FRA postaccident testing data provide perhaps the most stark and compelling proof of the decline in alcohol and drug abuse in the railroad industry. In its postaccident testing program, in which testing is triggered only by significant accidents, FRA may use lower drug detection levels (cutoffs) and test for more substances than those tested for in other types of FRA testing. Postaccident testing data are the most scrutinized because FRA reviews each testing event, and tests each specimen in a designated contract laboratory, which FRA inspects quarterly. Furthermore, because the program has been in effect since 1987, postaccident testing data provide the longest trend line.

An analysis of the postaccident testing data in the chart below demonstrates how positive test results have dramatically declined since FRA's program started. In 1987, the first year of the program, 42 employees produced a positive specimen, resulting in a postaccident positive rate of 0.4 percent for alcohol and 5.1 percent for drugs. By 1998, only four employees produced a positive specimen, resulting in positive rates of 0.0 percent for alcohol and 2.6 percent for drugs.

As shown in the postaccident testing chart below, in each of the fields``Qualifying Events,'' ``Employees Tested,'' and ``Employees Positive One/More Substances [Number (A=Alcohol; D=Drug)]''FRA has achieved a desired reduction, despite a significant increase in rail traffic. The deterrent effect of random drug testing, which was implemented in 19881989, most certainly influenced the dramatic reduction in postaccident positives from 41 in 1988 to only 17 in 1990. Additionally, in the eight years from 1987 through 1994, there were 20 postaccident alcohol positives, but only two postaccident alcohol positives in the succeeding four years after implementation of random alcohol testing in 1994. While some refinement of regulatory requirements over the years has reduced the class of qualifying events (cost criteria for two of the qualifying events have been increased), the remaining events are those for which higher positive rates would be expected due to a higher component of likely human factor involvement.

FRA is aware that many factors have contributed to these results and probably influenced movement in both directions. The number of employees tested has decreased due to fewer qualifying events and crew consist reductions. For other than FRA postaccident testing, the Department of Health and Human Services (DHHS) has reduced the detection cutoff level for marijuana metabolites and has increased the detection levels for opiates used in Federal workplace detection programs such as FRA's. Another factor likely to have contributed to higher industry positive rates is the constant improvement in railroad random testing
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programs. Nonetheless, testing data remain the best indicator of the success that the comprehensive programs mandated by FRA have had in significantly reducing alcohol and drug abuse in the railroad industry. FRA PostAccident Toxicological Testing Results (19871998) Qualifying Employees Employees positive one/more substances Year events tested [number (A=Alcohol; D=Drug)] 1987.................................... 179 770 42 (3A39D) 1988.................................... 178 682 41 (3A38D) 1989.................................... 161 607 24 (6A18D) 1990.................................... 149 524 17 (1A16D) 1991.................................... 157 552 8 (2A6D) 1992.................................... 109 332 7 (1A6D) 1993.................................... 128 403 8 (2A6D) 1994.................................... 115 294 7 (2A5D) 1995.................................... 82 225 2 (0A2D) 1996.................................... 73 197 1 (0A1D) 1997.................................... 86 240 3 (2A1D) 1998.................................... 68 153 4 (0A4D)

Note on this chart, concerning 49 CFR 219, subpart CPostAccident Toxicological Testing:

The positives reflected in the chart indicate the presence of drugs or alcohol in a covered employee during the event. A positive result does not necessarily indicate a causal relationship with the accident. Causal determinations are made only after a thorough review of all factors that may have contributed to the accident.

With certain stated exceptions, postaccident toxicological tests are required to be conducted for the following events:

1. Major Train Accident (involving damage exceeding the current FRA reporting threshold ($6,600 in 1998)) involving:
(a) A fatality;
(b) A release of hazardous material lading from railroad equipment resulting in either an evacuation or a reportable injury; or (c) Damage to railroad property of $1,000,000 or more.

2. Impact Accident (as defined in Sec. 219.5 involving damage exceeding the FRA reporting threshold) involving:
(a) A reportable injury; or

(b) Damage to railroad property of $150,000 or more.

3. Fatal Train Incident: fatality to any onduty railroad employee involving movement of ontrack equipment with damage not exceeding the reporting threshold.

