SECRET – Passenger Train Emergency Preparedness

Passenger Train Emergency Preparedness

 


[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Proposed Rules]
[Pages 38248-38266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15746]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 239

[Docket No. FRA-2011-0062, Notice No. 1; 2130-AC33]

Passenger Train Emergency Preparedness

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to revise its regulations for passenger train 
emergency preparedness. These proposed revisions would: ensure that 
railroad personnel who communicate and coordinate with first responders 
during emergency situations receive initial and periodic training and 
are subject to operational (efficiency) tests and inspections; clarify 
that railroads must develop procedures in their emergency preparedness 
plans (e-prep plans) addressing the safe evacuation of passengers with 
disabilities during emergency situations; limit the need for FRA to 
formally approve purely administrative changes to approved e-prep 
plans; specify new operational (efficiency) testing and inspection 
requirements for both operating and non-operating employees; and remove 
as unnecessary the section on the preemptive effect of the regulations.

DATES: Comments: Written comments must be received by August 27, 2012. 
Comments received after that date will be considered to the extent 
possible without incurring additional expense or delay.
    Hearing: FRA anticipates being able to resolve this rulemaking 
without a public, oral hearing. However, if FRA receives a specific 
request for a public, oral hearing prior to July 27, 2012, one will be 
scheduled and FRA will publish a supplemental notice in the Federal 
Register to inform interested parties of the date, time, and location 
of any such hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2011-0062, 
Notice No. 1, may be submitted by any of the following methods:
     Web site: The Federal eRulemaking Portal, 
www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, 
DC 20590.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the 
Ground level of the West Building, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC33). Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading in 
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or 
visit the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground 
level of the West Building, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Knote, Staff Director, 
Passenger Rail Division, U.S. Department of Transportation, Federal 
Railroad Administration, Office of Railroad Safety, Mail Stop 25, West 
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: 202-493-6350); or Brian Roberts, Trial Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Chief Counsel, Mail Stop 10, West Building 3rd Floor,

[[Page 38249]]

1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-
6056).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. 1998 Passenger Train Emergency Preparedness Final Rule
    B. 2008 Passenger Train Emergency Systems (PTES I) Final Rule
    C. 2012 Passenger Train Emergency Systems (PTES II) NPRM
    D. The Need for Revisions to Passenger Train Emergency 
Preparedness Regulations
    E. RSAC Overview
    F. Passenger Safety Working Group
    G. General Passenger Safety Task Force
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    FRA is issuing this NPRM to revise FRA's passenger train emergency 
preparedness regulations. This NPRM is intended to clarify certain 
requirements and address issues that have arisen since the regulations 
were issued in May 1998. This NPRM is based on language developed by 
the General Passenger Safety Task Force (Task Force), a subgroup of the 
Railroad Safety Advisory Committee (RSAC), to resolve four main issues 
involving the regulations. The Task Force developed recommendations 
principally to: (1) Ensure that railroad personnel who communicate and 
coordinate with first responders during emergency situations receive 
initial and periodic training and are subject to operational 
(efficiency) tests and inspections under part 239; (2) clarify that 
railroads must develop procedures in their e-prep plans addressing the 
safe evacuation of passengers with disabilities during an emergency 
situation; (3) limit the need for FRA to formally approve purely 
administrative changes to approved e-prep plans; and (4) specify new 
operational (efficiency) testing and inspection requirements for both 
operating and non-operating employees for railroads covered by part 
239. The recommendations developed by the Task Force were approved by 
the full RSAC, and they form the basis of this NPRM.
    Among the NPRM's main proposals, the rule would:
     Clarify the types of railroad personnel who are required 
to be trained or be subjected to operational (efficiency) testing and 
inspections under part 239. This would include railroad personnel who 
directly coordinate with emergency responders;
     Clarify that operational (efficiency) testing under part 
239 can be conducted under and considered part of the railroad's 
efficiency testing program under 49 CFR part 217;
     Allow purely administrative changes to railroad e-prep 
plans to be excluded from the formal review and approval process 
required for more substantive amendments to e-prep plans under part 
239;
     Clarify that railroads must include procedures in their e-
prep plans addressing the safe evacuation of persons with disabilities 
during emergency situations as well as full-scale simulations of 
emergency situations; and
     Remove as unnecessary the section on the preemptive effect 
of the regulations.
    In analyzing the economic impacts of this proposed rule, FRA found 
that proposed regulatory changes would enhance the emergency planning 
process currently in place in part 239. FRA has quantified the costs 
associated with this NPRM. Any additional costs associated with 
amending part 239 would be mostly related to the inclusion of 
additional personnel in the testing and training programs required by 
part 239. Railroads would see reduced burdens in the filing and 
approval process of e-prep plans with non-substantive changes. The 
industry, however, would be subject to additional burden from minor new 
requirements for the submission of e-prep plans to make the review and 
approval of e-prep plans more efficient. Total costs over the next 10 
years are estimated to be $1,049,308 (or present value of $734,922 when 
discounted at 7 percent).
    FRA has analyzed the benefits associated with this rule. Benefits 
would accrue from the increased likelihood that the passenger railroads 
would handle external communications more efficiently, expediting the 
arrival of emergency responders to the accident scene, and from the 
ability of the railroad personnel to minimize health and safety risks 
through improved internal and external communications. FRA utilized a 
break-even analysis to quantify the minimum safety benefits necessary 
for the proposed rule to be cost-effective, considering the estimated 
quantified costs. The break-even point was found to be a reduction in 
severity of 3.84 injuries from Abbreviated Injury Scale (AIS) level 2 
to AIS level 1. Safety benefits are estimated to total $1,091,200 when 
four injuries have their severity mitigated from AIS 2 to AIS 1. Total 
discounted benefits are estimated to be $735,757 (PV 7 percent). The 
benefits for this proposed rule would exceed the estimated costs when 
four injuries are prevented from increasing in severity from an AIS 1 
to an AIS 2. FRA believes the proposed changes in this rulemaking will 
more than exceed the break-even estimate.

II. Background

A. 1998 Passenger Train Emergency Preparedness Final Rule

    On May 4, 1998, FRA published a final rule on passenger train 
emergency preparedness that was codified at 49 CFR part 239. See 63 FR 
24629 (May 4, 1998). The rule addresses passenger train emergencies of 
various kinds, including security situations, and sets minimum Federal 
safety standards for the preparation, adoption, and implementation of 
e-prep plans by railroads connected with the operation of passenger 
trains. The existing rule requires e-prep plans to include elements 
such as communication, employee training and qualification, joint 
operations, tunnel safety, liaison with emergency responders, on-board 
emergency equipment, and passenger safety information. Under the 
requirements of the rule, each affected railroad is required to 
instruct its employees on the applicable provisions of its plan. In 
addition, the plan adopted by each railroad is subject to formal review 
and approval by FRA. The rule also requires each railroad operating 
passenger train service to conduct emergency simulations to determine 
its capability to execute the e-prep plan under the variety of 
emergency scenarios that could reasonably be expected to occur.
    In promulgating the rule, FRA also established specific 
requirements for passenger train emergency systems. Among these are 
requirements that all emergency window exits and windows intended for 
rescue access by emergency responders be marked accordingly and that 
instructions be provided for their use. In addition, FRA established 
requirements that all door exits intended for egress be lighted or 
marked, all door exits intended for rescue access by emergency 
responders be marked, and that instructions be provided for their use.

[[Page 38250]]

B. 2008 Passenger Train Emergency Systems (PTES I) Final Rule

    In 2008, FRA revisited requirements for emergency systems on 
passenger trains by enhancing existing requirements for emergency 
window exits and establishing new requirements for rescue access 
windows used by emergency responders to evacuate passengers. See 73 FR 
6369 (February 1, 2008). While this final rule did not make any changes 
to the passenger train emergency preparedness regulations, the rule 
expanded existing requirements that were previously only applicable to 
passenger trains operating at speeds in excess of 125 mph but not 
exceeding 150 mph (Tier II passenger trains) to passenger trains 
operating at speeds not exceeding 125 mph (Tier I passenger trains), 
see Sec.  238.5. Specifically, Tier I passenger trains were required to 
be equipped with public address and intercom systems for emergency 
communication, as well as provide emergency roof access for use by 
emergency responders. FRA applied certain requirements to both existing 
and new passenger equipment, while other requirements applied only to 
new passenger equipment.

C. 2012 Passenger Train Emergency Systems (PTES II) NPRM

    On January 3, 2012, FRA published an NPRM proposing to enhance 
existing requirements as well as create new requirements for passenger 
train emergency systems. See 77 FR 154 (January 3, 2012). The NPRM 
proposes to add emergency passage requirements for interior vestibule 
doors as well as enhance emergency egress and rescue access signage 
requirements. The NPRM also proposes requirements for low-location 
emergency exit path markings, the creation of minimum emergency 
lighting standards for existing passenger cars, and enhancements to 
existing requirements for the survivability of emergency lighting 
systems in new passenger cars.
    Additionally, the NPRM proposes changes to FRA's passenger train 
emergency preparedness regulations in part 239. These changes include 
clarifying existing requirements for participation in debriefing and 
critique sessions following both passenger train emergency situations 
and full-scale simulations. Under the current regulation, a debriefing 
and critique session is required after each passenger train emergency 
situation or full-scale simulation to determine the effectiveness of 
the railroad's e-prep plan. See Sec.  239.105. The railroad is then 
required to improve or amend its plan, or both, in accordance with the 
information gathered from the session. Language proposed in the PTES II 
NPRM clarifies that, to the extent practicable, all on-board personnel, 
control center personnel, and any other employee involved in the 
emergency situation or full-scale simulation shall participate in the 
debriefing and critique session. The proposed rule would also clarify 
that employees be provided flexibility to participate in the debrief 
and critique sessions through a variety of different methods.

D. The Need for Revisions to Passenger Train Emergency Preparedness 
Regulations

    Among FRA's reasons for initiating this rulemaking, FRA learned 
that there was confusion regarding certain requirements within FRA's 
passenger train emergency preparedness regulations. For example, FRA 
learned that some passenger railroads were confused as to which types 
of railroad personnel were required to be trained or be subjected to 
operational (efficiency) testing and inspections under part 239. These 
railroads were unclear whether part 239 required certain railroad 
personnel who directly coordinate with emergency responders and other 
outside organizations during emergency situations to be trained or be 
subjected to operational (efficiency) testing and inspections. As a 
result, FRA believes that it is necessary to clarify the regulatory 
language in part 239 to ensure that railroad personnel who directly 
coordinate with emergency responders actually receive the proper 
training and are subject to operational (efficiency) testing and 
inspections. FRA also learned that many railroads were unclear whether 
operational (efficiency) testing under part 239 could be considered for 
purposes of the railroad's efficiency testing program required under 49 
CFR part 217.
    In addition, as a result of FRA's experience in reviewing and 
approving passenger railroads' e-prep plans that are updated 
periodically, FRA realized that a number of the changes were purely 
administrative in nature. While part 239 currently subjects all changes 
to an e-prep plan to a formal review and approval process, FRA believes 
that such purely administrative changes should be excluded from the 
process so that the agency can focus its resources on more substantive 
matters.
    Finally, FRA believed it was necessary to clarify part 239 to 
address the requirements of Executive Order 13347. 69 FR 44573 (July 
26, 2004). Executive Order 13347 requires, among other things, that 
Federal agencies encourage State, local, and tribal governments, 
private organizations, and individuals to consider in their emergency 
preparedness planning the unique needs of individuals with disabilities 
whom they serve. While under part 239 the unique needs of passengers 
with disabilities must already be considered in the railroads' e-prep 
plans, the NPRM would clarify the railroads' responsibilities.

E. RSAC Overview

    In March 1996, FRA established RSAC as a forum for collaborative 
rulemaking and program development. RSAC includes representatives from 
all of the agency's major stakeholder groups, including railroads, 
labor organizations, suppliers and manufacturers, and other interested 
parties. A list of member groups follows:
     American Association of Private Railroad Car Owners 
(AAPRCO);
     American Association of State Highway and Transportation 
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association 
(ASLRRA);
     American Train Dispatchers Association (ATDA);
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employees Division 
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     Federal Transit Administration (FTA);*
     Fertilizer Institute;
     High Speed Ground Transportation Association;
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace 
Workers;
     International Brotherhood of Electrical Workers;
     Labor Council for Latin American Advancement;*
     League of Railway Industry Women;*
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association 
(NRCMA);

[[Page 38251]]

     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB);*
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte;*
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association, Inc.;
     Transport Canada;*
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC 
(TCIU/BRC);
     Transportation Security Administration (TSA);* and
     United Transportation Union (UTU).
    *Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The individual task force then provides that information to 
the working group for consideration. When a working group comes to 
unanimous consensus on recommendations for action, the package is 
presented to the full RSAC for a vote. If the proposal is accepted by a 
simple majority of RSAC, the proposal is formally recommended to FRA. 
FRA then determines what action to take on the recommendation. Because 
FRA staff members play an active role at the working group level in 
discussing the issues and options and in drafting the language of the 
consensus proposal, FRA is often favorably inclined toward the RSAC 
recommendation. However, FRA is in no way bound to follow the 
recommendation, and the agency exercises its independent judgment on 
whether the recommended rule achieves the agency's regulatory goal, is 
soundly supported, and is in accordance with policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal or final 
rule. Any such variations would be noted and explained in the 
rulemaking document issued by FRA. However, to the maximum extent 
practicable, FRA utilizes RSAC to provide consensus recommendations 
with respect to both proposed and final agency action. If RSAC is 
unable to reach consensus on a recommendation for action, the task is 
withdrawn and FRA determines the best course of action.

F. Passenger Safety Working Group

    The RSAC established the Passenger Safety Working Group (Working 
Group) to handle the task of reviewing passenger equipment safety needs 
and programs and recommending consideration of specific actions that 
could be useful in advancing the safety of rail passenger service and 
develop recommendations for the full RSAC to consider. Members of the 
Working Group, in addition to FRA, include the following:
     AAR, including members from BNSF Railway Company (BNSF), 
CSX Transportation, Inc. (CSXT), and Union Pacific Railroad Company 
(UP);
     AAPRCO;
     AASHTO;
     Amtrak;
     APTA, including members from Bombardier, Inc., Herzog 
Transit Services, Inc., Interfleet Technology, Inc. (Interfleet, 
formerly LDK Engineering, Inc.), Long Island Rail Road (LIRR), Maryland 
Transit Administration (MTA), Metro-North Commuter Railroad Company 
(Metro-North), Northeast Illinois Regional Commuter Railroad 
Corporation, Southern California Regional Rail Authority (Metrolink), 
and Southeastern Pennsylvania Transportation Authority (SEPTA);
     ASLRRA;
     BLET;
     BRS;
     FTA;
     NARP;
     NTSB;
     RSI;
     SMWIA;
     STA;
     TCIU/BRC;
     TSA;
     TWU; and
     UTU.
    In 2007, the Working Group tasked the Task Force (General Passenger 
Safety Task Force) to resolve four issues involving FRA's regulations 
related to passenger train emergency preparedness. The issues taken up 
by the Task Force were: (1) Ensure that railroad personnel who 
communicate and coordinate with first responders during emergency 
situations receive initial and periodic training and are subject to 
operational (efficiency) tests and inspections under part 239; (2) 
clarify that railroads must develop procedures in their e-prep plans 
addressing the safe evacuation of passengers with disabilities during 
an emergency situation; (3) limit the need for FRA to formally approve 
purely administrative changes to approved e-prep plans and update FRA 
headquarters' address; and (4) specify new operational (efficiency) 
testing and inspection requirements for both operating and non-
operating employees for railroads covered by part 239.
    While the Task Force was initially charged with updating FRA 
headquarters' address as it appeared in various regulations found in 
part 239, FRA has already amended its regulations to update the address 
of the physical headquarters of FRA and the U.S. Department of 
Transportation in Washington, DC. See 74 FR 25169 (May 27, 2009).

G. General Passenger Safety Task Force

    Members of the Task Force include representatives from various 
organizations that are part of the larger Working Group. Members of the 
Task Force, in addition to FRA, include the following:
     AAR, including members from BNSF, CSXT, Norfolk Southern 
Railway Co., and UP;
     AASHTO;
     Amtrak;
     APTA, including members from Alaska Railroad Corporation, 
Peninsula Corridor Joint Powers Board (Caltrain), LIRR, Massachusetts 
Bay Commuter Railroad Company, Metro-North, MTA, New Jersey Transit 
Corporation, New Mexico Rail Runner Express, Port Authority Trans-
Hudson, SEPTA, Metrolink, and Utah Transit Authority;
     ASLRRA;
     ATDA;
     BLET;
     FTA;
     NARP;
     NRCMA;
     NTSB;
     Transport Canada; and
     UTU.
    The full Task Force met together on the following dates and in the 
following locations to discuss the four e-prep-related issues charged 
to the Task Force:
     July 18-19, 2007, in Chicago, IL;
     December 12-13, 2007, in Ft. Lauderdale, FL;
     April 23-24, 2008, in San Diego, CA; and
     December 3, 2008, in Cambridge, MA.
    Staff from the Volpe Center attended all of the meetings and 
contributed to the technical discussions through their comments and 
presentations. To aid the Task Force in its delegated task, FRA's 
Office of Chief Counsel drafted regulatory text for discussion 
purposes. Task Force members made changes to

[[Page 38252]]

this draft text. Minutes of each of these Task Force meetings are part 
of the docket in this proceeding and are available for public 
inspection. The Task Force reached consensus on all four assigned tasks 
and adopted the draft text created from its meetings as a 
recommendation to the Working Group on December 4, 2008.
    FRA's Office of Chief Counsel revised the Task Force's 
recommendation to conform to technical drafting guidelines and to 
clarify the intent of the recommendation. On June 8, 2009, the Task 
Force presented both its initial consensus language as well as the 
consensus language revised by FRA's Office of Chief Counsel to the 
Working Group. The Working Group approved the Task Force's initial and 
revised consensus language at its June 8, 2009 meeting in Washington, 
DC. The consensus language was then presented before the full RSAC on 
June 25, 2009, where it was approved by unanimous vote. Thus, the 
Working Group's recommendation was adopted by the full RSAC as a 
recommendation to FRA.
    While RSAC's recommendation has provided a strong basis for this 
proposed rule, FRA has varied from the recommendation principally in 
one substantive way: FRA has declined to adopt the RSAC's 
recommendation to add language to Sec.  239.101(a)(2)(ii) that would 
require control center and ERCC personnel to receive initial and 
periodic training only on those portions of the railroad's e-prep plan 
that relate to their specific duties under the plan. FRA explains this 
decision, below. FRA has also made minor changes for purposes of 
clarity and formatting in the Federal Register, but these changes are 
not intended to affect the RSAC's consensus recommendation.

III. Section-by-Section Analysis

Subpart A--General

Section 239.5 Preemptive Effect
    FRA is proposing to remove this section on the preemptive effect of 
the regulations. FRA believes that this section is unnecessary because 
it is duplicative of statutory law at 49 U.S.C. 20106 and case law, 
which sufficiently address the preemptive scope of FRA's regulations.
Section 239.7 Definitions
    FRA is proposing that this section be amended to add a definition 
for the new term ``emergency response communications center'' (ERCC) to 
mean a central location designated by a railroad with responsibility 
for establishing, coordinating, or maintaining communication with 
emergency responders, representatives of adjacent modes of 
transportation, and appropriate railroad officials during a passenger 
train emergency. The ERCC may be part of the railroad's ``control 
center.'' The RSAC recommended that such a definition be added to this 
section, and FRA agrees with the RSAC's recommendation for the reasons 
stated below.
    Currently, the requirements of part 239 do not specifically apply 
to ERCC personnel but rather to personnel in a control center, i.e., a 
central location on a railroad with responsibility for directing the 
safe movement of trains. The individuals working in these train 
dispatch centers are subject to emergency preparedness plan training 
and operational (efficiency) tests and inspections. See 49 CFR 239.101. 
However, only requiring control center personnel to receive training on 
a railroad's emergency preparedness plan may be problematic because in 
many railroads' operational structures train dispatchers only notify 
internal railroad officials about an emergency situation and provide 
block protection for the affected train(s) or equipment involved in the 
incident. While an ERCC can be part of a railroad's dispatch center, 
most railroads maintain a separate center within their organizational 
structure that establishes and maintains communications with emergency 
first responders, adjacent modes of transportation, and appropriate 
railroad officials. In addition, ERCCs assist in coordinating the 
actual emergency response with first responders.
    This NPRM proposes to define ERCCs, which provide vital services 
during an emergency situation, and include the definition in various 
provisions of part 239 that address training, testing, and inspection 
requirements. By including this definition in the existing regulation, 
FRA can expressly require that ERCC personnel, who directly interact 
with emergency first responders, receive the proper training, testing, 
and oversight under the regulation to appropriately prepare for and 
respond to an emergency situation.
    The definition of ERCC recommended by the RSAC and that FRA is 
proposing in this rulemaking provides the railroads with maximum 
flexibility in designating what centers or groups of individuals within 
the railroad's organizational structure qualify as ERCCs and are 
responsible for communicating with the emergency first responders and 
other outside entities during an emergency situation on the railroad. 
With this flexibility, each affected railroad can ensure that the 
correct center or group of individuals within the railroad's 
organizational structure receives training on the railroad's e-prep 
plan, and that the center or group of individuals is subject to 
operational (efficiency) tests and inspections regardless of how the 
center or group of individuals is organized within the railroad.

Subpart B--Specific Requirements

Section 239.101 Emergency Preparedness Plan
    Each railroad subject to the regulation is required to establish an 
e-prep plan under this section that is designed to safely manage 
emergencies and minimize subsequent trauma and injury to passengers and 
on-board personnel. FRA is proposing to revise this section in several 
different ways. Additional language is being proposed to the following 
paragraphs of this section: paragraphs (a)(1)(ii), and (a)(2)(ii) 
through (v). Conversely, this NPRM proposes to remove language from 
paragraph (a)(2)(ii). Finally, FRA is proposing to create an entire new 
paragraph (a)(8). Each proposed change to this section is addressed 
below by paragraph.
    Paragraph (a)(1)(ii). As currently written, paragraph (a)(1) 
requires railroad control center or dispatch personnel to notify 
outside emergency responders, adjacent rail modes of transportation, 
and appropriate railroad officials when a passenger train emergency has 
occurred. However, a number of railroads have found it inefficient to 
use the control center or railroad dispatcher to perform these duties 
during an emergency situation because the personnel are likely 
providing block protection for the incident as well as performing their 
usual dispatching duties for other parts of the railroad unaffected by 
the emergency event. Instead, many railroads currently maintain in 
their organizational structure a separate center or desk within, or 
even completely separate from, the railroad dispatch center that 
establishes and maintains communications with internal and external 
organizations during a railroad emergency. See the discussion in Sec.  
239.7, above.
    Consequently, FRA is proposing to add specific language to this 
paragraph that would provide for ERCCs to notify outside emergency 
responders, adjacent rail modes of transportation, and appropriate 
railroad officials, when an emergency occurs under the passenger 
railroad's e-prep plan. Without this proposed language, the regulation 
would continue to place these responsibilities specifically on control

[[Page 38253]]

center personnel working in the railroad dispatch office. Instead, the 
regulation would now clearly recognize that railroads have the 
flexibility to decide which part of railroad operations should handle 
these tasks during an emergency situation.
    Paragraph (a)(2)(ii). Similar to the proposed change to paragraph 
(a)(1)(ii), additional language is being proposed to paragraph 
(a)(2)(ii) that would require ERCC personnel to receive initial and 
periodic training on appropriate courses of action for each potential 
emergency situation. Under this paragraph, initial and periodic 
training is already required for control center personnel. FRA also 
proposes adding language to this paragraph clarifying that control 
center or ERCC personnel can be employees of the railroad, as well as 
contractors, subcontractors, or employees of a contractor or 
subcontractor to the railroad. FRA notes that contractors, 
subcontractors, and employees of a contactor or subcontractor to the 
railroad are already subject to the requirements of part 239 when 
performing functions under this part per the requirements of Sec.  
239.9. Nonetheless, for clarity FRA is revising the rule text in 
paragraph (a)(2)(ii) and the text in various other paragraphs of this 
part to make clear that contractors, subcontractors, and employees of a 
contractor or subcontractor are indeed covered under the requirements 
of this part.
    FRA notes that RSAC reached consensus on adding language that would 
require control center and ERCC personnel to receive initial and 
periodic training only on those portions of the railroad's e-prep plan 
that relate to their specific duties under the plan. However, FRA 
believes that adding this language could create safety concerns and 
therefore declines to propose adding such language to this paragraph in 
this NPRM. Specifically, FRA is concerned that if individuals receive 
only initial and periodic training on the very specific parts of the 
railroad's e-prep plan they are required to perform during an emergency 
situation, a railroad's entire emergency response could be hindered if 
specific individuals happen to be absent during an actual emergency 
situation. For example, if a specific control center or ERCC employee 
is required under the railroad's e-prep plan to notify internal 
railroad personnel during an emergency situation that an emergency 
situation on the railroad has occurred, and that employee is absent or 
incapacitated during an actual emergency, then the railroad's emergency 
response may be hindered. By ensuring that control center and ERCC 
personnel receive broader initial and periodic training on appropriate 
courses of action on potential emergency situations beyond the 
individual's specific duties under the railroad's e-prep plan, these 
individuals will have a more holistic view of the railroad's emergency 
response and therefore be better prepared to respond to an emergency 
situation regardless of the specific circumstances.
    FRA believes that training control center and ERCC personnel on the 
railroad's entire e-prep plan, not just the specific portions of the 
plan that relate to their specific duties, will not add any additional 
cost to the railroads because the railroads are already providing this 
broader level of training to their employees. Many railroads provide 
this holistic training on the railroad's e-prep plan through an 
informational video, which provides useful information to the employees 
on all levels of the railroad's emergency response.
    FRA also proposes to amend paragraphs (a)(2)(ii)(A) through (D). In 
paragraph (a)(2)(ii)(A), FRA proposes to remove the word ``dispatch'' 
before ``territory familiarization.'' The Task Force recommended that 
the word ``dispatch'' be removed from this subsection so that control 
center and ERCC personnel who are not railroad dispatchers would not be 
required to be as familiar with a territory as dispatchers are required 
to be under current railroad operating rules. For example, to conduct 
their duties efficiently and safely, railroad dispatchers are required 
to memorize the physical characteristics of the railroad territory over 
which they control train movements. While this is necessary for a 
railroad dispatcher, the Task Force believed, and FRA agrees, that this 
level of familiarity with railroad territory is not necessary for 
individuals working in a control center or ERCC who are not railroad 
dispatchers.
    Therefore, FRA proposes that the word ``dispatch'' be struck from 
paragraph (a)(2)(ii)(A). Individuals working in control centers or 
ERCCs who are not also railroad dispatchers would not be required to 
have complete dispatch territory familiarization in their capacity to 
assist in emergency situations. If the proposed language is adopted, 
railroads would not have to spend resources training all control center 
and ERCC personnel who are not railroad dispatchers to be as familiar 
with the railroad territory in question. Instead, for the purposes of 
this paragraph, territory familiarization would focus on, but not be 
limited to: access points for emergency responders along the railroad's 
right-of-way; special circumstances (e.g., tunnels); parallel 
operations; and other operating conditions (e.g., elevated structures, 
bridges, and electrified territory) including areas along the 
railroad's right-of-way that are remote and known to present challenges 
for emergency personnel responding to a passenger train emergency.
    To complement the proposed language in paragraph (a)(2)(ii)(A), 
paragraph (a)(2)(ii)(B) would require initial and periodic training for 
control center and ERCC personnel on their ability to access and 
retrieve information that would aid emergency personnel in responding 
to an emergency situation. (Current paragraph (a)(2)(ii)(B) would be 
redesignated as proposed paragraph (a)(2)(ii)(C), below). Under the 
proposed regulation, control center and ERCC personnel would be 
required to receive sufficient training to be able to retrieve 
information to assist emergency personnel in their emergency response. 
For example, under a railroad's e-prep plan, a railroad employee 
designated as part of an ERCC might be required to be trained on how to 
electronically retrieve a map of railroad property, read it properly, 
and identify and describe important points of access to emergency 
responders.
    Language is also proposed to be added to paragraph (a)(2)(ii)(C) 
(redesignated from (a)(2)(ii)(B)). This new proposed language would 
require control center and ERCC personnel to receive initial and 
periodic training on the railroad's e-prep plan, including what 
protocols govern internal communications between these two groups when 
an actual emergency situation occurs. The language ``as applicable 
under the plan,'' would also be added to the regulatory text to 
emphasize that due to the variety of possible organizational designs on 
how railroads handle emergency responses, it is ultimately each 
individual railroad's decision on what protocols will be followed to 
govern internal communication between control center and ERCC 
personnel.
    Finally, a new paragraph (a)(2)(ii)(D) is proposed. This new 
paragraph reflects the Task Force's recommendation that initial and 
periodic e-prep plan training should include the protocols for 
establishing and maintaining external communications between the 
railroad's control center or ERCC, or both, and emergency responders. 
The Task Force recommended and FRA agrees that adding this requirement 
will ensure that control center and ERCC personnel receive initial and 
periodic training on what protocols need to be followed to

[[Page 38254]]

establish and maintain communications with external organizations 
assisting in the emergency response. The Task Force and FRA believe 
that it is just as important for control center and ERCC personnel to 
learn the protocols for establishing and maintaining communications 
with external organizations as for the protocols governing internal 
communications between centers being proposed in paragraph 
(a)(2)(ii)(C).
    FRA also realizes that if these proposed changes to part 239's 
emergency preparedness plan requirements are adopted, then railroads 
may have to amend their e-prep plans in order to be in compliance with 
the new requirements. Therefore, FRA intends to provide railroads 
sufficient time to have their amended e-prep plans submitted to FRA for 
review after the final rule making these changes is issued. FRA is 
considering lengthening the effective date of the final rule to do so, 
and invites comment on this issue.
    Paragraph (a)(2)(iii). FRA is proposing to add language to 
paragraph (a)(2)(iii) that would require ERCC personnel to be included 
in the initial training after the e-prep plan is approved under Sec.  
239.201(b)(1). It is important that ERCC personnel be included in this 
training because, depending on the organizational structure of the 
railroad, the actions of ERCC personnel during an emergency response 
situation may be more pivotal to the successful implementation of the 
plan than the actions of control center personnel. Language is also 
proposed to be added to paragraph (a)(2)(iii) so that not only would 
control center and ERCC personnel who are employed by the railroad be 
covered by the regulation, but also control center and ERCC personnel 
who are railroad contractors and subcontractors as well as employees of 
these contractors and subcontractors. The proposed heading of this 
paragraph reflects this change as well.
    Paragraph (a)(2)(iv). Similar to the proposed language in paragraph 
(a)(2)(iii), this NPRM proposes to add language to paragraph (a)(2)(iv) 
to ensure that ERCC personnel hired after the e-prep plan is approved 
by FRA receive initial training within 90 days after the individual's 
initial date of service with the railroad. Currently, this paragraph 
expressly requires that only on-board and control center personnel 
receive initial training within 90 days after their initial date of 
service with the railroad. Depending on how a railroad has chosen to 
organize its response to a specific emergency situation, failure to 
train a new ERCC employee within 90 days of starting his or her service 
on the railroad could create inefficiencies in the railroad's response 
to an emergency situation. Therefore, FRA proposes this modification to 
ensure that the railroads do not delay in providing training to new 
ERCC personnel.
    In addition, FRA is also proposing to add language to paragraph 
(a)(2)(iv) clarifying that not only are railroad employees covered by 
the requirements of this paragraph, but also on-board, control center, 
and ERCC contractors, subcontractors, and employees of contractors or 
subcontractors. A change to the heading of paragraph (a)(2)(iv) is also 
being proposed to reflect the proposed modification of the regulatory 
text.
    Paragraph (a)(2)(v). FRA is proposing to add language to this 
paragraph to clarify that railroads need to develop testing procedures 
not only for employees, but also for contractors and subcontractors, as 
well as employees of contractors and subcontractors who are being 
evaluated for qualification under the railroad's e-prep plan. The 
current regulatory text expressly requires railroads to develop testing 
procedures for railroad employees only. This proposed language, if 
adopted, would clarify that employees, as well as contractors, 
subcontractors, and employees of contractors and subcontractors, are 
required to be evaluated for qualification under the railroad's e-prep 
plan using appropriate testing procedures. Language is also being 
proposed to the heading of this paragraph to reflect the proposed 
change and to clarify that railroads need to develop testing procedures 
for ERCC personnel as well as on-board and control center personnel.
    Finally, paragraph (a)(2)(v)(A) is proposed to be modified to 
require that testing procedures developed by the railroads accurately 
measure an individual's, rather than an individual employee's, 
knowledge of his or her responsibilities under the railroad's e-prep 
plan. Currently, paragraph (a)(2)(v)(A) expressly applies only to 
railroad employees, and this modification would ensure that railroad 
contractors and subcontractor are covered by the provision as well.
    Paragraph (a)(8). Executive Order 13347 (``Individuals with 
Disabilities in Emergency Preparedness'') requires the Federal 
government to appropriately support safety and security for individuals 
with disabilities in all types of emergency situations. 69 FR 44573 
(July 26, 2004). Currently, each railroad subject to part 239 is 
required to provide for the safety of each of its passengers in its 
emergency preparedness planning. Nonetheless, FRA is proposing a new 
paragraph (a)(8) that would clarify that these railroads must include 
procedures in their e-prep plans addressing the safe evacuation of 
persons with disabilities during emergency situations (and full-scale 
simulations of them). FRA expects the railroads to address the 
responsibilities of on-board personnel to carry out these specific 
procedures. For example, if a train has a failure or is involved in an 
incident and an evacuation is deemed necessary, a crewmember in the 
body of the train would need to search for and identify those 
passengers who cannot reasonably be evacuated by stairs or steps.
    This new paragraph would not require a railroad to maintain any 
list of train passengers, whether or not they have a disability. 
However, the railroad must have in place procedures so that the 
locations of persons with disabilities on board its trains are 
generally known to the train crew, and that such persons can be 
evacuated under all potential conditions that require passenger 
evacuation, including those conditions identified under the Special 
Circumstances portion of the railroad's e-prep plan, when applicable, 
as required by paragraph (a)(4) of this section. In this regard, the 
railroad must address those situations requiring immediate passenger 
evacuation with or without the assistance of emergency response 
personnel or railroad personnel not on board its trains. At the same 
time, the railroad must have a process for notifying emergency response 
personnel in an emergency situation about the presence and general 
location of persons with disabilities when the railroad has knowledge 
that such passengers are on board a train.
Section 239.105 Debriefing and Critique
    This section requires railroads operating passenger train service 
to conduct debriefing and critique sessions after each passenger train 
emergency situation or full-scale emergency simulation to determine the 
effectiveness of the railroad's e-prep plan. FRA is proposing to add 
language to paragraph (c)(3) of this section so that the debriefing and 
critique session would be designed to determine whether the ERCC, as 
well as the control center, promptly initiated the required 
notifications. In addition, FRA makes clear that the plan's 
effectiveness in the evacuation of passengers with disabilities must be 
addressed during debrief and critique sessions.

[[Page 38255]]

Subpart C--Review, Approval, and Retention of Emergency Preparedness 
Plans

Section 239.201 Emergency Preparedness Plan; Filing and Approval
    Section 239.201 specifies the process for review and approval by 
FRA of each passenger railroad's e-prep plan. FRA is proposing to 
divide paragraph (a) of this section into paragraphs (a)(1) and (a)(2). 
As proposed, paragraph (a)(1) contains the regulatory requirements on 
how to file an e-prep plan, while proposed paragraph (a)(2) contains 
the requirements on how to file an amendment to an FRA-approved plan. 
Proposed paragraph (a)(2) is then further subdivided. Proposed 
paragraph (a)(2)(i) describes what procedures a railroad must follow 
when filing amendments to its e-prep plan with FRA. Conversely, 
proposed paragraph (a)(2)(ii) lists the limited circumstances in which 
a railroad could enact an amendment to its approved e-prep plan without 
first getting FRA approval of the amendment. Finally, FRA is also 
proposing to add language to paragraph (b)(3) to clarify that FRA will 
not formally review the limited number of amendments that could be 
enacted without prior FRA approval as described in proposed paragraph 
(a)(2)(ii).
    Specifically, FRA proposes a few small modifications to paragraph 
(a)(1). First, FRA is proposing to update the title of the FRA official 
who receives a railroad's e-prep plan, from Associate Administrator for 
Safety to Associate Administrator for Railroad Safety/Chief Safety 
Officer. Additionally, since the time part 239 was enacted, FRA's 
Office of Safety officially became the Office of Railroad Safety. 
Therefore, FRA proposes to update the language in proposed paragraph 
(a)(1) to reflect the name change of this FRA office. The RSAC also 
recommended modification of the time period new-start passenger 
railroads have to submit their e-prep plans to FRA before commencing 
passenger service. Currently, e-prep plans must be submitted by these 
passenger railroads no less than 45 days prior to commencing passenger 
operations. Consistent with this recommendation, FRA proposes that such 
railroads must submit their plans to FRA no less than 60 days prior to 
commencing passenger operations. This proposed change would provide FRA 
safety officials more time to review a railroad's e-prep plan, identify 
any safety concerns, and notify the railroad of any such concerns so 
that changes to the plan could be made before actual passenger 
operations commence. FRA notes that the original filing deadline for 
passenger railroads in operation around the time part 239 went into 
effect was not more than 180 days after May 4, 1998. For those 
passenger railroads then in existence and for those passenger railroads 
that have started-up service since and have already filed and received 
approval on their plans, the rule would make clear that those plans are 
timely filed.
    FRA also proposes to redesignate as paragraph (a)(2)(i) the 
regulatory requirement that all amendments to approved e-prep plans be 
filed with FRA 60 days prior to the effective date of the amendment. 
One exception to this requirement would be the limited number of e-prep 
plan amendments that can be enacted without FRA approval, listed in 
proposed paragraph (a)(2)(ii). These limited types of amendments to 
railroad e-prep plans would continue to be required to be filed with 
FRA, but they would become immediately effective and would not require 
FRA formal approval.
    However, under proposed paragraph (a)(2)(i), e-prep plan amendments 
submitted to FRA that do not qualify for the exception in proposed 
paragraph (a)(2)(ii) must be submitted with a written summary of what 
the proposed amendment would change in the approved e-prep plan and, as 
applicable, a training plan describing how and when current and new 
employees and contractors would be trained on any amendment. For 
example, if the amendment would affect how current and new railroad 
employees and contractors assist emergency responders, then under this 
paragraph the railroad must also submit a training plan with the 
amendment stating how and when these employees and contractors would be 
trained on these changes to the railroad's e-prep plan. As another 
example, if the railroad wants to identify new access roads to railroad 
property in its e-prep plan, then a training plan for employees and 
contractors should be included with the proposed amendment. Having the 
railroads include a summary with their proposed e-prep plan amendments 
that are not exempted by proposed paragraph (a)(2)(ii) is necessary 
because currently railroads have been submitting their entire approved 
e-prep plans with the amendment changes already incorporated in the 
plan without identifying to FRA what changes the railroad is 
specifically seeking to make to its approved e-prep plan. This has 
delayed FRA's ability to review the railroad's proposed amendment and 
respond to the railroad within 45 days as specified in paragraph 
(b)(3)(i). Requiring the railroads to include such summaries will help 
FRA efficiently review the proposed amendments and respond back to the 
railroad normally within 45 days; nevertheless, some reviews may take 
longer.
    As previously stated, FRA is proposing a new paragraph (a)(2)(ii) 
under which qualifying amendments would not be subject to FRA's formal 
approval process as outlined in paragraph (b)(3)(i). Amendments that 
add or amend the name, title, address, or telephone number of the e-
prep plan's primary contact person would qualify under paragraph 
(a)(2)(ii). Railroads filing amendments under this paragraph would be 
permitted to enact the amendment changes upon filing the amendment with 
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer. 
Including a summary of the proposed changes caused by the amendment 
would not be required. All other e-prep plan amendments not covered by 
paragraph (a)(2)(ii) would be required to be filed in accordance with 
paragraph (a)(2)(i) and be subject to the formal approval process 
proposed in paragraph (b)(3)(i). FRA believes that paragraph (a)(2)(ii) 
is needed in order to limit the need for FRA to formally approve purely 
administrative changes to previously approved railroad e-prep plans. 
This new paragraph will allow these specific types of amendments to 
become effective immediately upon filing with FRA and thereby help to 
streamline the approval process.
    Additional language is also being proposed to paragraph (b)(3) in 
order to clarify that the limited types of amendments containing only 
administrative changes described in proposed paragraph (a)(2)(ii) would 
be exempt from the formal FRA review that is described in this 
paragraph.

