safety Advisory (OPSA-96-03), reissued as 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.''
The second method that falls within the scope of the definition of
``dispatch'' is to control a movement ``by establishing a route through
the use of a signal or train control system but not merely by aligning
or realigning a switch.'' This provision makes clear that 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, paragraph (2) of the definition of ``dispatch'' has been
rewritten to further clarify that the term excludes several types of
activities that might mistakenly be considered to fall within the scope
of the definition. Paragraph (2) limits the exclusions, however, to
personnel in the field. Subsection (i) specifically excludes from the
scope of the definition the carrying out of a written or verbal
authority or permission or an authority for working limits. As further
clarification, subsection (i) notes two examples of activities that
would fall under the exclusion, provided they were carried out by field
personnel: Initiating an interlocking timing device and, in response to
the AAR's comments, authorizing a train to enter working limits.
Subsection (ii) specifically excludes from the scope of the definition
the operation by field personnel of a function of a signal system
intended to be used by those
[[Page 75954]]
field personnel, such as initiating an interlocking timing device.
Dispatcher. As noted above, in order to make explicitly clear that
an individual's job title does not determine whether the functions he
or she performs will be considered ``dispatching'' FRA has revised the
definition of ``dispatcher'' to remove all job categories and instead
has made the definition entirely function-specific. Therefore, any
individual, regardless of job title, performing any of the functions
encompassed by the definition of ``dispatch'' will be considered a
``dispatcher'' and will fall within the ambit of part 241.
Emergency. The definition of ``emergency'' remains unchanged from
the IFR. 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'' remains unchanged from the IFR. An ``extraterritorial
dispatcher'' is 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.
Extraterritorial dispatching. The term has been slightly reworded
to mean the act of dispatching a railroad operation that occurs on
trackage in the United States by a dispatcher located outside the
United States.
Fringe border dispatching. This is a new definition that relates to
the new fringe border waiver provision. ``Fringe border dispatching''
is defined to mean the act of extraterritorial dispatching a railroad
operations that occurs on trackage in the United States immediately
adjacent to the border by a dispatcher who is a railroad employee
located in Canada or Mexico.
Movement of a train. This term remains unchanged from the IFR. FRA
intends it 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 remains unchanged from the IFR and 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 remains unchanged from the IFR and is
intended to have the meaning it has in 49 CFR 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. As
noted above in section IV(M) of the supplementary information, above,
the ATDD suggested that FRA not allow waivers of compliance with part
241 because the safety implications surrounding part 241 are too
important, and because the waiver section has too many loopholes. FRA
disagrees with both of those assertions and believes that the waiver
provision must remain in order to allow flexibility. If a railroad
proves to FRA's satisfaction that it can safely and securely conduct an
extraterritorially dispatched operation, FRA may grant a waiver of the
requirements of part 241.
The section has been expanded to provide special relief for the
limited railroad operation in the United States that are currently
being extraterritorially dispatched, and to facilitate further
extraterritorial dispatching of fringe border operations. Paragraph (a)
provides the general rules governing waiver requests. This paragraph is
consistent with the general waiver provisions contained in other
Federal regulations issued by FRA. Requests for waivers may be filed by
any interested party. Except as provided by paragraph (b), the filing
of a waiver petition does not affect that person's responsibility for
compliance with the rule while the petition is being considered. In
reviewing waiver requests, FRA conducts investigations to determine if
a deviation from the general prohibitions and requirements can be made
without compromising or diminishing rail safety. 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.
However, FRA will normally expect an applicant to demonstrate that the
dispatchers are subject to the same or comparable safety standards as
those applicable to dispatchers located in the United States, that
those standards will be enforced by FRA or by the host country with
supplementary FRA oversight, and that the additional safety concerns
previously identified, such as security, language and measurement
differences, possible labor strikes and other disruptions, are
adequately addressed.