4. Passenger Train Accident: passenger train involved in an accident that exceeds the reporting threshold and results in an injury reportable to FRA under 49 CFR part 225.

See 49 CFR 219.201(a). Rail/highway grade crossing accidents and accidents wholly resulting from natural causes (e.g., tornado), vandalism, or trespassing are exempt from FRA postaccident testing. See 49 CFR 219.201(b). For a major train accident, all train crewmembers must be tested, but any other covered employees (e.g., dispatchers, signalmen) determined not to have had a role in the cause or severity of the accident are not to be tested. See 49 CFR 219.201(c)(2).

B. FRA's Oversight and Enforcement Activities

In order to effectively promote safety in all areas of railroad operations, including dispatching, FRA has additional tools and programs at its disposal other than the strictly regulatory framework described above. FRA's SACP is an approach to safety that emphasizes the active partnership of FRA, rail labor representatives, and railroad management in identifying current safety problems and jointly developing effective solutions to those problems. One fundamental principle of this approach is tracing a safety problem to its root cause and attacking that root cause instead of its symptoms. Where a problem is determined to be systemwide, SACP allows for a systemwide approach rather than individual, uncoordinated actions. So far, SACP has demonstrated significant capacity for identifying and eliminating the root cause of systemwide rail safety problems, including dispatchingrelated problems, by enlisting those most directly affected by such problemsrailroad employees and managersin a partnership effort.

For example, in 1997, FRA effectively used SACP to address system wide problems on the UP and Southern Pacific Transportation Company (SP) (collectively UP/SP) during the period that the two railroads were in the process of merging with each other.\6\ Between June 22 and August 31, 1997, UP/SP experienced five major train collisions that resulted in the deaths of five UP/SP employees and two trespassers. These accidents were in addition to a series of yard switching accidents that claimed the lives of four UP/SP train service employees. On August 23, under the auspices of the SACP, FRA launched a comprehensive safety review of UP/SP's operations, including its dispatching, and in the ensuing twoweek period, as many as 80 FRA and state safety inspectors were on UP/SP property to determine the magnitude and extent of safety problems and to recommend measures to address those problems. In November, following two nonfatal collisions, FRA sent a team of 87 Federal and state inspectors onto UP/ SP property for one week to ensure that the safety deficiencies identified in the initial review were being dealt with at the highest levels of the organization.

\6\ SP merged into UP effective February 1, 1998.

As a result of the safety reviews, FRA concluded that a fundamental breakdown existed in some of the basic railroad operating procedures and practices essential to maintain a safe operation, particularly in the area of dispatching. As part of the SACP process, FRA conducted a comprehensive safety audit of UP/SP's Harriman Dispatch Center, which is the railroad's main dispatching facility and which dispatches operations on approximately 95 percent of UP/SP's territory. During the initial phase of the safety audit, FRA inspectors and safety specialists spent a total of 31 days at the dispatching center observing and analyzing UP/SP dispatching practices
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and procedures. Later, FRA inspectors headquartered within a few miles of the dispatching center made frequent followup visits to the dispatching center. FRA observed inefficient and unsafe practices by supervisors and dispatchers at the dispatching center, and correctly attributed those practices to inadequate training and extreme work overload. FRA made specific recommendations, which UP/SP accepted, such as creating additional dispatch positions, realigning dispatchers' territories to better balance the workload, hiring new dispatchers, tripling the number of dispatching supervisors, making improvements to the software in the UP/SP's CAD system, and forming a working group consisting of representatives from FRA, rail labor, and UP/SP management to continually monitor and address dispatching issues that may arise.\7\ As a result of FRA's SACP efforts, UP/SP's safety performance recovered rapidly. During the year following FRA's dispatching initiative, UP/SP saw fatalities due to train collisions drop by 100 percent, from seven in 1997 to none in 1998. Such an immediate response could not have been effectuated without FRA's ability to obtain access to its facilities, which would not have been guaranteed if UP/SP's dispatching facilities were located outside the United States.
\7\ FRA's SACP program on the postmerger UP continues today, and dispatching is still an important aspect of the program. As a result of the continued monitoring of UP's activities, UP hired 114 new dispatchers in 1998 and, as of midyear 1999, planned to hire 124 new dispatchers by the end of 1999. In part as a result of this effort, problems with rail traffic congestion and accidents have been addressed.