 

Subpart D--Operational (Efficiency) Tests; Inspection of Records and 
Recordkeeping

Section 239.301 Operational (Efficiency) Tests and Inspections
    Section 239.301 requires railroads to monitor the routine 
performance of their personnel who have individual responsibilities 
under the e-prep plan to verify that they can perform the duties 
required under the plan in a safe and effective manner. FRA is 
proposing to modify this section in several ways. First, FRA is 
proposing to add headings to each main paragraph for clarity. Second, 
FRA proposes to add language to paragraph (a) that clarifies that 
railroads are required to specify in their e-prep plans the specific 
intervals they will periodically conduct operational (efficiency) tests 
and inspections for

[[Page 38256]]

individuals with responsibilities under the e-prep plans. Additionally, 
FRA is proposing to add language to paragraph (a) that will require any 
ERCC personnel, railroad contractors or subcontractors, or employees of 
railroad contractors or subcontractors, to be subject to operational 
(efficiency) tests and inspections. Finally, FRA is proposing to add 
new paragraphs (a)(1), (a)(1)(i) through (vi), (a)(2), (d), and (e). 
The specific requirements proposed in each new paragraph are discussed 
below.
    In paragraph (a), FRA is proposing to add the heading, 
``Requirement to conduct operational (efficiency) tests and 
inspections.'' FRA believes that this heading will help the regulated 
community identify that paragraph (a) of this section specifically 
addresses operational (efficiency) test and inspection requirements. 
Additionally, FRA is proposing to add language to paragraph (a) that 
will require ERCC personnel, railroad contractors or subcontractors, as 
well as employees of railroad contractors to be subject to the same 
periodic operational (efficiency) tests and inspections as on-board and 
control center employees are under the current regulation. Adding this 
language to the regulation is necessary to ensure that all individuals 
who assist in the railroad's emergency response are subject to 
operational (efficiency) tests and inspections. This proposed language 
is intended to help ensure that railroads are prepared to provide an 
appropriate response in the event of an emergency situation. FRA is 
also proposing in paragraph (a)(1) to identify basic elements that must 
be included in the railroad's written program of operational 
(efficiency) tests and inspections.
    FRA proposes six new paragraphs under paragraph (a)(1). Each new 
paragraph includes a required element that must be addressed in every 
railroad's written program of operational (efficiency) tests and 
inspections. RSAC recommended that FRA adopt these requirements, which 
were modeled from regulations found in 49 CFR 217.9, Program of 
operational tests and inspections; recordkeeping. In fact, in several 
instances, language was directly taken from various provisions of Sec.  
217.9--specifically, Sec.  217.9(c)(3) through (5). While part 217 
prescribes processes for railroad operating employees only (e.g., train 
and engine crews), its approach to operational tests and inspections is 
useful for governing individuals covered by FRA's emergency 
preparedness requirements in part 239. However, as proposed, not just 
railroad operating employees but all on-board, control center, and ERCC 
employees, as well as contractors and sub-contractors in these roles, 
would be subject to these tests and inspections as applicable under the 
railroad's e-prep plan. Each of the new proposed paragraphs is 
discussed below.
    For clarification, FRA notes that part 239 operational (efficiency) 
tests and inspections can also qualify as operational tests under Sec.  
217.9 if the employee, contractor or subcontractor being tested is also 
performing functions that are covered by part 217. Likewise, 
operational tests conducted under part 217 can also be accredited as 
operational (efficiency) tests under part 239 as long as the criteria 
for operational (efficiency) tests and inspections in part 239 are met. 
For example, passenger train conductors are subject to operational 
(efficiency) testing under both parts 217 and 239. An operational 
(efficiency) test of a passenger train conductor that involves the 
procedures for passenger train emergency preparedness would satisfy 
requirements under both parts 217 and 239. In contrast, an operational 
(efficiency) test of a passenger train conductor that involves the 
procedures for operating derails would satisfy the requirements under 
part 217 only.
    Operational (efficiency) testing under part 239 can be conducted as 
part of a railroad's efficiency testing program under Sec.  217.9 or in 
an entirely separate program. However, if adopted, the proposed 
operational (efficiency) test and inspections requirements for part 239 
will have a broader applicability than just to the employees covered by 
Sec.  217.9, as noted above. For example, these proposed requirements 
would also cover such individuals as passenger car attendants and ERCC 
employees, who would not be covered under part 217. Therefore, a 
railroad that would prefer to conduct its operational (efficiency) 
testing required by part 239 as part of its efficiency testing program 
under Sec.  217.9 would need to modify its program to ensure that the 
additional tests are included and conducted for all of the employees 
required to be covered under part 239.
    As proposed, paragraph (a)(1)(i) will require railroads to provide 
in their e-prep plans a program of operational (efficiency) tests and 
inspections for railroad employees, railroad contractors or 
subcontractors, and employees of railroad contractors and 
subcontractors addressing the appropriate courses of action in response 
to various potential emergency situations and the responsibilities for 
these individuals under the railroad's e-prep plan. For example, they 
should address how railroad personnel on board a train respond in case 
a fire occurs. They should also address what each on-board employee's, 
contractor's, or subcontractor's individual responsibilities are during 
such an emergency situation. FRA believes that these proposed 
requirements would help to reduce confusion during an actual emergency 
situation and ensure that the railroad's on-board staff undergo 
operational (efficiency) tests and inspections on actions they would be 
performing during an emergency event. Only railroad employees, railroad 
contractor and subcontractors, and employees of railroad contractors 
and subcontractors who are covered by or have responsibilities under 
the railroad's e-prep plan would be subject to operational (efficiency) 
tests and inspections from the railroad. Hired or contracted employees 
working for the railroad who do not have any responsibilities under the 
railroad's e-prep plan would not have to be subject to operational 
(efficiency) tests and inspections.
    Paragraph (a)(1)(ii) proposes that the railroads describe each type 
of operational (efficiency) test and inspection required for passenger 
train emergency preparedness. The description must also specify the 
means and procedures used to carry out these operational (efficiency) 
tests and inspections. For example, an operational (efficiency) test 
intended for an on-board employee may be conducted as a challenge 
question posed by a supervisor. In this example, the supervisor may ask 
the employee what his or her responsibilities are for the evacuation of 
passengers, including passengers with disabilities, in specific 
circumstances such as a passenger car filling with smoke. In another 
instance, a supervisor may ask an ERCC employee to identify a special 
circumstance (e.g., a tunnel or bridge) located in his or her territory 
and demonstrate how the employee would direct emergency responders to 
the location during an actual emergency. Overall, operational 
(efficiency) tests and inspections adopted for passenger train 
emergency preparedness should cover all affected employees and be 
comprehensive.
    Proposed paragraph (a)(1)(iii) will require the railroads to state 
in their e-prep plans the purpose of each type of operational 
(efficiency) test and inspection conducted. For example, an operational 
(efficiency) test intended for on-board employees may be conducted to 
determine if the employees are familiar with passenger evacuation 
procedures. As another example, such tests intended for ERCC employees 
may

[[Page 38257]]

be conducted to determine if the ERCC employees are familiar with 
special circumstances on their territory and if they know how to direct 
emergency responders to these locations. In particular, conducting 
operational (efficiency) tests on ERCC employees to determine their 
knowledge of the railroad's e-prep plan, special circumstances, and 
access points would be necessary to ensure that they are familiar with 
emergency procedures and capable of directing emergency responders to a 
passenger train in the event of an emergency.
    FRA is also proposing to add new paragraph (a)(1)(iv), which will 
clarify that each railroad must specify in its operational testing 
program the specific intervals at which it will periodically conduct 
operational (efficiency) tests and inspections for individuals covered 
by paragraph (a). This information should be listed according to 
operating division where applicable. FRA believes that this additional 
language is necessary after reviewing e-prep plans submitted by various 
railroads to FRA. In reviewing railroad e-prep plans, FRA discovered 
that some railroads would simply state in their plans that they would 
periodically conduct operational (efficiency) tests and inspections 
without specifying by what specific interval these tests or inspections 
would be administered. In some instances, railroads simply copied the 
language directly from Sec.  239.301(a) and placed it into their e-prep 
plans.
    By adding this proposed language, FRA is not mandating any specific 
interval by which the railroad should conduct these tests and 
inspections. FRA believes that the regulated community should have the 
flexibility to decide when individuals covered by paragraph (a) should 
be periodically subject to these tests and inspections based on the 
individual circumstances of each railroad and its e-prep plan and 
operational testing program. The proposed language will not affect the 
railroad's current ability to determine how often these periodic tests 
and inspections should occur. However, FRA will require the railroad to 
provide more information to the agency so that FRA can better verify 
that these types of tests and inspections are in fact occurring as 
planned, and that the railroads are properly carrying out their 
responsibilities in preparing to deal with various emergency 
situations.
    Proposed paragraph (a)(1)(v) will require the railroad to identify 
in its e-prep plan each officer by name, job title, and division or 
system, who is responsible for ensuring that the program of operational 
(efficiency) tests and inspections is properly implemented. Therefore, 
for each railroad division or system there should be a separate contact 
person listed within the e-prep plan who is responsible for 
implementing the details of the plan on that specific division or 
system during an emergency situation. In addition, for railroads that 
have multiple divisions, the proposed regulation would require the 
railroad to identify at least one officer at the railroad's system 
headquarters who is responsible for overseeing the entire railroad's 
program and the e-prep plan implementation. This individual should be 
knowledgeable about the current state of the railroad's operational 
(efficiency) test and inspection requirements as well as the current 
state of the railroad's e-prep program system-wide.
    The final proposal, in paragraph (a)(1)(vi), would require that 
railroad officers conducting operational (efficiency) tests and 
inspections be trained on the elements of the railroad's e-prep plan 
that are relevant to the tests and inspections that the officers will 
be conducting. In addition, the railroad officers conducting the 
operational (efficiency) tests and inspections must be qualified on the 
procedures for administering such tests and inspections in accordance 
with the railroads written program.
    FRA also proposes to add headings to both paragraphs (b) and (c) of 
this section. FRA believes that adding the heading ``Keeping records of 
operational (efficiency) test and inspection records'' to paragraph (b) 
will help clarify that paragraph (b) addresses what types of written 
records need to be created and retained after the performance of an 
operational (efficiency) test or inspection. Similarly, the heading 
``Retention of operational (efficiency) test and inspection records'' 
is proposed to be added to paragraph (c). This proposed heading will 
clarify that paragraph (c) addresses the requirements for how long 
records of operational (efficiency) tests and inspections need to be 
retained by the railroad. FRA believes that these proposed headings 
will be useful guides for the regulated community, especially those who 
are unfamiliar with part 239 and its requirements.
    Proposed paragraph (d) contains a new requirement that each 
railroad retain one copy of its current operational (efficiency) 
testing and inspection program required by paragraph (a) of this 
section and each subsequent amendment to the program. If this proposed 
requirement is adopted, railroads will be required to retain a copy of 
the current program and any subsequent amendment to the program at the 
railroad's system headquarters and at each divisional headquarters for 
three calendar years after the end of the calendar year to which the 
program relates. The records must also be made available for inspection 
and copying during normal business hours by representatives of FRA and 
States participating under 49 CFR part 212.
    Finally, FRA is proposing to add a new paragraph (e) to this 
section. As recommended by RSAC, this proposed paragraph will require 
each railroad subject to this part to retain a written annual summary 
of the number, type and result of each operational (efficiency) test 
and inspection that was conducted in the previous year as required by 
paragraph (a) of this section. When applicable, these summaries 
describing the railroad's operational (efficiency) tests and 
inspections would be required to be organized by operating division. 
These summaries are intended to provide FRA with a clearer 
understanding of how operational (efficiency) tests and inspections are 
being applied and how successful these programs are over different 
railroad divisions. Annual summaries would be required to be completed 
and in the possession of the railroad's division and system 
headquarters by March 1 of the year following the year covered by the 
summary.
    In addition, the annual summary will be required to be retained by 
the railroad for three calendar years after the end of the calendar 
year covered by the summary. For example, a railroad's 2013 annual 
summary of operational (efficiency) tests and inspections would be 
required to be retained through calendar year 2016. Annual summaries 
would be required to be made available for inspection and copying 
during normal business hours by representatives of FRA and States 
participating under 49 CFR part 212.
    FRA specifically invites comment on the appropriateness of proposed 
paragraph (e). Given that the intended purpose of the proposal is to 
provide FRA with a clear understanding of how operational (efficiency) 
tests and inspections are being applied and how successful these 
programs are being implemented from a systems perspective, FRA invites 
comment whether the periodic review and analysis requirements of Sec.  
217.9(e) should be adopted in the final rule to more appropriately 
fulfill the intended purpose. Indeed, under Sec.  217.9(e), railroads 
should already be reviewing and analyzing operational (efficiency) test 
and inspection data conducted for

[[Page 38258]]

passenger train emergency preparedness on individuals subject to part 
217; the requirements of the paragraph could then be broadened to cover 
individuals subject to part 239. FRA also believes that a railroad 
could consolidate such a review and analysis required by part 239 with 
one required under Sec.  217.9(e), and that they could be retained for 
a period of one year after the end of the calendar year to which they 
relate and be made available to representatives of FRA and States 
participating under 49 CFR part 212.

IV. Regulatory Impact and Notices

A. Executive Order 12866s and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures under both Executive Orders 12866 and 13563 and 
DOT policies and procedures. See 44 FR 11034; February 26, 1979. FRA 
has prepared and placed in the docket (FRA-2011-0062, Notice No. 1) a 
regulatory impact analysis addressing the economic impact of this 
proposed rule.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of the cost streams expected to result from 
the implementation of this proposed rule. For the 10-year period 
analyzed, the estimated quantified cost that would be imposed on 
industry totals $1,049,308 with a present value (PV, 7 percent) of 
$734,922. The largest burdens that would be expected to be imposed are 
from the new requirements related to the operational (efficiency) tests 
in Sec.  239.301 of the proposed regulation. The table below presents 
the estimated discounted costs associated with the proposed rulemaking.

                10-Year Estimated Costs of Proposed Rule
------------------------------------------------------------------------
                                                    Present value  (7-
                                                         percent)
------------------------------------------------------------------------
Emergency Preparedness Plan (Sec.   239.101)...                 $219,833
Debriefing and Critique (Sec.   239.105).......                  200,273
Emergency Preparedness Plan; Filing and                           12,006
 Approval (Sec.   239.201).....................
Operational (efficiency) Tests (Sec.   239.301)                  302,810
                                                ------------------------
    Total Costs................................                  734,922
------------------------------------------------------------------------

    As part of the regulatory impact analysis, FRA has explained what 
the likely benefits for this proposed rule would be, and provided 
numerical assessments of the potential value of such benefits. The 
proposed regulation would generate safety benefits by preventing 
injuries in passenger rail accidents from becoming more severe. FRA 
uses the Abbreviated Injury Scale (AIS) as a measure of the severity 
for injuries with an AIS 1 injury being defined as minor and an AIS 5 
as the most severe, i.e., critical.\1\ As noted in Appendix A of the 
regulatory impact analysis an AIS 1 would be an injury that is minor 
and may not require professional medical treatment. An AIS 2 injury 
would be an injury that always requires treatment but is not ordinarily 
life-threatening. Benefits would accrue from the increased likelihood 
that the passenger railroads would handle external communications more 
efficiently, expediting the arrival of emergency responders to accident 
scenes, and from the ability of the railroad personnel to minimize 
health and safety risks through improved internal and external 
communications. This proposed regulation would allow for more 
flexibility in passenger train emergency preparedness planning and 
implementation and provides for necessary emergency preparedness 
training.
---------------------------------------------------------------------------

    \1\ Association for the Advancement of Automotive Medicine. 
http://www.aaam1.org/ais/#.
---------------------------------------------------------------------------

    Additionally, the NPRM would allow passenger railroads to adjust to 
future personnel reorganizations and to incorporate technological 
innovations by affording the railroad's management flexibility in 
determining which part of the organization to designate as the ERCC.
    Given the nature of the proposed regulatory change, FRA believes 
that the ideal methodology to estimate the safety benefits is a break-
even analysis. A break-even analysis quantifies what minimum safety 
benefits are necessary for the proposed rule to be cost-effective, 
considering the estimated quantified costs. For this proposed rule, 
this analysis estimates that the break-even point is met when 3.84 
injuries are prevented from increasing in severity from AIS 1 to AIS 2.
    The table below presents the estimated benefits necessary for this 
proposed rule to break-even with the estimated costs. For the 10-year 
period analyzed the safety benefits would total $1,049,308 with a 
present value (PV, 7 percent) of $735,757.

               10-Year Estimated Benefits of Proposed Rule
------------------------------------------------------------------------
                                   Limitation of injury      Monetary
                                         severity            benefits
------------------------------------------------------------------------
Break-even point (not            3.84 less severe             $1,049,308
 discounted).                     injuries.
Discounted benefits (PV 7        3.84 less severe                735,757
 percent).                        injuries.
------------------------------------------------------------------------

[[Page 38259]]

    The benefits for this proposed rule would exceed the estimated 
costs when 4 injuries are prevented from increasing in severity from an 
AIS 1 to an AIS 2. FRA believes the proposed changes in this rulemaking 
will more than exceed the break-even estimate.

B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. An agency must prepare an initial regulatory flexibility 
analysis (IRFA) unless it can determine and certify that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. FRA has not determined whether this proposed 
rule would have a significant impact on a substantial number of small 
entities. Therefore, FRA is publishing this IRFA to aid the public in 
commenting on the potential small business impacts of the requirements 
in this NPRM. FRA invites all interested parties to submit data and 
information regarding the potential economic impact on small entities 
that would result from adoption of the proposals in this NPRM. FRA will 
consider all comments received in the public comment process when 
making a final determination.
    The proposed rule would apply to all passenger railroads (commuter 
and intercity) and railroads that host passenger rail operations. Based 
on information currently available, FRA estimates that less than 2 
percent of the total costs associated with implementing the proposed 
rule would be borne by small entities. Based on very conservative 
assumptions, FRA estimates that the total non-discounted cost for the 
proposed rule would be approximately $1 million for the railroad 
industry. There are two passenger railroads that would be considered 
small for purposes of this analysis and together they comprise less 
than 5 percent of the railroads impacted directly by this proposed 
regulation. Both of these railroads would have to make some investment 
to meet the proposed requirements. Thus, a substantial number of small 
entities in this sector may be impacted by this proposed rule. These 
small railroads carry out smaller operations than the average passenger 
railroad, allowing them to meet the proposed requirements at lower 
overall costs. Thus, although a substantial number of small entities in 
this sector would likely be impacted, the economic impact on them would 
likely not be significant.
    In order to get a better understanding of the total costs for the 
railroad industry, which forms the basis for the estimates in this 
IRFA, or more cost detail on any specific requirement, please see the 
Regulatory Impact Analysis (RIA) that FRA has placed in the docket for 
this rulemaking.
    In accordance with the Regulatory Flexibility Act, an IRFA must 
contain:
     A description of the reasons why the action by the agency 
is being considered.
     A succinct statement of the objectives of, and legal basis 
for, the proposed rule.
     A description--and, where feasible, an estimate of the 
number--of small entities to which the proposed rule would apply.
     A description of the projected reporting, record keeping, 
and other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that would be subject to the 
requirements and the types of professional skills necessary for 
preparation of the report or record.
     An identification, to the extent practicable, of all 
relevant Federal rules that may duplicate, overlap, or conflict with 
the proposed rule.
1. Reasons for Considering Agency Action
    FRA initiated this rulemaking through RSAC in part upon learning 
that in the regulated community there was some confusion regarding 
existing requirements on passenger train emergency preparedness (49 CFR 
part 239). As a result, the General Passenger Safety Task Force (Task 
Force), a subgroup of the RSAC, was tasked to resolve these issues. The 
Task Force found that as currently written, part 239 expressly requires 
only the railroad's control center employees to be subject to training 
and operational (efficiency) tests and inspections. However, in many 
instances, control center employees were not found to be the primary 
points of contact for emergency first responders during a passenger 
train emergency. Instead, they were carrying out other important 
duties, such as providing block protection and diverting trains to 
other parts of the railroad's network. The proposed language in this 
NPRM would ensure that all personnel involved in emergency preparedness 
under part 239 are subject to appropriate training as well as 
operational (efficiency) tests and inspections. At the same time, the 
NPRM would relieve personnel not involved in emergency preparedness 
from such requirements. While, the proposed regulation differs slightly 
from the consensus language, the need for this NPRM is backed by the 
RSAC and would improve passenger train emergency preparedness by 
clarifying training and testing requirements.
    In addition, as a result of FRA's experience in the periodic review 
and approval of passenger railroads' e-prep plans, FRA realized that a 
number of the changes submitted were purely administrative in nature. 
While part 239 currently subjects all changes to an e-prep plan to a 
formal review and approval process, FRA believes that purely 
administrative changes should be excluded from the formal approval 
process so that the agency can focus its resources on more substantive 
matters. Accordingly, this NPRM would streamline the approval of e-prep 
plans.
    Further, Executive Order 13347 (``Individuals with Disabilities in 
Emergency Preparedness'') requires the Federal government to 
appropriately support safety and security for individuals with 
disabilities in all types of emergency situations. 69 FR 44573; July 
26, 2004. Currently, each railroad subject to part 239 is required to 
provide for the safety of each of its passengers in its emergency 
preparedness planning. Nonetheless, FRA is proposing to clarify that 
these railroads must include procedures in their e-prep plans 
addressing the safe evacuation of persons with disabilities during 
emergency situations (and full-scale simulations of them).
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The purpose of this rulemaking is to further Federal safety 
standards on passenger train emergency preparedness currently in place 
in part 239. As a result of the proposed regulation, passenger 
railroads would have more flexibility to carry out the requirements of 
part 239 and keep their plans current. The NPRM would permit multiple 
parts of the organization to be involved in the emergency preparedness 
process to maintain resiliency while helping to clarify the role of 
various parts of the structure in an emergency situation. Additionally, 
the NPRM would provide flexibility to adjust to future personnel 
reorganizations and to incorporate technological innovations by 
allowing the railroad's management to determine what part of the 
organization is designated to be the ERCC.
    Among FRA's reasons for initiating this rulemaking was that some 
confusion arose regarding certain requirements of FRA's passenger train

[[Page 38260]]

emergency preparedness regulations. For example, FRA learned that some 
passenger railroads were confused as to which types of railroad 
personnel were required to be trained or be subjected to operational 
(efficiency) testing and inspections under part 239. These railroads 
were unclear whether part 239 required certain railroad personnel who 
directly coordinate with emergency responders and other outside 
organizations during emergency situations to be trained or be subjected 
to operational (efficiency) testing and inspections. As a result, FRA 
believes that it is necessary to clarify the regulatory language in 
part 239 to ensure that railroad personnel who directly coordinate with 
emergency responders actually receive the proper training and are 
subject to operational (efficiency) testing and inspections. FRA also 
learned that many railroads were unclear whether operational 
(efficiency) testing under part 239 could be considered for purposes of 
the railroad's efficiency testing program required under 49 CFR part 
217.
    Finally, FRA believed it was necessary to clarify part 239 to 
address the requirements of Executive Order 13347. Executive Order 
13347 requires, among other things, that Federal agencies encourage 
State, local, and tribal governments, private organizations, and 
individuals to consider in their emergency preparedness planning the 
unique needs of individuals with disabilities whom they serve. While 
under part 239 the unique needs of passengers with disabilities must 
already be considered in the railroads' e-prep plans, the NPRM would 
clarify the railroads' responsibilities.
    In order to further FRA's ability to respond effectively to 
contemporary safety problems and hazards as they arise in the railroad 
industry, Congress enacted the Federal Railroad Safety Act of 1970 
(Safety Act) (formerly 45 U.S.C. 421, 431 et seq., now found primarily 
in chapter 201 of title 49). (Until July 5, 1994, the Federal railroad 
safety statutes existed as separate acts found primarily in title 45 of 
the United States Code. On that date, all of the acts were repealed, 
and their provisions were recodified into title 49 of the United States 
Code.) The Safety Act grants the Secretary of Transportation rulemaking 
authority over all areas of railroad safety (49 U.S.C. 20103(a)) and 
confers all powers necessary to detect and penalize violations of any 
rail safety law. This authority was subsequently delegated to the FRA 
Administrator (49 CFR 1.49). Accordingly, FRA is using this authority 
to initiate a rulemaking that would clarify and revise FRA's 
regulations for passenger train emergency preparedness. These standards 
are codified in Part 239, which was originally issued in May 1999 as 
part of FRA's implementation of rail passenger safety regulations 
required by Section 215 of the Federal Railroad Safety Authorization 
Act of 1994, Public Law 103-440, 108 Stat. 4619, 4623-4624 (November 2, 
1994). Section 215 of this Act has been codified at 49 U.S.C. 20133.
3. A Description of, and Where Feasible, an Estimate of Small Entities 
to Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally 
includes only those small entities that are reasonably expected to be 
directly regulated by this action. This proposed rule would directly 
affect commuter and intercity passenger railroads, and freight 
railroads hosting passenger rail operations.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under Section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of ``small entities'' not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their field of operation. The U.S. Small Business 
Administration (SBA) stipulates in its size standards that the largest 
a railroad business firm that is ``for profit'' may be and still be 
classified as a ``small entity'' is 1,500 employees for ``Line Haul 
Operating Railroads'' and 500 employees for ``Switching and Terminal 
Establishments.'' Additionally, 5 U.S.C. 601(5) defines as ``small 
entities'' governments of cities, counties, towns, townships, villages, 
school districts, or special districts with populations less than 
50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority FRA has published a final statement 
of agency policy that formally establishes ``small entities'' or 
``small businesses'' as being railroads, contractors and hazardous 
materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 
209. The $20-million limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is proposing to use this 
definition for this rulemaking. Any comments received pertinent to its 
use will be addressed in the final rule.
Railroads
    There are only two intercity passenger railroads, Amtrak and the 
Alaska Railroad. Neither can be considered a small entity. Amtrak is a 
Class I railroad and the Alaska Railroad is a Class II railroad. The 
Alaska Railroad is owned by the State of Alaska, which has a population 
well in excess of 50,000.
    There are 28 commuter or other short-haul passenger railroad 
operations in the U.S. Most of these railroads are part of larger 
transit organizations that receive Federal funds and serve major 
metropolitan areas with populations greater than 50,000. However, two 
of these railroads do not fall in this category and are considered 
small entities. The impact of the proposed regulation on these two 
railroads is discussed in the following section.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Will Be Subject to the Requirements and the Type 
of Professional Skill Necessary for Preparation of the Report or Record
    For a thorough presentation of cost estimates, please refer to the 
RIA, which has been placed in the docket for this rulemaking. FRA also 
notes that this proposed rule was developed in consultation with an 
RSAC working group and task force that included representatives from 
the Association of American Railroads, freight railroads, Amtrak, and 
individual commuter railroads.
    FRA is aware of two passenger railroads that qualify as small 
entities: Saratoga & North Creek Railway (SNC), and the Hawkeye 
Express, which is operated by the Iowa Northern Railway Company (IANR). 
All other passenger railroad operations in the United States are part 
of larger governmental entities whose service jurisdictions exceed 
50,000 in population.
    In 2010 Hawkeye Express transported approximately 5,000 passengers 
per game over a 7-mile round-trip distance to and from University of 
Iowa

[[Page 38261]]

(University) football games. IANR has approximately 100 employees and 
is primarily a freight operation totaling 184,385 freight train miles 
in 2010. The service is on a contractual arrangement with the 
University, a State of Iowa institution. (The population of Iowa City, 
Iowa is approximately 69,000.) Iowa Northern, which is a Class III 
railroad, owns and operates the 6 bi-level passenger cars used for this 
passenger operation which runs on average 7 days over a calendar year. 
FRA expects that any costs imposed on the railroad by this regulation 
will likely be passed on to the University as part of the 
transportation cost, and requests comment on this assumption.
    The SNC began operation in the summer of 2011 and currently 
provides daily rail service over a 57-mile line between Saratoga 
Springs and North Creek, New York. The SNC, a Class III railroad, is a 
limited liability company, wholly owned by San Luis & Rio Grande 
Railroad (SLRG). SLRG is a Class III rail carrier and a subsidiary of 
Permian Basin Railways, Inc. (Permian), which in turn is owned by Iowa 
Pacific Holdings, LLC (IPH). The SNC primarily transports visitors to 
Saratoga Springs, tourists seeking to sightsee along the Hudson River, 
and travelers connecting to and from Amtrak service. The railroad 
operates year round, with standard coach passenger trains. Additional 
service activity includes seasonal ski trains, and specials such as 
``Thomas The Train.'' This railroad operates under a five-year contract 
with the local government, and is restarting freight operations as 
well. The railroad has about 25 employees.
    FRA believes that these two entities would not be impacted 
significantly. While, each of these entities would most likely have to 
file a new e-prep plan, FRA does not expect they would have to change 
how each railroad reacts to an emergency situation due to including 
ERCCs under part 239's requirements. Their operating structure is small 
and it is probable that employees with e-prep duties would continue to 
have the same emergency responsibilities. FRA expects that both 
railroads would see additional burden from inclusion of other 
provisions of the proposed regulation related to recordkeeping, and 
other training and testing requirements. This NPRM would not be a 
significant financial impact on these railroad and their operations. 
They could expect the total regulatory costs for this proposed rule, if 
it is adopted, to be less than $6,500 for each of the railroads over 
the next 10 years. The Hawkeye Express and the SNC currently have e-
prep plans that have been reviewed and approved by the FRA. Although 
this NPRM would change several requirements in part 239, professional 
skills necessary for compliance with existing and new requirements 
would be the same. FRA believes that both entities have the 
professional knowledge to fulfill the requirements in the proposed 
rulemaking.
    In conclusion, FRA believes that there are two small entities and 
that both could be impacted. Thus, a substantial number of small 
entities could be impacted by the proposed regulation. However, FRA has 
found that these entities that are directly burdened by the regulation 
would not be impacted significantly. FRA believes that the costs 
associated with the proposed rule are reasonable and would not cause 
any significant financial impact on their operations.
Market and Competition Considerations
    The small railroad segment of the passenger railroad industry 
essentially faces no intra-modal competition. The two railroads under 
consideration would only be competing with individual automobile 
traffic and serve in large part as a service offering to get drivers 
out of their automobiles and off congested roadways. One of the two 
entities provides service at a sporting event to assist attendees to 
travel to the stadium from distant parking areas. The other entity 
provides passenger train service to tourist and other destinations. FRA 
is not aware of any bus service that currently exists that directly 
competes with either of these railroads. FRA requests comments and 
input on current or planned future existence of any such service or 
competition.
    The railroad industry has several significant barriers to entry, 
such as the need to own the right-of-way and the high capital 
expenditure needed to purchase a fleet, track, and equipment. As such, 
small railroads usually have monopolies over the small and segmented 
markets in which they operate. Thus, while this rule may have an 
economic impact on all passenger railroads, it should not have an 
impact on the intra-modal competitive position of small railroads.
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    FRA is aware that some railroads are unclear whether operational 
(efficiency) testing under part 239 could be considered for purposes of 
the railroad's efficiency testing program required under 49 CFR part 
217. In the NPRM, FRA clarifies that part 239 operational (efficiency) 
tests and inspections can also qualify as operational tests under Sec.  
217.9 if the employee, contractor, or subcontractor being tested is 
also performing functions that are covered by part 217. Likewise, 
operational tests conducted under part 217 can also be accredited as 
operational (efficiency) tests under part 239 as long as the criteria 
for operational (efficiency) tests and inspections in part 239 are met.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact that would result from adoption 
of the proposals in this NPRM. FRA will consider all comments received 
in the public comment process when making a determination.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule are 
being submitted for approval to the Office of Management and Budget 
(OMB) for review and approval in accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The sections that 
contain the current and new or revised information collection 
requirements and the estimated time to fulfill each requirement is as 
follows:

—————————————————————————————————————- Total annual Average time per Total annual CFR Section Respondent universe responses response burden hours—————————————————————————————————————-239.13–Waiver Petitions (Current 45 railroads……. 1 petition……… 20 hours……….. 20 requirement).239.107–Marking of Emergency Exits (Current requirements). –Marking of windows and door 45 railroads……. 4,575 decals, 1,950 10 minutes/5 706 exits intended for emergency decals. minutes. egress. –Marking of window and door 45 railroads……. 6,320 decals, 1,300 5 minutes/10 744 exit intended for emergency decals. minutes. access by emergency responders.[[Page 38262]] –Records of inspection, 45 railroads……. 1,800 tests/records 20 minutes……… 1,000 maintenance, and repair. + 1,200 tests/ records.239.101/201/203–Emergency Preparedness Plans (Revised requirements). –1st Year–Amended plans…. 45 railroads……. 45 plans……….. 20.33 hours…….. 915 –Subsequent years–amended 45 railroads……. 9 plans………… 20.33 hours…….. 183 plans–substantive changes. –Subsequent years–amended 45 railroads……. 4 plans………… 60 minutes……… 4 plans–non-substantive changes. –New RRs–e-prep plans…… 2 railroads…….. 2 plans………… 80 hours……….. 160 –Current employee initial 45 railroads……. 540 trained 60 minutes……… 540 training for train crews, employees. control center & emergency response communications members. –Employee periodic training. 45 railroads……. 27 trained 4 hours………… 108 employees. –Initial training of New 45 railroads……. 110 trained 60 minutes……… 110 Employees. employees.239.101(a)(1)(ii) 3–Designation 45 railroads……. 45 designations…. 5 minutes………. 4 of RR employee to maintain current emergency telephone numbers to notify outside responders, etc. (Current requirement).239.101(a)(1)(ii) 3–Railroads’ 45 railroads……. 2 updated lists…. 1 hour…………. 2 list/record of emergency telephone numbers to notify outside responders, etc. (Current requirement).239.101(a)(3)–Emergency 45 railroads……. 1 plan…………. 16 hours……….. 16 Preparedness Plan–Joint Operation (Current requirement).239.101(a)(5)–RR Training 45 railroads……. 45 updated plans… 40 hours……….. 1,800 Program for on-line emergency responders (Current requirement).239.101(a)(7)–Passenger Safety 2 new railroads…. 1,300 cards/2 5 minutes/16 hours/ 300 Information–Posting emergency programs/2 safety 48 hours/8 hours/ instructions inside all messages + 2 24 hours. passenger cars (Current programs/2 safety requirement). messages.239.105(a)(3)–Debriefing and 45 railroads……. 79 sessions…….. 27 hours……….. 2,133 Critique–Sessions conducted after passenger emergency situation or full scale simulation (Current requirement).239.301(a)–Operational 45 railroads……. 25,000 tests/ 15 minutes……… 6,250 Efficiency Tests (Current inspections. requirements)–RR Tests/ inspections of on-board, control center, and emergency response communications center employees.(b)(c)–Records of operational 45 railroads……. 25,000 records….. 2 minutes………. 833 (efficiency) tests/inspections.(d)–Records of written program 45 railroads……. 90 records……… 3 minutes………. 5 of operational (efficiency) tests (New Requirement).(e) Annual summary of operational 45 railroads……. 45 annual summaries 5 minutes + 1 5 (efficiency) test/inspections + 30 copies. minute. and copy of written summary at system and division headquarters.—————————————————————————————————————-

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Office of Railroad Safety, Information Clearance Officer, at 202-493-
6292, or Ms. Kimberly Toone, Office of Information Technology, at 202-
493-6139.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

[[Page 38263]]

 

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the regulation. Where a 
regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132. This 
proposed rule will not have a substantial effect on the States or their 
political subdivisions, and it will not affect the relationships 
between the Federal government and the States or their political 
subdivisions, or the distribution of power and responsibilities among 
the various levels of government. In addition, FRA has determined that 
this regulatory action will not impose substantial direct compliance 
costs on the States or their political subdivisions. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    However, this proposed rule could have preemptive effect by 
operation of law under certain provisions of the Federal railroad 
safety statutes, specifically the former Federal Railroad Safety Act of 
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to section 20106.
    In sum, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws under Federal railroad safety statutes, specifically 49 U.S.C. 
20106. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this proposed rule is not required.