Paragraph (b) is new. It provides special dispensation for existing
extraterritorial dispatching. A railroad that files a waiver request
seeking to continue extraterritorial dispatch of an operation that it
has dispatched pursuant to the terms of the Interim Final Rule, may
continue extraterritorial dispatching of that operation until the
railroad's waiver request is acted upon by FRA if the petition is filed
no later than April 11, 2003. If the waiver request is for an operation
not listed in appendix A, the waiver request must describe when the
extraterritorial dispatching of the operation commenced and how the
dispatching was authorized by the terms of the IFR. FRA will notify the
railroad if FRA determines that the operation was not permitted by the
terms of the IFR.
Paragraph (c), covering fringe border dispatching, is also new. As
previously noted, FRA has determined that it is appropriate to provide
special relief for the four existing extraterritorial
[[Page 75955]]
dispatching operations (listed in appendix A to the Final Rule, the
longest of which is 99 miles), which have been conducted for some time,
and for limited new extraterritorial dispatching (limited to 5 route
miles from the border) to facilitate hand-offs between foreign and
domestic dispatchers. FRA recognizes that it may not always be safe or
practical to conduct a hand-off operation exactly at the border, which
may be a milepost in the middle of nowhere, and that more appropriate
hand-off points may be locations in the United States close to the
border. Given the limited length of the operations contemplated under
this special waiver process, FRA is willing to permit the operations to
be conducted with fewer safety requirements than would be required for
longer operations in the United States. FRA is not suggesting that
allowing these fringe border operations, even with these restrictions,
is completely without risk or as safe as operations that are subject to
the full range of safety requirements applicable to domestic
dispatchers. However, FRA believes that the fringe border waiver
provision strikes the proper balance between the risks of the
operations and the necessity of allowing the railroads some flexibility
and the need to promote the smooth flow of commerce across the border.
A fringe border waiver request by a railroad will generally be
granted if (1) the railroad has taken adequate steps to ensure the
security of its dispatch center, (2) the railroad has in place
specified safety programs for its extraterritorial dispatchers, (3) a
government safety agency in the country where the dispatching will
occur has safety jurisdiction over the railroad and the dispatchers and
is satisfied with the railroad's safety programs, and (4) the railroad
agrees to abide by the operating restrictions specified in the rule.
FRA anticipates that both Canadian and Mexican railroads can easily
meet these requirements for cross-border dispatching of operations, and
that FRA will be able to work out satisfactory arrangements with the
railroads and the regulatory agencies in Canada and Mexico concerning
the monitoring of the agreed upon safety programs.
An applicant railroad must describe the line proposed to be
dispatched and supply the following documents with respect to its
safety programs covering the fringe border operation:
(1) A copy of the operating rules of the railroad that would apply
to the proposed fringe border dispatching, including hours of service
limitations, and the railroad's program for testing the dispatchers in
accordance with these operating rules and for ensuring that the
dispatchers do not work in excess of the hours of service restrictions.
Based on their comments, CP and CN have developed adequate safety
programs that address this requirement.
(2) A copy of the railroad's drug and alcohol abuse prevention
program that applies to the fringe border dispatchers. The program
shall, to the extent permitted by the laws of the country where the
dispatching occurs, contain the following: preemployment drug testing;
a general prohibition on possession and use of alcohol and drugs while
on duty; reasonable cause alcohol and drug testing; a policy dealing
with co-worker and self-reporting of alcohol and drug abuse problems;
post-accident testing; and random drug testing. FRA is not requiring
that a railroad's program track the requirements of part 219. Based on
the comments that have been filed, existing CN and CP programs are
adequate given the current state of the law in Canada which would seem
to bar Canadian railroads from unilaterally conducting random drug
testing of their dispatchers. Of course, Canadian law may change in the
future.