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

Another safety tool FRA utilizes to promote rail safety is the site inspection, which is more closely associated with FRA's regulatory enforcement program than either SACP or safety advisories but can be an integral element in either. See, e.g., 49 U.S.C. 20107. Through site inspections, FRA's safety inspectors are able to observe a railroad's practices firsthand and, if warranted, write reports and recommend that civil penalties be assessed for violations. FRA frequently conducts inspections of railroad dispatching centers to monitor operating practices and dispatching procedures. As FRA's experience during the UP/SP SACP investigations demonstrates, site inspections are invaluable in investigating and addressing safety problems and can be used to quickly improve a railroad's operating practices.

These inspections may also reveal the need for an emergency order, especially if the railroad is unwilling to take corrective action. 49 U.S.C. 20104 (superseding 45 U.S.C. 432). FRA's emergency orders provide an example of the kind of dramatic action the agency takes in response to hazards discovered during routine site inspections. FRA received the statutory authority to issue emergency orders in 1970. Of the 22 emergency orders that FRA has issued since then, at least nine have been issued primarily as a result of such routine inspections (as opposed to FRA investigations of railroad accidents or other forms of inquiry).

All of these tools, both regulatory and nonregulatory, are strengthened by FRA's ability to readily gain access to railroad facilities. Such tools as SACP activities, railroad site visits, and emergency orders depend, to a significant degree, on easy access to railroad facilities. For these tools to work, FRA must be assured of such access. FRA is not certain at this time whether access can be assured outside the borders of the United States, or whether the laws of foreign countries will adequately safeguard United States rail operations. While FRA has the power to issue an emergency order under 49 U.S.C. 20104(a) against a railroad that does not have in place a program imposing adequate safety requirements for extraterritorial persons that dispatch domestic railroad operations, FRA would need to meet the high burden of proof entailed in sustaining such an order if it is challenged.\9\
\9\ In order to justify an emergency order, FRA must establish that ``an unsafe condition or practice, or a combination of unsafe conditions and practices, causes an emergency situation involving a hazard of death or personal injury.'' See 49 U.S.C. Sec. 20104(a). IV. Foreign Regulatory Jurisdiction

FRA may be unable to rely on foreign laws and rules governing dispatchers, in themselves, to ensure safety in accordance with FRA requirements. There can be a number of complexities in the ways foreign laws and regulations apply to dispatching. First, although dispatching can be performed from any country in the world, not every country in the world has an entity that regulates rail transportation safety. Second, even if the host country has established a transportation regulatory entity, that entity may well lack full safety jurisdiction over the railroad operations in the United States that are being dispatched from the host country.

With respect to a host country regulatory agency's level of regulatory authority over the individual dispatchers who conduct extraterritorial dispatching, there appear to be at least four different levels of jurisdiction over these dispatchers, depending on their relevant duties. For jurisdiction purposes, an extraterritorial dispatcher could likely fall into one of at least four categories:

Type 1a dispatcher who controls both operations in the host country and operations in the United States during a single tour of duty for every tour of duty;

Type 2a dispatcher who controls both operations in the host county and operations in the United States during a single tour of duty but not during every tour of duty;

Type 3a dispatcher who sometimes controls operations in the host country and sometimes controls operations in the United States, but never operations
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in both countries during a single tour of duty; and

Type 4a dispatcher who controls only operations in the United States and never controls operations in the host country.

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

FRA invites comments on this potential regulatory gap and how it could be addressed if extraterritorial dispatching is allowed. V. Hours of Service, Operating Rules Compliance, and Substance Abuse Concerns