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et 
seq.) prohibits Federal agencies from engaging in any standards or 
related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    FRA has assessed the potential effect of this rulemaking on foreign 
commerce and believes that its requirements are consistent with the 
Trade Agreements Act. The requirements are safety standards, which, as 
noted, are not considered unnecessary obstacles to trade. Moreover, FRA 
has sought, to the extent practicable, to state the requirements in 
terms of the performance desired, rather than in more narrow terms 
restricted to a particular design or system.

F. Environmental Impact

    FRA has evaluated this rule 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 
proposed rule 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. See 64 FR 28547 (May 
26, 1999).
    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 
proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

G. 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. 
This proposed rule will not result in the expenditure, in the 
aggregate, of $100,000,000 or more (as adjusted annually for inflation) 
in any one year, and thus preparation of such a statement is not 
required.

H. Energy Impact

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

[[Page 38264]]

Consequently, FRA has determined that this regulatory action is not a 
``significant energy action'' within the meaning of the Executive 
Order.

I. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). Please visit http://www.regulations.gov/#!privacyNotice. 
You may also review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477-78) or you may visit 
http://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 239

    Passenger train emergency preparedness, Penalties, Railroad safety, 
Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
part 239 of chapter II, subtitle B of title 49, Code of Federal 
Regulations as follows:

PART 239--[AMENDED]

Subpart A--General

Sec.  239.5  [Removed and Reserved]

    1. Section 239.5 is removed and reserved.
    2. Section 239.7 is amended by adding the definition of ``Emergency 
response communications center'' to read as follows:

Sec.  239.7  Definitions.

* * * * *
    Emergency response communications center means a central location 
designated by a railroad with responsibility for establishing, 
coordinating, or maintaining communication with emergency responders, 
representatives of adjacent modes of transportation, and appropriate 
railroad officials during a passenger train emergency. The emergency 
response communications center may be part of the control center.
* * * * *

Subpart B--Specific Requirements

    3. Section 239.101 is amended by revising paragraphs (a)(1)(ii) and 
(a)(2)(ii), (a)(2)(iii) introductory text, (a)(2)(iv), (a)(2)(v) 
introductory text, and (a)(2)(v)(A), and by adding paragraph (a)(8) to 
read as follows:

Sec.  239.101  Emergency preparedness plan.

    (a) * * *
    (1) * * *
    (ii) Notification by control center or emergency response 
communications center. The control center or the emergency response 
communications center, as applicable under the plan, shall promptly 
notify outside emergency responders, adjacent rail modes of 
transportation, and appropriate railroad officials that a passenger 
train emergency has occurred. Each railroad shall designate an employee 
responsible for maintaining current emergency telephone numbers for use 
in making such notifications.
    (2) * * *
    (ii) Control center and emergency response communications center 
personnel. The railroad's emergency preparedness plan shall require 
initial training of responsible control center personnel and any 
emergency response communications center personnel employed by the 
railroad, under a contract or subcontract with the railroad, or 
employed by a contractor or subcontractor to the railroad, as well as 
periodic training at least once every two calendar years thereafter, on 
appropriate courses of action for each potential emergency situation 
under the plan. At a minimum, the initial and periodic training shall 
include:
    (A) Territory familiarization;
    (B) Procedures to retrieve and communicate information to aid 
emergency personnel in responding to an emergency situation;
    (C) Protocols governing internal communications between appropriate 
control center and emergency response communications center personnel 
whenever an imminent potential or actual emergency situation exists, as 
applicable under the plan; and
    (D) Protocols for establishing and maintaining external 
communications between the railroad's control center or emergency 
response communications center, or both, and emergency responders and 
adjacent modes of transportation, as applicable under the plan.
    (iii) Initial training schedule for current employees of the 
railroad, current employees of contractors and subcontractors to the 
railroad, and individuals who are contracted or subcontracted by the 
railroad. The railroad's emergency preparedness plan shall provide for 
the completion of initial training of all on-board and control center 
employees, and any emergency response communications center personnel, 
who are employed by the railroad, under a contract or subcontract with 
the railroad, or employed by a contractor or subcontractor to the 
railroad on the date that the plan is conditionally approved under 
Sec.  239.201(b)(1), in accordance with the following schedule:
* * * * *
    (iv) Initial training schedule for new railroad employees, 
contractor and subcontractor employees, and contracted individuals. The 
railroad's emergency preparedness plan shall provide for the completion 
of initial training of all on-board and control center personnel, as 
well as any emergency response communications center personnel, who are 
hired by the railroad, contracted or subcontracted by the railroad, or 
hired by the contractor or subcontractor to the railroad after the date 
on which the plan is conditionally approved under Sec.  239.201(b)(1). 
Each individual shall receive initial training within 90 days after the 
individual's initial date of service.
    (v) Testing of on-board, control center, and emergency response 
communications center railroad employees, contractor or subcontractor 
employees, and contracted individuals. The railroad shall have 
procedures for testing a person being evaluated for qualification under 
the emergency preparedness plan who is employed by the railroad, under 
a contract or subcontract with the railroad, or employed by a 
contractor or subcontractor to the railroad. The types of testing 
selected by the railroad shall be:
    (A) Designed to accurately measure an individual's knowledge of his 
or her responsibilities under the plan;
* * * * *
    (8) Procedures regarding passengers with disabilities. The railroad 
shall have procedures in place to promote the safe evacuation of 
passengers with disabilities under all conditions identified in its 
emergency preparedness plan. These procedures shall include, but not be 
limited to, a process for notifying emergency responders in an 
emergency situation about the presence and general location of each 
such passenger when the railroad has knowledge that the passenger is on 
board the train. This paragraph does not require the railroad to 
maintain any list of train passengers.
* * * * *
    4. Section 239.105 is amended by revising paragraph (c)(3) to read 
as follows:

Sec.  239.105  Debriefing and critique.

* * * * *
    (c) * * *
    (3) Whether the control center or the emergency response 
communications

[[Page 38265]]

center promptly initiated the required notifications, as applicable 
under the plan:
* * * * *

Subpart C--Review, Approval, and Retention of Emergency 
Preparedness Plans

    5. Section 239.201 is amended by revising paragraphs (a) and 
(b)(3)(i) to read as follows:

Sec.  239.201  Emergency preparedness plan; filing and approval.

    (a) Filing of plan and amendments. (1) Filing of plan. Each 
passenger railroad to which this part applies and all railroads hosting 
its passenger train service (if applicable) shall jointly adopt a 
single emergency preparedness plan for that service, and the passenger 
railroad shall file one copy of that plan with the Associate 
Administrator for Railroad Safety/Chief Safety Officer, Federal 
Railroad Administration, 1200 New Jersey Avenue SE., Mail Stop 25, 
Washington, DC 20590, not less than 60 days prior to commencing 
passenger operations. Any passenger railroad that has an emergency 
preparedness plan approved by FRA as of (the effective date of the 
final rule) is considered to have timely-filed its plan. The emergency 
preparedness plan shall include the name, title, address, and telephone 
number of the primary person on each affected railroad to be contacted 
with regard to review of the plan, and shall include a summary of each 
railroad's analysis supporting each plan element and describing how 
every condition on the railroad's property that is likely to affect 
emergency response is addressed in the plan.
    (2) Filing of amendments to the plan. (i) Except as provided in 
paragraph (a)(2)(ii) of this section, each subsequent amendment to a 
railroad's emergency preparedness plan shall be filed with FRA by the 
passenger railroad not less than 60 days prior to the proposed 
effective date. When filing an amendment, the railroad must include a 
written summary of the proposed changes to the previously approved plan 
and, as applicable, a training plan describing how and when current and 
new employees and contractors would be trained on any amendment.
    (ii) If the proposed amendment is limited to adding or changing the 
name, title, address, or telephone number of the primary person to be 
contacted on each affected railroad with regard to the review of the 
plan, approval is not required under the process in paragraph (b)(3)(i) 
of this section. These proposed amendments may be implemented by the 
railroad upon filing with FRA's Associate Administrator for Railroad 
Safety/Chief Safety Officer. All other proposed amendments must comply 
with the formal approval process in paragraph (b)(3)(i) of this 
section.
    (b) * * *
    (3) * * *
    (i) Except as provided in paragraph (a)(2)(ii) of this section, FRA 
will normally review each proposed plan amendment within 45 days of 
receipt. FRA will then notify the primary contact person of each 
affected railroad of the results of the review, whether the proposed 
amendment has been approved by FRA, and if not approved, the specific 
points in which the proposed amendment is deficient.
* * * * *

Subpart D--Operational (Efficiency) Tests; Inspection of Records 
and Recordkeeping

    6. Section 239.301 is revised to read as follows:

Sec.  239.301  Operational (efficiency) tests and inspections.

    (a) Requirement to conduct operational (efficiency) tests and 
inspections. Each railroad to which this part applies shall 
periodically conduct operational (efficiency) tests and inspections of 
on-board, control center, and, as applicable, emergency response 
communications center personnel employed by the railroad, under a 
contract or subcontract with the railroad, or employed by a contractor 
or subcontractor to the railroad, to determine the extent of compliance 
with its emergency preparedness plan.
    (1) Written program of operational (efficiency) tests and 
inspections. Operational (efficiency) tests and inspections shall be 
conducted pursuant to a written program. New railroads shall adopt such 
a program within 30 days of commencing rail operations. The program 
shall--
    (i) Provide for operational (efficiency) testing and inspection on 
appropriate courses of action in response to various potential 
emergency situations and on the responsibilities of an employee of the 
railroad, of an individual who is a contractor or subcontractor to the 
railroad, or an employee of a contractor of subcontractor to the 
railroad, as they relate to the railroad's emergency preparedness plan.
    (ii) Describe each type of operational (efficiency) test and 
inspection required, including the means and procedures used to carry 
it out.
    (iii) State the purpose of each type of operational (efficiency) 
test and inspection.
    (iv) State, according to operating divisions where applicable, the 
frequency with which each type of operational (efficiency) test and 
inspection is to be conducted.
    (v) Identify the officer(s) by name, job title, and, division or 
system, who shall be responsible for ensuring that the program of 
operational (efficiency) tests and inspections is properly implemented. 
A railroad with operating divisions shall identify at least one officer 
at the system headquarters who is responsible for overseeing the entire 
program and the implementation by each division.
    (vi) Require that each railroad officer who conducts operational 
(efficiency) tests and inspections be trained on those aspects of the 
railroad's emergency preparedness plan that are relevant to the 
operational (efficiency) tests and inspections that the officer 
conducts, and that the officer be qualified on the procedures for 
conducting such operational (efficiency) tests and inspections in 
accordance with the railroad's written program of operational 
(efficiency) tests and inspections and the requirements of this 
section.
    (2) The operational (efficiency) testing program required by 
paragraph (a)(1) of this section may be combined with the written 
program of operational (efficiency) tests and inspections required by 
Sec.  217.9(c) of this chapter.
    (b) Keeping records of operational (efficiency) tests and 
inspections. Each railroad to which this part applies shall maintain a 
written record of the date, time, place, and result of each operational 
(efficiency) test and inspection that was performed in accordance with 
paragraph (a) of this section. Each record shall also specify the name 
of the railroad officer who administered the test or inspection, the 
name of each employee tested, and sufficient information to identify 
the relevant facts relied on for evaluation purposes.
    (c) Retention of operational (efficiency) test and inspection 
records. Each record required by paragraph (a) of this section shall be 
retained at the system headquarters of the railroad and, as applicable, 
at the division headquarters for the division where the test or 
inspection was conducted, for one calendar year after the end of the 
calendar year to which the test or inspection relates. Each such record 
shall be made available to representatives of FRA and States 
participating under part 212 of this chapter for inspection and copying 
during normal business hours.

[[Page 38266]]

    (d) Keeping records of written program of operational (efficiency) 
tests and inspections. Each railroad shall retain one copy of its 
current operational (efficiency) testing and inspection program 
required by paragraph (a) of this section and one copy of each 
subsequent amendment to such program. These records shall be retained 
at the system headquarters, and, as applicable, at each division 
headquarters where the operational (efficiency) tests and inspections 
are conducted, for three calendar years after the end of the calendar 
year to which they relate. These records shall be made available to 
representatives of FRA and States participating under part 212 of this 
chapter for inspection and copying during normal business hours.
    (e) Annual summary of operational (efficiency) tests and 
inspections. Before March 1 of each calendar year, each railroad to 
which this part applies shall retain at the system headquarters of the 
railroad and, as applicable, at each of its division headquarters, one 
copy of a written summary of the following with respect to its previous 
calendar year activities: the number, type, and result of each 
operational (efficiency) test and inspection, stated according to 
operating divisions as applicable, that was conducted as required by 
paragraph (a) of this section. These records shall be retained for 
three calendar years after the end of the calendar year to which they 
relate and shall be made available to representatives of FRA and States 
participating under part 212 of this chapter for inspection and copying 
during normal business hours.

    Issued in Washington, DC, on June 21, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-15746 Filed 6-26-12; 8:45 am]
BILLING CODE 4910-06-P

 

CRYPTOME unveils – Passenger Train Emergency Preparedness

[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Proposed Rules]
[Pages 38248-38266]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15746]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 239

[Docket No. FRA-2011-0062, Notice No. 1; 2130-AC33]

Passenger Train Emergency Preparedness

AGENCY: Federal Railroad Administration (FRA), Department of 
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: FRA is proposing to revise its regulations for passenger train 
emergency preparedness. These proposed revisions would: ensure that 
railroad personnel who communicate and coordinate with first responders 
during emergency situations receive initial and periodic training and 
are subject to operational (efficiency) tests and inspections; clarify 
that railroads must develop procedures in their emergency preparedness 
plans (e-prep plans) addressing the safe evacuation of passengers with 
disabilities during emergency situations; limit the need for FRA to 
formally approve purely administrative changes to approved e-prep 
plans; specify new operational (efficiency) testing and inspection 
requirements for both operating and non-operating employees; and remove 
as unnecessary the section on the preemptive effect of the regulations.

DATES: Comments: Written comments must be received by August 27, 2012. 
Comments received after that date will be considered to the extent 
possible without incurring additional expense or delay.
    Hearing: FRA anticipates being able to resolve this rulemaking 
without a public, oral hearing. However, if FRA receives a specific 
request for a public, oral hearing prior to July 27, 2012, one will be 
scheduled and FRA will publish a supplemental notice in the Federal 
Register to inform interested parties of the date, time, and location 
of any such hearing.

ADDRESSES: Comments: Comments related to Docket No. FRA-2011-0062, 
Notice No. 1, may be submitted by any of the following methods:
     Web site: The Federal eRulemaking Portal, 
www.regulations.gov. Follow the Web site's online instructions for 
submitting comments.
     Fax: 202-493-2251.
     Mail: Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140, Washington, 
DC 20590.
     Hand Delivery: Docket Management Facility, U.S. Department 
of Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the 
Ground level of the West Building, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays.
    Instructions: All submissions must include the agency name, docket 
name and docket number or Regulatory Identification Number (RIN) for 
this rulemaking (2130-AC33). Note that all comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act heading in 
the SUPPLEMENTARY INFORMATION section of this document for Privacy Act 
information related to any submitted comments or materials.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or 
visit the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., Room W12-140 on the Ground 
level of the West Building, between 9 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Daniel Knote, Staff Director, 
Passenger Rail Division, U.S. Department of Transportation, Federal 
Railroad Administration, Office of Railroad Safety, Mail Stop 25, West 
Building 3rd Floor, 1200 New Jersey Avenue SE., Washington, DC 20590 
(telephone: 202-493-6350); or Brian Roberts, Trial Attorney, U.S. 
Department of Transportation, Federal Railroad Administration, Office 
of Chief Counsel, Mail Stop 10, West Building 3rd Floor,

[[Page 38249]]

1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: 202-493-
6056).

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
    A. 1998 Passenger Train Emergency Preparedness Final Rule
    B. 2008 Passenger Train Emergency Systems (PTES I) Final Rule
    C. 2012 Passenger Train Emergency Systems (PTES II) NPRM
    D. The Need for Revisions to Passenger Train Emergency 
Preparedness Regulations
    E. RSAC Overview
    F. Passenger Safety Working Group
    G. General Passenger Safety Task Force
III. Section-by-Section Analysis
IV. Regulatory Impact and Notices
    A. Executive Orders 12866 and 13563 and DOT Regulatory Policies 
and Procedures
    B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment
    C. Paperwork Reduction Act
    D. Federalism Implications
    E. International Trade Impact Assessment
    F. Environmental Impact
    G. Unfunded Mandates Reform Act of 1995
    H. Energy Impact
    I. Privacy Act

I. Executive Summary

    FRA is issuing this NPRM to revise FRA's passenger train emergency 
preparedness regulations. This NPRM is intended to clarify certain 
requirements and address issues that have arisen since the regulations 
were issued in May 1998. This NPRM is based on language developed by 
the General Passenger Safety Task Force (Task Force), a subgroup of the 
Railroad Safety Advisory Committee (RSAC), to resolve four main issues 
involving the regulations. The Task Force developed recommendations 
principally to: (1) Ensure that railroad personnel who communicate and 
coordinate with first responders during emergency situations receive 
initial and periodic training and are subject to operational 
(efficiency) tests and inspections under part 239; (2) clarify that 
railroads must develop procedures in their e-prep plans addressing the 
safe evacuation of passengers with disabilities during an emergency 
situation; (3) limit the need for FRA to formally approve purely 
administrative changes to approved e-prep plans; and (4) specify new 
operational (efficiency) testing and inspection requirements for both 
operating and non-operating employees for railroads covered by part 
239. The recommendations developed by the Task Force were approved by 
the full RSAC, and they form the basis of this NPRM.
    Among the NPRM's main proposals, the rule would:
     Clarify the types of railroad personnel who are required 
to be trained or be subjected to operational (efficiency) testing and 
inspections under part 239. This would include railroad personnel who 
directly coordinate with emergency responders;
     Clarify that operational (efficiency) testing under part 
239 can be conducted under and considered part of the railroad's 
efficiency testing program under 49 CFR part 217;
     Allow purely administrative changes to railroad e-prep 
plans to be excluded from the formal review and approval process 
required for more substantive amendments to e-prep plans under part 
239;
     Clarify that railroads must include procedures in their e-
prep plans addressing the safe evacuation of persons with disabilities 
during emergency situations as well as full-scale simulations of 
emergency situations; and
     Remove as unnecessary the section on the preemptive effect 
of the regulations.
    In analyzing the economic impacts of this proposed rule, FRA found 
that proposed regulatory changes would enhance the emergency planning 
process currently in place in part 239. FRA has quantified the costs 
associated with this NPRM. Any additional costs associated with 
amending part 239 would be mostly related to the inclusion of 
additional personnel in the testing and training programs required by 
part 239. Railroads would see reduced burdens in the filing and 
approval process of e-prep plans with non-substantive changes. The 
industry, however, would be subject to additional burden from minor new 
requirements for the submission of e-prep plans to make the review and 
approval of e-prep plans more efficient. Total costs over the next 10 
years are estimated to be $1,049,308 (or present value of $734,922 when 
discounted at 7 percent).
    FRA has analyzed the benefits associated with this rule. Benefits 
would accrue from the increased likelihood that the passenger railroads 
would handle external communications more efficiently, expediting the 
arrival of emergency responders to the accident scene, and from the 
ability of the railroad personnel to minimize health and safety risks 
through improved internal and external communications. FRA utilized a 
break-even analysis to quantify the minimum safety benefits necessary 
for the proposed rule to be cost-effective, considering the estimated 
quantified costs. The break-even point was found to be a reduction in 
severity of 3.84 injuries from Abbreviated Injury Scale (AIS) level 2 
to AIS level 1. Safety benefits are estimated to total $1,091,200 when 
four injuries have their severity mitigated from AIS 2 to AIS 1. Total 
discounted benefits are estimated to be $735,757 (PV 7 percent). The 
benefits for this proposed rule would exceed the estimated costs when 
four injuries are prevented from increasing in severity from an AIS 1 
to an AIS 2. FRA believes the proposed changes in this rulemaking will 
more than exceed the break-even estimate.

II. Background

A. 1998 Passenger Train Emergency Preparedness Final Rule

    On May 4, 1998, FRA published a final rule on passenger train 
emergency preparedness that was codified at 49 CFR part 239. See 63 FR 
24629 (May 4, 1998). The rule addresses passenger train emergencies of 
various kinds, including security situations, and sets minimum Federal 
safety standards for the preparation, adoption, and implementation of 
e-prep plans by railroads connected with the operation of passenger 
trains. The existing rule requires e-prep plans to include elements 
such as communication, employee training and qualification, joint 
operations, tunnel safety, liaison with emergency responders, on-board 
emergency equipment, and passenger safety information. Under the 
requirements of the rule, each affected railroad is required to 
instruct its employees on the applicable provisions of its plan. In 
addition, the plan adopted by each railroad is subject to formal review 
and approval by FRA. The rule also requires each railroad operating 
passenger train service to conduct emergency simulations to determine 
its capability to execute the e-prep plan under the variety of 
emergency scenarios that could reasonably be expected to occur.
    In promulgating the rule, FRA also established specific 
requirements for passenger train emergency systems. Among these are 
requirements that all emergency window exits and windows intended for 
rescue access by emergency responders be marked accordingly and that 
instructions be provided for their use. In addition, FRA established 
requirements that all door exits intended for egress be lighted or 
marked, all door exits intended for rescue access by emergency 
responders be marked, and that instructions be provided for their use.

[[Page 38250]]

B. 2008 Passenger Train Emergency Systems (PTES I) Final Rule

    In 2008, FRA revisited requirements for emergency systems on 
passenger trains by enhancing existing requirements for emergency 
window exits and establishing new requirements for rescue access 
windows used by emergency responders to evacuate passengers. See 73 FR 
6369 (February 1, 2008). While this final rule did not make any changes 
to the passenger train emergency preparedness regulations, the rule 
expanded existing requirements that were previously only applicable to 
passenger trains operating at speeds in excess of 125 mph but not 
exceeding 150 mph (Tier II passenger trains) to passenger trains 
operating at speeds not exceeding 125 mph (Tier I passenger trains), 
see Sec.  238.5. Specifically, Tier I passenger trains were required to 
be equipped with public address and intercom systems for emergency 
communication, as well as provide emergency roof access for use by 
emergency responders. FRA applied certain requirements to both existing 
and new passenger equipment, while other requirements applied only to 
new passenger equipment.

C. 2012 Passenger Train Emergency Systems (PTES II) NPRM

    On January 3, 2012, FRA published an NPRM proposing to enhance 
existing requirements as well as create new requirements for passenger 
train emergency systems. See 77 FR 154 (January 3, 2012). The NPRM 
proposes to add emergency passage requirements for interior vestibule 
doors as well as enhance emergency egress and rescue access signage 
requirements. The NPRM also proposes requirements for low-location 
emergency exit path markings, the creation of minimum emergency 
lighting standards for existing passenger cars, and enhancements to 
existing requirements for the survivability of emergency lighting 
systems in new passenger cars.
    Additionally, the NPRM proposes changes to FRA's passenger train 
emergency preparedness regulations in part 239. These changes include 
clarifying existing requirements for participation in debriefing and 
critique sessions following both passenger train emergency situations 
and full-scale simulations. Under the current regulation, a debriefing 
and critique session is required after each passenger train emergency 
situation or full-scale simulation to determine the effectiveness of 
the railroad's e-prep plan. See Sec.  239.105. The railroad is then 
required to improve or amend its plan, or both, in accordance with the 
information gathered from the session. Language proposed in the PTES II 
NPRM clarifies that, to the extent practicable, all on-board personnel, 
control center personnel, and any other employee involved in the 
emergency situation or full-scale simulation shall participate in the 
debriefing and critique session. The proposed rule would also clarify 
that employees be provided flexibility to participate in the debrief 
and critique sessions through a variety of different methods.

D. The Need for Revisions to Passenger Train Emergency Preparedness 
Regulations

    Among FRA's reasons for initiating this rulemaking, FRA learned 
that there was confusion regarding certain requirements within FRA's 
passenger train emergency preparedness regulations. For example, FRA 
learned that some passenger railroads were confused as to which types 
of railroad personnel were required to be trained or be subjected to 
operational (efficiency) testing and inspections under part 239. These 
railroads were unclear whether part 239 required certain railroad 
personnel who directly coordinate with emergency responders and other 
outside organizations during emergency situations to be trained or be 
subjected to operational (efficiency) testing and inspections. As a 
result, FRA believes that it is necessary to clarify the regulatory 
language in part 239 to ensure that railroad personnel who directly 
coordinate with emergency responders actually receive the proper 
training and are subject to operational (efficiency) testing and 
inspections. FRA also learned that many railroads were unclear whether 
operational (efficiency) testing under part 239 could be considered for 
purposes of the railroad's efficiency testing program required under 49 
CFR part 217.
    In addition, as a result of FRA's experience in reviewing and 
approving passenger railroads' e-prep plans that are updated 
periodically, FRA realized that a number of the changes were purely 
administrative in nature. While part 239 currently subjects all changes 
to an e-prep plan to a formal review and approval process, FRA believes 
that such purely administrative changes should be excluded from the 
process so that the agency can focus its resources on more substantive 
matters.
    Finally, FRA believed it was necessary to clarify part 239 to 
address the requirements of Executive Order 13347. 69 FR 44573 (July 
26, 2004). Executive Order 13347 requires, among other things, that 
Federal agencies encourage State, local, and tribal governments, 
private organizations, and individuals to consider in their emergency 
preparedness planning the unique needs of individuals with disabilities 
whom they serve. While under part 239 the unique needs of passengers 
with disabilities must already be considered in the railroads' e-prep 
plans, the NPRM would clarify the railroads' responsibilities.

E. RSAC Overview

    In March 1996, FRA established RSAC as a forum for collaborative 
rulemaking and program development. RSAC includes representatives from 
all of the agency's major stakeholder groups, including railroads, 
labor organizations, suppliers and manufacturers, and other interested 
parties. A list of member groups follows:
     American Association of Private Railroad Car Owners 
(AAPRCO);
     American Association of State Highway and Transportation 
Officials (AASHTO);
     American Chemistry Council;
     American Petroleum Institute;
     American Public Transportation Association (APTA);
     American Short Line and Regional Railroad Association 
(ASLRRA);
     American Train Dispatchers Association (ATDA);
     Association of American Railroads (AAR);
     Association of Railway Museums;
     Association of State Rail Safety Managers (ASRSM);
     Brotherhood of Locomotive Engineers and Trainmen (BLET);
     Brotherhood of Maintenance of Way Employees Division 
(BMWED);
     Brotherhood of Railroad Signalmen (BRS);
     Chlorine Institute;
     Federal Transit Administration (FTA);*
     Fertilizer Institute;
     High Speed Ground Transportation Association;
     Institute of Makers of Explosives;
     International Association of Machinists and Aerospace 
Workers;
     International Brotherhood of Electrical Workers;
     Labor Council for Latin American Advancement;*
     League of Railway Industry Women;*
     National Association of Railroad Passengers (NARP);
     National Association of Railway Business Women;*
     National Conference of Firemen & Oilers;
     National Railroad Construction and Maintenance Association 
(NRCMA);

[[Page 38251]]

     National Railroad Passenger Corporation (Amtrak);
     National Transportation Safety Board (NTSB);*
     Railway Supply Institute (RSI);
     Safe Travel America (STA);
     Secretaria de Comunicaciones y Transporte;*
     Sheet Metal Workers International Association (SMWIA);
     Tourist Railway Association, Inc.;
     Transport Canada;*
     Transport Workers Union of America (TWU);
     Transportation Communications International Union/BRC 
(TCIU/BRC);
     Transportation Security Administration (TSA);* and
     United Transportation Union (UTU).
    *Indicates associate, non-voting membership.
    When appropriate, FRA assigns a task to RSAC, and after 
consideration and debate, RSAC may accept or reject the task. If the 
task is accepted, RSAC establishes a working group that possesses the 
appropriate expertise and representation of interests to develop 
recommendations to FRA for action on the task. These recommendations 
are developed by consensus. A working group may establish one or more 
task forces to develop facts and options on a particular aspect of a 
given task. The individual task force then provides that information to 
the working group for consideration. When a working group comes to 
unanimous consensus on recommendations for action, the package is 
presented to the full RSAC for a vote. If the proposal is accepted by a 
simple majority of RSAC, the proposal is formally recommended to FRA. 
FRA then determines what action to take on the recommendation. Because 
FRA staff members play an active role at the working group level in 
discussing the issues and options and in drafting the language of the 
consensus proposal, FRA is often favorably inclined toward the RSAC 
recommendation. However, FRA is in no way bound to follow the 
recommendation, and the agency exercises its independent judgment on 
whether the recommended rule achieves the agency's regulatory goal, is 
soundly supported, and is in accordance with policy and legal 
requirements. Often, FRA varies in some respects from the RSAC 
recommendation in developing the actual regulatory proposal or final 
rule. Any such variations would be noted and explained in the 
rulemaking document issued by FRA. However, to the maximum extent 
practicable, FRA utilizes RSAC to provide consensus recommendations 
with respect to both proposed and final agency action. If RSAC is 
unable to reach consensus on a recommendation for action, the task is 
withdrawn and FRA determines the best course of action.

F. Passenger Safety Working Group

    The RSAC established the Passenger Safety Working Group (Working 
Group) to handle the task of reviewing passenger equipment safety needs 
and programs and recommending consideration of specific actions that 
could be useful in advancing the safety of rail passenger service and 
develop recommendations for the full RSAC to consider. Members of the 
Working Group, in addition to FRA, include the following:
     AAR, including members from BNSF Railway Company (BNSF), 
CSX Transportation, Inc. (CSXT), and Union Pacific Railroad Company 
(UP);
     AAPRCO;
     AASHTO;
     Amtrak;
     APTA, including members from Bombardier, Inc., Herzog 
Transit Services, Inc., Interfleet Technology, Inc. (Interfleet, 
formerly LDK Engineering, Inc.), Long Island Rail Road (LIRR), Maryland 
Transit Administration (MTA), Metro-North Commuter Railroad Company 
(Metro-North), Northeast Illinois Regional Commuter Railroad 
Corporation, Southern California Regional Rail Authority (Metrolink), 
and Southeastern Pennsylvania Transportation Authority (SEPTA);
     ASLRRA;
     BLET;
     BRS;
     FTA;
     NARP;
     NTSB;
     RSI;
     SMWIA;
     STA;
     TCIU/BRC;
     TSA;
     TWU; and
     UTU.
    In 2007, the Working Group tasked the Task Force (General Passenger 
Safety Task Force) to resolve four issues involving FRA's regulations 
related to passenger train emergency preparedness. The issues taken up 
by the Task Force were: (1) Ensure that railroad personnel who 
communicate and coordinate with first responders during emergency 
situations receive initial and periodic training and are subject to 
operational (efficiency) tests and inspections under part 239; (2) 
clarify that railroads must develop procedures in their e-prep plans 
addressing the safe evacuation of passengers with disabilities during 
an emergency situation; (3) limit the need for FRA to formally approve 
purely administrative changes to approved e-prep plans and update FRA 
headquarters' address; and (4) specify new operational (efficiency) 
testing and inspection requirements for both operating and non-
operating employees for railroads covered by part 239.
    While the Task Force was initially charged with updating FRA 
headquarters' address as it appeared in various regulations found in 
part 239, FRA has already amended its regulations to update the address 
of the physical headquarters of FRA and the U.S. Department of 
Transportation in Washington, DC. See 74 FR 25169 (May 27, 2009).

G. General Passenger Safety Task Force

    Members of the Task Force include representatives from various 
organizations that are part of the larger Working Group. Members of the 
Task Force, in addition to FRA, include the following:
     AAR, including members from BNSF, CSXT, Norfolk Southern 
Railway Co., and UP;
     AASHTO;
     Amtrak;
     APTA, including members from Alaska Railroad Corporation, 
Peninsula Corridor Joint Powers Board (Caltrain), LIRR, Massachusetts 
Bay Commuter Railroad Company, Metro-North, MTA, New Jersey Transit 
Corporation, New Mexico Rail Runner Express, Port Authority Trans-
Hudson, SEPTA, Metrolink, and Utah Transit Authority;
     ASLRRA;
     ATDA;
     BLET;
     FTA;
     NARP;
     NRCMA;
     NTSB;
     Transport Canada; and
     UTU.
    The full Task Force met together on the following dates and in the 
following locations to discuss the four e-prep-related issues charged 
to the Task Force:
     July 18-19, 2007, in Chicago, IL;
     December 12-13, 2007, in Ft. Lauderdale, FL;
     April 23-24, 2008, in San Diego, CA; and
     December 3, 2008, in Cambridge, MA.
    Staff from the Volpe Center attended all of the meetings and 
contributed to the technical discussions through their comments and 
presentations. To aid the Task Force in its delegated task, FRA's 
Office of Chief Counsel drafted regulatory text for discussion 
purposes. Task Force members made changes to

[[Page 38252]]

this draft text. Minutes of each of these Task Force meetings are part 
of the docket in this proceeding and are available for public 
inspection. The Task Force reached consensus on all four assigned tasks 
and adopted the draft text created from its meetings as a 
recommendation to the Working Group on December 4, 2008.
    FRA's Office of Chief Counsel revised the Task Force's 
recommendation to conform to technical drafting guidelines and to 
clarify the intent of the recommendation. On June 8, 2009, the Task 
Force presented both its initial consensus language as well as the 
consensus language revised by FRA's Office of Chief Counsel to the 
Working Group. The Working Group approved the Task Force's initial and 
revised consensus language at its June 8, 2009 meeting in Washington, 
DC. The consensus language was then presented before the full RSAC on 
June 25, 2009, where it was approved by unanimous vote. Thus, the 
Working Group's recommendation was adopted by the full RSAC as a 
recommendation to FRA.
    While RSAC's recommendation has provided a strong basis for this 
proposed rule, FRA has varied from the recommendation principally in 
one substantive way: FRA has declined to adopt the RSAC's 
recommendation to add language to Sec.  239.101(a)(2)(ii) that would 
require control center and ERCC personnel to receive initial and 
periodic training only on those portions of the railroad's e-prep plan 
that relate to their specific duties under the plan. FRA explains this 
decision, below. FRA has also made minor changes for purposes of 
clarity and formatting in the Federal Register, but these changes are 
not intended to affect the RSAC's consensus recommendation.

III. Section-by-Section Analysis

Subpart A--General

Section 239.5 Preemptive Effect
    FRA is proposing to remove this section on the preemptive effect of 
the regulations. FRA believes that this section is unnecessary because 
it is duplicative of statutory law at 49 U.S.C. 20106 and case law, 
which sufficiently address the preemptive scope of FRA's regulations.
Section 239.7 Definitions
    FRA is proposing that this section be amended to add a definition 
for the new term ``emergency response communications center'' (ERCC) to 
mean a central location designated by a railroad with responsibility 
for establishing, coordinating, or maintaining communication with 
emergency responders, representatives of adjacent modes of 
transportation, and appropriate railroad officials during a passenger 
train emergency. The ERCC may be part of the railroad's ``control 
center.'' The RSAC recommended that such a definition be added to this 
section, and FRA agrees with the RSAC's recommendation for the reasons 
stated below.
    Currently, the requirements of part 239 do not specifically apply 
to ERCC personnel but rather to personnel in a control center, i.e., a 
central location on a railroad with responsibility for directing the 
safe movement of trains. The individuals working in these train 
dispatch centers are subject to emergency preparedness plan training 
and operational (efficiency) tests and inspections. See 49 CFR 239.101. 
However, only requiring control center personnel to receive training on 
a railroad's emergency preparedness plan may be problematic because in 
many railroads' operational structures train dispatchers only notify 
internal railroad officials about an emergency situation and provide 
block protection for the affected train(s) or equipment involved in the 
incident. While an ERCC can be part of a railroad's dispatch center, 
most railroads maintain a separate center within their organizational 
structure that establishes and maintains communications with emergency 
first responders, adjacent modes of transportation, and appropriate 
railroad officials. In addition, ERCCs assist in coordinating the 
actual emergency response with first responders.
    This NPRM proposes to define ERCCs, which provide vital services 
during an emergency situation, and include the definition in various 
provisions of part 239 that address training, testing, and inspection 
requirements. By including this definition in the existing regulation, 
FRA can expressly require that ERCC personnel, who directly interact 
with emergency first responders, receive the proper training, testing, 
and oversight under the regulation to appropriately prepare for and 
respond to an emergency situation.
    The definition of ERCC recommended by the RSAC and that FRA is 
proposing in this rulemaking provides the railroads with maximum 
flexibility in designating what centers or groups of individuals within 
the railroad's organizational structure qualify as ERCCs and are 
responsible for communicating with the emergency first responders and 
other outside entities during an emergency situation on the railroad. 
With this flexibility, each affected railroad can ensure that the 
correct center or group of individuals within the railroad's 
organizational structure receives training on the railroad's e-prep 
plan, and that the center or group of individuals is subject to 
operational (efficiency) tests and inspections regardless of how the 
center or group of individuals is organized within the railroad.