(3) A verification from a government agency in the country where
the dispatching will occur that the agency has safety jurisdiction over
the railroad and the proposed dispatching, and that the railroad's
safety programs referenced above meet the safety requirements
established by the agency or, in the absence of established safety
requirements, that the programs are satisfactory to the agency. The
purpose of this requirement is to ensure that a government agency with
jurisdiction over the railroad and the dispatchers is satisfied with
the railroad's safety programs. CN and CP should be able to secure such
a statement from Transport Canada. FRA will consult with the relevant
government agency to ensure that railroad's safety programs are
actually carried out.
(4) An applicant railroad must also detail the steps the railroad
has taken to ensure the security of the dispatch center where the
fringe border dispatching will take place. CN and CP have indicated in
their comments that they believe that their dispatch centers are
secure. FRA currently does not have sufficient information to know
whether these representations are accurate.
Finally, absent a waiver, the railroad must agree to abide by the
following operating requirements, none of which should pose a problem
for Canadian or Mexican railroads:
(1) The trackage in the United States being extraterritorially
dispatched shall not exceed the following route miles, measured from
the point that the trackage crosses the United States border: for
operations that were normally operated pursuant to the term of the IFR,
the route miles normally operated by the railroad in conducting the
operations; or, for all other operations, five route miles.
(2) Except for unforeseen circumstances such as equipment failure,
accident, casualty, or incapacitation of a crew member, each
extraterritorially dispatched train shall be under the control of the
same assigned crew for the entire trip over the extraterritorially
dispatched trackage.
(3) The fringe border dispatcher shall communicate instructions to
the train crew and maintenance of way employees working on the line in
the English language and, when referencing units of measurement, shall
use English units of measurement. If the railroad wishes to use some
other language it can seek a waiver of this requirement.
(4) The rail line shall be under the exclusive control of a single
dispatching district or desk.
(5) The dispatching of the train shall be transferred from the
fringe border dispatcher to a dispatcher located in the United States
at one 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. In the IFR, FRA required that the portion
of the line being extraterritorially dispatched extend no farther into
the United States than the first of these locations in order to qualify
for an exemption. FRA is no longer insisting on such a requirement. At
many of these points, a train would actually be required to stop, which
would facilitate the hand-off of dispatching functions. If a railroad
that extraterritorially dispatches an operation that passes more than
one of those points concludes that it would be safer or more efficient
to hand-off an operation at a point other than the first point, that
railroad may continue to extraterritorially dispatch that operation to
another point provided that point is not beyond the mileage limit
specified in the rule.
[[Page 75956]]
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 two exceptions and a provision on liability for violation of
the prohibition. Unlike in the IFR, these sections do not contain
exceptions for operations that were regularly being extraterritorially
dispatched as of December 1999, or for fringe border operations. As was
explained above, FRA has decided to provide special relief for existing
extraterritorial dispatching and for new dispatching of fringe border
operations through the fringe border waiver process discussed above. 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, and 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 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 and each day the violation continues is a separate offense.
There are two basic exceptions to each of these three general
prohibitions. First, under paragraph (b) of Sec. Sec. 241.9-241.13,
extraterritorial dispatching of railroad operations that was conducted
pursuant to the IFR may continue for a 90-day transitional period that
ends on April 11, 2003. Second, under paragraph (c) of Sec. Sec.
241.9-241.13, extraterritorial dispatching 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. In order to facilitate the notification process,
appendix C lists FRA's eight regions and the States that are included
in those regions as well as the street and e-mail addresses and fax
numbers of the eight regional headquarters where the notification(s)
must be sent. 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).
In its comments, the ATDD suggested that FRA limit a railroad's
ability to move dispatching operations to another country to situations
where the railroad can prove that such operations could not be
transferred to another location in the United States. In addition, the
ATDD suggested that FRA require that railroads have in place a plan to
provide a domestic alternative to a foreign location. As explained in
Section III(M), above, FRA rejected the ATDD's suggestions. In an
emergency situation, FRA believes that a railroad should be allowed the
maximum amount of flexibility in order to safely conduct any operations
and should not be bound by restrictions that, while they may seem
legitimate in the abstract, could exacerbate an emergency situation if
that situation needs to be resolved as quickly as possible. In
addition, depending on the circumstances of the emergency, the safest
alternative may not necessarily be to dispatch an operation
domestically. By limiting the duration of the extraterritorial
dispatching to the duration of the emergency, FRA is effectively
balancing the need for flexibility with the need to maintain domestic
rail safety.