Moreover, current regulations and statutes governing hours of service limitations, operational testing, and drug and alcohol programs applicable to dispatchers are not uniform throughout foreign countries, and may fall below the safety standards established by the United States' statutes and regulations. Therefore, even if a foreign country's regulations and statutes applied to and completely covered crossborder dispatching of United States rail operations, the safety of the United States rail operations may not be protected to the same degree as when dispatchers are subject to United States statutory and regulatory requirements or their equivalents. Any dispatcher, wherever located, who controls rail operations while under the influence of alcohol or drugs, exhausted because of working excessive hours, or not properly trained and tested on railroad operating rules could issue incorrect directions or could fail to issue directions, thereby jeopardizing the safety of railroad employees or causing a train collision or derailment with resulting injuries or death to train crews, passengers, or both, and possible harm to surrounding communities. Because problems such as fatigue, drug and alcohol abuse, and lack of effective job training seriously compromise the safety critical performance of employees who dispatch trains, FRA is concerned that foreign railroads, or domestic railroads that may employ or enter into a contract for services of a foreignbased dispatcher who would control a domestic train movement, must comply with the substantive requirements of the United States hours of service laws, FRA hours of service recordkeeping regulations, FRA operational testing regulations, and FRA drug and alcohol testing regulations, or their equivalents.

At present, it does not appear that, for example, Canadian hours of service and drug testing requirements are the full equivalents of United States statutory and regulatory requirements. For example, under United States law, dispatchers may work no more than twelve hours in a location where only one shift is employed and no more than nine hours in a location where two or more shifts are employed, but Canada does not regulate hours of service for dispatchers. The lengths of their shifts are determined by labor agreements between the applicable union and the respective railroads.\10\ In addition, FRA regulations require that United States dispatchers undergo operational testing, but Canada has no such requirement. United States alcohol and drug testing requirements are also more comprehensive and stringent than most other countries' standards.
\10\ It is arguable whether the hours of service laws of the United States (49 U.S.C. ch. 211) may be applied extraterritorially. In the past, FRA has not done so. If in the future FRA does apply the United States hours of service laws to activity outside of the United States, FRA's monitoring and enforcement actions would be subject to all of the problems discussed in Section IV and elsewhere in this preamble.

In the Omnibus Transportation Employee Testing Act of 1991, Pub. L. 102143 (the Act), Congress recognized the importance of drug and alcohol testing in protecting the safety of domestic transportation systems. See, supra, note 4. As stated in the fifth Congressional finding in that Act, Congress believed that ``the most effective deterrent to abuse of alcohol and use of illegal drugs is increased testing, especially random testing.'' Id. Given that the misuse of alcohol and drugs has proven to be a critical factor in transportation accidents, testing is integral to ensuring that domestic transportation systems, including railroads, operate in the safest possible manner. In response to Congress' directives in the Act, FRA expanded its existing regulations relating to drug and alcohol use in railroad operations.

Under FRA's mandatory alcohol and drug testing program, dispatchers working in the United States are subject to random, reasonable suspicion, returntoduty, followup, and postaccident drug and alcohol testing as well as preemployment testing for drugs. Post accident testing is required for a dispatcher who is directly and contemporaneously involved in the circumstances of any train accident meeting FRA thresholds. See Sec. 219.203. A dispatcher found to have violated FRA's drug and alcohol rules at Secs. 219.101 or 219.102 is required to be removed from covered service and is required to complete a rehabilitation program. See Sec. 219.104. A dispatcher who refuses to submit a required sample is required to be removed from covered service for nine months and to complete a rehabilitation program. See Secs. 219.104, 219.107, and 219.213. Additionally, covered employers must provide selfreferral and coworker report (selfpolicing) programs for their employees. See subpart E.

All dispatchers working in the United States who are controlling United States railroad operations are covered by these regulations, and FRA believes that any extraterritorial dispatcher controlling railroad operations in the United States must be covered by the same or fully equivalent requirements.\11\ To allow any
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dispatchers who are not subject to the comprehensive and stringent testing requirements that DOT and FRA believe are necessary for rail safety to control domestic operations would be contrary to FRA's safety efforts.
\11\ As previously noted, dispatchers of a foreign railroad whose primary reporting point is located outside of the United States and who perform service in the United States are currently exempt from certain Part 219 requirements. See 49 CFR 219.3(c). Elsewhere in the Federal Register, FRA is publishing an NPRM that proposes revisions to Part 219 requiring drug and alcohol testing of such employees.