Subpart B--Specific Requirements

Section 239.101 Emergency Preparedness Plan
    Each railroad subject to the regulation is required to establish an 
e-prep plan under this section that is designed to safely manage 
emergencies and minimize subsequent trauma and injury to passengers and 
on-board personnel. FRA is proposing to revise this section in several 
different ways. Additional language is being proposed to the following 
paragraphs of this section: paragraphs (a)(1)(ii), and (a)(2)(ii) 
through (v). Conversely, this NPRM proposes to remove language from 
paragraph (a)(2)(ii). Finally, FRA is proposing to create an entire new 
paragraph (a)(8). Each proposed change to this section is addressed 
below by paragraph.
    Paragraph (a)(1)(ii). As currently written, paragraph (a)(1) 
requires railroad control center or dispatch personnel to notify 
outside emergency responders, adjacent rail modes of transportation, 
and appropriate railroad officials when a passenger train emergency has 
occurred. However, a number of railroads have found it inefficient to 
use the control center or railroad dispatcher to perform these duties 
during an emergency situation because the personnel are likely 
providing block protection for the incident as well as performing their 
usual dispatching duties for other parts of the railroad unaffected by 
the emergency event. Instead, many railroads currently maintain in 
their organizational structure a separate center or desk within, or 
even completely separate from, the railroad dispatch center that 
establishes and maintains communications with internal and external 
organizations during a railroad emergency. See the discussion in Sec.  
239.7, above.
    Consequently, FRA is proposing to add specific language to this 
paragraph that would provide for ERCCs to notify outside emergency 
responders, adjacent rail modes of transportation, and appropriate 
railroad officials, when an emergency occurs under the passenger 
railroad's e-prep plan. Without this proposed language, the regulation 
would continue to place these responsibilities specifically on control

[[Page 38253]]

center personnel working in the railroad dispatch office. Instead, the 
regulation would now clearly recognize that railroads have the 
flexibility to decide which part of railroad operations should handle 
these tasks during an emergency situation.
    Paragraph (a)(2)(ii). Similar to the proposed change to paragraph 
(a)(1)(ii), additional language is being proposed to paragraph 
(a)(2)(ii) that would require ERCC personnel to receive initial and 
periodic training on appropriate courses of action for each potential 
emergency situation. Under this paragraph, initial and periodic 
training is already required for control center personnel. FRA also 
proposes adding language to this paragraph clarifying that control 
center or ERCC personnel can be employees of the railroad, as well as 
contractors, subcontractors, or employees of a contractor or 
subcontractor to the railroad. FRA notes that contractors, 
subcontractors, and employees of a contactor or subcontractor to the 
railroad are already subject to the requirements of part 239 when 
performing functions under this part per the requirements of Sec.  
239.9. Nonetheless, for clarity FRA is revising the rule text in 
paragraph (a)(2)(ii) and the text in various other paragraphs of this 
part to make clear that contractors, subcontractors, and employees of a 
contractor or subcontractor are indeed covered under the requirements 
of this part.
    FRA notes that RSAC reached consensus on adding language that would 
require control center and ERCC personnel to receive initial and 
periodic training only on those portions of the railroad's e-prep plan 
that relate to their specific duties under the plan. However, FRA 
believes that adding this language could create safety concerns and 
therefore declines to propose adding such language to this paragraph in 
this NPRM. Specifically, FRA is concerned that if individuals receive 
only initial and periodic training on the very specific parts of the 
railroad's e-prep plan they are required to perform during an emergency 
situation, a railroad's entire emergency response could be hindered if 
specific individuals happen to be absent during an actual emergency 
situation. For example, if a specific control center or ERCC employee 
is required under the railroad's e-prep plan to notify internal 
railroad personnel during an emergency situation that an emergency 
situation on the railroad has occurred, and that employee is absent or 
incapacitated during an actual emergency, then the railroad's emergency 
response may be hindered. By ensuring that control center and ERCC 
personnel receive broader initial and periodic training on appropriate 
courses of action on potential emergency situations beyond the 
individual's specific duties under the railroad's e-prep plan, these 
individuals will have a more holistic view of the railroad's emergency 
response and therefore be better prepared to respond to an emergency 
situation regardless of the specific circumstances.
    FRA believes that training control center and ERCC personnel on the 
railroad's entire e-prep plan, not just the specific portions of the 
plan that relate to their specific duties, will not add any additional 
cost to the railroads because the railroads are already providing this 
broader level of training to their employees. Many railroads provide 
this holistic training on the railroad's e-prep plan through an 
informational video, which provides useful information to the employees 
on all levels of the railroad's emergency response.
    FRA also proposes to amend paragraphs (a)(2)(ii)(A) through (D). In 
paragraph (a)(2)(ii)(A), FRA proposes to remove the word ``dispatch'' 
before ``territory familiarization.'' The Task Force recommended that 
the word ``dispatch'' be removed from this subsection so that control 
center and ERCC personnel who are not railroad dispatchers would not be 
required to be as familiar with a territory as dispatchers are required 
to be under current railroad operating rules. For example, to conduct 
their duties efficiently and safely, railroad dispatchers are required 
to memorize the physical characteristics of the railroad territory over 
which they control train movements. While this is necessary for a 
railroad dispatcher, the Task Force believed, and FRA agrees, that this 
level of familiarity with railroad territory is not necessary for 
individuals working in a control center or ERCC who are not railroad 
dispatchers.
    Therefore, FRA proposes that the word ``dispatch'' be struck from 
paragraph (a)(2)(ii)(A). Individuals working in control centers or 
ERCCs who are not also railroad dispatchers would not be required to 
have complete dispatch territory familiarization in their capacity to 
assist in emergency situations. If the proposed language is adopted, 
railroads would not have to spend resources training all control center 
and ERCC personnel who are not railroad dispatchers to be as familiar 
with the railroad territory in question. Instead, for the purposes of 
this paragraph, territory familiarization would focus on, but not be 
limited to: access points for emergency responders along the railroad's 
right-of-way; special circumstances (e.g., tunnels); parallel 
operations; and other operating conditions (e.g., elevated structures, 
bridges, and electrified territory) including areas along the 
railroad's right-of-way that are remote and known to present challenges 
for emergency personnel responding to a passenger train emergency.
    To complement the proposed language in paragraph (a)(2)(ii)(A), 
paragraph (a)(2)(ii)(B) would require initial and periodic training for 
control center and ERCC personnel on their ability to access and 
retrieve information that would aid emergency personnel in responding 
to an emergency situation. (Current paragraph (a)(2)(ii)(B) would be 
redesignated as proposed paragraph (a)(2)(ii)(C), below). Under the 
proposed regulation, control center and ERCC personnel would be 
required to receive sufficient training to be able to retrieve 
information to assist emergency personnel in their emergency response. 
For example, under a railroad's e-prep plan, a railroad employee 
designated as part of an ERCC might be required to be trained on how to 
electronically retrieve a map of railroad property, read it properly, 
and identify and describe important points of access to emergency 
responders.
    Language is also proposed to be added to paragraph (a)(2)(ii)(C) 
(redesignated from (a)(2)(ii)(B)). This new proposed language would 
require control center and ERCC personnel to receive initial and 
periodic training on the railroad's e-prep plan, including what 
protocols govern internal communications between these two groups when 
an actual emergency situation occurs. The language ``as applicable 
under the plan,'' would also be added to the regulatory text to 
emphasize that due to the variety of possible organizational designs on 
how railroads handle emergency responses, it is ultimately each 
individual railroad's decision on what protocols will be followed to 
govern internal communication between control center and ERCC 
personnel.
    Finally, a new paragraph (a)(2)(ii)(D) is proposed. This new 
paragraph reflects the Task Force's recommendation that initial and 
periodic e-prep plan training should include the protocols for 
establishing and maintaining external communications between the 
railroad's control center or ERCC, or both, and emergency responders. 
The Task Force recommended and FRA agrees that adding this requirement 
will ensure that control center and ERCC personnel receive initial and 
periodic training on what protocols need to be followed to

[[Page 38254]]

establish and maintain communications with external organizations 
assisting in the emergency response. The Task Force and FRA believe 
that it is just as important for control center and ERCC personnel to 
learn the protocols for establishing and maintaining communications 
with external organizations as for the protocols governing internal 
communications between centers being proposed in paragraph 
(a)(2)(ii)(C).
    FRA also realizes that if these proposed changes to part 239's 
emergency preparedness plan requirements are adopted, then railroads 
may have to amend their e-prep plans in order to be in compliance with 
the new requirements. Therefore, FRA intends to provide railroads 
sufficient time to have their amended e-prep plans submitted to FRA for 
review after the final rule making these changes is issued. FRA is 
considering lengthening the effective date of the final rule to do so, 
and invites comment on this issue.
    Paragraph (a)(2)(iii). FRA is proposing to add language to 
paragraph (a)(2)(iii) that would require ERCC personnel to be included 
in the initial training after the e-prep plan is approved under Sec.  
239.201(b)(1). It is important that ERCC personnel be included in this 
training because, depending on the organizational structure of the 
railroad, the actions of ERCC personnel during an emergency response 
situation may be more pivotal to the successful implementation of the 
plan than the actions of control center personnel. Language is also 
proposed to be added to paragraph (a)(2)(iii) so that not only would 
control center and ERCC personnel who are employed by the railroad be 
covered by the regulation, but also control center and ERCC personnel 
who are railroad contractors and subcontractors as well as employees of 
these contractors and subcontractors. The proposed heading of this 
paragraph reflects this change as well.
    Paragraph (a)(2)(iv). Similar to the proposed language in paragraph 
(a)(2)(iii), this NPRM proposes to add language to paragraph (a)(2)(iv) 
to ensure that ERCC personnel hired after the e-prep plan is approved 
by FRA receive initial training within 90 days after the individual's 
initial date of service with the railroad. Currently, this paragraph 
expressly requires that only on-board and control center personnel 
receive initial training within 90 days after their initial date of 
service with the railroad. Depending on how a railroad has chosen to 
organize its response to a specific emergency situation, failure to 
train a new ERCC employee within 90 days of starting his or her service 
on the railroad could create inefficiencies in the railroad's response 
to an emergency situation. Therefore, FRA proposes this modification to 
ensure that the railroads do not delay in providing training to new 
ERCC personnel.
    In addition, FRA is also proposing to add language to paragraph 
(a)(2)(iv) clarifying that not only are railroad employees covered by 
the requirements of this paragraph, but also on-board, control center, 
and ERCC contractors, subcontractors, and employees of contractors or 
subcontractors. A change to the heading of paragraph (a)(2)(iv) is also 
being proposed to reflect the proposed modification of the regulatory 
text.
    Paragraph (a)(2)(v). FRA is proposing to add language to this 
paragraph to clarify that railroads need to develop testing procedures 
not only for employees, but also for contractors and subcontractors, as 
well as employees of contractors and subcontractors who are being 
evaluated for qualification under the railroad's e-prep plan. The 
current regulatory text expressly requires railroads to develop testing 
procedures for railroad employees only. This proposed language, if 
adopted, would clarify that employees, as well as contractors, 
subcontractors, and employees of contractors and subcontractors, are 
required to be evaluated for qualification under the railroad's e-prep 
plan using appropriate testing procedures. Language is also being 
proposed to the heading of this paragraph to reflect the proposed 
change and to clarify that railroads need to develop testing procedures 
for ERCC personnel as well as on-board and control center personnel.
    Finally, paragraph (a)(2)(v)(A) is proposed to be modified to 
require that testing procedures developed by the railroads accurately 
measure an individual's, rather than an individual employee's, 
knowledge of his or her responsibilities under the railroad's e-prep 
plan. Currently, paragraph (a)(2)(v)(A) expressly applies only to 
railroad employees, and this modification would ensure that railroad 
contractors and subcontractor are covered by the provision as well.
    Paragraph (a)(8). Executive Order 13347 (``Individuals with 
Disabilities in Emergency Preparedness'') requires the Federal 
government to appropriately support safety and security for individuals 
with disabilities in all types of emergency situations. 69 FR 44573 
(July 26, 2004). Currently, each railroad subject to part 239 is 
required to provide for the safety of each of its passengers in its 
emergency preparedness planning. Nonetheless, FRA is proposing a new 
paragraph (a)(8) that would clarify that these railroads must include 
procedures in their e-prep plans addressing the safe evacuation of 
persons with disabilities during emergency situations (and full-scale 
simulations of them). FRA expects the railroads to address the 
responsibilities of on-board personnel to carry out these specific 
procedures. For example, if a train has a failure or is involved in an 
incident and an evacuation is deemed necessary, a crewmember in the 
body of the train would need to search for and identify those 
passengers who cannot reasonably be evacuated by stairs or steps.
    This new paragraph would not require a railroad to maintain any 
list of train passengers, whether or not they have a disability. 
However, the railroad must have in place procedures so that the 
locations of persons with disabilities on board its trains are 
generally known to the train crew, and that such persons can be 
evacuated under all potential conditions that require passenger 
evacuation, including those conditions identified under the Special 
Circumstances portion of the railroad's e-prep plan, when applicable, 
as required by paragraph (a)(4) of this section. In this regard, the 
railroad must address those situations requiring immediate passenger 
evacuation with or without the assistance of emergency response 
personnel or railroad personnel not on board its trains. At the same 
time, the railroad must have a process for notifying emergency response 
personnel in an emergency situation about the presence and general 
location of persons with disabilities when the railroad has knowledge 
that such passengers are on board a train.
Section 239.105 Debriefing and Critique
    This section requires railroads operating passenger train service 
to conduct debriefing and critique sessions after each passenger train 
emergency situation or full-scale emergency simulation to determine the 
effectiveness of the railroad's e-prep plan. FRA is proposing to add 
language to paragraph (c)(3) of this section so that the debriefing and 
critique session would be designed to determine whether the ERCC, as 
well as the control center, promptly initiated the required 
notifications. In addition, FRA makes clear that the plan's 
effectiveness in the evacuation of passengers with disabilities must be 
addressed during debrief and critique sessions.

[[Page 38255]]

Subpart C--Review, Approval, and Retention of Emergency Preparedness 
Plans

Section 239.201 Emergency Preparedness Plan; Filing and Approval
    Section 239.201 specifies the process for review and approval by 
FRA of each passenger railroad's e-prep plan. FRA is proposing to 
divide paragraph (a) of this section into paragraphs (a)(1) and (a)(2). 
As proposed, paragraph (a)(1) contains the regulatory requirements on 
how to file an e-prep plan, while proposed paragraph (a)(2) contains 
the requirements on how to file an amendment to an FRA-approved plan. 
Proposed paragraph (a)(2) is then further subdivided. Proposed 
paragraph (a)(2)(i) describes what procedures a railroad must follow 
when filing amendments to its e-prep plan with FRA. Conversely, 
proposed paragraph (a)(2)(ii) lists the limited circumstances in which 
a railroad could enact an amendment to its approved e-prep plan without 
first getting FRA approval of the amendment. Finally, FRA is also 
proposing to add language to paragraph (b)(3) to clarify that FRA will 
not formally review the limited number of amendments that could be 
enacted without prior FRA approval as described in proposed paragraph 
(a)(2)(ii).
    Specifically, FRA proposes a few small modifications to paragraph 
(a)(1). First, FRA is proposing to update the title of the FRA official 
who receives a railroad's e-prep plan, from Associate Administrator for 
Safety to Associate Administrator for Railroad Safety/Chief Safety 
Officer. Additionally, since the time part 239 was enacted, FRA's 
Office of Safety officially became the Office of Railroad Safety. 
Therefore, FRA proposes to update the language in proposed paragraph 
(a)(1) to reflect the name change of this FRA office. The RSAC also 
recommended modification of the time period new-start passenger 
railroads have to submit their e-prep plans to FRA before commencing 
passenger service. Currently, e-prep plans must be submitted by these 
passenger railroads no less than 45 days prior to commencing passenger 
operations. Consistent with this recommendation, FRA proposes that such 
railroads must submit their plans to FRA no less than 60 days prior to 
commencing passenger operations. This proposed change would provide FRA 
safety officials more time to review a railroad's e-prep plan, identify 
any safety concerns, and notify the railroad of any such concerns so 
that changes to the plan could be made before actual passenger 
operations commence. FRA notes that the original filing deadline for 
passenger railroads in operation around the time part 239 went into 
effect was not more than 180 days after May 4, 1998. For those 
passenger railroads then in existence and for those passenger railroads 
that have started-up service since and have already filed and received 
approval on their plans, the rule would make clear that those plans are 
timely filed.
    FRA also proposes to redesignate as paragraph (a)(2)(i) the 
regulatory requirement that all amendments to approved e-prep plans be 
filed with FRA 60 days prior to the effective date of the amendment. 
One exception to this requirement would be the limited number of e-prep 
plan amendments that can be enacted without FRA approval, listed in 
proposed paragraph (a)(2)(ii). These limited types of amendments to 
railroad e-prep plans would continue to be required to be filed with 
FRA, but they would become immediately effective and would not require 
FRA formal approval.
    However, under proposed paragraph (a)(2)(i), e-prep plan amendments 
submitted to FRA that do not qualify for the exception in proposed 
paragraph (a)(2)(ii) must be submitted with a written summary of what 
the proposed amendment would change in the approved e-prep plan and, as 
applicable, a training plan describing how and when current and new 
employees and contractors would be trained on any amendment. For 
example, if the amendment would affect how current and new railroad 
employees and contractors assist emergency responders, then under this 
paragraph the railroad must also submit a training plan with the 
amendment stating how and when these employees and contractors would be 
trained on these changes to the railroad's e-prep plan. As another 
example, if the railroad wants to identify new access roads to railroad 
property in its e-prep plan, then a training plan for employees and 
contractors should be included with the proposed amendment. Having the 
railroads include a summary with their proposed e-prep plan amendments 
that are not exempted by proposed paragraph (a)(2)(ii) is necessary 
because currently railroads have been submitting their entire approved 
e-prep plans with the amendment changes already incorporated in the 
plan without identifying to FRA what changes the railroad is 
specifically seeking to make to its approved e-prep plan. This has 
delayed FRA's ability to review the railroad's proposed amendment and 
respond to the railroad within 45 days as specified in paragraph 
(b)(3)(i). Requiring the railroads to include such summaries will help 
FRA efficiently review the proposed amendments and respond back to the 
railroad normally within 45 days; nevertheless, some reviews may take 
longer.
    As previously stated, FRA is proposing a new paragraph (a)(2)(ii) 
under which qualifying amendments would not be subject to FRA's formal 
approval process as outlined in paragraph (b)(3)(i). Amendments that 
add or amend the name, title, address, or telephone number of the e-
prep plan's primary contact person would qualify under paragraph 
(a)(2)(ii). Railroads filing amendments under this paragraph would be 
permitted to enact the amendment changes upon filing the amendment with 
FRA's Associate Administrator for Railroad Safety/Chief Safety Officer. 
Including a summary of the proposed changes caused by the amendment 
would not be required. All other e-prep plan amendments not covered by 
paragraph (a)(2)(ii) would be required to be filed in accordance with 
paragraph (a)(2)(i) and be subject to the formal approval process 
proposed in paragraph (b)(3)(i). FRA believes that paragraph (a)(2)(ii) 
is needed in order to limit the need for FRA to formally approve purely 
administrative changes to previously approved railroad e-prep plans. 
This new paragraph will allow these specific types of amendments to 
become effective immediately upon filing with FRA and thereby help to 
streamline the approval process.
    Additional language is also being proposed to paragraph (b)(3) in 
order to clarify that the limited types of amendments containing only 
administrative changes described in proposed paragraph (a)(2)(ii) would 
be exempt from the formal FRA review that is described in this 
paragraph.

 

Subpart D--Operational (Efficiency) Tests; Inspection of Records and 
Recordkeeping

Section 239.301 Operational (Efficiency) Tests and Inspections
    Section 239.301 requires railroads to monitor the routine 
performance of their personnel who have individual responsibilities 
under the e-prep plan to verify that they can perform the duties 
required under the plan in a safe and effective manner. FRA is 
proposing to modify this section in several ways. First, FRA is 
proposing to add headings to each main paragraph for clarity. Second, 
FRA proposes to add language to paragraph (a) that clarifies that 
railroads are required to specify in their e-prep plans the specific 
intervals they will periodically conduct operational (efficiency) tests 
and inspections for

[[Page 38256]]

individuals with responsibilities under the e-prep plans. Additionally, 
FRA is proposing to add language to paragraph (a) that will require any 
ERCC personnel, railroad contractors or subcontractors, or employees of 
railroad contractors or subcontractors, to be subject to operational 
(efficiency) tests and inspections. Finally, FRA is proposing to add 
new paragraphs (a)(1), (a)(1)(i) through (vi), (a)(2), (d), and (e). 
The specific requirements proposed in each new paragraph are discussed 
below.
    In paragraph (a), FRA is proposing to add the heading, 
``Requirement to conduct operational (efficiency) tests and 
inspections.'' FRA believes that this heading will help the regulated 
community identify that paragraph (a) of this section specifically 
addresses operational (efficiency) test and inspection requirements. 
Additionally, FRA is proposing to add language to paragraph (a) that 
will require ERCC personnel, railroad contractors or subcontractors, as 
well as employees of railroad contractors to be subject to the same 
periodic operational (efficiency) tests and inspections as on-board and 
control center employees are under the current regulation. Adding this 
language to the regulation is necessary to ensure that all individuals 
who assist in the railroad's emergency response are subject to 
operational (efficiency) tests and inspections. This proposed language 
is intended to help ensure that railroads are prepared to provide an 
appropriate response in the event of an emergency situation. FRA is 
also proposing in paragraph (a)(1) to identify basic elements that must 
be included in the railroad's written program of operational 
(efficiency) tests and inspections.
    FRA proposes six new paragraphs under paragraph (a)(1). Each new 
paragraph includes a required element that must be addressed in every 
railroad's written program of operational (efficiency) tests and 
inspections. RSAC recommended that FRA adopt these requirements, which 
were modeled from regulations found in 49 CFR 217.9, Program of 
operational tests and inspections; recordkeeping. In fact, in several 
instances, language was directly taken from various provisions of Sec.  
217.9--specifically, Sec.  217.9(c)(3) through (5). While part 217 
prescribes processes for railroad operating employees only (e.g., train 
and engine crews), its approach to operational tests and inspections is 
useful for governing individuals covered by FRA's emergency 
preparedness requirements in part 239. However, as proposed, not just 
railroad operating employees but all on-board, control center, and ERCC 
employees, as well as contractors and sub-contractors in these roles, 
would be subject to these tests and inspections as applicable under the 
railroad's e-prep plan. Each of the new proposed paragraphs is 
discussed below.
    For clarification, FRA notes that part 239 operational (efficiency) 
tests and inspections can also qualify as operational tests under Sec.  
217.9 if the employee, contractor or subcontractor being tested is also 
performing functions that are covered by part 217. Likewise, 
operational tests conducted under part 217 can also be accredited as 
operational (efficiency) tests under part 239 as long as the criteria 
for operational (efficiency) tests and inspections in part 239 are met. 
For example, passenger train conductors are subject to operational 
(efficiency) testing under both parts 217 and 239. An operational 
(efficiency) test of a passenger train conductor that involves the 
procedures for passenger train emergency preparedness would satisfy 
requirements under both parts 217 and 239. In contrast, an operational 
(efficiency) test of a passenger train conductor that involves the 
procedures for operating derails would satisfy the requirements under 
part 217 only.
    Operational (efficiency) testing under part 239 can be conducted as 
part of a railroad's efficiency testing program under Sec.  217.9 or in 
an entirely separate program. However, if adopted, the proposed 
operational (efficiency) test and inspections requirements for part 239 
will have a broader applicability than just to the employees covered by 
Sec.  217.9, as noted above. For example, these proposed requirements 
would also cover such individuals as passenger car attendants and ERCC 
employees, who would not be covered under part 217. Therefore, a 
railroad that would prefer to conduct its operational (efficiency) 
testing required by part 239 as part of its efficiency testing program 
under Sec.  217.9 would need to modify its program to ensure that the 
additional tests are included and conducted for all of the employees 
required to be covered under part 239.
    As proposed, paragraph (a)(1)(i) will require railroads to provide 
in their e-prep plans a program of operational (efficiency) tests and 
inspections for railroad employees, railroad contractors or 
subcontractors, and employees of railroad contractors and 
subcontractors addressing the appropriate courses of action in response 
to various potential emergency situations and the responsibilities for 
these individuals under the railroad's e-prep plan. For example, they 
should address how railroad personnel on board a train respond in case 
a fire occurs. They should also address what each on-board employee's, 
contractor's, or subcontractor's individual responsibilities are during 
such an emergency situation. FRA believes that these proposed 
requirements would help to reduce confusion during an actual emergency 
situation and ensure that the railroad's on-board staff undergo 
operational (efficiency) tests and inspections on actions they would be 
performing during an emergency event. Only railroad employees, railroad 
contractor and subcontractors, and employees of railroad contractors 
and subcontractors who are covered by or have responsibilities under 
the railroad's e-prep plan would be subject to operational (efficiency) 
tests and inspections from the railroad. Hired or contracted employees 
working for the railroad who do not have any responsibilities under the 
railroad's e-prep plan would not have to be subject to operational 
(efficiency) tests and inspections.
    Paragraph (a)(1)(ii) proposes that the railroads describe each type 
of operational (efficiency) test and inspection required for passenger 
train emergency preparedness. The description must also specify the 
means and procedures used to carry out these operational (efficiency) 
tests and inspections. For example, an operational (efficiency) test 
intended for an on-board employee may be conducted as a challenge 
question posed by a supervisor. In this example, the supervisor may ask 
the employee what his or her responsibilities are for the evacuation of 
passengers, including passengers with disabilities, in specific 
circumstances such as a passenger car filling with smoke. In another 
instance, a supervisor may ask an ERCC employee to identify a special 
circumstance (e.g., a tunnel or bridge) located in his or her territory 
and demonstrate how the employee would direct emergency responders to 
the location during an actual emergency. Overall, operational 
(efficiency) tests and inspections adopted for passenger train 
emergency preparedness should cover all affected employees and be 
comprehensive.
    Proposed paragraph (a)(1)(iii) will require the railroads to state 
in their e-prep plans the purpose of each type of operational 
(efficiency) test and inspection conducted. For example, an operational 
(efficiency) test intended for on-board employees may be conducted to 
determine if the employees are familiar with passenger evacuation 
procedures. As another example, such tests intended for ERCC employees 
may

[[Page 38257]]

be conducted to determine if the ERCC employees are familiar with 
special circumstances on their territory and if they know how to direct 
emergency responders to these locations. In particular, conducting 
operational (efficiency) tests on ERCC employees to determine their 
knowledge of the railroad's e-prep plan, special circumstances, and 
access points would be necessary to ensure that they are familiar with 
emergency procedures and capable of directing emergency responders to a 
passenger train in the event of an emergency.
    FRA is also proposing to add new paragraph (a)(1)(iv), which will 
clarify that each railroad must specify in its operational testing 
program the specific intervals at which it will periodically conduct 
operational (efficiency) tests and inspections for individuals covered 
by paragraph (a). This information should be listed according to 
operating division where applicable. FRA believes that this additional 
language is necessary after reviewing e-prep plans submitted by various 
railroads to FRA. In reviewing railroad e-prep plans, FRA discovered 
that some railroads would simply state in their plans that they would 
periodically conduct operational (efficiency) tests and inspections 
without specifying by what specific interval these tests or inspections 
would be administered. In some instances, railroads simply copied the 
language directly from Sec.  239.301(a) and placed it into their e-prep 
plans.
    By adding this proposed language, FRA is not mandating any specific 
interval by which the railroad should conduct these tests and 
inspections. FRA believes that the regulated community should have the 
flexibility to decide when individuals covered by paragraph (a) should 
be periodically subject to these tests and inspections based on the 
individual circumstances of each railroad and its e-prep plan and 
operational testing program. The proposed language will not affect the 
railroad's current ability to determine how often these periodic tests 
and inspections should occur. However, FRA will require the railroad to 
provide more information to the agency so that FRA can better verify 
that these types of tests and inspections are in fact occurring as 
planned, and that the railroads are properly carrying out their 
responsibilities in preparing to deal with various emergency 
situations.
    Proposed paragraph (a)(1)(v) will require the railroad to identify 
in its e-prep plan each officer by name, job title, and division or 
system, who is responsible for ensuring that the program of operational 
(efficiency) tests and inspections is properly implemented. Therefore, 
for each railroad division or system there should be a separate contact 
person listed within the e-prep plan who is responsible for 
implementing the details of the plan on that specific division or 
system during an emergency situation. In addition, for railroads that 
have multiple divisions, the proposed regulation would require the 
railroad to identify at least one officer at the railroad's system 
headquarters who is responsible for overseeing the entire railroad's 
program and the e-prep plan implementation. This individual should be 
knowledgeable about the current state of the railroad's operational 
(efficiency) test and inspection requirements as well as the current 
state of the railroad's e-prep program system-wide.
    The final proposal, in paragraph (a)(1)(vi), would require that 
railroad officers conducting operational (efficiency) tests and 
inspections be trained on the elements of the railroad's e-prep plan 
that are relevant to the tests and inspections that the officers will 
be conducting. In addition, the railroad officers conducting the 
operational (efficiency) tests and inspections must be qualified on the 
procedures for administering such tests and inspections in accordance 
with the railroads written program.
    FRA also proposes to add headings to both paragraphs (b) and (c) of 
this section. FRA believes that adding the heading ``Keeping records of 
operational (efficiency) test and inspection records'' to paragraph (b) 
will help clarify that paragraph (b) addresses what types of written 
records need to be created and retained after the performance of an 
operational (efficiency) test or inspection. Similarly, the heading 
``Retention of operational (efficiency) test and inspection records'' 
is proposed to be added to paragraph (c). This proposed heading will 
clarify that paragraph (c) addresses the requirements for how long 
records of operational (efficiency) tests and inspections need to be 
retained by the railroad. FRA believes that these proposed headings 
will be useful guides for the regulated community, especially those who 
are unfamiliar with part 239 and its requirements.
    Proposed paragraph (d) contains a new requirement that each 
railroad retain one copy of its current operational (efficiency) 
testing and inspection program required by paragraph (a) of this 
section and each subsequent amendment to the program. If this proposed 
requirement is adopted, railroads will be required to retain a copy of 
the current program and any subsequent amendment to the program at the 
railroad's system headquarters and at each divisional headquarters for 
three calendar years after the end of the calendar year to which the 
program relates. The records must also be made available for inspection 
and copying during normal business hours by representatives of FRA and 
States participating under 49 CFR part 212.
    Finally, FRA is proposing to add a new paragraph (e) to this 
section. As recommended by RSAC, this proposed paragraph will require 
each railroad subject to this part to retain a written annual summary 
of the number, type and result of each operational (efficiency) test 
and inspection that was conducted in the previous year as required by 
paragraph (a) of this section. When applicable, these summaries 
describing the railroad's operational (efficiency) tests and 
inspections would be required to be organized by operating division. 
These summaries are intended to provide FRA with a clearer 
understanding of how operational (efficiency) tests and inspections are 
being applied and how successful these programs are over different 
railroad divisions. Annual summaries would be required to be completed 
and in the possession of the railroad's division and system 
headquarters by March 1 of the year following the year covered by the 
summary.
    In addition, the annual summary will be required to be retained by 
the railroad for three calendar years after the end of the calendar 
year covered by the summary. For example, a railroad's 2013 annual 
summary of operational (efficiency) tests and inspections would be 
required to be retained through calendar year 2016. Annual summaries 
would be required to be made available for inspection and copying 
during normal business hours by representatives of FRA and States 
participating under 49 CFR part 212.
    FRA specifically invites comment on the appropriateness of proposed 
paragraph (e). Given that the intended purpose of the proposal is to 
provide FRA with a clear understanding of how operational (efficiency) 
tests and inspections are being applied and how successful these 
programs are being implemented from a systems perspective, FRA invites 
comment whether the periodic review and analysis requirements of Sec.  
217.9(e) should be adopted in the final rule to more appropriately 
fulfill the intended purpose. Indeed, under Sec.  217.9(e), railroads 
should already be reviewing and analyzing operational (efficiency) test 
and inspection data conducted for

[[Page 38258]]

passenger train emergency preparedness on individuals subject to part 
217; the requirements of the paragraph could then be broadened to cover 
individuals subject to part 239. FRA also believes that a railroad 
could consolidate such a review and analysis required by part 239 with 
one required under Sec.  217.9(e), and that they could be retained for 
a period of one year after the end of the calendar year to which they 
relate and be made available to representatives of FRA and States 
participating under 49 CFR part 212.

IV. Regulatory Impact and Notices

A. Executive Order 12866s and 13563 and DOT Regulatory Policies and 
Procedures

    This proposed rule has been evaluated in accordance with existing 
policies and procedures under both Executive Orders 12866 and 13563 and 
DOT policies and procedures. See 44 FR 11034; February 26, 1979. FRA 
has prepared and placed in the docket (FRA-2011-0062, Notice No. 1) a 
regulatory impact analysis addressing the economic impact of this 
proposed rule.
    As part of the regulatory impact analysis, FRA has assessed 
quantitative measurements of the cost streams expected to result from 
the implementation of this proposed rule. For the 10-year period 
analyzed, the estimated quantified cost that would be imposed on 
industry totals $1,049,308 with a present value (PV, 7 percent) of 
$734,922. The largest burdens that would be expected to be imposed are 
from the new requirements related to the operational (efficiency) tests 
in Sec.  239.301 of the proposed regulation. The table below presents 
the estimated discounted costs associated with the proposed rulemaking.

                10-Year Estimated Costs of Proposed Rule
------------------------------------------------------------------------
                                                    Present value  (7-
                                                         percent)
------------------------------------------------------------------------
Emergency Preparedness Plan (Sec.   239.101)...                 $219,833
Debriefing and Critique (Sec.   239.105).......                  200,273
Emergency Preparedness Plan; Filing and                           12,006
 Approval (Sec.   239.201).....................
Operational (efficiency) Tests (Sec.   239.301)                  302,810
                                                ------------------------
    Total Costs................................                  734,922
------------------------------------------------------------------------

    As part of the regulatory impact analysis, FRA has explained what 
the likely benefits for this proposed rule would be, and provided 
numerical assessments of the potential value of such benefits. The 
proposed regulation would generate safety benefits by preventing 
injuries in passenger rail accidents from becoming more severe. FRA 
uses the Abbreviated Injury Scale (AIS) as a measure of the severity 
for injuries with an AIS 1 injury being defined as minor and an AIS 5 
as the most severe, i.e., critical.\1\ As noted in Appendix A of the 
regulatory impact analysis an AIS 1 would be an injury that is minor 
and may not require professional medical treatment. An AIS 2 injury 
would be an injury that always requires treatment but is not ordinarily 
life-threatening. Benefits would accrue from the increased likelihood 
that the passenger railroads would handle external communications more 
efficiently, expediting the arrival of emergency responders to accident 
scenes, and from the ability of the railroad personnel to minimize 
health and safety risks through improved internal and external 
communications. This proposed regulation would allow for more 
flexibility in passenger train emergency preparedness planning and 
implementation and provides for necessary emergency preparedness 
training.
---------------------------------------------------------------------------

    \1\ Association for the Advancement of Automotive Medicine. 
http://www.aaam1.org/ais/#.
---------------------------------------------------------------------------

    Additionally, the NPRM would allow passenger railroads to adjust to 
future personnel reorganizations and to incorporate technological 
innovations by affording the railroad's management flexibility in 
determining which part of the organization to designate as the ERCC.
    Given the nature of the proposed regulatory change, FRA believes 
that the ideal methodology to estimate the safety benefits is a break-
even analysis. A break-even analysis quantifies what minimum safety 
benefits are necessary for the proposed rule to be cost-effective, 
considering the estimated quantified costs. For this proposed rule, 
this analysis estimates that the break-even point is met when 3.84 
injuries are prevented from increasing in severity from AIS 1 to AIS 2.
    The table below presents the estimated benefits necessary for this 
proposed rule to break-even with the estimated costs. For the 10-year 
period analyzed the safety benefits would total $1,049,308 with a 
present value (PV, 7 percent) of $735,757.

               10-Year Estimated Benefits of Proposed Rule
------------------------------------------------------------------------
                                   Limitation of injury      Monetary
                                         severity            benefits
------------------------------------------------------------------------
Break-even point (not            3.84 less severe             $1,049,308
 discounted).                     injuries.
Discounted benefits (PV 7        3.84 less severe                735,757
 percent).                        injuries.
------------------------------------------------------------------------

[[Page 38259]]

    The benefits for this proposed rule would exceed the estimated 
costs when 4 injuries are prevented from increasing in severity from an 
AIS 1 to an AIS 2. FRA believes the proposed changes in this rulemaking 
will more than exceed the break-even estimate.