Paragraph (d) of Sec. Sec. 241.9-241.13 discusses liability for
violations of those sections. As provided in Sec. 241.9(d), 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(d), 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) or (c), 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(d), 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
[[Page 75957]]
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) or (c), 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) or (c), three
regulatory prohibitions have been violated: Sec. Sec. 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. 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, in cases where the dispatching
railroad fails to notify the FRA Regional Administrator of each region
where the track is located of an emergency, 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.
Section 241.15 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. 241.15(a), this Final Rule
includes a schedule of civil penalties for specific violations of part
241 as appendix B 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. 241.15 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 to ensure that compliance is
achieved.
Section 241.17 Preemptive Effect
Section 241.17 informs the public of FRA's views regarding what
will be the preemptive effect of the Final Rule. While the presence or
absence of such a section does not in itself affect the preemptive
effect of a 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 241.19 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.
Appendix A--List of Lines Being Extraterritorially Dispatched in
Accordance With the Regulations Contained in 49 CFR Part 241, Revised
as of October 1, 2002
Appendix B--Schedule of Civil Penalties
This appendix contains a schedule of civil penalties to be used in
connection 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).
Appendix C--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 and fax
numbers of the eight regional headquarters where notification of
emergency extraterritorial dispatching of domestic operations must be
sent.
[[Page 75958]]
VI. 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 proposed rule.
Document inspection and copying facilities are available at 1120
Vermont Avenue, NW., 7th Floor, Washington, DC. Photocopies may also be
obtained by submitting a written request to the FRA Docket Clerk,
Office of Chief Counsel, Mail 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.
As previously noted, currently extraterritorial dispatching of
train operations in the United States is very limited. However, there
is the prospect of increased use of extraterritorial dispatchers in the
absence of regulatory restrictions. FRA has discussed in detail the
significant safety concerns associated with extraterritorial
dispatching and how the Final Rule carefully resolves these concerns in
a manner designed to facilitate cross-border railroad operations.
FRA expects that overall the requirements in the rule would not
impose a significant cost on the rail industry over the next twenty
years. For some rail operators, the total costs incurred would exceed
the total benefits achieved. For others, the benefits would outweigh
the costs incurred.
The following table presents estimated twenty-year monetary impacts
associated with the locational and emergency notification requirements
for dispatching of United States rail operations. These estimates
represent scenarios previously considered by railroads as well as those
that could arise from future mergers between Canadian and United States
railroads; FRA is not aware of any current merger plans or other plans
to use additional extraterritorial dispatchers.
------------------------------------------------------------------------
Estimated 20-
Description year costs
(NPV)
------------------------------------------------------------------------
Canada/U.S. labor rate differential..................... $7,889,471
Additional dispatcher supervisors (higher labor rate)... 235,403
Emergency situation notification........................ 3,332
Dismissed employee compensation......................... (10,076,059)
---------------
Total Net Cost (NPV rounded)........................ (1,947,853)
------------------------------------------------------------------------
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, Office of Chief Counsel, Mail Stop 10, Federal Railroad
Administration, 1120 Vermont Avenue, NW., Washington, DC 20590.
Pursuant to Section 312 of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121), FRA has published
an interim policy that formally establishes ``small entities'' as being
railroads that meet the line-haulage revenue requirements of a Class
III railroad. For other entities, the same dollar limit in revenue
governs whether a railroad, contractor, or other respondent is a small
entity (62 FR 43024, Aug. 11, 1997).
The RFA concludes that this rule will not have an economic impact
on a sizable number of small entities. FRA further certifies that this
rule is not expected to have a significant economic impact on a
substantial number of small entities.