Drug and alcohol abuse by railroad workers is not limited to the United States.\12\ While some countries, such as Canada, have addressed the serious threat that alcohol and drug use poses to the safety of railroad operations, they have done so in a less comprehensive manner than FRA's approach in implementing our statutory scheme. For example, Transport Canada has doubts whether Canadian Constitutional law permits it to implement our regulatory scheme. To date, Transport Canada has not imposed drug and alcohol rules like those of DOT, although motor carriers in Canada have implemented DOT drug and alcohol rules with respect to drivers who enter the United States. Transport Canada has approved Rule G, which was developed by the Canadian railroad industry, but has not reviewed and approved individual railroad plans implementing Rule G.\13\ Rule G does not directly prohibit offduty use of drugs and abuse of alcohol by dispatchers as contrasted with FRA's regulations, which prohibit any offduty use of drugs and which prohibit use of alcohol within four hours of reporting for covered service or after receiving notice to report for covered service since such usage may ultimately affect an individual's performance on the job. See Secs. 219.101(a)(3) and 219.102. Furthermore, unlike the FRA's part 219, Rule G also does not provide for alcohol and drug testing of railroad employees. In certain cases, railroads have developed their own testing plans.
\12\ In 1987, a Canadian survey commissioned by a federally appointed Task Force on the Control of Drug and Alcohol Abuse in the Railway Industry interviewed by telephone 1,000 randomly selected Canadian railway workers who held positions identified as ``safety sensitive,'' including dispatchers. The information was collected to assist the Task Force in making recommendations to the Canadian government on steps needed to address any problems of substance abuse in the railroad industry.

The survey revealed, among other things, that 20.6 percent of those surveyed had come to work feeling the effects of alcohol and 9.2 percent felt that their use of alcohol had at some time compromised job safety. In addition, 3.8 percent admitted using illegal drugs, 2.5 percent admitted to using illegal drugs during their shift, and 4 percent were aware of other workers taking drugs during working shifts. As the following passage from a recent Canadian arbitration award involving CN illustrates, drug and alcohol abuse problems continue to exist in Canada:
``* * * As related in the submission of the employer's counsel, CN has extensive experience in drug and alcohol testing over the past decade, including circumstances of hiring, promotion, reasonable cause and post accident testing. Its data confirm a relatively high incidence of positive test results across Canada, exceeding ten per cent over all categories of testing in Western Canada. While positive drug tests obviously do not confirm that individuals in the railway industry have necessarily used illegal drugs while at work, a substantial number of awards of the Canadian Railway Office of Arbitration provide a welldocumented record of cases which reveal the unfortunate willingness of some employees to have drugs or alcohol in their possession while at work, to use them while at work, or to report for work under their influence * * *.''

In the Matter of an Arbitration Between Canadian National Railway Company and National Automobile, Aerospace, Transportation and General Workers Union of Canada (Union) and Canadian Council of Railway Operating Unions (Intervener), Re: the Company's Drug and Alcohol Policy at 12324, Arbitrator Michel G. Picher (July 18, 2000).

The drug and alcohol abuse problem in Canada is relevant to the current problem posed by extraterritorial dispatching and helps demonstrate the need for more comprehensive drug and alcohol testing of extraterritorial dispatchers controlling railroad operations in the United States.
\13\ Rule G provides that:
(a) The use of intoxicants or narcotics by employees subject to duty, or their possession or use while on duty, is prohibited. (b) The use of mood altering agents by employees subject to duty, or their possession or use while on duty, is prohibited except as prescribed by a doctor.
(c) The use of drugs, medication or mood altering agents, including those prescribed by a doctor, which, in any way, will adversely affect their ability to work safely, by employees subject to duty, or on duty is prohibited.
(d) Employees must know and understand the possible effects of drugs, medication or mood altering agents, including those prescribed by a doctor, which, in any way, will adversely affect their ability to work safely.

FRA has reviewed the Canadian railroads' drug and alcohol testing plans implementing Rule G and found that they are not fully equivalent to FRA's rules. For example, CP's current plan does not provide for random testing, which is a key part of a program to deter drug and alcohol abuse; nor are CP's provisions with respect to preemployment testing, reasonable suspicion testing, postaccident testing, and refusal to provide a sample equivalent to FRA's more stringent rules.\14\ In fact, the only aspect of CP's plan that would be acceptable to FRA is the selfreferral and coworker report (self policing) programs, and FRA believes that even those programs would need changes before they would be completely acceptable.
\14\ Problems with CP's plan are as follows. First, CP's plan does not provide for random testing, which Congress found, and FRA's experience has shown to be, so integral to preventing drug and alcohol abuse in the United States. Credible research indicates that a ``broadbased'' approach (with a credible random deterrence program), like FRA's is the only effective methodology to reduce the adverse effects of substance abuse.