B. Regulatory Flexibility Act and Executive Order 13272; Initial 
Regulatory Flexibility Assessment

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and 
Executive Order 13272 (67 FR 53461; August 16, 2002) require agency 
review of proposed and final rules to assess their impact on small 
entities. An agency must prepare an initial regulatory flexibility 
analysis (IRFA) unless it can determine and certify that a rule, if 
promulgated, would not have a significant impact on a substantial 
number of small entities. FRA has not determined whether this proposed 
rule would have a significant impact on a substantial number of small 
entities. Therefore, FRA is publishing this IRFA to aid the public in 
commenting on the potential small business impacts of the requirements 
in this NPRM. FRA invites all interested parties to submit data and 
information regarding the potential economic impact on small entities 
that would result from adoption of the proposals in this NPRM. FRA will 
consider all comments received in the public comment process when 
making a final determination.
    The proposed rule would apply to all passenger railroads (commuter 
and intercity) and railroads that host passenger rail operations. Based 
on information currently available, FRA estimates that less than 2 
percent of the total costs associated with implementing the proposed 
rule would be borne by small entities. Based on very conservative 
assumptions, FRA estimates that the total non-discounted cost for the 
proposed rule would be approximately $1 million for the railroad 
industry. There are two passenger railroads that would be considered 
small for purposes of this analysis and together they comprise less 
than 5 percent of the railroads impacted directly by this proposed 
regulation. Both of these railroads would have to make some investment 
to meet the proposed requirements. Thus, a substantial number of small 
entities in this sector may be impacted by this proposed rule. These 
small railroads carry out smaller operations than the average passenger 
railroad, allowing them to meet the proposed requirements at lower 
overall costs. Thus, although a substantial number of small entities in 
this sector would likely be impacted, the economic impact on them would 
likely not be significant.
    In order to get a better understanding of the total costs for the 
railroad industry, which forms the basis for the estimates in this 
IRFA, or more cost detail on any specific requirement, please see the 
Regulatory Impact Analysis (RIA) that FRA has placed in the docket for 
this rulemaking.
    In accordance with the Regulatory Flexibility Act, an IRFA must 
contain:
     A description of the reasons why the action by the agency 
is being considered.
     A succinct statement of the objectives of, and legal basis 
for, the proposed rule.
     A description--and, where feasible, an estimate of the 
number--of small entities to which the proposed rule would apply.
     A description of the projected reporting, record keeping, 
and other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that would be subject to the 
requirements and the types of professional skills necessary for 
preparation of the report or record.
     An identification, to the extent practicable, of all 
relevant Federal rules that may duplicate, overlap, or conflict with 
the proposed rule.
1. Reasons for Considering Agency Action
    FRA initiated this rulemaking through RSAC in part upon learning 
that in the regulated community there was some confusion regarding 
existing requirements on passenger train emergency preparedness (49 CFR 
part 239). As a result, the General Passenger Safety Task Force (Task 
Force), a subgroup of the RSAC, was tasked to resolve these issues. The 
Task Force found that as currently written, part 239 expressly requires 
only the railroad's control center employees to be subject to training 
and operational (efficiency) tests and inspections. However, in many 
instances, control center employees were not found to be the primary 
points of contact for emergency first responders during a passenger 
train emergency. Instead, they were carrying out other important 
duties, such as providing block protection and diverting trains to 
other parts of the railroad's network. The proposed language in this 
NPRM would ensure that all personnel involved in emergency preparedness 
under part 239 are subject to appropriate training as well as 
operational (efficiency) tests and inspections. At the same time, the 
NPRM would relieve personnel not involved in emergency preparedness 
from such requirements. While, the proposed regulation differs slightly 
from the consensus language, the need for this NPRM is backed by the 
RSAC and would improve passenger train emergency preparedness by 
clarifying training and testing requirements.
    In addition, as a result of FRA's experience in the periodic review 
and approval of passenger railroads' e-prep plans, FRA realized that a 
number of the changes submitted were purely administrative in nature. 
While part 239 currently subjects all changes to an e-prep plan to a 
formal review and approval process, FRA believes that purely 
administrative changes should be excluded from the formal approval 
process so that the agency can focus its resources on more substantive 
matters. Accordingly, this NPRM would streamline the approval of e-prep 
plans.
    Further, Executive Order 13347 (``Individuals with Disabilities in 
Emergency Preparedness'') requires the Federal government to 
appropriately support safety and security for individuals with 
disabilities in all types of emergency situations. 69 FR 44573; July 
26, 2004. Currently, each railroad subject to part 239 is required to 
provide for the safety of each of its passengers in its emergency 
preparedness planning. Nonetheless, FRA is proposing to clarify that 
these railroads must include procedures in their e-prep plans 
addressing the safe evacuation of persons with disabilities during 
emergency situations (and full-scale simulations of them).
2. A Succinct Statement of the Objectives of, and Legal Basis for, the 
Proposed Rule
    The purpose of this rulemaking is to further Federal safety 
standards on passenger train emergency preparedness currently in place 
in part 239. As a result of the proposed regulation, passenger 
railroads would have more flexibility to carry out the requirements of 
part 239 and keep their plans current. The NPRM would permit multiple 
parts of the organization to be involved in the emergency preparedness 
process to maintain resiliency while helping to clarify the role of 
various parts of the structure in an emergency situation. Additionally, 
the NPRM would provide flexibility to adjust to future personnel 
reorganizations and to incorporate technological innovations by 
allowing the railroad's management to determine what part of the 
organization is designated to be the ERCC.
    Among FRA's reasons for initiating this rulemaking was that some 
confusion arose regarding certain requirements of FRA's passenger train

[[Page 38260]]

emergency preparedness regulations. For example, FRA learned that some 
passenger railroads were confused as to which types of railroad 
personnel were required to be trained or be subjected to operational 
(efficiency) testing and inspections under part 239. These railroads 
were unclear whether part 239 required certain railroad personnel who 
directly coordinate with emergency responders and other outside 
organizations during emergency situations to be trained or be subjected 
to operational (efficiency) testing and inspections. As a result, FRA 
believes that it is necessary to clarify the regulatory language in 
part 239 to ensure that railroad personnel who directly coordinate with 
emergency responders actually receive the proper training and are 
subject to operational (efficiency) testing and inspections. FRA also 
learned that many railroads were unclear whether operational 
(efficiency) testing under part 239 could be considered for purposes of 
the railroad's efficiency testing program required under 49 CFR part 
217.
    Finally, FRA believed it was necessary to clarify part 239 to 
address the requirements of Executive Order 13347. Executive Order 
13347 requires, among other things, that Federal agencies encourage 
State, local, and tribal governments, private organizations, and 
individuals to consider in their emergency preparedness planning the 
unique needs of individuals with disabilities whom they serve. While 
under part 239 the unique needs of passengers with disabilities must 
already be considered in the railroads' e-prep plans, the NPRM would 
clarify the railroads' responsibilities.
    In order to further FRA's ability to respond effectively to 
contemporary safety problems and hazards as they arise in the railroad 
industry, Congress enacted the Federal Railroad Safety Act of 1970 
(Safety Act) (formerly 45 U.S.C. 421, 431 et seq., now found primarily 
in chapter 201 of title 49). (Until July 5, 1994, the Federal railroad 
safety statutes existed as separate acts found primarily in title 45 of 
the United States Code. On that date, all of the acts were repealed, 
and their provisions were recodified into title 49 of the United States 
Code.) The Safety Act grants the Secretary of Transportation rulemaking 
authority over all areas of railroad safety (49 U.S.C. 20103(a)) and 
confers all powers necessary to detect and penalize violations of any 
rail safety law. This authority was subsequently delegated to the FRA 
Administrator (49 CFR 1.49). Accordingly, FRA is using this authority 
to initiate a rulemaking that would clarify and revise FRA's 
regulations for passenger train emergency preparedness. These standards 
are codified in Part 239, which was originally issued in May 1999 as 
part of FRA's implementation of rail passenger safety regulations 
required by Section 215 of the Federal Railroad Safety Authorization 
Act of 1994, Public Law 103-440, 108 Stat. 4619, 4623-4624 (November 2, 
1994). Section 215 of this Act has been codified at 49 U.S.C. 20133.
3. A Description of, and Where Feasible, an Estimate of Small Entities 
to Which the Proposed Rule Would Apply
    The ``universe'' of the entities to be considered generally 
includes only those small entities that are reasonably expected to be 
directly regulated by this action. This proposed rule would directly 
affect commuter and intercity passenger railroads, and freight 
railroads hosting passenger rail operations.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines 
a ``small entity'' as having the same meaning as ``small business 
concern'' under Section 3 of the Small Business Act. This includes any 
small business concern that is independently owned and operated, and is 
not dominant in its field of operation. Section 601(4) likewise 
includes within the definition of ``small entities'' not-for-profit 
enterprises that are independently owned and operated, and are not 
dominant in their field of operation. The U.S. Small Business 
Administration (SBA) stipulates in its size standards that the largest 
a railroad business firm that is ``for profit'' may be and still be 
classified as a ``small entity'' is 1,500 employees for ``Line Haul 
Operating Railroads'' and 500 employees for ``Switching and Terminal 
Establishments.'' Additionally, 5 U.S.C. 601(5) defines as ``small 
entities'' governments of cities, counties, towns, townships, villages, 
school districts, or special districts with populations less than 
50,000.
    Federal agencies may adopt their own size standards for small 
entities in consultation with SBA and in conjunction with public 
comment. Pursuant to that authority FRA has published a final statement 
of agency policy that formally establishes ``small entities'' or 
``small businesses'' as being railroads, contractors and hazardous 
materials shippers that meet the revenue requirements of a Class III 
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less 
in inflation-adjusted annual revenues, and commuter railroads or small 
governmental jurisdictions that serve populations of 50,000 or less. 
See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 
209. The $20-million limit is based on the Surface Transportation 
Board's revenue threshold for a Class III railroad. Railroad revenue is 
adjusted for inflation by applying a revenue deflator formula in 
accordance with 49 CFR 1201.1-1. FRA is proposing to use this 
definition for this rulemaking. Any comments received pertinent to its 
use will be addressed in the final rule.
Railroads
    There are only two intercity passenger railroads, Amtrak and the 
Alaska Railroad. Neither can be considered a small entity. Amtrak is a 
Class I railroad and the Alaska Railroad is a Class II railroad. The 
Alaska Railroad is owned by the State of Alaska, which has a population 
well in excess of 50,000.
    There are 28 commuter or other short-haul passenger railroad 
operations in the U.S. Most of these railroads are part of larger 
transit organizations that receive Federal funds and serve major 
metropolitan areas with populations greater than 50,000. However, two 
of these railroads do not fall in this category and are considered 
small entities. The impact of the proposed regulation on these two 
railroads is discussed in the following section.
4. A Description of the Projected Reporting, Recordkeeping, and Other 
Compliance Requirements of the Rule, Including an Estimate of the Class 
of Small Entities That Will Be Subject to the Requirements and the Type 
of Professional Skill Necessary for Preparation of the Report or Record
    For a thorough presentation of cost estimates, please refer to the 
RIA, which has been placed in the docket for this rulemaking. FRA also 
notes that this proposed rule was developed in consultation with an 
RSAC working group and task force that included representatives from 
the Association of American Railroads, freight railroads, Amtrak, and 
individual commuter railroads.
    FRA is aware of two passenger railroads that qualify as small 
entities: Saratoga & North Creek Railway (SNC), and the Hawkeye 
Express, which is operated by the Iowa Northern Railway Company (IANR). 
All other passenger railroad operations in the United States are part 
of larger governmental entities whose service jurisdictions exceed 
50,000 in population.
    In 2010 Hawkeye Express transported approximately 5,000 passengers 
per game over a 7-mile round-trip distance to and from University of 
Iowa

[[Page 38261]]

(University) football games. IANR has approximately 100 employees and 
is primarily a freight operation totaling 184,385 freight train miles 
in 2010. The service is on a contractual arrangement with the 
University, a State of Iowa institution. (The population of Iowa City, 
Iowa is approximately 69,000.) Iowa Northern, which is a Class III 
railroad, owns and operates the 6 bi-level passenger cars used for this 
passenger operation which runs on average 7 days over a calendar year. 
FRA expects that any costs imposed on the railroad by this regulation 
will likely be passed on to the University as part of the 
transportation cost, and requests comment on this assumption.
    The SNC began operation in the summer of 2011 and currently 
provides daily rail service over a 57-mile line between Saratoga 
Springs and North Creek, New York. The SNC, a Class III railroad, is a 
limited liability company, wholly owned by San Luis & Rio Grande 
Railroad (SLRG). SLRG is a Class III rail carrier and a subsidiary of 
Permian Basin Railways, Inc. (Permian), which in turn is owned by Iowa 
Pacific Holdings, LLC (IPH). The SNC primarily transports visitors to 
Saratoga Springs, tourists seeking to sightsee along the Hudson River, 
and travelers connecting to and from Amtrak service. The railroad 
operates year round, with standard coach passenger trains. Additional 
service activity includes seasonal ski trains, and specials such as 
``Thomas The Train.'' This railroad operates under a five-year contract 
with the local government, and is restarting freight operations as 
well. The railroad has about 25 employees.
    FRA believes that these two entities would not be impacted 
significantly. While, each of these entities would most likely have to 
file a new e-prep plan, FRA does not expect they would have to change 
how each railroad reacts to an emergency situation due to including 
ERCCs under part 239's requirements. Their operating structure is small 
and it is probable that employees with e-prep duties would continue to 
have the same emergency responsibilities. FRA expects that both 
railroads would see additional burden from inclusion of other 
provisions of the proposed regulation related to recordkeeping, and 
other training and testing requirements. This NPRM would not be a 
significant financial impact on these railroad and their operations. 
They could expect the total regulatory costs for this proposed rule, if 
it is adopted, to be less than $6,500 for each of the railroads over 
the next 10 years. The Hawkeye Express and the SNC currently have e-
prep plans that have been reviewed and approved by the FRA. Although 
this NPRM would change several requirements in part 239, professional 
skills necessary for compliance with existing and new requirements 
would be the same. FRA believes that both entities have the 
professional knowledge to fulfill the requirements in the proposed 
rulemaking.
    In conclusion, FRA believes that there are two small entities and 
that both could be impacted. Thus, a substantial number of small 
entities could be impacted by the proposed regulation. However, FRA has 
found that these entities that are directly burdened by the regulation 
would not be impacted significantly. FRA believes that the costs 
associated with the proposed rule are reasonable and would not cause 
any significant financial impact on their operations.
Market and Competition Considerations
    The small railroad segment of the passenger railroad industry 
essentially faces no intra-modal competition. The two railroads under 
consideration would only be competing with individual automobile 
traffic and serve in large part as a service offering to get drivers 
out of their automobiles and off congested roadways. One of the two 
entities provides service at a sporting event to assist attendees to 
travel to the stadium from distant parking areas. The other entity 
provides passenger train service to tourist and other destinations. FRA 
is not aware of any bus service that currently exists that directly 
competes with either of these railroads. FRA requests comments and 
input on current or planned future existence of any such service or 
competition.
    The railroad industry has several significant barriers to entry, 
such as the need to own the right-of-way and the high capital 
expenditure needed to purchase a fleet, track, and equipment. As such, 
small railroads usually have monopolies over the small and segmented 
markets in which they operate. Thus, while this rule may have an 
economic impact on all passenger railroads, it should not have an 
impact on the intra-modal competitive position of small railroads.
5. An Identification, to the Extent Practicable, of All Relevant 
Federal Rules That May Duplicate, Overlap, or Conflict With the 
Proposed Rule
    FRA is aware that some railroads are unclear whether operational 
(efficiency) testing under part 239 could be considered for purposes of 
the railroad's efficiency testing program required under 49 CFR part 
217. In the NPRM, FRA clarifies that part 239 operational (efficiency) 
tests and inspections can also qualify as operational tests under Sec.  
217.9 if the employee, contractor, or subcontractor being tested is 
also performing functions that are covered by part 217. Likewise, 
operational tests conducted under part 217 can also be accredited as 
operational (efficiency) tests under part 239 as long as the criteria 
for operational (efficiency) tests and inspections in part 239 are met.
    FRA invites all interested parties to submit data and information 
regarding the potential economic impact that would result from adoption 
of the proposals in this NPRM. FRA will consider all comments received 
in the public comment process when making a determination.

C. Paperwork Reduction Act

    The information collection requirements in this proposed rule are 
being submitted for approval to the Office of Management and Budget 
(OMB) for review and approval in accordance with the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The sections that 
contain the current and new or revised information collection 
requirements and the estimated time to fulfill each requirement is as 
follows:

—————————————————————————————————————- Total annual Average time per Total annual CFR Section Respondent universe responses response burden hours—————————————————————————————————————-239.13–Waiver Petitions (Current 45 railroads……. 1 petition……… 20 hours……….. 20 requirement).239.107–Marking of Emergency Exits (Current requirements). –Marking of windows and door 45 railroads……. 4,575 decals, 1,950 10 minutes/5 706 exits intended for emergency decals. minutes. egress. –Marking of window and door 45 railroads……. 6,320 decals, 1,300 5 minutes/10 744 exit intended for emergency decals. minutes. access by emergency responders.[[Page 38262]] –Records of inspection, 45 railroads……. 1,800 tests/records 20 minutes……… 1,000 maintenance, and repair. + 1,200 tests/ records.239.101/201/203–Emergency Preparedness Plans (Revised requirements). –1st Year–Amended plans…. 45 railroads……. 45 plans……….. 20.33 hours…….. 915 –Subsequent years–amended 45 railroads……. 9 plans………… 20.33 hours…….. 183 plans–substantive changes. –Subsequent years–amended 45 railroads……. 4 plans………… 60 minutes……… 4 plans–non-substantive changes. –New RRs–e-prep plans…… 2 railroads…….. 2 plans………… 80 hours……….. 160 –Current employee initial 45 railroads……. 540 trained 60 minutes……… 540 training for train crews, employees. control center & emergency response communications members. –Employee periodic training. 45 railroads……. 27 trained 4 hours………… 108 employees. –Initial training of New 45 railroads……. 110 trained 60 minutes……… 110 Employees. employees.239.101(a)(1)(ii) 3–Designation 45 railroads……. 45 designations…. 5 minutes………. 4 of RR employee to maintain current emergency telephone numbers to notify outside responders, etc. (Current requirement).239.101(a)(1)(ii) 3–Railroads’ 45 railroads……. 2 updated lists…. 1 hour…………. 2 list/record of emergency telephone numbers to notify outside responders, etc. (Current requirement).239.101(a)(3)–Emergency 45 railroads……. 1 plan…………. 16 hours……….. 16 Preparedness Plan–Joint Operation (Current requirement).239.101(a)(5)–RR Training 45 railroads……. 45 updated plans… 40 hours……….. 1,800 Program for on-line emergency responders (Current requirement).239.101(a)(7)–Passenger Safety 2 new railroads…. 1,300 cards/2 5 minutes/16 hours/ 300 Information–Posting emergency programs/2 safety 48 hours/8 hours/ instructions inside all messages + 2 24 hours. passenger cars (Current programs/2 safety requirement). messages.239.105(a)(3)–Debriefing and 45 railroads……. 79 sessions…….. 27 hours……….. 2,133 Critique–Sessions conducted after passenger emergency situation or full scale simulation (Current requirement).239.301(a)–Operational 45 railroads……. 25,000 tests/ 15 minutes……… 6,250 Efficiency Tests (Current inspections. requirements)–RR Tests/ inspections of on-board, control center, and emergency response communications center employees.(b)(c)–Records of operational 45 railroads……. 25,000 records….. 2 minutes………. 833 (efficiency) tests/inspections.(d)–Records of written program 45 railroads……. 90 records……… 3 minutes………. 5 of operational (efficiency) tests (New Requirement).(e) Annual summary of operational 45 railroads……. 45 annual summaries 5 minutes + 1 5 (efficiency) test/inspections + 30 copies. minute. and copy of written summary at system and division headquarters.—————————————————————————————————————-

    All estimates include the time for reviewing instructions; 
searching existing data sources; gathering or maintaining the needed 
data; and reviewing the information. Pursuant to 44 U.S.C. 
3506(c)(2)(B), FRA solicits comments concerning: whether these 
information collection requirements are necessary for the proper 
performance of the functions of FRA, including whether the information 
has practical utility; the accuracy of FRA's estimates of the burden of 
the information collection requirements; the quality, utility, and 
clarity of the information to be collected; and whether the burden of 
collection of information on those who are to respond, including 
through the use of automated collection techniques or other forms of 
information technology, may be minimized. For information or a copy of 
the paperwork package submitted to OMB, contact Mr. Robert Brogan, 
Office of Railroad Safety, Information Clearance Officer, at 202-493-
6292, or Ms. Kimberly Toone, Office of Information Technology, at 202-
493-6139.
    Organizations and individuals desiring to submit comments on the 
collection of information requirements should direct them to Mr. Robert 
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New 
Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also 
be submitted via email to Mr. Brogan or Ms. Toone at the following 
address: Robert.Brogan@dot.gov; Kimberly.Toone@dot.gov.
    OMB is required to make a decision concerning the collection of 
information requirements contained in this proposed rule between 30 and 
60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.
    FRA is not authorized to impose a penalty on persons for violating 
information collection requirements which do not display a current OMB 
control number, if required. FRA intends to obtain current OMB control 
numbers for any new information collection requirements resulting from 
this rulemaking action prior to the effective date of the final rule. 
The OMB control number, when assigned, will be announced by separate 
notice in the Federal Register.

[[Page 38263]]

 

D. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999), 
requires FRA to develop an accountable process to ensure ``meaningful 
and timely input by State and local officials in the development of 
regulatory policies that have federalism implications.'' ``Policies 
that have federalism implications'' are defined in the Executive Order 
to include regulations that have ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' Under Executive Order 13132, the agency 
may not issue a regulation with federalism implications that imposes 
substantial direct compliance costs and that is not required by 
statute, unless the Federal government provides the funds necessary to 
pay the direct compliance costs incurred by State and local 
governments, or the agency consults with State and local government 
officials early in the process of developing the regulation. Where a 
regulation has federalism implications and preempts State law, the 
agency seeks to consult with State and local officials in the process 
of developing the regulation.
    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132. This 
proposed rule will not have a substantial effect on the States or their 
political subdivisions, and it will not affect the relationships 
between the Federal government and the States or their political 
subdivisions, or the distribution of power and responsibilities among 
the various levels of government. In addition, FRA has determined that 
this regulatory action will not impose substantial direct compliance 
costs on the States or their political subdivisions. Therefore, the 
consultation and funding requirements of Executive Order 13132 do not 
apply.
    However, this proposed rule could have preemptive effect by 
operation of law under certain provisions of the Federal railroad 
safety statutes, specifically the former Federal Railroad Safety Act of 
1970, repealed and recodified at 49 U.S.C. 20106. Section 20106 
provides that States may not adopt or continue in effect any law, 
regulation, or order related to railroad safety or security that covers 
the subject matter of a regulation prescribed or order issued by the 
Secretary of Transportation (with respect to railroad safety matters) 
or the Secretary of Homeland Security (with respect to railroad 
security matters), except when the State law, regulation, or order 
qualifies under the ``essentially local safety or security hazard'' 
exception to section 20106.
    In sum, FRA has determined that this proposed rule has no 
federalism implications, other than the possible preemption of State 
laws under Federal railroad safety statutes, specifically 49 U.S.C. 
20106. Accordingly, FRA has determined that preparation of a federalism 
summary impact statement for this proposed rule is not required.

E. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et 
seq.) prohibits Federal agencies from engaging in any standards or 
related activities that create unnecessary obstacles to the foreign 
commerce of the United States. Legitimate domestic objectives, such as 
safety, are not considered unnecessary obstacles. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards.
    FRA has assessed the potential effect of this rulemaking on foreign 
commerce and believes that its requirements are consistent with the 
Trade Agreements Act. The requirements are safety standards, which, as 
noted, are not considered unnecessary obstacles to trade. Moreover, FRA 
has sought, to the extent practicable, to state the requirements in 
terms of the performance desired, rather than in more narrow terms 
restricted to a particular design or system.

F. Environmental Impact

    FRA has evaluated this rule 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 
proposed rule 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. See 64 FR 28547 (May 
26, 1999).
    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 
proposed rule is not a major Federal action significantly affecting the 
quality of the human environment.

G. 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. 
This proposed rule will not result in the expenditure, in the 
aggregate, of $100,000,000 or more (as adjusted annually for inflation) 
in any one year, and thus preparation of such a statement is not 
required.

H. Energy Impact

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

[[Page 38264]]

Consequently, FRA has determined that this regulatory action is not a 
``significant energy action'' within the meaning of the Executive 
Order.

I. Privacy Act

    FRA wishes to inform all potential commenters that anyone is able 
to search the electronic form of all comments received into any agency 
docket by the name of the individual submitting the comment (or signing 
the comment, if submitted on behalf of an association, business, labor 
union, etc.). Please visit http://www.regulations.gov/#!privacyNotice. 
You may also review DOT's complete Privacy Act Statement in the Federal 
Register published on April 11, 2000 (65 FR 19477-78) or you may visit 
http://www.dot.gov/privacy.html.

List of Subjects in 49 CFR Part 239

    Passenger train emergency preparedness, Penalties, Railroad safety, 
Reporting and recordkeeping requirements.

The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend 
part 239 of chapter II, subtitle B of title 49, Code of Federal 
Regulations as follows:

PART 239--[AMENDED]

Subpart A--General

Sec.  239.5  [Removed and Reserved]

    1. Section 239.5 is removed and reserved.
    2. Section 239.7 is amended by adding the definition of ``Emergency 
response communications center'' to read as follows:

Sec.  239.7  Definitions.

* * * * *
    Emergency response communications center means a central location 
designated by a railroad with responsibility for establishing, 
coordinating, or maintaining communication with emergency responders, 
representatives of adjacent modes of transportation, and appropriate 
railroad officials during a passenger train emergency. The emergency 
response communications center may be part of the control center.
* * * * *

Subpart B--Specific Requirements

    3. Section 239.101 is amended by revising paragraphs (a)(1)(ii) and 
(a)(2)(ii), (a)(2)(iii) introductory text, (a)(2)(iv), (a)(2)(v) 
introductory text, and (a)(2)(v)(A), and by adding paragraph (a)(8) to 
read as follows:

Sec.  239.101  Emergency preparedness plan.

    (a) * * *
    (1) * * *
    (ii) Notification by control center or emergency response 
communications center. The control center or the emergency response 
communications center, as applicable under the plan, shall promptly 
notify outside emergency responders, adjacent rail modes of 
transportation, and appropriate railroad officials that a passenger 
train emergency has occurred. Each railroad shall designate an employee 
responsible for maintaining current emergency telephone numbers for use 
in making such notifications.
    (2) * * *
    (ii) Control center and emergency response communications center 
personnel. The railroad's emergency preparedness plan shall require 
initial training of responsible control center personnel and any 
emergency response communications center personnel employed by the 
railroad, under a contract or subcontract with the railroad, or 
employed by a contractor or subcontractor to the railroad, as well as 
periodic training at least once every two calendar years thereafter, on 
appropriate courses of action for each potential emergency situation 
under the plan. At a minimum, the initial and periodic training shall 
include:
    (A) Territory familiarization;
    (B) Procedures to retrieve and communicate information to aid 
emergency personnel in responding to an emergency situation;
    (C) Protocols governing internal communications between appropriate 
control center and emergency response communications center personnel 
whenever an imminent potential or actual emergency situation exists, as 
applicable under the plan; and
    (D) Protocols for establishing and maintaining external 
communications between the railroad's control center or emergency 
response communications center, or both, and emergency responders and 
adjacent modes of transportation, as applicable under the plan.
    (iii) Initial training schedule for current employees of the 
railroad, current employees of contractors and subcontractors to the 
railroad, and individuals who are contracted or subcontracted by the 
railroad. The railroad's emergency preparedness plan shall provide for 
the completion of initial training of all on-board and control center 
employees, and any emergency response communications center personnel, 
who are employed by the railroad, under a contract or subcontract with 
the railroad, or employed by a contractor or subcontractor to the 
railroad on the date that the plan is conditionally approved under 
Sec.  239.201(b)(1), in accordance with the following schedule:
* * * * *
    (iv) Initial training schedule for new railroad employees, 
contractor and subcontractor employees, and contracted individuals. The 
railroad's emergency preparedness plan shall provide for the completion 
of initial training of all on-board and control center personnel, as 
well as any emergency response communications center personnel, who are 
hired by the railroad, contracted or subcontracted by the railroad, or 
hired by the contractor or subcontractor to the railroad after the date 
on which the plan is conditionally approved under Sec.  239.201(b)(1). 
Each individual shall receive initial training within 90 days after the 
individual's initial date of service.
    (v) Testing of on-board, control center, and emergency response 
communications center railroad employees, contractor or subcontractor 
employees, and contracted individuals. The railroad shall have 
procedures for testing a person being evaluated for qualification under 
the emergency preparedness plan who is employed by the railroad, under 
a contract or subcontract with the railroad, or employed by a 
contractor or subcontractor to the railroad. The types of testing 
selected by the railroad shall be:
    (A) Designed to accurately measure an individual's knowledge of his 
or her responsibilities under the plan;
* * * * *
    (8) Procedures regarding passengers with disabilities. The railroad 
shall have procedures in place to promote the safe evacuation of 
passengers with disabilities under all conditions identified in its 
emergency preparedness plan. These procedures shall include, but not be 
limited to, a process for notifying emergency responders in an 
emergency situation about the presence and general location of each 
such passenger when the railroad has knowledge that the passenger is on 
board the train. This paragraph does not require the railroad to 
maintain any list of train passengers.
* * * * *
    4. Section 239.105 is amended by revising paragraph (c)(3) to read 
as follows:

Sec.  239.105  Debriefing and critique.

* * * * *
    (c) * * *
    (3) Whether the control center or the emergency response 
communications

[[Page 38265]]

center promptly initiated the required notifications, as applicable 
under the plan:
* * * * *

Subpart C--Review, Approval, and Retention of Emergency 
Preparedness Plans

    5. Section 239.201 is amended by revising paragraphs (a) and 
(b)(3)(i) to read as follows:

Sec.  239.201  Emergency preparedness plan; filing and approval.

    (a) Filing of plan and amendments. (1) Filing of plan. Each 
passenger railroad to which this part applies and all railroads hosting 
its passenger train service (if applicable) shall jointly adopt a 
single emergency preparedness plan for that service, and the passenger 
railroad shall file one copy of that plan with the Associate 
Administrator for Railroad Safety/Chief Safety Officer, Federal 
Railroad Administration, 1200 New Jersey Avenue SE., Mail Stop 25, 
Washington, DC 20590, not less than 60 days prior to commencing 
passenger operations. Any passenger railroad that has an emergency 
preparedness plan approved by FRA as of (the effective date of the 
final rule) is considered to have timely-filed its plan. The emergency 
preparedness plan shall include the name, title, address, and telephone 
number of the primary person on each affected railroad to be contacted 
with regard to review of the plan, and shall include a summary of each 
railroad's analysis supporting each plan element and describing how 
every condition on the railroad's property that is likely to affect 
emergency response is addressed in the plan.
    (2) Filing of amendments to the plan. (i) Except as provided in 
paragraph (a)(2)(ii) of this section, each subsequent amendment to a 
railroad's emergency preparedness plan shall be filed with FRA by the 
passenger railroad not less than 60 days prior to the proposed 
effective date. When filing an amendment, the railroad must include a 
written summary of the proposed changes to the previously approved plan 
and, as applicable, a training plan describing how and when current and 
new employees and contractors would be trained on any amendment.
    (ii) If the proposed amendment is limited to adding or changing the 
name, title, address, or telephone number of the primary person to be 
contacted on each affected railroad with regard to the review of the 
plan, approval is not required under the process in paragraph (b)(3)(i) 
of this section. These proposed amendments may be implemented by the 
railroad upon filing with FRA's Associate Administrator for Railroad 
Safety/Chief Safety Officer. All other proposed amendments must comply 
with the formal approval process in paragraph (b)(3)(i) of this 
section.
    (b) * * *
    (3) * * *
    (i) Except as provided in paragraph (a)(2)(ii) of this section, FRA 
will normally review each proposed plan amendment within 45 days of 
receipt. FRA will then notify the primary contact person of each 
affected railroad of the results of the review, whether the proposed 
amendment has been approved by FRA, and if not approved, the specific 
points in which the proposed amendment is deficient.
* * * * *

Subpart D--Operational (Efficiency) Tests; Inspection of Records 
and Recordkeeping

    6. Section 239.301 is revised to read as follows:

Sec.  239.301  Operational (efficiency) tests and inspections.

    (a) Requirement to conduct operational (efficiency) tests and 
inspections. Each railroad to which this part applies shall 
periodically conduct operational (efficiency) tests and inspections of 
on-board, control center, and, as applicable, emergency response 
communications center personnel employed by the railroad, under a 
contract or subcontract with the railroad, or employed by a contractor 
or subcontractor to the railroad, to determine the extent of compliance 
with its emergency preparedness plan.
    (1) Written program of operational (efficiency) tests and 
inspections. Operational (efficiency) tests and inspections shall be 
conducted pursuant to a written program. New railroads shall adopt such 
a program within 30 days of commencing rail operations. The program 
shall--
    (i) Provide for operational (efficiency) testing and inspection on 
appropriate courses of action in response to various potential 
emergency situations and on the responsibilities of an employee of the 
railroad, of an individual who is a contractor or subcontractor to the 
railroad, or an employee of a contractor of subcontractor to the 
railroad, as they relate to the railroad's emergency preparedness plan.
    (ii) Describe each type of operational (efficiency) test and 
inspection required, including the means and procedures used to carry 
it out.
    (iii) State the purpose of each type of operational (efficiency) 
test and inspection.
    (iv) State, according to operating divisions where applicable, the 
frequency with which each type of operational (efficiency) test and 
inspection is to be conducted.
    (v) Identify the officer(s) by name, job title, and, division or 
system, who shall be responsible for ensuring that the program of 
operational (efficiency) tests and inspections is properly implemented. 
A railroad with operating divisions shall identify at least one officer 
at the system headquarters who is responsible for overseeing the entire 
program and the implementation by each division.
    (vi) Require that each railroad officer who conducts operational 
(efficiency) tests and inspections be trained on those aspects of the 
railroad's emergency preparedness plan that are relevant to the 
operational (efficiency) tests and inspections that the officer 
conducts, and that the officer be qualified on the procedures for 
conducting such operational (efficiency) tests and inspections in 
accordance with the railroad's written program of operational 
(efficiency) tests and inspections and the requirements of this 
section.
    (2) The operational (efficiency) testing program required by 
paragraph (a)(1) of this section may be combined with the written 
program of operational (efficiency) tests and inspections required by 
Sec.  217.9(c) of this chapter.
    (b) Keeping records of operational (efficiency) tests and 
inspections. Each railroad to which this part applies shall maintain a 
written record of the date, time, place, and result of each operational 
(efficiency) test and inspection that was performed in accordance with 
paragraph (a) of this section. Each record shall also specify the name 
of the railroad officer who administered the test or inspection, the 
name of each employee tested, and sufficient information to identify 
the relevant facts relied on for evaluation purposes.
    (c) Retention of operational (efficiency) test and inspection 
records. Each record required by paragraph (a) of this section shall be 
retained at the system headquarters of the railroad and, as applicable, 
at the division headquarters for the division where the test or 
inspection was conducted, for one calendar year after the end of the 
calendar year to which the test or inspection relates. Each such record 
shall be made available to representatives of FRA and States 
participating under part 212 of this chapter for inspection and copying 
during normal business hours.

[[Page 38266]]

    (d) Keeping records of written program of operational (efficiency) 
tests and inspections. Each railroad shall retain one copy of its 
current operational (efficiency) testing and inspection program 
required by paragraph (a) of this section and one copy of each 
subsequent amendment to such program. These records shall be retained 
at the system headquarters, and, as applicable, at each division 
headquarters where the operational (efficiency) tests and inspections 
are conducted, for three calendar years after the end of the calendar 
year to which they relate. These records shall be made available to 
representatives of FRA and States participating under part 212 of this 
chapter for inspection and copying during normal business hours.
    (e) Annual summary of operational (efficiency) tests and 
inspections. Before March 1 of each calendar year, each railroad to 
which this part applies shall retain at the system headquarters of the 
railroad and, as applicable, at each of its division headquarters, one 
copy of a written summary of the following with respect to its previous 
calendar year activities: the number, type, and result of each 
operational (efficiency) test and inspection, stated according to 
operating divisions as applicable, that was conducted as required by 
paragraph (a) of this section. These records shall be retained for 
three calendar years after the end of the calendar year to which they 
relate and shall be made available to representatives of FRA and States 
participating under part 212 of this chapter for inspection and copying 
during normal business hours.

    Issued in Washington, DC, on June 21, 2012.
Joseph C. Szabo,
Administrator.
[FR Doc. 2012-15746 Filed 6-26-12; 8:45 am]
BILLING CODE 4910-06-P

 

Exposed – The Kim Kardashian Sex-Tape Files

Click on the Link below to see the Videos

 

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SECRET – CSIS Canadian National Counterterrorism Intelligence Requirements (NCTIR)

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In 2004, the Government of Canada issued its first National Security Policy (NSP), Securing an Open Society, to ensure that Canada would be prepared for and could respond to future threats. Recognizing that threats to national security are beyond the capacity of individuals, communities or provinces to address alone, the NSP envisaged greater integration and more strategic co-ordination of key security functions, particularly those related to intelligence collection, threat assessments and emergency preparedness through the implementation of a strategic framework and an action plan. To make substantive improvements in integration and co-ordination with regard to terrorist threats, the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mounted Police (RCMP), in co-operation with the Canadian Association of Chiefs of Police (CACP), are developing National Counter-Terrorism Intelligence Requirements (NCTIR). The NCTIR is envisaged as an integral component of a broader national strategy involving training, information-sharing and a co-ordinated response to terrorist threats involving the whole of government.

Basis of the Initiative

The working assumptions underlying this initiative are the following:

• It is crucial to develop a common understanding of the elements of terrorist threats and what information may play an important role in piecing together the puzzle of a developing threat.
• Leveraging the skills, knowledge and resources of the law enforcement and security community, as part of a national strategy to develop intelligence on terrorist threats in Canada, is now a high priority for all levels of government.
• The reach and access of front-line enforcement personnel can be critical to the early detection of terrorist activity.
• Terrorist groups, regardless of affiliation, at some point must operate at street level to plan or advance an attack.
• The role of CSIS is to collect information on threats to national security and advise the Government of Canada. Where criminal activity is identified, CSIS is authorized to inform law enforcement.
• The RCMP, through the operation of several statutes, has the primary responsibility of performing the duties assigned to peace officers, such as arrests, detentions or prosecutions of individuals involved in activities that constitute a threat to the security of Canada.
• CSIS, in co-operation with the RCMP and the CACP, has developed NCTIR.
• The purpose of NCTIR is to inform and sensitize, not task, the law enforcement community as to the valuable information they may incidentally encounter during the performance of their duties.
• NCTIR allows for a more effective two-way dialogue between CSIS and law enforcement on terrorist threats.
• NCTIR will be updated periodically and integrated into a broader training and information program led by the RCMP.

Background: National Security Policy

The NSP articulated three core national security interests: protecting Canada and Canadians at home and abroad, ensuring Canada does not become a base for threats to our allies and contributing to international security. The NSP describes the four types of terrorism affecting Canada: religious extremism, violent secessionist movements, state-sponsored terrorism and domestic extremism which result in violence and threaten Canadians.

The leading threats to Canadians – terrorism and certain types of organized crime – are beyond the capacity of individuals, communities or provinces to address alone. The NSP recognizes that the complexity of threats facing Canada requires a co-ordinated and integrated national security framework enabling this country to respond to existing threats and quickly adapt to new ones. The Canadian system needs to be fully connected to key partners at all levels: provinces, territories, communities, first-line responders, the private sector and Canadians together.

Intelligence is recognized as the foundation enabling effective measures to be enacted for the security of Canada and Canadians. To effectively manage risk, design programs and allocate resources requires a sound understanding of the environment, along with the best possible information about the threats, intentions and capabilities of those who would do us harm.

The nature of intelligence is such that there is rarely, if ever, a complete picture. Rather, intelligence reporting and assessments are based on fragmented and sometimes contradictory information. It is, therefore, essential to bring together information on threats to Canada from all available sources and properly assess it, in order to provide as accurate and complete a picture as possible. It is critical that the resulting product be conveyed in a timely, accurate and usable manner to those whose actions or decisions depend on it.