C. Paperwork Reduction Act
The information collection requirements in this 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
CFR section Respondent universe Total annual responses Average time per response Total annual burden hours burden
cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
241.7--Waivers:
(a) General.............. 4 railroads............... 1 waiver pet.............. 4 hours................... 4 hours................... $157
(b) Special Dispensation-- 4 railroads............... 4 waiver pet.............. 4 hours................... 16 hours.................. 628
Extraterritorial
Dispatching.
(c) Fringe Border 4 railroads............... 2 waiver pet.............. 4 hours................... 8 hours................... 314
Dispatching.
241.9--Prohibition against 4 railroads............... 1 notification............ 8 hours................... 8 hours................... 314
extraterritorial
dispatching; exceptions--
Notification.
241.11--Prohibition against 4 railroads............... Included under Sec. Included under Sec. Included under Sec. (1)
conducting a railroad 241.9. 241.9. 241.9.
operation dispatched by an
extraterritorial dispatcher,
exceptions.
241.13--Prohibitions against 4 railroads............... Included under Sec. Included under Sec. Included under Sec. (1)
track owner's requiring or 241.9. 241.9. 241.9.
permitting use of its line
for a railroad operation
dispatched by an
extraterritorial dispatcher,
exceptions.
241.15--Penalties--False $628...................... None...................... N/A....................... N/A....................... N/A
Reports/Records.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Included under Sec. 241.9.
[[Page 75959]]
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information.
Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, 725 17th St., NW., Washington, DC 20503. OMB
is required to make a decision concerning the collection of information
requirements contained in this 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.
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 information collection requirements resulting from this
rulemaking action prior to the effective date of this rule. The OMB
control number, when assigned, will be announced by a separate notice
in the Federal Register.
D. Federalism Implications
Executive Order 13132, entitled, ``Federalism,'' issued on August
4, 1999, requires that each agency ``in a separately identified portion
of the 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 IFR in this proceeding, FRA 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, when issuing the IFR, FRA determined that,
because the possibility existed that railroads could have commenced
extensive extraterritorial dispatching at any time, these issues had to
be addressed without the benefit of a presentation to the full RSAC. In
order to comply with Executive Order 13132, when preparing the IFR, FRA
sent a letter soliciting comment on the Federalism implications of this
IFR (and the NPRM involving part 219) that FRA simultaneously published
to 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. As of the date FRA published the IFR, FRA had not received
any indication of concerns about the Federalism implications of this
rulemaking from these representatives. In addition, none of the groups
submitted comments in response to the IFR. Therefore, FRA does not
believe that this Final Rule raises any federalism issues.
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 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,
[[Page 75960]]
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 Final Rule in accordance with Executive Order
13211. FRA has determined that this Final Rule 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.
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 Penalties and other consequences for noncompliance.
241.17 Preemptive effect.
241.19 Information collection.
Appendix A to Part 241--List of Lines Being Extraterritorially
Dispatched in Accordance With the Regulations Contained in 49 CFR
Part 241, Revised as of October 1, 2002
Appendix B to Part 241--Schedule of Civil Penalties
Appendix C 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. For example, to dispatch means, by the
use of an electrical or mechanical device--
(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 railroad 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--
(i) Effecting implementation of a written or verbal authority or
permission affecting a railroad operation or an authority or permission
affecting a railroad operation or an authority for working limits to a
roadway worker (e.g., initiating an interlocking timing device,
authorizing a train to enter working limits); or
(ii) Operating a function of a signal system designed for use by
those personnel.
Dispatcher means any 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 a
railroad operation that occurs on trackage in the United States by a
dispatcher located outside of the United States.
Fringe border dispatching means the act of extraterritorial
dispatching a railroad operation that occurs on trackage in the United
States immediately adjacent to the border between the United States and
Canada or the border between the United States and Mexico by a
dispatcher who is a railroad employee located in Canada or Mexico.