Second, CP will not conduct postaccident testing unless there is independent evidence that causes the railroad to suspect impairment of the dispatcher. By contrast, a dispatcher in the United States who is directly and contemporaneously involved in the circumstances of any train accident meeting FRA thresholds as determined by a train supervisor must be tested or else face a nine month suspension from covered service and the requirement to complete a rehabilitation program and returntoduty testing before returning to dispatcher service. CP will not use equivalent sanctions against an employee for failing to provide a sample; the problem with this approach is discussed below.

Third, while CP's plan does provide for reasonable suspicion testing, CP will not require an employee to provide a sample for testing. If CP's investigation fails to establish that the employee was impaired, the employee may go back to work without penalty or rehabilitation. Obviously, in many instances, establishing impairment would be difficult without a sample. In contrast, if a dispatcher in the United States refuses a test, he or she is Federally prohibited from performing service as a dispatcher for nine months and must complete required rehabilitation before being allowed to return to dispatching service. Even if FRA were able to apply the disqualification requirements of part 219 to a foreign based dispatcher who refused a random, for cause, or postaccident test, and if the railroad were able to honor this sanction under foreign law, that sanction might be wholly ineffective because the railroad could legally reassign the dispatcher to a desk handling only hostcountry traffic, where he or she would suffer no loss of pay. The result would be a neartotal loss of the deterrent effect associated with testing.

Fourth, FRA regulations require that new applicants and existing employees seeking to transfer for the first time from noncovered service to duties involving covered service (e.g., dispatching) must undergo preemployment testing for drugs. CP would make such testing a condition of employment for new employees, but would not apply it to incumbent employees within the department under which dispatchers fall who apply for dispatching jobs. It is sometimes difficult to detect and document drug use in an employee population and, therefore, it is important to do the screening test for anyone who is moving into a safetysensitive position.

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

VI. Security Issues

No nation is immune from criminal actions affecting workplaces or the potential for terrorism. In the United States, occasional workplace shootings by angry or unhinged employees and major incidents like the Oklahoma City and 1993 World Trade Center bombings have heightened awareness of the need for security measures, particularly at critical facilities or with respect to the movement of extremely hazardous materials (e.g., radioactive substances or military munitions). This nation
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experienced a much more extreme example of a security breach on September, 11, 2001, when terrorists slipped through security forces at three major U.S. airports and subsequently hijacked four airliners. Two of the planes were intentionally flown into the World Trade Center, resulting in the collapse of the Twin Towers, one was intentionally flown into the Pentagon, and the fourth crashed in rural Pennsylvania, presumably before reaching its intended target. As a result of these attacks, over 3,800 people were killed and the landscape of this country was changed forever as not only did the attacks cause an incredible amount of destruction but they also proved unequivocally that citizens of the United States are targets for terrorists and that those terrorists view modes of transportation, including railroads, as a means of carrying out their murderous agendas.\15\
\15\ According to the testimony of a convicted terrorist, terrorism training in Afghanistan included ```how to blow up the infrastructure of a country'such as military installations, electric plants, corporations, airports and railroads,'' Convicted Terrorist Testified on Deadly Training, Wash. Times, September 27, 2001, at A14 (emphasis added).