NATIONAL COUNTER-TERRORISM INTELLIGENCE REQUIREMENTS (NCTIR)

1. To identify the capabilities, intentions and inter-relationships, including recruitment, membership, radicalization, training, means of communication, the role of the Internet, the means and methods of fundraising and the deployment of individuals, either in Canada or abroad, who support:

• Global Jihad (GJ) and Islamist Extremism (IE).
• Hizballah.
• Secessionist movements, including but not limited to the Tamil Tigers (LTTE), Babbar Khalsa International (BKI), and the International Sikh Youth Foundation (ISYF).
• The use of serious violence directed at Canadian interests, including the Canadian military, diplomats, foreign aid workers or other official personnel abroad.
• The procurement, development or possible use of chemical, biological, radiological, nuclear or explosive material for use in violent activities related to any NCTIR.
• The involvement of criminal activity including fraud, theft, extortion, document forgery, illegal migration or immigrant smuggling suspected to be in support of an NCTIR.

COLLECTION CRITERIA IN SUPPORT OF NCTIR

1. Foreign Travel:

Individuals linked to an NCTIR travelling to and from ‘hot zones’, including but not limited to Afghanistan and environs, Bosnia, Chechnya, Iran, Iraq, the Palestinian territories, Pakistan, Yemen, Somalia, Sudan, Syria and Tunisia.

2. Inciting Violence:

Individuals advocating or glorifying violence through the importation, production or distribution of videos or other media, and the physical or electronic circulation of video images of terrorist or insurgent attacks in ‘hot zones’, for the purpose of propaganda, recruitment or training, or sponsorship, operation or use of Web sites, chat rooms or blogs significantly linked to an NCTIR.

3. Extremist Proselytizing:

Individuals proselytizing or invoking an extreme, jihadist interpretation of Islam for the purpose of recruiting fighters, glorifying jihadist violence or inciting hatred against an identifiable group, particularly citizens or the military of Canada, the US, the UK or any other ally.

4. Facilities:

Facilities, including religious, academic, public, private or commercial buildings and structures, used permanently or temporarily for the purpose of:

• Recruiting fighters, advocating or glorifying violence, inciting hatred or supporting such activities.
• Training or indoctrinating those linked to an NCTIR, directly or indirectly, such as paramilitary activities, paint-ball, martial arts or other self-defence training, survival skills or extreme sports and training in the use of electronic devices or communications equipment.
• Supporting or facilitating activities directly or indirectly, as referenced above, such as storage facilities, cache sites, guest houses, safe houses or venues of convenience.
• Bomb-making, including facilities with indications of inordinately high electrical power consumption, reports of unusual chemical smells, blacked out windows or damaged pipe systems, any of which may indicate the possibility of bomb-making activities.

5. Fundraising / Financing:

Sources and means of funding NCTIR activities including fraud, extortion, theft, drugs, stolen property, money transfers, loans, credit cards, personal income or investments, couriers, financial institutions, hawala banking systems, grants, gifts or aid from any source, including foreign governments. Organizations or other entities, including registered charities, which are used with consent or unwittingly to collect, receive, funnel, channel or otherwise facilitate NCTIR financing.

6. Documentation:

Individuals or groups, including public officials, involved in, and methods related to:

• The acquisition or fabrication of false documents, including passports, other travel documents, primary documents such as birth or death certificates, driver’s licences and citizenship documents. This includes equipment related to the illicit fabrication or altering of documents such as photocopiers, commercial grade flatbed scanners, printing or laminating equipment.
• The acquisition or provision of legitimate documents through false declarations or deceit, which are knowingly provided by the true owner or facilitated by a guarantor with possible or direct knowledge of the intended use. This will include reviewing the passports or travel documents of individuals of interest, wherever possible, to verify travel and to ensure the information contained therein is valid and consistent with applications for same.

7. Networks:

Definable networks associated to any of the aforementioned requirements. This includes familial, kin, clan, tribe, school or village ties.

8. Veterans:

Individuals who have fought in or met while fighting jihad or other violent movements abroad or in foreign wars.

9. Procurement:

Individuals or groups linked to NCTIR who are involved in the procurement of:

• Non-restricted items which could be used in support of NCTIR operations, including training, attacks or reconnaissance for pre-attack planning, such as registered firearms, mock/substitute firearms, video cameras, night-vision equipment, electronic devices, communications equipment, camouflage or protective clothing, vehicles, backpacks, tents or camping equipment.
• Computers or related equipment, flash memory cards or sticks, CD / DVD burners, Internet/ISP accounts, Internet kiosks, taking computer or related training, seeking employment in or starting computer-related businesses.
• Cell phones, pagers, cordless or other phones, long-distance phone cards, Blackberry or similar devices, Bluetooth technology or related equipment.
• Restricted or suspicious items which could be used in support of NCTIR operations, including illegal firearms or weapons, explosives or components thereof, detonators, remote control devices, chemicals, containers possibly used to house bombs, metal potentially used as shrapnel such as nails, diesel fuel, acetone, acids, hexamine tablets (solid campfire fuel/fire starters), hydrogen peroxide, large quantities of fertilizers, coffee, sugar, sawdust or grinding equipment.

10. Counter-surveillance:

Individuals using counter-surveillance techniques, including confrontational accusations of informing, frequent use of pay phones or Internet kiosks, especially when inconvenient, frequent changing of cell phones, sudden travel, compartmentalization of information or selective lying.

11. Reconnaissance:

Individuals engaging in possible attack planning, reconnaissance or targeting activities, including videotaping possible targets or attack routes, unusual visits to possible target sites which may be security or reconnaissance probes, the surveillance of security measures or the surveillance of individuals who may be possible targets.

12. Crime:

Individuals engaging in criminal activity related to an NCTIR, including illegal migration, petty theft or criminal assaults.

Reporting

Information related to the NCTIR should be reported through the intelligence function of the various entities directly to CSIS regional offices and to the Integrated National Security Enforcement Teams (INSET).

 

DOWNLOAD THE ORGINAL DOCUMENT HERE

CA-NCTIR

TOP-SECRET from the FBI – Barrio Azteca Leader Sentenced to Life in Prison and Two Barrio Azteca Soldiers Sentenced to 20 and 30 Years in Prison

WASHINGTON—A leader and two soldiers in the Barrio Azteca (BA), a transnational border gang allied with the Juarez Cartel, were sentenced in El Paso, Texas, to life, 30 and 20 years in prison, respectively, announced Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division, U.S. Attorney Robert Pitman for the Western District of Texas, FBI Special Agent in Charge Mark Morgan of the FBI’s El Paso Office and Administrator Michele M. Leonhart of the U.S. Drug Enforcement Administration (DEA).

Hector Galindo, 38, aka “Silent,” of El Paso, currently serving a 25-year Texas state sentence for murder, was sentenced to life prison. Ricardo Gonzales, 44, aka “Cuate,” of Anthony, N.M., was sentenced to 30 years in prison, and Adam Garcia, 35, aka “Bad Boy,” of El Paso, was sentenced to 20 years in prison. Galindo, Gonzales and Garcia were charged in a 12-count third superseding indictment unsealed in March 2011. They were sentenced yesterday in the Western District of Texas. Galindo, Gonzales and Garcia pleaded guilty to conspiracy to commit racketeering (RICO) on Jan. 26, 2012, Jan. 18, 2012, and Jan. 29, 2012, respectively.

According to court documents and information presented in court, Galindo was a top Lieutenant in the BA. While incarcerated in the Texas Department of Corrections, he served as the right hand man to BA Captain Manuel Cardoza. In that role, Galindo maintained communication with other BA Captains and Lieutenants in the United States and Mexico and was specifically in charge of BA operations in Texas. Evidence was presented that Gonzales and Garcia were BA soldiers, whose duties included distributing drugs, picking up money from dealers and enforcement operations within their area of responsibility.

“As members of the Barrio Azteca gang, Hector Galindo, Ricardo Gonzales and Adam Garcia participated in a brutal criminal enterprise dedicated to spreading fear and violence on both sides of the border,” said Assistant Attorney General Breuer. “These prison sentences send a strong message that even the most powerful and ruthless gangs cannot evade justice. Our prosecution of the Barrio Azteca gang, including for the U.S. Consulate-related murders in Juarez, Mexico, in 2010, has led to convictions against 24 gang members and leaders. We will continue aggressively to pursue the Barrio Azteca and other gangs so that communities in the United States and Mexico can live free from the violence and destruction of organized crime.”

“These sentences represent the FBI’s commitment to the aggressive pursuit of criminal enterprises such as the Barrio Aztecas whose presence pose a significant risk to citizens on both sides of the border,” said FBI Special Agent in Charge Morgan. “Through the ongoing and joint efforts of the law enforcement community we will continue the fight to bring to justice predators such as Galindo, Gonzales and Garcia.”

“This investigation highlights an unfortunate reality: leaders within growing trans-national prison and street gangs like the Barrio Azteca continue to promote violence and manage their drug trafficking activities even after the cell door closes,” said DEA Administrator Leonhart. “However, the successful prosecutions of Galindo, Gonzales and Garcia, and the conviction of other Barrio Azteca members reinforce another reality: that wherever these dangerous organizations operate, DEA and its partners will aggressively follow, investigate and prosecute.”

A total of 35 BA members and associates based in the United States and Mexico were charged in the third superseding indictment for allegedly committing various criminal acts, including racketeering, narcotics distribution and importation, retaliation against persons providing information to U.S. law enforcement, extortion, money laundering, obstruction of justice and murder, including the 2010 Juarez consulate murders. Of the 35 defendants charged, 33 have been apprehended, including April Cardoza, who was found in Juarez, Mexico, last week. Twenty-four of those defendants have pleaded guilty, one defendant committed suicide while imprisoned during his trial and six others are pending extradition from Mexico. U.S. and Mexican law enforcement are actively seeking to apprehend the two remaining fugitives in this case, including Luis Mendez and Eduardo Ravelo, an FBI Top Ten Most Wanted Fugitive.

Today’s sentencing by U.S. District Judge Kathleen Cardone of the Western District Court of Texas marks the closure of the case against the U.S.-based defendants charged in the superseding indictment. Twenty-one of 22 U.S.-based defendants have pleaded guilty and have been sentenced, including another BA Lieutenant Roberto Angel Cardona, who was also sentenced to life by Judge Cardone on Feb. 17, 2012. The remaining U.S.-based defendant, Ramon Renteria, aka “Spooky,” took his own life while in prison during his trial. Witnesses testified that Renteria was a BA Captain, the highest rank of the Barrio Azteca, and the only U.S.-based Captain not currently serving a life sentence in prison.

According to court documents and information presented in court throughout this case, the Barrio Azteca is a violent street and prison gang that began in the late 1980s and expanded into a transnational criminal organization. In the 2000s, the BA formed an alliance in Mexico with “La Linea,” which is part of the Juarez Drug Cartel (also known as the Vincente Carrillo Fuentes Drug Cartel or “VCF”). The purpose of the BA-La Linea alliance was to battle the Chapo Guzman Cartel and its allies for control of the drug trafficking routes through Juarez and Chihuahua. The drug routes through Juarez, known as the Juarez Plaza, are important to drug trafficking organizations because they are a principal illicit drug trafficking conduit into the United States.

According to evidence presented in court, witnesses testified to the brutality of the BA. Inside and outside of prison, the gang thrives on violence—from gang beatings to drive-by shootings to murder—all in order to discipline its own members or fight against rivals. Testimony also indicated that the BA is well-organized and militaristic in structure. Its members, or “soldiers,” are governed by captains, various lieutenants and numerous sergeants in the United States and Mexico.

Witnesses also testified that the sale of illegal drugs is the life-blood of the BA. Evidence was presented that since 2003 the BA has trafficked hundreds of kilograms of cocaine and heroin. Because of the BA’s alliance with the Juarez Drug Cartel, the gang receives illegal drugs at low cost and profits on its importation, sale and distribution within the United States.

Witnesses also testified to the Barrio Azteca’s practice of extorting “quota” or taxes on non-BA drug dealers who sold illegal narcotics in El Paso and the greater West Texas and Eastern New Mexico area. Specifically, during today’s hearing, one witness recalled an instance in which Gonzales tried to collect an extortion fee from a New Mexico drug dealer, and when the dealer refused to pay, Gonzalez pulled a gun, put it to dealer’s head, and threatened to kill him.

When quota is collected by the BA, members and leaders deposit the money into the commissary accounts of incarcerated BA leaders, often using fake names or female associates to send the money by wire transfer. Galindo was one of the ranking members of the BA who would receive laundered funds and disperse it within the Texas State prison system to further the criminal goals of the enterprise.

Witnesses also testified to the extensive communication web of the BA, including utilizing coded letters, contraband cell phones within state and federal prison facilities, and distribution of membership rosters and hit lists. Witnesses specifically implicated Galindo, then incarcerated in the Coffield Unit of the Texas Department of Criminal Justice, as the central leader within the organization who kept track of membership records, hit lists and gang treaties for the BA. To update those lists, members and other leaders would contact Galindo on his contraband prison cell phone to verify the status of persons claiming to be BA members and ensure that they were in good standing with the criminal organization. Those not in good standing were targeted by the BA for assault or murder.

The case is being prosecuted by Trial Attorney Joseph A. Cooley of the Criminal Division’s Organized Crime and Gang Section, Trial Attorney Brian Skaret of the Criminal Division’s Human Rights and Special Prosecutions Section and Assistant U.S. Attorney George Leal of the Western District of Texas—El Paso Division. The U.S. Attorney’s Office for the District of New Mexico provided significant assistance in this case, including by Assistant U.S. Attorney Sarah Davenport. Valuable assistance was provided by the Criminal Division’s Offices of International Affairs and Enforcement Operations.

The case was investigated by the FBI’s El Paso Field Office, Albuquerque Field Office (Las Cruces Resident Agency), DEA Juarez and DEA El Paso. Special assistance was provided by the Bureau of Alcohol, Tobacco, Firearms and Explosives; Immigration and Customs Enforcement; the U.S. Marshals Service; U.S. Customs and Border Protection; Federal Bureau of Prisons; U.S. Diplomatic Security Service; the Texas Department of Public Safety; the Texas Department of Criminal Justice; El Paso Police Department; El Paso County Sheriff’s Office; El Paso Independent School District Police Department; Texas Alcohol and Beverage Commission; New Mexico State Police; Dona Ana County, N.M., Sheriff’s Office; Las Cruces, N.M., Police Department; Southern New Mexico Correctional Facility and Otero County Prison Facility New Mexico.

TOP-SECRET – DHS-FBI Suspicious Activity Reporting Bulletin: Terrorists Eliciting Information

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U//FOUO) Terrorist or criminals may attempt to identify critical infrastructure vulnerabilities by eliciting information pertaining to operational and security procedures from security personnel, facility employees, and their associates. Persistent, intrusive or probing questions about security, operations or other sensitive aspects of a facility by individuals with no apparent need for the information could provide early warning of a potential attack. Notable examples of suspicious elicitation:

– (U//FOUO) May 2011: A gas station attendant asked an employee of a nearby chemical manufacturing plant a series of questions about the types of chemicals produced at the plant, whether any were explosive, and whether employees were allowed to take chemicals home. The attendant also asked if the plant employee worked with chemicals, whether certain chemicals become explosive when combined, and whether the plant was hiring.

– (U//FOUO) February 2011: An individual asked a security officer at a train station about station security practices including shift times and changes for security personnel, the number of guards on duty, location of me security company, and whether security continues after midnight. He also asked if the security officer had a key to the electrical room, contact instructions for security personnel in the event of an emergency, the time most people exit trains, and the purpose of little black balls’ (closed-circuit cameras) mounted at points around the station.

 

DOWNLOAD THE ORIGINAL DOCUMENT HERE

DHS-FBI-TerroristQuestioning

Revealed – FBI Updates Congress on Threats Involving Insiders

C. Frank Figliuzzi speaking before House Committee on Homeland Security
C. Frank Figliuzzi, assistant director of the Counterintelligence Division, briefs members of Congress.

FBI Counterintelligence executive C. Frank Figliuzzi briefed members of a House subcommittee on our efforts to disrupt economic espionage activity in the U.S., which—based on our pending cases—has resulted in losses of more than $13 billion to the American economy. Figliuzzi highlighted two growing threats: the willingness of so-called insiders to steal trade secrets and other proprietary information and hand it over to foreign entities; and the illegal transfer of U.S. technology, which could potentially end up in weapons of mass destruction.

The hearing, titled “Economic Espionage: A Foreign Intelligence Threat to Americans Jobs and Homeland Security,” also featured officials from the Department of Homeland Security’s Immigration and Customs Enforcement, the U.S. Patent and Trademark Office, and the U.S. Government Accountability Office. Figliuzzi noted that the “partnerships represented at this hearing”—coupled with public awareness—are a vital component to combating economic espionage.

TOP-SECRET – An Illegal Trainer (KGB history of agent “Halef”). Folder 60. The Chekist Anthology.

Date:
01 June 2007 Source:
The Mitrokhin Archive Description:
Describes training techniques used by the KGB in logistical preparation of their operatives for assignments abroad. This article focuses on the employment history of the KGB agent codenamed “Halef.” Between 1955 and 1967, Halef was stationed in Hong Kong and Tokyo. In 1967, due to his insignificant feedback and a weak performance as a field operative, Halef was transferred back as a trainer. As a trainer, Halef traveled extensively. While in the United States, the KGB developed a fictitious identity for Halef – a so-called legend-biography – in case his activity aroused suspicion and he were detained by authorities. In the United States, France and Mexico, Halef’s objectives included developing and testing means of communication with the KGB, which could be used to inform the KGB of an operative’s arrival to and departure from a country, request a meeting, or announce an emergency. In addition to assessing the existing signal language used among operatives, the KGB also instructed Halef to collect the data necessary to set up new surveillance locations in a number of countries. In 1977, Halef was performing assignments in Pakistan and Burma. In 1978, he and his wife were engaged in assignments throughout the USSR. From the USSR, they were relocated to the GDR and then to Bulgaria, where they boarded a cruise ship going from Varny to Suhumi to survey the ports of the Black Sea basin. Traveling through Odessa, Halef photographed military vessels and observed the procedures of the border patrol and customs officers.

DOWNLOAD THE ORGINAL DOCUMENT HERE

Volume 60 – An Illegal Trainer

ISRAEL DEFENSE – Members of DFLP Squad Arrested

Photo: Shabak Photo: Shabak

Released for publication: the Shabak, in cooperation with the Israeli Police’s section for special duties in the Jerusalem district, have uncovered a terror squad in Northern Jerusalem’s Issawiya neighborhood. The squad is suspected of throwing stones at security forces and aggravated assault against local residents.

A gun and magazines were found during the investigation, which one of the squad members used in various activities carried out in the neighborhood on behalf of the Front for the Liberation of Palestine (DFLP). In addition, another operative admitted to acquiring and possessing a gun.

Popular terror activity is routinely carried out in the Issawiya neighborhood, which includes throwing stones and incendiary bombs as well as physical attacks against Israeli citizens and security forces entering the neighborhood or locations near it.

One of the arrested suspects being investigated is Medhat Tariq Ahmad Muhammad, known as a senior DFLP official in Jerusalem, who was previously arrested for carrying out a shooting attack.

SECRET – Twenty-Two Charged for Multi-State Scheme to Obtain Real Driver’s Licenses with Fraudulent Documents

NEWARK—Charges against 22 individuals were unsealed today and arrests were made in six states in connection with an alleged scheme to fraudulently obtain driver’s licenses for illegal aliens and other ineligible individuals, New Jersey U.S. Attorney Paul J. Fishman and FBI Special Agent in Charge Michael B. Ward announced.

Federal agents have made 17 arrests in New Jersey, New York, California, Nevada, Virginia, and Georgia—including a contract employee of U.S. Citizenship and Immigration Services (USCIS) charged with stealing and providing forms used to aid in the scheme. The charged criminal operation allegedly provided a suite of unlawful services to individuals illegally residing in the United States, including fraudulently obtaining driver’s licenses and investor and student visas.

The federally charged defendants arrested in New Jersey are scheduled to appear this afternoon before U.S. Magistrate Judge Cathy L. Waldor in Newark federal court. Those arrested in other states will have initial appearances in local federal courts.

“Today’s charged conspiracy included brokers across the country who recruited and served customers looking for a valid driver’s license to legitimize their illegal presence in the United States,” said U.S. Attorney Fishman. “By allegedly shepherding illegal aliens through the application process and providing them with counterfeit documentation, the defendants enabled their customers to gain access to all the credibility that a driver’s license affords. Strong immigration enforcement includes guarding against those who subvert the safeguards designed to keep us secure.”

“By gaining access to protected, blank government immigration forms, the subjects in this case were able to utilize sophisticated computer software to create false identity documents and subsequently move to receive legitimate driver’s licenses,” said Special Agent in Charge Ward. “In doing so, they were able to circumvent established safeguards and proper vetting put into place post-9/11. The exploitation of this vulnerability is significant because identity-type frauds are a gateway crime. Seldom are they the endgame. Individuals with falsely obtained identities are more likely to commit financial frauds, walk away from legal obligations, and are more difficult for law enforcement to identify and investigate.”

According to the complaints unsealed today:

Young-Kyu Park, formerly a resident of Fort Lee, New Jersey, and currently a resident of Los Angeles, was the leader of a criminal enterprise (“the Park Criminal Enterprise”) operating in Palisades Park and Fort Lee, New Jersey, as well as in other states.

The Park Criminal Enterprise illegally obtained driver’s licenses genuinely issued by New Jersey, New York, Virginia, Nevada, and elsewhere. To do so, it acquired, created, and counterfeited a variety of documents for sale to customers. Members of the Park Criminal Enterprise also escorted customers to various state motor vehicle agencies and coached them through obtaining the licenses. In return, customers each paid the Park Criminal Enterprise a fee of approximately $3,000 to $4,500 for the unlawful services.

In particular, Young-Kyu Park fraudulently obtained, completed, and sold genuine I-797 forms for customers to use to get licenses. An I-797 form is used by the federal government—including USCIS, a division of the Department of Homeland Security—to communicate with others or convey an immigration benefit. State agencies that issue driver’s licenses rely on these forms to verify the authenticity of an applicant’s foreign passport and to verify the applicant’s lawful presence in the United States. One version of this form can be used to show eligibility for in-state college tuition.

The Park Criminal Enterprise also altered and counterfeited other immigration documents, including passports, and created and provided fictitious documents to customers—such as fictitious utility bills and bank statements used to establish residency requirements. In furtherance of the scheme, Young-Kyu Park and his co-conspirators fraudulently extended expired Korean passports of individuals without legal status in the United States so they could obtain driver’s licenses. These illegal services were, at times, advertised in Korean newspapers and online with headings such as, “New Jersey Driver’s License.”

Young-Kyu Park obtained blank I-797 forms from Karine Michmichian and Martin Trejo, a USCIS contract employee working at the USCIS’ Western Forms Center in Montclair, California—the United States’ largest warehouse storage facility for these forms. At various times, Young- Kyu Park ordered the forms from Michmichian, who contacted Trejo.

For example, on February 2, 2012, Young-Kyu Park called a cell phone used by Michmichian. Approximately two minutes later, she sent a text message to a cell phone used by Trejo, stating, “Need 200 (A) call me asap, please, valentines is coming,”—an alleged reference to the purchase of approximately 200 I-797A forms.

Young-Kyu Park then used a computer to print customers’ information onto the blank, stolen forms.

The Park Criminal Enterprise maintained a network of co-conspirators in New Jersey, Nevada, Georgia, and Virginia that met with customers. Young-Kyu Park often communicated with his co-conspirators in various states through e-mail. For example, on November 3, 2011, Young-Kyu Park sent an e-mail to a cooperating witness, stating, “Not sure if [you] have received [the customer’s] passport from Director Kim [Ki-Sok Kim]. Must receive the passport and extend it. When extending passport…set the period to 11/3/2011-11/2/2016…issue date should be 11/2/2011.” In the same e-mail, Young-Kyu Park directed the cooperating witness to then send the altered passport, via Federal Express, to Ho-man Lee, a co-conspirator in Alexandria, Virginia who helped customers to illegally get licences in that state.

Members of the Park Criminal Enterprise, including Young-Kyu Park’s wife, Soong-Young Park, and his daughter, Hanna Park, laundered the proceeds of the illegal operation to distribute the proceeds and conceal the scheme.

The criminal complaint charges the following offenses:

Count one charges the named defendants with conspiracy to unlawfully produce identification documents (driver’s licenses) and false identification documents (passports). The charge carries a maximum potential penalty of 15 years in prison and a $250,000 fine.

Count two charges the named defendants with conspiracy to steal government property and to transport and receive stolen property in interstate commerce. The charge carries a maximum potential penalty of five years in prison and a $250,000 fine.

Count three charges the named defendants with conspiracy to commit money laundering. The charge carries a maximum potential penalty of 20 years in prison and a $250,000 fine.

A chart appended to this release identifies the defendants and the offenses with which they are each charged.

* * *

U.S. Attorney Fishman praised the work of special agents of the FBI, under the direction of Special Agent in Charge Ward, in the investigation of this case; along with Immigration and Customs Enforcement, Homeland Security Investigations, under the direction of Andrew M. McLees; the Department of Homeland Security, Office of Inspector General, Special Agent in Charge Gregory K. Null of the Philadelphia Field Office; and U.S. Citizenship and Immigration Services, under the direction of New Jersey District Director John E. Thompson.

U.S. Attorney Fishman noted the invaluable work of the New Jersey Motor Vehicle Commission, under the direction of Chief Administrator Raymond P. Martinez, in facilitating the investigation; and praised the Bergen County Prosecutor’s Office, under the direction of Prosecutor John L. Molinelli, for providing the manpower for a vital investigative role throughout. He also thanked the New Jersey State Police, under the direction of Colonel Joseph R. Fuentes, for its substantial assistance.

Also thanked were the FBI Field Offices in Los Angeles, Las Vegas, New York, Atlanta, and Richmond, as well as U.S. Attorney’s Offices for the District of Nevada and the Central District of California for their support of this case and today’s operation.

The government is represented by Assistant U.S. Attorneys Anthony Moscato and Lisa M. Colone of the U.S. Attorney’s Office Organized Crime/Gangs unit in Newark.

The charges and allegations contained in the complaint are merely accusations, and the defendants are considered innocent unless and until proven guilty.

Below is a list of the defendants, their ages, residences, and the respective charge(s) against them.

Name Age Residence Charge(s)
Young-Kyu Park 54 Los Angeles Counts, two, three
Soong-Young Park 56 Los Angeles Count one, three
Hanna Park 29 Los Angeles Counts one and three
Hyeun-Jin Park 31 Las Vegas Counts one and three
Yang-Gon Kim 30 Los Angeles Count one
Jong-Hyek Park 34 Las Vegas Count one
Ki-Sok Kim 54 Tenafly, New Jersey Count one
Joon-Sang Lee 37 Brooklyn, New York Count one
Boo Park 42 Cliffside Park, New Jersey Counts one and three
Huong K. Shin 46 Palisades Park, New Jersey Count one
Ho-Man Lee 41 Alexandria, Virginia Counts one and three
Samuel H. Park 58 Norcross, Georgia Count one
Jong-Ho Kim 26 Annandale, Virginia Count one
Kae-Won Jho 45 Duluth, Georgia Count one
Young-Bae Gu 46 Las Vegas Counts one and three
Hai-Sok Cho 61 Cliffside Park Count one
Yong-Hae Kim 66 Palisades Park Count one
Sung-Kum Choi 48 Fort Lee, New Jersey Count one
Jong-Hyuk Park 45 Leonia, New Jersey Count one
Sung-Hee Bae 50 Ridgefield, New Jersey. Count one
Martin Trejo 45 Rialto, California Count two
Karine Michmichian 39 Studio City, California Count two

TOP-SECRET from the NSA – Mighty Derringer U.S. Nuclear Terrorism Exercise Leaves Indianapolis in “Ruins”


Washington, D.C., June  28, 2012 – A secret exercise in 1986 by a U.S. government counter-terrorist unit uncovered a host of potential problems associated with disrupting a nuclear terrorist plot in the United States. Declassified documents released under the Freedom of Information Act (FOIA) and posted today by the National Security Archive offer the first detailed public look at the inner workings of the agencies, military units and other U.S. entities responsible for protecting the country from a terrorist nuclear attack.

Today’s posting consists of over 60 documents related to MIGHTY DERRINGER, an exercise that focused on Indianapolis in December 1986. The materials provide background on the creation, in 1974-1975, of the Nuclear Emergency Search Team (NEST), a group assigned to respond to plausible threats of nuclear terrorism or extortion. Today, NEST (now the Nuclear Emergency Support Team) conducts exercises to assess its capability to respond to the possible presence of a terrorist device and test the ability of NEST and critical cooperating organizations (including military units)to work together.

While the MIGHTY DERRINGER exercise and resulting documents are over two decades old, the institutions participating in the exercise retain their roles today, and the issues confronting them in 1986 are similar to the ones that they would face in responding to a nuclear threat in 2012 (and beyond).

This posting is notable for being the first publication of documents that provide in-depth exposure into all aspects of such an exercise – including the state-of-play at key points and the array of issues involved in disabling terrorist devices. Of particular interest are references to the participation of the Joint Special Operations Command and Delta Force – mirroring the role they would have in a real-world incident. In addition, after-action reports reveal the assorted problems that can arise in coordinating the response to a nuclear terrorist threat among a large number of organizations.

* * * *

THE MIGHTY DERRINGER EXERCISE

In late January and early February 2012, members of the Department of Energy’s Nuclear Emergency Support Team (NEST) patrolled Lucas Oil Stadium as well as surrounding areas of Indianapolis as a precautionary measure in advance of Super Bowl XLVI. An initial survey to gather information on background levels of radiation was followed by an actual search for signatures associated with either a nuclear explosive device or a radiation dispersal device (a ‘dirty bomb’).1 Fortunately, none was found.

Over twenty-five years earlier, for a few days in early December 1986, NEST personnel also patrolled Indianapolis, also in search of a nuclear device. That search was triggered by an intelligence report that suggested that an Improvised Nuclear Device (IND) might have been smuggled into the city by terrorists. With the assistance of the Delta Force, U.S. personnel were able to recover and disable the device in a fictitious neighboring country; unfortunately the Indianapolis device exploded and 20 square blocks in downtown Indianapolis were completely destroyed.

As it happens, the terrorist group, the intelligence report, and the detonation were fictional – elements of a NEST exercise designated MIGHTY DERRINGER, one of a number of tests designed to anticipate and prevent the potential real-world catastrophe of a terrorist nuclear strike in a major American city. Documents published today by the National Security Archive provide newly declassified details on how the MIGHTY DERRINGER exercise unfolded and how the participants later evaluated it.

This is the most extensive set of declassified documents on any nuclear counterterrorism exercise, covering every phase of the response, from concept to critiques, and it offers valuable insights into a world that is usually hidden from public scrutiny. Among the disclosures:

§ The role of the top secret Joint Special Operations Command’s Delta Force in carrying out the assault on the terrorist cell in the fictional country of Montrev.

§ Descriptions of the different types of disablement techniques U.S. forces utilize – emergency destruct, standard destruction, and hard entry.

§ Assessments of the coordination problems and different perspectives of agencies that would be involved in a real-world response.

The instruction to establish NEST, known until 2002 as the Nuclear Emergency Search Team, took the form of a November 18, 1974 memo from Maj. Gen. Ernest Graves, the Atomic Energy Commission’s assistant general manager for military application, to Mahlon Gates, the manager of the commission’s Nevada Operations Office. (Document 1). Gates was “directed and authorized” to assume responsibility for the planning and execution of field operations employing AEC radiation detection systems for the “search and identification of lost or stolen nuclear weapons and special nuclear materials, bomb threats, and radiation dispersal threats.”

Personnel for NEST would come from AEC’s nuclear weapons laboratories – Lawrence Livermore, Sandia, and Los Alamos – as well as key AEC contractors. Almost all those individuals would continue in their regular positions full-time and become part of a NEST effort when required.

What inspired Graves’ memo was an incident that had taken place in May of that year. The Federal Bureau of Investigation received a letter demanding $200,000. Failure to comply would result in the detonation of a nuclear bomb somewhere in Boston. Personnel and equipment were quickly assembled and transported to Griffiss Air Force Base in Rome, New York. But before the team could make it to the threatened city, the crisis receded when no-one came to pick up the $200,000 in phony bills left at the designated site. 2

But the incident and the difficulties involved in responding to the threat convinced senior leaders that there was a need for a dedicated capability to deal with any attempt at nuclear extortion or nuclear terrorism. From its inception, NEST devoted considerable time and effort to conducting exercises designed to allow the team to test its readiness, procedures, and equipment in a variety of scenarios. In addition, since confronting a nuclear threat would involve not only NEST but a multitude of organizations, exercises provided an opportunity to identify potential problems in interagency cooperation.

MIGHTY DERRINGER was a particularly notable exercise in exploring the organizational, governmental, and technical problems that might arise in responding to a nuclear terrorist threat. While the existence of MIGHTY DERRINGER has been reported previously, the documents obtained by the National Security Archive and posted in this briefing book provide far more detail than previously available on the scenario, results, and after-action assessments of the assorted organizations involved. Since NEST and these other government entities are still critical components of America’s counter-terrorist capability, these records are valuable for the insight they offer into how a current-day nuclear detection operation would unfold and particularly what kinds of problems might be encountered.3

The exercise took place in two locations – Camp Atterbury, Indiana, near Indianapolis, and Area A-25 of the Energy Department’s Nevada Test Site – which corresponded to the two locations involved in the exercise scenario. One of the those locations was Indianapolis while the other was the country of ‘Montrev’ – a rather transparent fictional version of Mexico (since Montrev shared a border with the United States, its capital city was ‘Montrev City’, and its primary security agency was the Directorate for Federal Security – the same as Mexico’s).

Montrev was the initial focus of the exercise, with a terrorist group commanded by “Gooch” threatening to detonate an improvised nuclear device (IND) near the country’s Bullatcha oil field. According to the scenario, terrorists had stolen the devices from a new nuclear weapons state. Eventually, the participants discovered that that there was a second nuclear device and it appeared that it was being infiltrated into the United States, possibly with Pittsburgh as a target – although it was subsequently determined that the target was Indianapolis. While U.S. forces (with Delta Force assistance) were able to recover and disable the device in Montrev, Indianapolis experienced a 1 kiloton nuclear detonation that resulted in “total devastation over a 20 square block area.” (Document 38) The scenario had originally posited a successful disarming, but the exercise controllers decided to introduce a new element.

The scenario allowed for all aspects of a possible response to a nuclear terrorist/extortionist threat to be practiced – from initial assessment of the threat to the management of the “consequences” of a detonation. The documents posted cover, with varying detail, the core aspects of a response – intelligence collection, technical and behavioral assessments, search, access/defeat of terrorist forces, recovery of a device, diagnostics, hazards and effects estimation, disablement and damage limitation, safe transportation of the device, and consequence management of a detonation. In addition, they also concern a variety of important aspects of a response – including security, command and control, communications, logistics, radiological measurement and containment, weather forecasting, public information, and interaction with local officials.

The documents also identify the large number of organizations involved in the exercise. There is NEST and the organizations that contributed members or capabilities – including Lawrence Livermore National Laboratory, Los Alamos National Laboratory, and contractor EG&G. Additional organizations whose participation is evident include the State Department, Central Intelligence Agency, Federal Bureau of Investigation, Joint Special Operations Command, Special Forces Operation Detachment – Delta (Delta Force), several military explosive ordnance disposal units (from the Army and Navy), the Federal Radiological Monitoring and Assessment Center, the Environmental Protection Agency, and the Federal Emergency Management Agency.

Beyond detailing participants and describing different aspects of the exercise and static plans, some of the documents (the ‘Sitreps’- Document 19, Document 23, Document 32) provide a more dynamic view of the state of play at various points in the exercise. In addition, the post-exercise critiques provide different individual and institutional perspectives as to either the realism of the exercise or what the exercise revealed about strengths and weaknesses of the then current U.S. ability to respond to a nuclear terrorist threat.

Thus, Vic Berkinklau, an engineer with the Atomic Energy Commission, in addition to describing MIGHTY DERRINGER as an “Excellent, well managed exercise,” had an additional eight observations which concerned subjects such as uncertainty as to the number of NEST personnel needed in Montrev, the relationship between NEST and the Explosive Ordinance Disposal (EOD) team, and the need for more detailed analysis of the consequences of a nuclear detonation in a populated area (Document 43). L.J. Wolfson of the Navy Explosive Ordnance Disposal Technical Center contributed an eight-page single-spaced analysis concerning a variety of topics, including the nuclear device, assessment and intelligence, command and control and disablement. He observed (Document 47) that “there is too great a prevalence to believe what might, and probably is, very inconclusive intelligence information” and that “the entire operation was slowed and overburdened by the number of personnel involved.”

Commenting on the terrorism phase of the exercise (Document 50), William Chambers, NEST member and site controller for the Indianapolis component of the exercise, wrote that liaison between the FBI’s Hostage Rescue Team, NEST, and EOD personnel was “excellent” but that “the joint procedures for withdrawing the HRT and survivors, securing the perimeter, and clearing access to the device need clarification.” An unattributed comment (Document 66) suggested that the Delta Force players did not appreciate the “gravity of dealing with a nuclear device.”

In the subsequent twenty-five years, NEST and other organizations concerned with nuclear terrorism have conducted a significant number of exercises – particularly following the attacks of September 11, 2001.4 However, because of its scale and scope MIGHTY DERRINGER remains one of the more notable nuclear counterterrorism exercises.

The Energy Department is keeping secret significant aspects of MIGHTY DERRINGER, but more may be learned about the exercise and the State Department’s role in it from the response to a pending request. Moreover, files on MIGHTY DERRINGER at the Ronald Reagan Presidential Library will eventually be declassified and shed light on the National Security Council’s role.

(Note: A list of abbreviations used in the documents appears below.)


READ THE DOCUMENTS

Background

Document 1: Ernest Graves, Assistant General Manager for Military Application, Atomic Energy Commission, to M.E. Gates, Nevada Operations, “Responsibility for Search and Detection Operations,” November 18, 1974. Secret.