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
[[Page 75961]]
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 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) General. (1) A person subject to a requirement of this part may
petition the Administrator for a waiver of compliance with such
requirement. Except as provided in paragraph (b) of this section, the
filing of such a petition does not affect that person's responsibility
for compliance with that requirement while the petition is being
considered.
(2) (i) Each petition for waiver under this section shall be filed
in the manner and contain the information required by part 211 of this
chapter.
(ii) Petitions seeking approval to conduct fringe border operations
shall also comply with the requirements of paragraph (c) of this
section.
(iii) Petitioners not filing under paragraph (c) of this section
should review the guidelines at 66 FR 63942 (Dec. 11, 2001), and frame
their petitions to address the safety and security concerns articulated
in the preamble, or contact the Office of the Chief Counsel, RCC-12,
FRA, 1120 Vermont Avenue, NW., Stop 10, Washington, DC 20590, for a
copy of the guidelines.
(3) 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.
(b) Special dispensation for existing extraterritorial dispatching.
(1) A railroad that files a waiver request seeking to continue
extraterritorial dispatch of an operation that it has dispatched from
Canada or Mexico pursuant to regulations contained in 49 CFR part 241,
revised as of October 1, 2002, may continue extraterritorial
dispatching of that operation until the railroad's waiver request is
acted upon by FRA if the petition is filed no later than April 11,
2003.
(2) If the waiver request is for an operation not listed in
appendix A to this part, the waiver request must describe when the
extraterritorial dispatching of the operation commenced and how the
dispatching was authorized by regulations contained in 49 CFR part 241,
revised as of October 1, 2002. FRA will notify the railroad if FRA
determines that the operation was not permitted by the terms of those
regulations.
(c) Fringe border dispatching. (1) A waiver request to have a
railroad employee located in Canada or in Mexico dispatch a railroad
operation in the United States immediately adjacent to the border of
the country in which the dispatcher conducts the dispatching will
generally be approved by FRA, subject to any conditions imposed by FRA,
if the waiver request meets all of the terms of paragraphs (c)(2) and
(3) of this section. A proponent of a waiver request may seek relief
from the terms of paragraphs (c)(2) and (3) of this section.
(2) The railroad proposing to conduct the fringe border dispatching
shall supply the following documents as part of the waiver request:
(i) A description, by railroad division, applicable subdivision(s),
and mileposts, of the line proposed to be dispatched;
(ii) A copy of the operating rules of the railroad that would apply
to the proposed fringe border dispatching, including hours of service
limitations, and the railroad's program for testing the dispatchers in
accordance with these operating rules and for ensuring that the
dispatchers do not work in excess of the hours of service restrictions;
(iii) A copy of the railroad's drug and alcohol abuse prevention
program that applies to the fringe border dispatchers. The program
shall, to the extent permitted by the laws of the country where the
dispatching occurs, contain the following:
(A) Preemployment drug testing;
(B) A general prohibition on possession and use of alcohol and
drugs while on duty;
(C) Reasonable cause alcohol and drug testing;
(D) A policy dealing with co-worker and self-reporting of alcohol
and drug abuse problems;
(E) Post-accident testing; and
(F) Random drug testing;
(iv) The steps the railroad has taken to ensure the security of the
dispatch center where the fringe border dispatching will take place;
(v) The railroad's plans for complying with the requirements of
paragraph (c)(3) of this section; and
(vi) A verification from a government agency in the country where
the dispatching will occur that the agency has safety jurisdiction over
the railroad and the proposed dispatching, and that the railroad's
safety programs referenced
[[Page 75962]]
in paragraphs (c)(2)(ii) and (iii) of this section meet the safety
requirements established by the agency or, in the absence of
established safety requirements, that the programs are satisfactory to
the agency.