Given the threat that terrorists pose to railroads systems, including their dispatch centers, railroad security measures such as guards that control access to railroad facilities, proximity cards that allow access to dispatching locations, use of railroad police to detect unauthorized persons on railroad property, and background checks on applicants for employment as dispatchers and train crew members are increasingly important to protect railroad property, railroad employees, and railroad passengers from violent actions. FRA is working with domestic railroads as they review the adequacy of their security plans and expects that the railroads will voluntarily take whatever steps are needed to safeguard their systems from terrorists. However, FRA has the authority to require, through regulations and orders, additional security measures that FRA determines are necessary to protect the security of domestic railroad operations against potential terrorist threats.\16\
\16\ Section 20103(a) of title 49, United States Code, gives the Secretary of Transportation plenary authority to address any hazards to life and property that may arise in the context of railroad operations. To date, FRA's exercise of this authority has been limited. FRA has issued rules on Passenger Train Emergency Preparedness (49 CFR part 239) that require passenger railroads to conduct detailed planning for emergency situations, which are defined to include ``security situations'' such as bomb threats. (See 49 CFR Sec. 239.7 and 49 U.S.C. Sec. 20133(a)(4).)

Law enforcement and security agencies in the United States cannot protect extraterritorial dispatch facilities, and FRA has neither the access to such facilities to investigate instances of violence nor the authority to require additional security measures that FRA determines are necessary to protect the security of domestic railroad operations against potential terrorist threats. FRA does not know, at this time, whether foreign railroads employ security measures comparable to those of United States railroads or whether foreign governments have enforceable security requirements that would effectively protect dispatch facilities. As a result, foreignbased facilities could be more attractive targets than facilities located in the United States and be more susceptible to terrorist infiltration or attack.\17\ FRA believes it could not approve a railroad's stationing of dispatchers in a foreign country absent a showing that the security protections afforded the dispatching function were equivalent to those at United States dispatch facilities, and FRA had access to investigate incidents of violence occurring at these facilities.
\17\ FRA's concern is not limited to Third World countries or countries where terrorists are traditionally expected to operate. A recent article in the Washington Post highlighted the threat that currently exists in Canada. According to the article, ``Canada's intelligence agency has identified more than 50 terrorist groups and 350 individual terrorists who live, work and raise money in Canada.'' Deneen L. Brown, Attacks Force Canadians to Face Their Own Threat, The Washington Post, Sept. 23, 2001, at A36. The article went on to note that some of those terrorists were from countries in the Middle East, which is the region of the world from which the terrorists who masterminded the September 11, 2001, attacks are believed to have come.

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

VII. Language Differences

There are also safety concerns that are more likely to arise specifically because dispatchers are located in a foreign country. There would need to be a satisfactory resolution to such issues before FRA would be comfortable in permitting dispatchers to be located abroad. For example, it is essential for safe railroad operations that employees involved with directing and effectuating train movements be able to communicate clearly with each other. The railroad personnel most directly involved with train movements are the dispatchers who transmit written and oral instructions to train crews and the train crews who are responsible for carrying out the dispatchers' instructions and for operating trains in accordance with railroad traffic control devices. In addition, dispatchers must also be able to communicate with roadway workers who may control entry onto the stretches of track on which they are working. If it is allowed, extraterritorial dispatching raises the possibility that some of these employees may not be able to communicate with each other because they speak different languages.

FRA's primary safety concern is that one of the parties (either the train crew or the dispatcher) involved in an extraterritorially dispatched operation may not be proficient in the language that is being used to conduct train operations. Thus, there is the potential for miscommunication where one of the parties, unbeknownst to the other, fails to convey necessary safetycritical information, inadvertently conveys false or misleading information, or fails to properly understand safetycritical information that has been conveyed. The results of such a miscommunication could be disastrous. Such a lack of understanding would be even more problematic if railroad operations crossed more than one border (e.g., Canada, the United States, and Mexico).

Another problem related to communication that could arise if extraterritorial dispatching is allowed concerns possible differences in railroad terminology between one country and another. The railroad industry in the United States is both a highly technical industry that uses modern terms and an industry that has existed for 170 years and uses terms that have existed since at least the turn of the century. It would be unreasonable to assume that, absent
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appropriate training, railroad employees in other countries would be familiar with terms used in the United States. Given the immediacy with which problems sometimes develop while trains are on the tracks, it would be dangerous to discover such a miscommunication at a time when lives and property are in the balance. This problem would be compounded if the dispatcher and the train crew were having problems communicating because of language differences.