Source: Department of Energy FOIA Release

With this memo General Graves assigned Gates and the AEC’s Nevada Operations Office responsibility for search and detection operations with respect to lost and stolen nuclear weapons and special nuclear material as well as responding to nuclear bomb and radiation dispersal threats. The memo became the basis for the creation of the Nuclear Emergency Search Team (NEST).
Document 2: Director of Central Intelligence, IIM 76-002, The Likelihood of the Acquisition of Nuclear Weapons by Terrorist Groups for Use Against the United States, January 8, 1976. Secret.

Source: CIA FOIA Release.

An interagency group of intelligence analysts explored the constraints on the exploitation of nuclear explosives, attitudes and behavior toward the United States, means of acquiring nuclear explosives, the ways in which nuclear devices might be used against the United States, and the capabilities of existing terrorist groups. While the authors considered it unlikely that the U.S. would be the target of a nuclear terrorist attack “in the next year or two,” they also noted that, in the longer term, “we would expect a corresponding erosion of the constraints against terrorist use of nuclear explosives.”
Document 3: Energy Research and Development Administration, “Nuclear Emergency Search Team (NEST),” n.d. (but 1977). Unclassified.

Source: Energy Research and Development Administration

NEST began its existence as an unacknowledged government organization, but in 1977 it was concluded that NEST would have to interact with local law enforcement and political authorities in dealing with nuclear threats, and thus its existence would need to be acknowledged. This fact sheet, distributed to the press by ERDA, was the means by which NEST’s existence was quietly announced.
Document 4: E.J. Dowdy, C.N. Henry, R.D. Hastings, S.W. France, LA-7108, Nuclear Detector Suitcase for the Nuclear Emergency Search Team, February 1978. Unclassified.

Source: Los Alamos National Laboratory

 

This technical paper describes one piece of equipment designed specifically for NEST personnel – a portable Neutron Detection system that could be carried in any vehicle. The paper describes the detectors, the electronics, and the operations.
Document 5: Director of Central Intelligence, NIE 6-86, The Likelihood of Nuclear Acts by Terrorist Groups, April 1986, Secret, excised copy

Source: Mandatory Review Request; release by Interagency Security Classification Appeals Panel.

 

This estimate examined several incentives and constraints with regard to nuclear terrorism – including the availability of nuclear information, material, and trained personnel; changing levels of protection for nuclear weapons and other sources of nuclear/radioactive material; and terrorist capabilities and motivations (including possible state support to nuclear terrorism). The authors concluded that there was only a “low to very low” probability of nuclear terrorism that involved detonation of an improvised nuclear device or nuclear weapon – or the dispersal of radioactive material in a way that would threaten mass casualties or produce widespread contamination.
 

Preparations

 

Document 6: William Hoover, Deputy Assistant Secretary of Energy for Defense Programs, to DCI William Casey, 23 September 1985, with CIA routing memos, Confidential

Source: CREST, National Archives II

A senior Energy Department official informed Director of Central Intelligence William J. Casey of the Department’s conclusion on the need for a large-scale nuclear exercise in the early 1987 fiscal year and requested the CIA’s participation.
Document 7: Robert B. Oakley, State Department Counter-Terrrorism Center, to Executive Secretary Nicholas Platt, MIGHTY DERRINGER Exercise Planning,” 4 April 1986, with memorandum to Vice Admiral John Poindexter attached, Confidential

Source: State Department FOIA release

This memorandum, from the head of the State Department’s Counter-Terrorism Center, along with that attached memo to the president’s national security adviser, described the level of State Department participation in MIGHTY DERRINGER.
Document 8: Peter Borg, State Department Counter-Terrorism Center, to Richard Kennedy et al., “Exercise MIGHTY DERRINGER,” 6 October 1986, Secret

Source: State Department FOIA release

A number of State Department officials were recipients of this secret memo, which informed them of the nature of MIGHTY DERRINGER, when it would take place, some requirements for the exercise to be realistic, and the State Department’s participation.
 

The Exercise

 

Document 9: Don McMaster, Behavioral Assessment Report/PLC, n.d. [circa 2 December 1986], Incomplete copy, Secret

Source: Energy Department FOIA release

This behavioral assessment mirrors the earliest phases of responding to an actual threat, especially trying to assess its credibility. It discusses the reliability of a source, motivations of other key figures in the terrorist group, and concludes that a credible threat exists to both the United States and ‘Montrev.’
Document 10: F.W. Jessen, Lawrence Livermore National Laboratory, “Summary Assessment,” 2 December 1986, Secret, Incomplete copy

Source: Energy Department FOIA release

This assessment, conducted at Lawrence Livermore, where much of the credibility assessment effort has been located, reports that the available information suggests that the terrorist group possesses two improvised nuclear devices but that LLNL and Los Alamos National Laboratory disagree over the technical credibility of the threat.
Document 11: “Aggregate Assessment – – One Hour – – Of Threat Message and Sketch,”

n.d., Secret, Page 1 only

Source: Energy Department FOIA release

The title of this memo indicates that a sketch of a device was included with the threat message. Technical experts had already begun to draw conclusions about the device in Montrev as well as the implications for finding a second device in the United States.
Document 12: Thomas R. Clark, Manager, Nevada Operations Office, Department of Energy, “NEST Alert Status,” 3 December 1986, Confidential, excised copy

Source: Energy Department FOIA release

This message, from a Department of Energy manager, informs NEST participants at key laboratories and contractors that NEST is on “alert.” The Department of State has received a threat and the Department of Energy has been asked to evaluate it. Other actions have been taken.
Document 13: “Security Plan for NEST Retrograde Operation, December 1986,” n.d., Secret

Source: Energy Department FOIA release

The plan described in this document notes the classification levels and types of information involved in the exercise as well as measures for the protection of cryptological matter and classified documents.
Document 14: Peter Mygatt, Exercise Mighty Derringer, “Chronological Media Play, ‘Site City,’ Beginning 12/7/86,” n.d., Secret

Source: Energy Department FOIA release

The MIGHTY DERRINGER scenario writers assumed that if it was a real-world event, part of it would be visible and covered extensively by the media. This document summarizes reports of fictional news services and television stations as well as interaction between the media and FBI and Department of Energy.
Document 15: NEST On-Scene Commander, Subject: Event Mighty Derringer Sitrep No. 1 OCONUS, Prepared at 00:15 PST on 12/06/86, Secret

Source: Energy Department FOIA release

The first Situation Report (Sitrep) of the part of the exercise that takes place in Montrev summarizes the current situation (including the number of personnel in country) as well as
the status of a variety of subjects – including command and control, intelligence, disablement, and weather.
Document 16: W. Rogers, NEST Paramedic Coordinator, to V. Withirill, N.T.S.O, “MIGHTY DERRINGER, MEDICAL EMERGECY RESPONSE,” 6 December 1986, Secret

Source: Energy Department FOIA release

This memo reports that MIGHTY DERRINGER was being conducted in area A-25 of the Nevada Test Site and would involve approximately 450 people. It focuses on “areas of responsibility … and those assets available” in the event of an actual medical emergency.
Document 17: “NEST Evacuation Plan,” n.d., Secret

Source: Energy Department FOIA release

This plan addresses the evacuation of NEST personnel and equipment from Montrev City in the event of a nuclear detonation at the nearby Bullatcha Refinery No. 5. It focuses on execution, logistics, and command and control.

Document 18: NEST On-Scene Coordinator/Exercise Mighty Derringer, to Director, Emergency Management Team, DOE-EDC, Washington, D.C., Event Mighty Derringer Sitrep No. 2, Prepared at 1100 PST 6 December 1986, Secret

Source: Energy Department FOIA release

This report updates the Sitrep that had been prepared just after midnight on December 6 and reports on the significant developments that had occurred during the day. It covers thirteen different topics, and provides significant details of the terrorist site in Montrev, a summary of the behavioral assessment based on communications intelligence, and an assessment of the device. It notes that a “second nuclear device may be enroute [to] CONUS” and there is no confidence that the device is one-point safe, that is, the risk of an accidental nuclear detonation had to be taken into account (to be one-point safe there must be less than 1 in one million probability of producing a nuclear yield exceeding the equivalent of 4 pounds of TNT when the high explosive inside the weapon is detonated at any single point).
Document 19: NEST On-Scene Coordinator /Exercise Mighty Derringer, to Director, Emergency Management Team, DOE-EDC, Washington, D.C., Subject: Event Mighty Derringer Sitrep No. 3, Prepared at 00:10, on 12/07/86, Secret

Source: Energy Department FOIA release

This Sitrep prepared an about one hour after Sitrep No. 2, notes that “prestaging of equipment for access has been completed.”
Document 20: Assessment/McMaster, to Standard Distribution, “IRT Intelligence Summary 061200-062400,” 7 December 1986 02:30, Secret

Source: Energy Department FOIA release

This assessment reports on attempts to determine the presence of a nuclear device at the terrorist site, the movements of the terrorist group’s leader, the weapons and equipment possessed by the group, and a conclusion regarding the capability of Montrev’s armed forces to secure the terrorist site.
Document 21: Assessment/McMaster, to Standard Distribution, “Status Montrev Forces,” 7 December 1986 05:30, Secret

Source: Energy Department FOIA release

The status of Montrev’s forces is reported in this memo, which is based on information received from the Defense Intelligence Agency. It discusses their location, vehicle lift capability, and maintenance issues.
Document 22: CN1 to All, “Mighty Derringer,” 7 December 1986 8:44, Secret

Source: Energy Department FOIA release

This memo conveys a report from the IWS news service on events in Montrev.
Document 23: NEST On-Scene Coordinator, Subject: Event Mighty Derringer, Sitrep No. 4, OCONUS, Prepared at 09:40 on 12/07/86, Secret

Source: Energy Department FOIA release

This Sitrep indicates a successful assault by forces of the Joint Special Operations Command, resulting in their control of both the north and south sites that had been under terrorist control. It reports on the status of the nuclear device and the initial implementation of the emergency disablement plan.
Document 24: Summary Assessment to Standard Distribution, “Summary Assessment,” 7 December 1986 10:30, Secret

Source: Energy Department FOIA release

The technical assessment has been entirely redacted from this document, but the operational and behavioral assessments have been released in their entirety. They note that “The adversary has set up the Montrev situation in such a way that if and when he surfaces in CONUS and makes an explicit threat and demand, he must be taken seriously.”
Document 25a: CN1 to All, “Mighty Derringer,” 7 December 1986 12:28, Secret

Document 25b: CN1 to All, “Mighty Derringer,” 7 December 1986 13:07, Secret

Document 25c: CN1 to All, “Mighty Derringer,” 7 December 1986 15:48, Secret

Source: Energy Department FOIA release

These bulletins convey various media reports of developments in Montrev, including the presence of NEST personnel.
Document 26: Assessment/F. Kloverstrom to Standard Distribution, “Results of examination of containers found in south building,” 7 December 1986 18:10, Secret

Source: Energy Department FOIA release

This memo reports on the discovery, after the assault, of two containers, which appear to contain radioactive material.
Document 27: Jim Boyer, “Suggested Procedure for Joint DOE/Montrev News Releases,” 7 December 1986, Secret

Source: Energy Department FOIA release

Among the recommendations in this short memo are obtaining input from the Montrev Ministry of Information “to get an idea of what El Presidente will approve,” developing a cover for the NEST operation, but preparing to admit NEST participation during the last phase of the operation.
Document 28: “Time Line/Event/Decision Sequence,” 8 December 1986 19:00, Secret

Source: Energy Department FOIA release

This document focuses on the essential steps in disabling the nuclear device seized in Montrev and limiting damage. Thus, it addresses access, diagnostics, disablement, damage limitation, and hazards and effects.
Document 29: “Damage Limitation Containment Implementation,”8 December 1986, Secret

Source: Energy Department FOIA release

This eight-page memo has been almost completely redacted but the opening paragraph notes the location of the Montrev device and that its location presents a “formidable problem” but that all participants reached a common conclusion for the solution.
Document 30: “Hazards and Effects Analysis Prior to Montrev Disablement,” n.d. [8 December 1986?], Secret

Source: Energy Department FOIA release

This three-paragraph memo notes that hazard predictions (involving fallout dose and exposure rates) considered a variety of possible yields, wind projections, and the vulnerability of “the small village of Taco Caliente.”
Document 31: A/I [Assessment & Intelligence] Behavioral, “Booby Traps/Tamper Proof,” n.d. [8 December 1986?], Secret

Source: Energy Department FOIA release

This assessment focuses on the likelihood that the terrorist group and its leader would have installed booby traps to prevent tampering with the nuclear device seized in Montrev. It notes the implications of the extensive anti-personnel attack defenses around the area.
Document 32: James K. Magruder, On-Scene Commander, to Director, Emergency Management Team, DOE-EOC, Washington, D.C, Event Mighty Derringer Sitrep No. 7, 8 December 1986 23:00, Secret

Source: Energy Department FOIA release

This Sitrep notes presumed deadlines for nuclear device detonation and a proposed disablement schedule, the number of personnel on site, an extensive report on current intelligence, and that an “emergency destruct plan has been prepared.”
Document 33: Assessment & Intelligence/F. Jessen to Standard Distribution, “A&I Summary/8 December 2130,” 8 December 1986, Secret

Source: Energy Department FOIA release

This assessment notes the credibility of a threat message claiming the existence of a second nuclear device based on experimental measurements of the device seized in Montrev. The memo’s contents suggest a U.S. target for the second device.
Document 34: J.A. Morgan, Disablement Team Leader, to On-Scene Commander, “Disablement Plan,” 9 December 1986, Secret

Source: Energy Department FOIA release

The memo includes a computer sketch of the terrorist nuclear device and the disablement method, as well as the reentry and evacuation plans – all of which have been redacted.
Document 35: “Exercise Mighty Derringer Post-Event Plan to Safe and Remove the Device,” circa 9 December 1986, Secret

Source: Energy Department FOIA release

This heavily-redacted memo covers four topics – the situation, mission, execution, and administration and logistics. The released portion notes that disablement action had been completed and that an intact physics package had been recovered.
Document 36: “NEST Demobilization Plan,” 10 December 1986, Secret

Source: Energy Department FOIA release

This memo marks plans for the ending the exercise – specifying the responsibilities of the individual organizations, procedures for transportation to the airport and the loading of aircraft, and command and control.
Document 37: Assessment/M. Miron, to Standard Distribution, “Resemblance of Montrev Device to Tahoe Bomb,” 9 December 1986 20:35, Secret

Source: Energy Department FOIA release

In 1980, a sophisticated improvised (non-nuclear) explosive device placed at Harvey’s Wagon Wheel Casino did substantial damage when disablement efforts failed. The memo suggests that publicly available information about the device may have been employed to construct the Montrev device.
Document 38: Cal Wood, Livermore National Laboratory, to Bob Nelson, Controller Team Leader, “Preliminary Evaluation of Players’ Device Estimate,” 10 December 1986, Secret

Source: Energy Department FOIA release

This heavily redacted memo notes that “the diagnostic techniques used by the team produced a rather good estimate of both the materials present and their configuration.”
Document 39: Director FEMA to National Security Council, “Situation Report on MONTREV/Indianapolis Terrorist Situation,” 11 December 1986 17:00 EST, Secret

Source: Energy Department FOIA release

The FEMA director begins with the observation that “At 0700, 11 December 1986, a nuclear detonation occurred in the City of Indianapolis” devastating 20 square blocks. He does not describe the type of damage produced, for example, whether the detonation led to any fires, or the extent to which it caused local fallout hazards. The FEMA director then describes the consequence management phase of the exercise, including involvement of state and federal authorities and agencies.
 

Critiques

Document 40: Carl Henry, Los Alamos National Laboratory, “Mighty Derringer Report,” 2 February 1987, enclosing comments by Ray D. Duncan, n.d., Secret

Source: Energy Department FOIA release

Some weeks after the exercise, Los Alamos official Carl Henry sent a large package of commentary on MIGHTY DERRINGER, which is presented below, piece by piece, except for the critique by Ray D. Duncan,which is attached to the Henry memorandum. Duncan, a manager at the Nevada Test Site, produced an extensive review which raised a number of issues, including the “unusual challenges” MIGHTY DERRINGER raised for NEST if it was ever deployed to a foreign country for a “covert operation.” Perhaps some incident during the exercise led him to the recommendation for educational training for Delta Force and the Joint Special Operations Command so that their members “understand the potential consequences of moving or unintentionally shooting an IND [improvised nuclear device].”
Document 41: Untitled, unattributed document, Secret, incomplete

Source: Energy Department FOIA release

This critique gives some detail on how the NEST group entered Montrev during the crisis. The State Department had created an approved access list and a simulated Montrev consulate processed the players when they entered the country. When players realized that they had forgotten some equipment, they were easily able to retrieve it as it was only 65 miles away. The commentator noted that in a “real world situation, the NEST contingent could be thousands of miles away from necessary equipment or supplies.”
Document 42: Eric Schuld to Bob Nelson, “Comments on Mighty Derringer – OCONUS Issues,” n.d., Secret

Source: Energy Department FOIA release

Schuld listed issues brought up by the “Outside Continental United States” exercise. For example, the JSOC solved its problem through a “quick assault” that created problems for other organizations in the exercise.
Document 43: Vic Berniklau to Bob Nelson, “Issues/Major Observations/Lessons Learned,” n.d., Secret

Source: Energy Department FOIA release

Like many of the commentators, Berniklau saw the exercise as “excellent” and “well managed,” but he raised problems that others also brought up, such as fragmentation of information and “confusion.”
Document 44: T.T. Scolman, Comments, n.d., Secret

Source: Energy Department FOIA release

Scolman, whose role was “Commander for Science,” also saw an information management problem and pointed to other concerns, such as lack of support staff.
Document 45: Richard F. Smale, HSE, to Carl Henry/Bill Chambers, “First Impressions: Mighty Derringer: Consequence Phase,” n.d., Classification unknown

Source: Energy Department FOIA release

The “consequence phase” referred to the aftermath of the nuclear detonation in Indianapolis. Smale saw “great things” in the exercise, such as its technical organization, but he pointed to concerns such as the failure to present information that would be accessible to a non-technical audience and the lack of time to “develop good fallout plots.”
Document 46: L J. O’Neill, “Exercise Impressions,” 9 December 1986, Secret

Source: Energy Department FOIA release

O’Neill was impressed by the participation of “foreign speaking actors” which helped the participants to enter “wholeheartedly into the play.”
Document 47: L.J. Wolfson to R. Nelson, “Exercise Mighty Derringer,” 10 December 1986, Classificaion unknown, excised copy

Source: Energy Department FOIA release

Like O’Neill, Wolfson pointed to the “good actor play,” especially by the actor who had the role of Montrev’s “El General.” Nevertheless, he argued that “too many people” slowed down the operation.
Document 48: William Nelson, Mighty Derringer Washington Controller, to Captain Ronald St. Martin, National Security Council, “Mighty Derringer Meeting at FBI Headquarters, 12 December 1986, Classification unknown

Source: Energy Department FOIA release

The discussion at FBI headquarters on organizational issues produced a consensus on the need for a White House-designated “leader,” possibly at the cabinet level, responsible for managing post-nuclear disaster recovery activities.
Document 49: Kathy S. Gant, Emergency Technology Program, Oak Ridge National Laboratory, to William Chambers, Los Alamos National Laboratory, 17 December 1986, enclosing “Comments on Exercise Mighty Derringer,” 18 December 1986, Classification unknown

Source: Energy Department FOIA release

Seeing a need for better integration of the consequences phase into MIGHTY DERRINGER, Gant emphasized the need for state and local actors to play a stronger role in such exercises to give them greater realism. Her discussion of the Federal Radiological Response Plan led to a recommendation that NEST staffers play a role in post-incident field monitoring of radiation hazards because they would be the “first available federal personnel.”
Document 50: William H. Chambers, CONUS Site Controller, to Carl Henry, Chief Controller, “‘Quick Look,’ Report, Mighty Derringer CONUS,” 19 December 1986, Secret

Source: Energy Department FOIA release

Chambers provided some detail on the role of the Indianapolis nuclear detonation in MIGHTY DERRINGER. According to the script, the device had been “rendered-safe,” but the exercise leaders “deviated” from the script by improvising a “simulated nuclear detonation.”
Document 51: Zolin Burson, EG&G Energy Measurements, to Carl Henry, 29 December 1986, Secret

Source: Energy Department FOIA release

Like Gant, Burson pointed to the need for more involvement by state and local actors in such exercises, suggesting that “if the real Governor and Mayor” had been present, “they would have had a much stronger influence.”
Document 52: Richard F. Smale, Associate Group Leader, to Jesse Aragon, HSE Division Leader, “Trip Report December 7 to 13, Camp Atterbury (Indianapolis), Indiana,” 7 January 1987, Secret

Source: Energy Department FOIA release

Smale provides more detail on the role of nuclear devices in the exercise scenario, noting that “terrorists had stolen two … from a developing nuclear capable country.” He also observed that “when control of the device had been obtained, the NEST scientists could have disabled it.”
Document 53: Thomas S. Dahlstrom, EG&G Measurements, to William H. Chambers, Carl Henry, and Norm Bailey, “Mighty Derringer Observations,” 13 January 1987, Classification unknown, excised copy

Source: Energy Department FOIA release

After noting that his “overall reaction” was “quite positive,” Dahlstrom believed that “confusion” emanated from a basic problem: the players did “not comprehend the complexity of an OCONUS deployment – specifically how the State Department controls the matter.”
Document 54: F. Jessen/LLNL to G. Allen and W. Adams/NVO, “Mighty Derringer Critique,” 16 December 1986, Rev[ised] 13 January 1987, Secret, excised copy

Source: Energy Department FOIA release

Jessen pointed to a number of problems, for example, that “many of the participating agencies were not serious players,” the “unrealistic background information” on the “fictitious” countries and people, “bad guidance on the use of existing proliferant country data,” and failure to recognize that “information to be assessed related to intelligence reports of a nuclear terrorist threat.” Especially disturbing was the relocation of the command post to a “safe location,” while NEST personnel were not notified”: “the blatant lack of concern for [their] safety … is inexcusable.”
Document 55: Julie A. Orcutt/HSE, Los Alamos National Laboratory, to Jesse Aragon, HSE Division Leader, “Trip Report: Mighty Derringer Exercise, Montrev Site,” 13 January 1987, Secret

Source: Energy Department FOIA release

During the exercise, the on-scene commander at Indianapolis had decided against building a “containment structure” to prevent the spread of hazardous material because of the risks. That meant, however, that plutonium would be scattered about which presented dangers of “lung doses.” Los Alamos staffer Julie Orcutt recommended the provision of more anti-contamination equipment, such as foam mitigation, to reduce dangers to officials entering the blast area.
Document 56: J. Doyle to Gylan C. Allen, “EG&G Comments for Mighty Derringer,” 14 January 1987, Classification unknown, excised, incomplete copy

Source: Energy Department FOIA release

Noting that the exercise provided “very valuable training,” Doyle saw such problems as the “sheer magnitude” in numbers of players, cramped space, and inadequate communications staffing.
Document 57: G.C. Allen, USDOE/NVO, “Mighty Derringer: Comments and Observations,” 15 January 15, 1987, Classification unknown, excised copy

Source: Energy Department FOIA release

Among the shortcomings cited in Allen’s rather critical evaluation were poor communications and weaknesses in interagency coordination.
Document 58: William E. Nelson, Emergency Response, Lawrence Livermore National Laboratory, to Carl Henry, Los Alamos National Laboratory, “‘Quick Look,’ Report, Mighty Derringer,” 21 January 1987, Secret, excised copy

Source: Energy Department FOIA release

Jumping the gun was a weakness cited in Nelson’s critique: players “did not wait for establishment of credibility before acting,” which made a “shambles of an orderly assessment of information.” He also observed that NEST search team “escorts” needed “experience in covert operations” to “prevent inadvertent acts that would alert terrorists.” Nelson’s report included a number of observations made by other participants.
Document 59: J. Strickfadden, LANL, to Bob Nelson, “Mighty Derringer Comments,” n.d., Secret
Source: Energy Department FOIA release

The overall positive evaluation – the “most realistic exercise ever conducted by the NEST community” – included some criticisms, such as “chaotic” operations at the Working Point [WP] and a shambolic state of affairs at the “reentry” point (detonation zone).
Document 60: Milt Madsen (Monitor) to Bob Nelson, “Mighty Derringer Observations,” n.d., Secret, excised, incomplete copy

Source: Energy Department FOIA release

Madsen’s comments included suggestions for future improvements in NEST’s organization: for example, to avoid fragmented committee operations, NEST needed a technical program manager.
Document 61: Peter Mygatt, “Mighty Derringer – Media Play Report,” n.d., Secret

Source: Energy Department FOIA release

Energy Department spokesperson Mygatt’s evaluation of the player’s management of the media was generally positive, although he saw a few failings, e.g., the Joint Information Center never called a news conference, “which is unheard of in an emergency.”.
Document 62: Walter Nervik, Senior Command Controller, to Robert M. Nelson, Exercise Mighty Derringer Controller, “Lessons Learned,” n.d., Secret

Source: Energy Department FOIA release

An official at Lawrence Livermore Laboratory, Nervik wondered who would provide security after JSOC operatives attacked the terrorists in an overseas environment. Special forces personnel would leave the scene but the NEST would still need security resources.
Document 63: Walter Nervik to Bob Nelson, “Lessons Learned,” n.d., Secret

Source: Energy Department FOIA release

Nervik was critical in another evaluation: the NEST team was far too large, players were complacent about a nuclear threat, there were no “penalties” for making a mistake, and playing conditions were “unreal.” With respect to the latter point, the fact that the Montrev phase of the exercise occurred on U.S.-controlled territory, (the Nevada Test Site), “severely limits the stress placed on players in unfamiliar surroundings, dealing with strangers, and relying on untested sources of support.” Nervik also saw a danger that participants would see exercises as “more of a game than a serious test of all facets of the NEST capabilities.”
Document 64: Jack Campbell, Public Information, to Robert M. Nelson, Exercise Mighty Derringer Controller, n.d., Secret

Source: Energy Department FOIA release

Campbell pointed to a weakness: higher level officials did not really “play.” For example, after the JSOC assault, the State Department left Montrev, even though “lives of American correspondents were in jeopardy.” Another surprise was that the Department of Energy NEST team did not establish a “public affairs” function, although in real life such a group would be highly active.
Document 65: “Mighty Derringer 86,” unattributed, n.d., Secret, excised copy

Source: Energy Department FOIA release

These handwritten notes raised several issues, such as the interaction between EOD and the Delta force players and the impact of the “play” in the United States on decisions in the OCONUS (Montrev) activity. One impact was that a “risky” disablement option was taken in Montrev in order to preserve evidence to help raise the chance for a successful operation in “site city” (Indianapolis).
Document 66: “Mighty Derringer,” unattributed, n.d., Secret, excised copy

Source: Energy Department FOIA release

Handwritten notes by another player raised basic organizational issues. The absence of a “chain of command” prior to the deployment made it unclear who EOD worked for. A serious concern was that the Delta Force players did not appreciate the “gravity of dealing with a nuclear device,” an issue suggested by other reports (see document 41).
Document 67: “Mighty Derringer Search Planning,” unattributed, n.d., Secret, excised copy

Source: Energy Department FOIA release

This document provides a review of organizational arrangements established for the device search in Indianapolis.
Document 68: “Communications Observations (Site City),” unattributed, n.d., Classification unknown

Source: Energy Department FOIA release

This review of communications systems concluded that this was the “best NEST communications exercise that I have observed.”
Document 69: Second page of fax to Carl Henry, unattributed document, n.d., Classification unknown

Source: Energy Department FOIA release

This critique points to operational security (OPSEC) as the “real” problem, noting that players had organizational logos on their clothing and that “loose talk” in hotels and bars was “particularly bad.”


ABBREVIATIONS

CONUS Continental United States

EG&G Edgerton, Germeshausen, and Grier

EOC Emergency Operations Center

EOD Explosive Ordnance Disposal

EODTECHCTR Explosive Ordnance Disposal Technical Center (Navy)

ERDA Energy Research and Development Administration

EST Emergency Support Team

FBI Federal Bureau of Investigation

FCP Forward Control Point

FEMA Federal Emergency Management Agency

FRMAC Federal Radiation Monitoring Assessment Center

HRT Hostage Response Team

IND Improved Nuclear Device

JNACC Joint Nuclear Accident Coordination Center

JSOC Joint Special Operations Command

LANL Los Alamos National Laboratory

LLNL Lawrence Livermore National Laboratory

NEST Nuclear Emergency Search Team

NVO Nevada Operations Office

OCONUS Outside the Continental United States

OSC On-Scene Commander

REECo Reynolds Electrical Engineering Corporation

SAC Special-Agent-in Charge (FBI)

SFOD Special Forces Operational Detachment – Delta

SITREP Situation Report

TOC Tactical Operations Center

WP Working Point


NOTES

[1] Charles Wilson and Carrie Schedler, Associated Press, “Indy battens down hatches for Super Bowl security,” http://www.boston.com, January 30, 2012.

[2] Jeffrey T. Richelson, Defusing Armageddon: Inside NEST, America’s Secret Nuclear Bomb Squad (New York: W.W. Norton, 2009), pp. 19-21.

[3]For the range of recent views on the risks and probabilities of acts of nuclear terrorism, see John Mueller, Atomic Obsession: Nuclear Alarmism from Hiroshima to Al-Qaeda (New York: Oxford University Press, 2009), Graham Allison, Nuclear Terrorism: The Ultimately Preventable Catastrophe (New York: Times Books, 2004), and Michael Krepon, “Are We Winning or Losing? (Continued),” Arms Control Wonk.

[4] Richelson, Defusing Armageddon; National Security Archive Electronic Briefing Book Number 267, January 12, 2009, Document 16.

Unveiled – TOP-SECRET – Intellectual Property Enforcement Strategic Plan

[Federal Register Volume 77, Number 123 (Tuesday, June 26, 2012)]
[Notices]
[Pages 38088-38090]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15477]

=======================================================================
-----------------------------------------------------------------------

OFFICE OF MANAGEMENT AND BUDGET

Development of the Joint Strategic Plan on Intellectual Property 
Enforcement; Request of the U.S. Intellectual Property Enforcement 
Coordinator for Public Comments

AGENCY: Office of the U.S. Intellectual Property Enforcement 
Coordinator, Executive Office of the President.

ACTION: Request for written submissions from the public.

-----------------------------------------------------------------------

SUMMARY: The Federal Government is starting the process of developing a 
new Joint Strategic Plan on Intellectual Property Enforcement. By 
committing to common goals, the U.S. Government will more effectively 
and efficiently combat intellectual property infringement. In this 
request for comments, the U.S. Government, through the Office of the 
U.S. Intellectual Property Enforcement Coordinator (``IPEC''), invites 
public input and participation in shaping the Administration's 
intellectual property enforcement strategy.
    The Office of the U.S. Intellectual Property Enforcement 
Coordinator was established within the Executive Office of the 
President pursuant to the Prioritizing Resources and Organization for 
Intellectual Property Act of 2008, Public Law 110-403 (Oct. 13, 2008) 
(the ``PRO IP Act''). Pursuant to the PRO IP Act, IPEC is charged with 
developing the Administration's Joint Strategic Plan on Intellectual 
Property Enforcement for submission to Congress every three years. In 
carrying out this mandate, IPEC chairs an interagency intellectual 
property enforcement advisory committee comprised of Federal 
departmental and agency heads whose respective departments and agencies 
are involved in intellectual property enforcement.
    This request for comments and recommendations as IPEC develops a 
new enforcement strategy is divided into three parts. In the first 
section titled ``Strategy Recommendations,'' IPEC requests detailed 
recommendations from the public regarding specific recommendations for 
improving the U.S. Government's intellectual property enforcement 
efforts. In the second section titled ``Threat Assessment,'' IPEC seeks 
written submissions from the public regarding existing and emerging 
threats to the protection of intellectual property rights and the 
identification of threats to public health and safety and the U.S. 
economy resulting from intellectual property infringement. In the third 
section titled ``Optional Questions,'' IPEC seeks written submissions 
from the public to assist IPEC and agencies in the development of 
specific action items. Responses to this request for comments may be 
directed to either, or both, of the two sections described above.

DATES: Submissions must be received on or before July 25, 2012, at 5 
p.m.

ADDRESSES: All submissions should be electronically submitted to 
http://www.regulations.gov. If you are unable to provide submissions to 
regulations.gov, you may contact the Office of the U.S. Intellectual 
Property Enforcement Coordinator at intellectualproperty@omb.eop.gov 
using the subject line ``Development of the Joint Strategic Plan on 
Intellectual Property Enforcement'' or (202) 395-1808 to arrange for an 
alternate method of transmission. The regulations.gov Web site is a 
Federal E-Government Web site that allows the public to find, review 
and submit comments on documents that have published in the Federal 
Register and that are open for comment. Submissions filed via the 
regulations.gov Web site will be available to the public for review and 
inspection. For this reason, please do not include in your comments 
information of a confidential nature, such as sensitive personal 
information or proprietary business information.

FOR FURTHER INFORMATION CONTACT: Office of the U.S. Intellectual 
Property Enforcement Coordinator, at intellectualproperty@omb.eop.gov 
or (202) 395-1808.

SUPPLEMENTARY INFORMATION: Through the PRO IP Act, Congress established 
the IPEC, to serve as the lead office within the Executive Office of 
the President responsible for formulating and implementing a Joint 
Strategic Plan to improve the effectiveness of the U.S. Government's 
efforts to protect the rights of intellectual property owners and to 
reduce the costs of and threats posed by intellectual property 
infringement, in the U.S. and in other countries. IPEC seeks public 
input, in the form of written comments, on the formulation of a Joint 
Strategic Plan and on the U.S. Government's intellectual property 
enforcement efforts.

I. Strategy Recommendations

    IPEC requests written submissions from the public that provide 
specific recommendations for significantly improving the U.S. 
Government's intellectual property enforcement efforts. Important to 
the development of an effective enforcement strategy, is ensuring that 
any approaches that are considered to be particularly effective as

[[Page 38089]]

well as any concerns with the present approach to intellectual property 
enforcement are understood by policymakers. Recommendations may 
include, but need not be limited to: Legislation, regulation, guidance, 
executive order, Presidential memoranda, or other executive action, 
including, but not limited to, changes to agency policies, practices or 
methods. Recommendations should include a detailed description that 
addresses the following points: Issue, agencies necessary to address 
the issue, and recommendation for addressing the issue identified. If a 
submission includes multiple recommendations, IPEC requests that the 
submission rank the recommendations in order of priority.
    In addition to the foregoing general request, IPEC is seeking 
information and/or recommendations in response to the questions set out 
in section III below to assist IPEC in developing new enforcement 
strategy action items that further the priorities identified in the 
Joint Strategic Plan. The submission of responses to one or more of the 
questions in section III is entirely optional.

II. Threat Assessment

Emerging and Future Threats

    The issues, threats and challenges that pertain to ensuring 
adequate and appropriate enforcement of intellectual property are 
changing rapidly. Since the inaugural Joint Strategic Plan was released 
in June 2010, new threats have emerged that warrant inclusion among the 
priorities identified in the forthcoming Joint Strategic Plan. 
Therefore, IPEC welcomes information pertaining to and, to the extent 
practicable, recommendations for combating emerging or future threats 
to American innovation and economic competitiveness posed by violations 
of intellectual property rights over the next five to ten years.

Threats to Health and Safety and the U.S. Economy

    IPEC seeks written submissions from the public identifying the 
costs to the U.S. economy resulting from infringement of intellectual 
property rights, both direct and indirect, including any impact on the 
creation or maintenance of jobs. In addition, IPEC seeks written 
submissions identifying threats to public health and safety posed by 
intellectual property infringement, in the U.S. and internationally. 
IPEC also welcomes submissions on the economic costs of enforcing 
intellectual property rights.
    Submissions directed at the economic costs resulting from 
violations of intellectual property rights must clearly identify: (1) 
The type of intellectual property protection at issue, e.g., trademark, 
copyright, patent, trade secret or other (2) the methodology used in 
calculating the estimated costs and any critical assumptions relied 
upon, (3) identify the source of the data on which the cost estimates 
are based, and (4) provide a copy of, or a citation to, each such 
source of information.
    Submissions directed at the economic costs resulting from 
enforcement of intellectual property rights must clearly identify: (1) 
The type of intellectual property protection at issue, e.g., trademark, 
copyright, patent, trade secret or other (2) the methodology used in 
calculating the estimated costs and any critical assumptions relied 
upon, (3) identify the source of the data on which the cost estimates 
are based, and (4) provide a copy of, or a citation to, each such 
source of information.
    Submissions directed at threats to public health or safety must: 
(1) Include a detailed description of the threat, (2) identify the 
source of the information demonstrating the existence of the threat, 
and (3) provide a copy of, or a citation to, each such source of 
information.

III. Optional Questions

    1. How can international regulatory and law enforcement 
collaboration and information sharing be enhanced to address cross-
border intellectual property infringement?
    2. What legal or operational changes might be made, or 
collaborative steps undertaken between federal agencies and the private 
sector, to streamline or improve the efficacy of enforcement efforts 
directed at protecting intellectual property rights?
    3. What measures can be taken by the private sector to share 
actionable information on entities engaging in or supporting 
infringement of intellectual property rights?
    a. To the extent necessary, what government safeguards and 
conditions would be useful to facilitate sharing of such information?
    4. What information developed from law enforcement and intelligence 
community threat assessments would be beneficial to the private sector 
in order to mitigate the risk of trade secret theft and economic 
espionage?
    5. What additional measures by the U.S. Government would most 
significantly enhance efforts to combat trade secret theft and economic 
espionage?
    6. When goods are imported into the United States, U.S. Customs and 
Border Protection (``CBP'') and other federal agencies charged with 
enforcing intellectual property rights and ensuring the safety of 
products entering the stream commerce, e.g., U.S. Food and Drug 
Administration and the Consumer Product Safety Commission, engage in a 
risk-based assessment of the level of risk that a shipment contains 
violative goods., and decides whether to inspect the shipment based on 
this risk determination. What steps can federal agencies and the 
private sector take to improve the risk assessment process so that high 
risk shipments may be quickly identified and segmented from lower risk 
shipments?
    7. What authentication tools and track and trace technologies would 
significantly enhance federal efforts to identify suspect counterfeit 
or pirated goods?
    8. In a global economy that increasingly utilizes Internet based e-
commerce and mobile platforms for transactions, the number of shipments 
sent through international mail and express carrier services has 
dramatically grown in recent years. Accordingly, law enforcement 
efforts directed at interdicting infringing goods shipped in the 
express and international mail environments have resulted in 
significant increases to seizure levels of infringing goods shipped 
through these modes of transit. What steps could be undertaken by CBP, 
its partner U.S. Government agencies, and the private sector to further 
improve detection of express carrier and international mail shipments 
containing infringing goods?
    9. Are there ways in which CBP could improve its intellectual 
property rights e-recordation system to enhance ease of use and make it 
a more useful tool for intellectual property rights enforcement?
    10. As laid out in IPEC's 2011 Annual Report on Intellectual 
Property Enforcement, using our resources as efficiently as possible is 
a priority. Are there additional ways in which the U.S. Government 
could make more efficient use of its resources in protecting 
intellectual property?