(3) Except as otherwise approved by FRA, fringe border dispatching
must comply with the following requirements:
(i) The trackage in the United States being extraterritorially
dispatched shall not exceed the following route miles, measured from
the point that the trackage crosses the United States border:
(A) For operations conducted pursuant to the regulations contained
in 49 CFR part 241, revised as of October 1, 2002, the route miles
shall be the miles normally operated by the railroad in conducting the
operation; and
(B) For all other operations, the route miles shall not exceed five
miles.
(ii) Except for unforeseen circumstances such as equipment failure,
accident, casualty, or incapacitation of a crew member, each
extraterritorially dispatched train shall be under the control of the
same assigned crew for the entire trip over the extraterritorially
dispatched trackage.
(iii) The fringe border dispatcher shall communicate instructions
to the train crew and maintenance of way employees working on the line
in the English language and, when referencing units of measurement,
shall use English units of measurement.
(iv) The rail line shall be under the exclusive control of a single
dispatching district or desk; and
(v) The dispatching of the train shall be transferred from the
fringe border dispatcher to a dispatcher located in the United States
at one of the following locations within the mileage limits mandated in
paragraph (c)(3)(i) of this section:
(A) Interchange point;
(B) Signal control point;
(C) Junction of two rail lines;
(D) Established crew change point;
(E) Yard or yard limits location;
(F) Inspection point for U.S. Customs, Immigration and
Naturalization Service, Department of Agriculture, or other
governmental inspection; or
(G) Location where there is a change in the method of train
operations.
Sec. 241.9 Prohibition against extraterritorial dispatching;
exceptions.
(a) General. Except as provided in Sec. 241.7(d) and paragraphs
(b) and (c) 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) Transitional period to continue existing extraterritorial
dispatching. A railroad that has normally extraterritorially dispatched
railroad track in the United States from Canada or Mexico pursuant to
the regulations contained in 49 CFR part 241, revised as of October 1,
2002, may continue extraterritorial dispatching of that railroad track
until April 10, 2003, to permit the railroad an opportunity to file a
waiver request pursuant to Sec. 241.7.
(c) 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.
(3) A list of the States that make up the FRA regions and the
street and e-mail addresses and fax numbers of the FRA Regional
Administrators appears in appendix C to this part.
(d) 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. 241.15.
Sec. 241.11 Prohibition against conducting a railroad operation
dispatched by an extraterritorial dispatcher; exceptions.
(a) General. Except as provided in Sec. 241.5(d) or paragraphs (b)
and (c) 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) Transitional period to continue existing extraterritorial
dispatching. A railroad that has normally conducted, or contracted for
the conduct of, a railroad operation in the United States that is
extraterritorially dispatched pursuant to the regulations contained in
49 CFR part 241, revised as of October 1, 2002, may continue to conduct
or contract for the conduct of the operation until April 10, 2003, to
permit the railroad an opportunity to file a waiver request pursuant to
Sec. 241.7.
(c) 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 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.
(3) A list of the States that make up the FRA regions and the
street and e-mail addresses and fax numbers of the FRA Regional
Administrators appears in appendix C to this part.
(d) 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. 241.15.
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) and (c) 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) Transitional period to continue existing extraterritorial
dispatching. An owner of a track segment located in the United States
that is extraterritorially dispatched pursuant to the regulations
contained in 49 CFR 241, revised as of October 1, 2002, may require or
permit the track segment to be continued to be used for a railroad
operation that is extraterritorially dispatched until April 10, 2003,
to permit the railroad an opportunity to file a waiver request pursuant
to Sec. 241.7.
(c) Emergencies. 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:
(1) 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
(2) The extraterritorial dispatching is limited to the duration of
the emergency. Written notification may be made either on paper or by
electronic mail.
[[Page 75963]]
(d) 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. 241.15. 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 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. 241.17 Preemptive effect.
Under 49 U.S.C. 20106, the regulations in this part preempt 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. 241.19 Information collection.