The Federal Aviation Administration also recognized that international operations cause communication problems. That agency, however, has addressed the problem through regulations requiring that all domestic air traffic controllers speak English and that all foreign air carriers who operate in the United States have personnel in domestic air traffic control towers who, in the event that no member of a foreign air crew can communicate with ground personnel, speak both English and their native language. See 14 CFR 65.33 and 129.21. In addition, FAA is currently considering a requirement that would mandate that flight attendants understand sufficient English to communicate, coordinate, and perform all safetyrelated duties. That requirement is part of a comprehensive flight attendant training Notice of Proposed Rulemaking that FAA anticipates publishing in the near future. See 65 FR 23153 (Apr. 24, 2000).

FRA recognizes that there may be solutions to these problems and therefore requests comments on how to resolve these issues so that domestic rail safety is not compromised. FRA believes solutions to these problems would have to be found before extraterritorial dispatching could be permitted.

VIII. Units of Measure

It is also essential for safe railroad operations in the United States that certain railroad communications concerning such operations that relate to measurements of such critical factors as location, distance, and speed, use a common standard. The two currently used standards are English units, used predominately in the United States, and the International System of Units (``SI''), which is more commonly known as the ``metric system'' and is used by most of the rest of the world, including Canada and Mexico. Because a kilometer (roughly 3,280.8 feet) is approximately sixtenths the length of a mile (5,280 feet), the potential for confusion is obvious, especially where a measurement of such matters as speed, location, or distance is concerned. If a dispatcher instructs a train and engine crew to travel a specified number of kilometers at a certain speed measured in kilometers per hour and the crew mistakenly thinks that the dispatcher is referring to either or both measurements in miles, the consequences could be at best problematic and, at worst, devastating.\18\ FRA requests comments on how to resolve the measurement issue so domestic rail safety is not compromised.
IX. Other Concerns
\18\ FRA recognizes that the Hazardous Materials Regulations require that most measurements regarding the transportation of hazardous materials be given in metric units. Under 49 CFR 171.10, in order to ensure compatibility with international transportation standards, most units of measurement in the hazardous materials regulations are expressed using the SI. This requirement should have no impact on extraterritorial dispatching, however, as SI is currently the standard for domestic railroad operations involving hazardous materials.

Communications and computing systems at centralized dispatching are extremely complex. When the operations of a dispatching center are disrupted, the main remedy is changing to local dispatching. This typically results in a considerable disruption of service. For example, in recent years the CSX dispatch center in Jacksonville, Florida went off line twice, because of a lightning strike and a hurricane evacuation. This resulted in significant delays and cancellations of freight and passenger service throughout much of the East Coast. It is theoretically possible for a railroad to establish a backup dispatching center that would be used in the event of such a disruption, but it is unlikely railroads would consider doing so, costeffective. FRA believes that the greater the number of miles of track controlled by a dispatching center and the higher the volume of traffic involved, the less likely it is that normal dispatching operations could be continued by alternative means, resulting in more pervasive or longerlived service disruptions. FRA has some concern that this problem could be exacerbated if primary dispatching centers were located out of the country.

With regard to labor issues, dispatchers are typically unionized employees subject to the Railway Labor Act (45 U.S.C. 151188) (``RLA''), which prohibits strikes over contract interpretation. Under the RLA, Congress has the power to legislate an end to a strike by United States railroad employees, and has done so in 13 rail labor contract disputes. Dispatch employees based in a foreign country, however, are not subject to the RLA and a labor dispute in that country could severely affect United States rail operations, and possibly jeopardize transportation safety.

The railroad industry carries nearly 40 percent

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, RRS11, 1120 Vermont Avenue, NW., Stop 25, Washington, DC 20590 (telephone 2024936313); or for other technical issues, Dennis Yachechak, Railroad Safety Specialist, FRA Office of Safety, RRS11, 1120 Vermont Avenue, NW., Stop 25, Washington, DC 20590 (telephone 2024936260). For legal issues related to alcohol and controlled substance matters, Patricia Sun, Trial Attorney, FRA Office of the Chief Counsel, RCC11, 1120 Vermont Avenue, NW., Stop 10, Washington, DC 20590 (telephone 2024936038); or for other legal issues, John Winkle, Trial Attorney, FRA Office of the Chief Counsel, RCC12, 1120 Vermont Avenue, NW., Stop 10, Washington, DC 20590 (telephone 2024936067).