(a) The information collection requirements of this part are being
reviewed by the Office of Management and Budget pursuant to the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
(b) The information collection requirements are found in the
following sections: Sec. 241.7(a), (b), (c); 241.9(c); 241.11(c);
241.13(c); and 214.15. When an effective date for these sections is
established, FRA will publish notice of that date in the Federal
Register.
Appendix A to Part 241--List of Lines Being Extraterritorially
Dispatched in Accordance With the Regulations Contained in 49 CFR Part
241, Revised as of October 1, 2002
----------------------------------------------------------------------------------------------------------------
Description of United States track
segment being extraterritorially Length of United States' track segment Railroad conducting the
dispatched dispatching
----------------------------------------------------------------------------------------------------------------
Maine: Between Vanceboro, Maine and 99 miles.................................. Eastern Maine Ry. Co.
Brownville Junction, Maine.
Michigan:
U.S. trackage between Windsor, 1.8 miles................................. Canadian Pacific Railway
Ontario, and Detroit, Michigan. Company.
U.S. trackage between Sarnia, 3.1 miles................................. Canadian National Railway
Ontario, and Port Huron, Company (CN).
Michigan.
Minnesota: Sprague Subdivision, 43.8 miles................................ CN.
between Baudette, Minnesota, and
International Boundary, Minnesota.
----------------------------------------------------------------------------------------------------------------
Appendix B 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................................
241.11 Conducting a railroad operation that is
extraterritorially dispatched:
(a)(1) Generally.......................... 7,500 11,000
(a)(2) 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)(1) Generally.......................... 7,500 11,000
(a)(2) 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, and not found in this Appendix, 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 C 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:
(1) 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 fax number is 617-494-
2967. The electronic mail (E-mail) address of the Regional
Administrator for Region 1 is: Mark.McKeon@fra.dot.gov.
(2) Region 2 consists of Pennsylvania, Delaware, Maryland, Ohio,
West Virginia, Virginia, and Washington, DC. The mailing address of
the Regional Headquarters is: Two
[[Page 75964]]
International Plaza, Suite 550, Philadelphia, Pennsylvania 19113.
The fax number is 610-521-8225. The E-mail address of the Regional
Administrator for Region 2 is: David.Myers@fra.dot.gov.
(3) 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, SW., Suite 16T20, Atlanta, Georgia
30303. The fax number is 404-562-3830. The E-mail address of the
Regional Administrator for Region 3 is: Fred.Dennin@fra.dot.gov.
(4) Region 4 consists of Minnesota, Wisconsin, Michigan,
Illinois, and Indiana. The mailing address of the Regional
Headquarters is: 300 West Adams Street, Rm 310, Chicago, Illinois
60606. The fax number is 312-886-9634. The E-mail address of the
Regional Administrator for Region 4 is:
Laurence.Hasvold@fra.dot.gov.
(5) Region 5 consists of New Mexico, Oklahoma, Arkansas,
Louisiana and Texas. The mailing address of the Regional
Headquarters is: 4100 International Plaza, Suite 450, Fort Worth,
Texas, 76109-4820. The fax number is 817-284-3804. The E-mail
address of the Regional Administrator for Region 5 is:
John.Megary@fra.dot.gov.
(6) Region 6 consists of Nebraska, Iowa, Colorado, Kansas, and
Missouri. The mailing address of the Regional Headquarters is: 911
Locust Street, Suite 464, Kansas City, Missouri 64106. The fax
number is 816-329-3867. The E-mail address of the Regional
Administrator for Region 6 is: Darrell.Tisor@fra.dot.gov.
(7) 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 fax number is
916-498-6546. The E-mail address of the Regional Administrator for
Region 7 is: Alvin.Settje@fra.dot.gov.
(8) 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 fax number
is 360-696-7548. The E-mail address of the Regional Administrator
for Region 8 is: Dick.Clairmont@fra.dot.gov.
Allan Rutter,
Federal Railroad Administrator.
[FR Doc. 02-30527 Filed 12-9-02; 8:45 am]
BILLING CODE 4910-06-P