Background

    The 2010 Joint Strategic Plan as well as information describing a 
number of intellectual property enforcement initiatives led by the 
Office of the U.S. Intellectual Property Enforcement Coordinator can be 
found at http://www.whitehouse.gov/omb/intellectualproperty.

[[Page 38090]]

    As set forth by the PRO IP Act, the objectives of the Joint 
Strategic Plan include:
     Reducing the supply of infringing goods, domestically and 
internationally;
     Identifying weaknesses, duplication of efforts, waste, and 
other unjustified impediments to effective enforcement actions;
     Promoting information sharing between participating 
agencies to the extent permissible by law;
     Disrupting and eliminating infringement networks in the 
U.S. and in other countries;
     Strengthening the capacity of other countries to protect 
and enforce intellectual property rights;
     Reducing the number of countries that fail to enforce 
intellectual property rights;
     Assisting other countries to more effectively enforce 
intellectual property rights;
     Protecting intellectual property rights in other countries 
by:
    [cir] Working with other countries to reduce intellectual property 
crimes in other countries;
    [cir] Improving information sharing between law enforcement 
agencies in the U.S. and in other countries; and
    [cir] Establishing procedures for consulting with interested groups 
within other countries;
     Establishing programs to enhance the enforcement efforts 
of foreign governments by providing training and technical assistance 
designed to:
    [cir] Enhance the efficiencies and minimize the duplication of U.S. 
Government training and assistance efforts;
    [cir] Prioritize deployment of U.S. Government resources to those 
countries in which programs can be carried out most effectively and 
will have the greatest impact on reducing the number of infringing 
products in the relevant U.S. market, protecting the intellectual 
property rights of U.S. rights holders, and protecting the interests of 
U.S. persons otherwise harmed by infringements in other countries.

Victoria A. Espinel,
United States Intellectual Property Enforcement Coordinator, Executive 
Office of the President.
[FR Doc. 2012-15477 Filed 6-25-12; 8:45 am]
BILLING CODE P

 

Unveiled – WikiLeaks Setting Another Trap for Journalists, NGOs

A sends:

I tasted that poison today. It was strange, the feeling of having the privilege to information that was only made available to “a select few” was overwhelming, I don’t have the vocabulary to describe what the poison tastes like, but I can understand how some people could become addicted to it, even if it meant their death.

You are right, WL is setting “Terms and Conditions” to the access to stolen property, and attempting to force Journalists into an “Agreement” to those “Conditions, however unenforceable.

Your thoughts and counsel were welcomed, they snapped me out of that trance that I found myself in.

The only thing to do is, publish everything that I’ve learned over the last many hours about this whole affair.

 


2012-00414 WikiLeaks Partner for Global Intelligence Files June 26, 2012 (copy below) via Google Search

[Image]

Cryptome rejects this proprietary publishing manipulation. Again, WikiLeaks is inducing participation in a crime covered with pseudo-journalistic exculpation. Again excluding open public access in favor of contractual marketing of stolen material and aiding its profitable commercialization.

It’s a trap, don’t do it, don’t encourage others to take the bait.

Don’t send anything to me you don’t want published. This note will be published .

_____

At 06:24 PM 6/26/2012, you wrote:

Please Do Not Post, still working on getting us access.

Below if the terms and conditions that WL is sending to everyone.

 


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By ticking this box you agree to abide by all of the above Terms and Conditions

Your login and password will be sent by mail.

 


GIFiles Signup Instructions

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By joining the global WikiLeaks partnership on the Global Intelligence Files (the GI Files) — you will have access to more than five million emails from the Texas-headquartered “global intelligence” company Stratfor. The emails date from between July 2004 and late December 2011. They reveal the inner workings of a company that fronts as an intelligence publisher, but provides confidential intelligence services to large organisations, including the US Department of Homeland Security and the US Defense Intelligence Agency. Being part of this international team will allow you to search the emails using the sophisticated search engine designed by WikiLeaks to enable you to research and publish articles and papers using this data.

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8. Login to the site at the following URL: http://7f4lihm464gdcwfc.onion/ giving your username and password as supplied in the email. This URL can only be accessed when using Tor.

9. Once you are logged into the site you will see your user page, the search interface and publishing interface. At the top of the page are tabs that explain how these work. On your user page you will have five invite codes for you to give to others so that they can also gain access to the GI Files.

10. If you wish to invite someone to the GI Files then give them a unique invite code, along with the URL to this page of instructions – each person you invite must be a journalist, NGO worker or academic from a different organisation (for complete understanding of who you can invite please see the invite rules below).

11. If you violate any of the Terms and Conditions you risk having your login terminated, along with that of the person that invited you and the people that you invited. If any of the contacts you invited violate the terms of the Terms and Conditions, they risk having their login terminated, your login terminated and the logins of the people they invited terminated.

Invite Rules:

Each invite code must be given to a person who:
A. is a real person
B. is either a journalist, Professor or Associate Professor at a University or an employee of a human rights organisation
C. is from a different organisation to you and your other invitees
D. is using an email that is not a personal email
E. is using an email that is from a different domain to your email address and that of the other people you invite
F. is going to use the GI Files search and release site for research, the results of which will be communicated to the public.

For any issues or questions related to this signup process, please email: signup@wikileaks.org

 


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Public Intelligence – Ohio Fusion Center Report: Bath Salts and Officer Safety

https://publicintelligence.net/wp-content/uploads/2012/06/OHSP-BathSalts.png

(U//FOUO) The Ohio State Highway Patrol Criminal Intelligence Unit recently partnered with the Ohio Strategic Analysis and Information Center (SAIC) and gathered information regarding bath salts via a survey. The objective of the study was to assist Law Enforcement by creating an officer safety awareness product relating to the dangers of encountering people on bath salts.

(U//FOUO) A survey was distributed to law enforcement and 5 agencies responded back with pertinent information regarding the use and possession of bath salts. The agencies which contributed to this analysis are as follows:

Barberton Police Department, OH; Ohio State Highway Patrol; Powell Police Department, OH; Reynoldsburg Division of Police; and West Virginia State Police – Wheeling Division (Parcel Interdiction).

(U//FOUO) Information was obtained on 161 incidents involving bath salts.

(U//FOUO) OVERVIEW AND ANALYSIS OF RESULTS:

  • Out of the 161 incidents reported, officers made 77 arrests involving bath salt use/possession. Many of the incidents occurred before legislation was passed; therefore mere possession was not criminal at the time of many of these reports.
  • There were 27 use of force reports involving bath salts.
  • There were 3 incidents that involved fleeing of suspects.
  • 7 suspects were taken to hospital associated with bath salt use.
  • 7 offenders were pinked slipped and taken to mental health facilities.
  • There were 4 reports of deaths associated with bath salt use (Note: cause of death results did NOT find that bath salts use was the sole contributor in any of these deaths).
  • There was 1 report of suicide; 2 suicide attempts; and 1 suicide threat involving bath salt use.
  • Suspects reported paying approximately $20-$25 for bath salts.
  • The offenders reported multiple ways of using bath salts including: snorting, injection with a needle syringe, and drinking the bath salts by mixing it with fluid.
  • Many offenders admitted to combining bath salts with other drugs.
  • When reported, most people said they got the bath salts from independently owned convenient stores and drive-thrus, gas stations or markets. A WV State Police (parcel narcotics interdiction) Officer reported that a prominent internet company is: Southern Burn LLC from South Carolina.

(U//FOUO) OFFICER SAFETY CONCERNS

  • Use of force incidents included: use of Taser (3 incidents), hands on, escorts, restrained by medical professionals, and bean bag use.
  • One “officer in trouble” call was reported, involving an officer fighting with a person on bath salts.
  • Both officers in a Reynoldsburg Police case were surprised after a Taser was used on a suspect. They explained that the Taser was shot and the probes penetrated in the torso of the suspect, however it had minimal effects; the suspect fought through the electric current and rose to his feet.
  • Injuries sustained to suspects included: bruises, cuts, Taser punctures, and minimal injuries from bean bag rounds.
  • Officers sustained injuries including: injury to knee, injury to back, injury to groin, ankles, scrapes and bruises, and multiple injuries from strikes to the face.
  • 2 officers and 7 offenders were taken to the hospital resulting from physical force.
  • One incident involved the use of the SWAT team and another involved escalated use of force involving bean bag rounds.

(U//FOUO) PHYSIOLOGICAL REACTIONS FROM BATH SALT USE

  • Suspects showed the following physical reactions to bath salts: Hyperventilation, cramps, dehydration, vomiting, shaking, loss of memory, pale, emaciated, jittery, lethargy, incoherent speech, rambling, rapid movement, rapid speech, disoriented, itchy skin, and several suspect admitted to a lack of sleep for multiple days.
  • An offender described bath salts as giving him a “cocaine rush” and it being a very “intense” high.
  • Witnesses described bath salt users as:
    • Hostile, violent, unpredictable, out of control, paranoid, and reckless.
  • Additional reports by Law Enforcement involving people on bath salts:
    • Officer described one suspect as having unusual superhuman strength.
    • Officer described suspect as shooting off the ground like a “flash of light.”
    • One suspect bent the hinged handcuffs during the arrest.
  • The following hallucinations were reported:
    • A hit-skip offender said he saw a brick wall, which in turn caused a crash.
    • A male, using bath salts, reported raccoons setting fire inside his home. As a result, he proceeded to destroy his home and used a hatchet to cut up his deck, while attempting to locate the fire-setting raccoons. He also believed the raccoons stole his cell phone.
    • A male, using bath salts, believed he was being followed by police helicopters and police officers were using mirrors, snipers and different types of scopes to look through his walls. He called police requesting to negotiate with them, however there were no police at the residence when the call was made.
    • During the course of speaking to an offender and officer reported, he yelled, “AT&T calling, may I help you, AT&T is calling, a million dollars, two black guys……it’s not a racial thing, it’s not a racial thing.”
    • A bath salt user reported he hears voices; one voice was going to beat him with a ball bat.
    • The domestic violence offender using bath salts reported his mother was practicing demonology & witchcraft and she was poisoning his food. He was arrested for choking her.
    • DOWNLOAD THE ORIGINAL DOCUMENT HERE:
    • OHSP-BathSalts

Unveiled – Barclays Bank PLC Admits Misconduct Related to Submissions for the London InterBank Offered Rate and the Euro InterBank Offered Rate and Agrees to Pay $160 Million Penalty

WASHINGTON—Barclays Bank PLC, a financial institution headquartered in London, has entered into an agreement with the Department of Justice to pay a $160 million penalty to resolve violations arising from Barclays’ submissions for the London InterBank Offered Rate (LIBOR) and the Euro Interbank Offered Rate (EURIBOR), which are benchmark interest rates used in financial markets around the world, announced Assistant Attorney General Lanny A. Breuer of the Justice Department’s Criminal Division and Assistant Director in Charge James W. McJunkin of the FBI’s Washington Field Office.

As part of the agreement with the Department of Justice, Barclays has admitted and accepted responsibility for its misconduct set forth in a statement of facts that is incorporated into the agreement. According to the agreement, Barclays provided LIBOR and EURIBOR submissions that, at various times, were false because they improperly took into account the trading positions of its derivative traders, or reputational concerns about negative media attention relating to its LIBOR submissions. The Justice Department’s criminal investigation into the manipulation of LIBOR and EURIBOR by other financial institutions and individuals is ongoing. The agreement requires Barclays to continue cooperating with the department in its ongoing investigation.

“LIBOR and EURIBOR are critically important benchmark interest rates,” said Assistant Attorney General Breuer. “Because mortgages, student loans, financial derivatives, and other financial products rely on LIBOR and EURIBOR as reference rates, the manipulation of submissions used to calculate those rates can have significant negative effects on consumers and financial markets worldwide. For years, traders at Barclays encouraged the manipulation of LIBOR and EURIBOR submissions in order to benefit their financial positions; and, in the midst of the financial crisis, Barclays management directed that U.S. Dollar LIBOR submissions be artificially lowered. For this illegal conduct, Barclays is paying a significant price. To the bank’s credit, Barclays also took a significant step toward accepting responsibility for its conduct by being the first institution to provide extensive and meaningful cooperation to the government. Its efforts have substantially assisted the Criminal Division in our ongoing investigation of individuals and other financial institutions in this matter.”

“Barclays Bank’s illegal activity involved manipulating its submissions for benchmark interest rates in order to benefit its trading positions and the media’s perception of the bank’s financial health,” said Assistant Director in Charge McJunkin. “Today’s announcement is the result of the hard work of the FBI special agents, financial analysts, and forensic accountants as well as the prosecutors who dedicated significant time and resources to investigating this case.”

Barclays was one of the financial institutions that contributed rates used in the calculation of LIBOR and EURIBOR. The contributed rates are generally meant to reflect each bank’s assessment of the rates at which it could borrow unsecured interbank funds. For LIBOR, the highest and lowest 25 percent of contributed rates are excluded from the calculation and the remaining rates are averaged to calculate the fixed rates. For EURIBOR, the highest and lowest 15 percent are excluded, and the remaining 70 percent are averaged to calculate the fixed rates.

Futures, options, swaps, and other derivative financial instruments traded in the over-the-counter market and on exchanges worldwide are settled based on LIBOR. Further, mortgages, credit cards, student loans, and other consumer lending products often use LIBOR as a reference rate. According to the agreement, an individual bank’s LIBOR or EURIBOR submission cannot appropriately be influenced by the financial positions of its derivatives traders or the bank’s concerns about public perception of its financial health due to its LIBOR submissions.

According to the agreement, between 2005 and 2007, and then occasionally thereafter through 2009, certain Barclays traders requested that the Barclays LIBOR and EURIBOR submitters contribute rates that would benefit the financial positions held by those traders. The requests were made by traders in New York and London, via electronic messages, telephone conversations, and in-person conversations. The employees responsible for the LIBOR and EURIBOR submissions accommodated those requests on numerous occasions in submitting the bank’s contributions. On some occasions, Barclays’s submissions affected the fixed rates.

In addition, between August 2005 and May 2008, certain Barclays traders communicated with traders at other financial institutions, including other banks on the LIBOR and EURIBOR panels, to request LIBOR and EURIBOR submissions that would be favorable to their or their counterparts’ trading positions, according to the agreement.

When the requests of traders for favorable LIBOR and EURIBOR submissions were taken into account by the rate submitters, Barclays’ rate submissions were false and misleading.

Further, according to the agreement, between approximately August 2007 and January 2009, in response to initial and ongoing press speculation that Barclays’ high U.S. Dollar LIBOR submissions at the time might reflect liquidity problems at Barclays, members of Barclays management directed that Barclays’ dollar LIBOR submissions be lowered. This management instruction often resulted in Barclays’ submission of false rates that did not reflect its perceived cost of obtaining interbank funds. While the purpose of this particular conduct was to influence Barclays’ rate submissions, as opposed to the resulting fixes, there were some occasions when Barclays’ submissions affected the fixed rates.

The agreement and monetary penalty recognize Barclays’ extraordinary cooperation. Barclays made timely, voluntary, and complete disclosure of its misconduct. After government authorities began investigating allegations that banks had engaged in manipulation of benchmark interest rates, Barclays was the first bank to cooperate in a meaningful way in disclosing its conduct relating to LIBOR and EURIBOR. Barclays’ disclosure included relevant facts that at the time were not known to the government. Barclays’s cooperation has been extensive, in terms of the quality and type of information and assistance provided, and has been of substantial value in furthering the department’s ongoing criminal investigation. Barclays has made a commitment to future cooperation with the department and other government authorities in the United States and the United Kingdom.

Assistant Attorney General Breuer further stated, “As today’s agreement reflects, we are committed to holding companies accountable for their misconduct while, at the same time, giving meaningful credit to companies that provide full and valuable cooperation in our investigations.”

In addition, Barclays has implemented a series of compliance measures and will implement additional internal controls regarding its submission of LIBOR and EURIBOR contributions, as required by the Commodity Futures Trading Commission (CFTC). Barclays will also continue to be supervised and monitored by the FSA.

The agreement and monetary penalty further recognize certain mitigating factors to Barclays’ misconduct. At times, Barclays employees raised concerns with the British Bankers’ Association, the United Kingdom Financial Services Authority (FSA), the Bank of England, and the Federal Reserve Bank of New York in late 2007 and in 2008 that the Dollar LIBOR rates submitted by contributing banks, including Barclays, were too low and did not accurately reflect the market. Further, during this time, notwithstanding Barclays’s improperly low dollar LIBOR submissions, those submissions were often higher than the contributions used in the calculation of the fixed rates.

As a result of Barclays’s admission of its misconduct, its extraordinary cooperation, its remediation efforts and certain mitigating and other factors, the department agreed not to prosecute Barclays for providing false LIBOR and EURIBOR contributions, provided that Barclays satisfies its ongoing obligations under the agreement for a period of two years. The non-prosecution agreement applies only to Barclays and not to any employees or officers of Barclays or any other individuals.

In a related matter, the CFTC brought attempted manipulation and false reporting charges against Barclays, which the bank agreed to settle. The CFTC imposed a $200 million penalty and required Barclays to implement detailed measures designed to ensure the integrity and reliability of its benchmark interest rate submissions.

The FSA issued a final notice regarding its enforcement action against Barclays and has imposed a penalty of £59.5 million against it.

The case is being handled by Deputy Chief Daniel Braun, Assistant Chiefs Rebecca Rohr and Robertson Park, Trial Attorney Alexander Berlin, and Special Trial Attorney Luke Marsh of the Criminal Division’s Fraud Section. The investigation is being conducted by the FBI’s Washington Field Office, jointly with the Antitrust Division of the Department of Justice.

The Department acknowledges and expresses its appreciation for the significant assistance provided by the CFTC’s Division of Enforcement, which referred the conduct to the department, as well as the FSA’s Enforcement and Financial Crime Division.

This agreement is part of efforts underway by President Barack Obama’s Financial Fraud Enforcement Task Force. President Obama established the interagency Financial Fraud Enforcement Task Force to wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. The task force includes representatives from a broad range of federal agencies, regulatory authorities, inspectors general and state and local law enforcement who, working together, bring to bear a powerful array of criminal and civil enforcement resources. The task force is working to improve efforts across the federal executive branch and, with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes. For more information about the task force visit: http://www.stopfraud.gov.

TOP-SECRET from the FBI – Texas Resident Convicted on Charge of Attempted Use of Weapon of Mass Destruction

AMARILLO, TX—Khalid Ali-M Aldawsari, 22, a citizen of Saudi Arabia and resident of Lubbock, Texas, was convicted by a federal jury today on an indictment charging one count of attempted use of a weapon of mass destruction in connection with his purchase of chemicals and equipment necessary to make an improvised explosive device (IED) and his research of potential U.S. targets, including persons and infrastructure.

The verdict, which was reached in the Northern District of Texas, was announced by Sarah R. Saldaña, U.S. Attorney for the Northern District of Texas; Lisa Monaco, Assistant Attorney General for National Security; and Diego G. Rodriguez, Special Agent in Charge of the FBI Dallas Field Division.

Sentencing has been scheduled for October 9, 2012, in Amarillo. Aldawsari, who was lawfully admitted into the United States in 2008 on a student visa and was enrolled at South Plains College near Lubbock, faces a maximum sentence of life in prison and a $250,000 fine. He was arrested on February 23, 2011 on a criminal complaint and later charged in a March 9, 2011 federal indictment with attempting to use a weapon of mass destruction.

According to court documents and evidence presented during trial, at the time of his arrest last year, Aldawsari had been researching online how to construct an IED using several chemicals as ingredients. He had also acquired or taken a substantial step toward acquiring most of the ingredients and equipment necessary to construct an IED, and he had conducted online research of several potential U.S. targets, the affidavit alleges. In addition, he had allegedly described his desire for violent jihad and martyrdom in blog postings and a personal journal.

“While many people are responsible for thwarting Aldawsari’s threat and bringing him to justice, we owe a debt of gratitude to all the members of the North Texas Joint Terrorism Task Force, and especially to the hundreds of hardworking and dedicated FBI agents, analysts, linguists, and others,” said U.S. Attorney Saldaña. “Their efforts, coupled with the hard work and excellent cooperation from the Lubbock Police Department and the Texas Tech Police Department, are the reason we were able to stop this defendant from carrying out a catastrophic act of terrorism.”

“As this trial demonstrated, Aldawsari purchased ingredients to construct an explosive device and was actively researching potential targets in the United States. Thanks to the efforts of many agents, analysts, and prosecutors, this plot was thwarted before it could advance further,” said Assistant Attorney General Monaco. “This case serves as another reminder of the need for continued vigilance both at home and abroad.”

“Today’s guilty verdict shows how individuals in the United States with the intent to do harm can acquire the knowledge and materials necessary to carry out an attack,” said SAC Rodriguez. “Our success in locating and preventing Mr. Aldawsari from carrying out an attack is a result of cooperation within the law enforcement and intelligence communities, particularly, the North Texas Joint Terrorism Task Force, the Texas Tech Police Department, the Lubbock Police Department, and the Lubbock County Sheriff’s Office, but also a demonstration of information sharing across FBI divisions, as well as assistance from the community. I want to thank the dedicated agents, officers, and analysts; the computer forensics team; and linguists that worked diligently on this investigation, as well as prosecutors serving in the U.S. Attorney’s Office in the Northern District.”

The government presented evidence that on February 1, 2011, a chemical supplier reported to the FBI a suspicious attempted purchase of concentrated phenol by a man identifying himself as Khalid Aldawsari. Phenol is a toxic chemical with legitimate uses, but it can also be used to make the explosive trinitrophenol, also known as T.N.P., or picric acid. Ingredients typically used with phenol to make picric acid, or T.N.P., are concentrated sulfuric and nitric acids.

Aldawsari attempted to have the phenol order shipped to a freight company so it could be held for him there, but the freight company told Aldawsari that the order had been returned to the supplier and called the police. Later, Aldawsari falsely told the supplier he was associated with a university and wanted the phenol for “off-campus, personal research.” Frustrated by questions being asked over his phenol order, Aldawsari cancelled his order, placed an order with another company, and later e-mailed himself instructions for producing phenol. In December 2010, he had successfully purchased concentrated nitric and sulfuric acids.

Aldawsari used various e-mail accounts in researching explosives and targets and often sent e-mails to himself as part of this process. He e-mailed himself a recipe for picric acid, which was described in the e-mail as a “military explosive” and also e-mailed himself instructions on how to convert a cell phone into a remote detonator and how to prepare a booby-trapped vehicle using household items. Aldawsari also purchased many other items, including a Hazmat suit, a soldering iron kit, glass beakers and flasks, a stun gun, clocks, and a battery tester.

Excerpts from a journal found at Aldawsari’s residence indicated that he had been planning to commit a terrorist attack in the United States for years. One entry describes how Aldawsari sought and obtained a particular scholarship because it allowed him to come directly to the United States and helped him financially, which he said “will help tremendously in providing me with the support I need for Jihad.” The entry continues, “And now, after mastering the English language, learning how to build explosives and continuous planning to target the infidel Americans, it is time for Jihad.”

In another entry, Aldawsari wrote that he was near to reaching his goal and near to getting weapons to use against infidels and their helpers. He also listed a “synopsis of important steps” that included obtaining a forged U.S. birth certificate; renting a car; using different driver’s licenses for each car rented; putting bombs in cars and taking them to different places during rush hour; and leaving the city for a safe place.

Aldawsari conducted research on various targets and e-mailed himself information on these locations and people. One of the documents he sent himself, with the subject line listed as “Targets,” contained the names and home addresses of three American citizens who had previously served in the U.S. military and had been stationed for a time at Abu Ghraib prison in Iraq. In others, Aldawsari sent himself the names of 12 reservoir dams in Colorado and California and listed two categories of targets: hydroelectric dams and nuclear power plants. He also sent himself an e-mail titled “Tyrant’s House,” in which he listed the Dallas address for former President George W. Bush. Aldawsari also conducted research that indicated he considered using infant dolls to conceal explosives and the possible targeting of a nightclub with an explosive concealed in a backpack.

This case was investigated by the FBI’s Dallas Joint Terrorism Task Force, with assistance from the Lubbock Police Department and the Texas Tech Police Department. The prosecution is being handled by Assistant U.S. Attorneys Jeffrey R. Haag, Denise Williams, James T. Jacks, and Matthew J. Kacsmaryk and Trial Attorney David Cora from the Counterterrorism Section of the Justice Department’s National Security Division.

Global Witness – Action urgently needed to stop off budget financing to Mugabe’s regime

The international community must act to prevent off budget financing of Mugabe’s feared secret police, said Global Witness in a report published today.

The report, Financing a Parallel Government?, reveals that Zimbabwe’s Central Intelligence Organisation (CIO) appears to have received off budget financing from a Hong Kong-based businessman at the same time that the CIO is alleged to be engaging in a campaign to discredit key members of Zimbabwe’s opposition.

CIO members exercise joint control over Sino Zimbabwe Development (Pvt) Ltd, a diamonds, cotton and property company in Zimbabwe. Their partner is businessman Sam Pa, a prominent member of the Queensway Syndicate, a network of companies with a track record of negotiating opaque resource for infrastructure deals across the African continent.

The report also exposes how a Zimbabwean military lawyer owns half of Anjin Investments (Pvt) Ltd, the biggest diamond company in Zimbabwe’s controversial Marange diamond fields, on behalf of Zimbabwe’s Ministry of Defence.

“Given the violent reputation of the CIO and military, we fear that this money could fund human rights abuses during the forthcoming election,” said Nick Donovan of Global Witness. “Off-budget financing of the security sector undermines Zimbabwean democracy by subverting civilian control over key organs of the state. The international community should investigate the activities of Sam Pa, Sino Zimbabwe Development (Pvt) Ltd, and Anjin Investments (Pvt) Ltd to see whether their actions justify imposing targeted sanctions such as asset freezes.”

Information given to Global Witness by sources within the CIO suggests that Sam Pa provided funding and material to the organisation in return for access to Zimbabwe’s diamond, cotton and property sectors. One CIO document put this support at $100 million and 200 pick-up trucks. Two sources also told Global Witness that the money has been allocated by the CIO towards Operation Spiderweb, covert activities designed to discredit Prime Minister Tsvangarai, Finance Minister Biti, and Industry Minister Ncube, although Global Witness cannot confirm the existence of these programmes.  We gave Mr Pa an opportunity to comment on our findings but he has not responded.

Anjin Investments claims to be the world’s biggest diamond miner. Previous research by Global Witness revealed how Anjin’s Executive Board members include senior serving and retired military and police officers, and the Permanent Secretary at the Ministry of Defence. In the report published today, Global Witness reveals that 50% of Anjin’s shares are owned by Brigadier General Charles Tarumbwa, the Judge Advocate General at the Ministry of Defence, acting through Matt Bronze (Pvt) Ltd, a front for the Zimbabwean military.

“Since ZANU PF lost control of the Ministry of Finance, they appear to have engaged on a hunt for off-budget financing for the military and secret police,” said Donovan. “Zimbabwe’s civilian government must exercise democratic control over the budgets of security forces. If not, there is a real danger of a shadow security state emerging, with both a monopoly on violence and secret sources of funding.”

TOP-SECRET – The Creation of the U.S. Spy Satellites

In September 1992 the Department of Defense acknowledged the existence of the National Reconnaissance Office (NRO), an agency established in 1961 to manage the development and operation of the nation’s reconnaissance satellite systems.  The creation of the NRO was the result of a number of factors.

On May 1, 1960 Francis Gary Powers took off from Peshawar, Pakistan on the U-2 mission designated Operation GRAND SLAM.  The flight was planned to take him over the heart of the Soviet Union and terminate at Bodo, Norway.  The main target was Plesetsk, which communications intercepts had indicated might be the site of an ICBM facility.1  When the Soviet Union shot down his plane and captured him alive, they also forced President Dwight Eisenhower to halt aerial overflights of Soviet territory.

At that time the U.S. had two ongoing programs to produce satellite vehicles that could photograph Soviet territory.  Such vehicles would allow far more frequent coverage than possible with manned aircraft.  In addition, they would avoid placing the lives of pilots at risk and eliminate the risks of international incidents resulting from overflights.

The Air Force program, designated SAMOS, sought to develop a number of different satellite systems–including one that would radio its imagery back to earth and another that would return film capsules.  The CIA program, CORONA, focused solely on developing a film return satellite.

However, both the CIA and Air Force programs were in trouble.  Launch after launch in the CORONA program, eleven in all by May 1, 1960, eight of which carried cameras, had resulted in failure–the only variation was in the cause.  Meanwhile, the SAMOS program was also experiencing difficulties, both with regard to hardware and program definition.2

Concerns over SAMOS led President Eisenhower to direct two groups to study both the technical aspects of the program as well as how the resulting system would be employed.  The ultimate result was a joint report presented to the President and NSC on August 25, 1960.3

As a result of that meeting Eisenhower approved a first SAMOS launch in September, as well as reorientation of the program, with the development of high-resolution film-return systems being assigned highest priority while the electronic readout system would be pursued as a research project.  With regard to SAMOS management, he ordered that the Air Force institute special management arrangements, which would involve a direct line of authority between the SAMOS project office and the Office of the Air Force Secretary, bypassing the Air Staff and any other intermediate layers of bureaucracy.4

Secretary of the Air Force Dudley C. Sharp wasted little time creating the recommended new structure and procedures.  On August 31st Sharp signed Secretary of the Air Force Order 115.1, establishing the Office of Missile and Satellite Systems within his own office to help him manage the SAMOS project. With Order 116.1, Sharp created a SAMOS project office at the Los Angeles headquarters of the Air Force Ballistic Missile Division (AFBMD) as a field extension of the Office of the Secretary of the Air Force to carry out development of the satellite.5

The impact of the orders, in practice, was that the director of the SAMOS project would report directly to Under Secretary of the Air Force Joseph V. Charyk, who would manage it in the Secretary’s name. In turn, Charyk would report directly to the Secretary of Defense.6

The changes would not stop there.  The urgency attached to developing a successful reconnaissance satellite led, ultimately, to the creation of a top secret program and organization to coordinate the entire national reconnaissance effort.

Several of the documents listed below also appear in either of two National Security Archive microfiche collections on U.S. intelligence.  The U.S. Intelligence Community: Organization, Operations and Management: 1947-1989 (1990) and U.S. Espionage and Intelligence: Organization, Operations, and Management, 1947-1996 (1997) publish together for the first time recently declassified documents pertaining to the organizational structure, operations and management of the U.S. Intelligence Community over the last fifty years, cross-indexed for maximum accessibility.  Together, these two sets reproduce on microfiche over 2,000 organizational histories, memoranda, manuals, regulations, directives, reports, and studies, totaling more than 50,000 pages of documents from the Office of the Director of Central Intelligence, the Central Intelligence Agency, National Reconnaissance Office, National Security Agency, Defense Intelligence Agency, military service intelligence organizations, National Security Council, and other official government agencies and organizations.

 


Document 1
Joseph Charyk, Memorandum for the Secretary of Defense
Management of the National Reconnaissance Program
24 July 1961
Top Secret
1 p.

The organizational changes resulting from the decisions of August 25, 1960 and their implementation left some unsatisfied.  In particular, James Killian and Edwin Land, influential members of the President’s intelligence advisory board pushed for permanent and institutionalized collaboration between the CIA and Air Force.  After the Kennedy administration took office the push to establish a permanent reconnaissance organization took on additional life.  There was a strong feeling in the new administration, particularly by Secretary of Defense Robert McNamara and his deputy, Roswell Gilpatric, that a better, more formalized relationship was required.7

On July 24, 1961, Air Force Undersecretary Joseph Charyk sent a memorandum to McNamara attaching two possible memoranda of agreement for creation of a National Reconnaissance Program, along with some additional material.

Document 2
Memorandum of Understanding
Management of the National Reconnaissance Program (Draft)
20 July 1961
Top Secret
5 pp.

This memo specified establishment of a National Reconnaissance Program (NRP) consisting of “all satellite and overflight reconnaissance projects whether overt or covert,” and including “all photographic projects for intelligence, geodesy and mapping purposes, and electronic signal collection projects for electronic signal intelligence and communications intelligence.”

To manage the NRP, a National Reconnaissance Office (NRO) would be established on a covert basis. The NRO director (DNRO) would be the Deputy Director for Plans, CIA (at the time, Richard Bissell) while the Under Secretary of the Air Force would serve as Deputy Director (DDNRO). The DNRO would be responsible for the management of CIA activities, the DDNRO and the Air Force for Defense Department activities.  The DoD, specifically the Air Force acting as executive agent, would be primarily responsible for technical program management, scheduling, vehicle operations, financial management and overt contract administration, while the CIA would be primarily responsible for targeting each satellite.  The office would operate under streamlined management procedures similar to those established in August 1960 for SAMOS.

Document 3
Memorandum of Understanding
Management of the National Reconnaissance Program (Draft)
21 July 1961
Top Secret
4 pp.

This secondary memorandum was prepared at the suggestion of Defense Department General Counsel Cyrus Vance.  It offered a quite different solution to the problem.  As with the primary memo, it established a NRP covering both satellite and aerial reconnaissance operations.  But rather than a jointly run program, it placed responsibility for management solely in the hands of a covertly appointed Special Assistant for Reconnaissance, to be selected by the Secretary of Defense.  The office of the Special Assistant would handle the responsibilities assigned to the NRO in the other MOU.  The CIA would “assist the Department of Defense by providing support as required in areas of program security, communications, and covert contract administration.”

Document 4
Memorandum
Pros and Cons of Each Solution
Not dated
Top Secret
2 pp.

The assessment of pros and cons favored the July 20 memorandum, listing five pros for the first solution and only two for the second.  The first solution would consolidate responsibilities into a single program with relatively little disruption of established management, represented a proven solution, would require no overt organizational changes, would allow both agencies to retain authoritative voices in their areas of expertise, and provided a simplified management structure.  The two cons noted were the division of program responsibility between two people, and that “successful program management depends upon mutual understanding and trust of the two people in charge of the NRO.”  It would not be too long before that later observation would take on great significance.

In contrast, there were more cons than pros specified for the second solution.  The only two points in its favor were the consolidation of reconnaissance activities into a single program managed by a single individual and the assignment of complete responsibility to the agency (DoD) with the most resources.  Foremost of the six cons was the need for DoD to control and conduct large-scale covert operations, in as much as it was an entity “whose normal methods are completely foreign to this task.”

Document 5
Roswell Gilpatric, Letter to Allen Dulles
Management of the National Reconnaissance Program
6 September 1961
Top Secret
4 pp.

On July 28, 1961, four days after receiving Charyk’s memorandum and draft memoranda of understanding, McNamara instructed Air Force Undersecretary Joseph Charyk to continue discussions with the key officials and advisers in order to resolve any organizational difficulties that threatened to impede the satellite reconnaissance effort.  The ultimate result was this letter from Deputy Secretary of Defense Roswell Gilpatric to Dulles, which confirmed “our agreement with respect to the setting up of the National Reconnaissance Program.”

The letter specified the creation of a NRP.  It also established the NRO, a uniform security control system, and specified that the NRO would be directly responsive to the intelligence requirements and priorities specified by the United States Intelligence Board.  It specified implementation of NRP programs assigned to the CIA through the Deputy Director for Plans.  It designated the Undersecretary of the Air Force as the Defense Secretary’s Special Assistant for Reconnaissance, with full authority in DoD reconnaissance matters.

The letter contained no specific assignment of responsibilities to either the CIA or Defense Department, stating only that “The Directors of the National Reconnaissance Office will … insure that the particular talents, experience and capabilities within the Department of Defense and the Central Intelligence Agency are fully and most effectively utilized in this program.”

The letter provided for the NRO to be managed jointly by the Under Secretary of the Air Force and the CIA Deputy Director for Plans (at the time, still Richard Bissell).  A May 1962 agreement between the CIA and Defense Department established a single NRO director.  Joseph Charyk was named to the directorship shortly afterward.

Document 6
Joseph Charyk
Memorandum for NRO Program Directors/Director, NRO Staff
Organization and Functions of the NRO
23 July 1962
Top Secret
11 pp.

This memorandum represents the fundamental directive on the organization and functions of the NRO.  In addition to the Director (there was no provision for a deputy director), there were four major elements to the NRO–the NRO staff and three program elements, designated A, B, and C.  The staff’s functions included assisting the director in dealing with the USIB and the principal consumers of the intelligence collected.

The Air Force Office of Special Projects (the successor to the SAMOS project office) became NRO’s Program A.  The CIA reconnaissance effort was designated Program B, while the Navy’s space reconnaissance effort, at the time consisting of the Galactic Radiation and Background (GRAB) satellite, whose radar ferret mission involved the collection of Soviet radar signals, became Program C.  Although the GRAB effort was carried out by the Naval Research Laboratory, the director of the Office of Naval Intelligence would serve as Program C director until 1971.8

Document 7
Agreement between the Secretary of Defense and the Director of Central Intelligence on Management of the National Reconnaissance Program
13 March 1963
Top Secret
6 pp.

In December 1962, Joseph Charyk decided to leave government to become president of the COMSAT Corporation.  By that time a number of disputes between the CIA and NRO had contributed to Charyk’s view that the position of the NRO and its director should be strengthened.  During the last week of February 1963, his last week in office, he completed a revision of a CIA draft of a new reconnaissance agreement to replace the May 1962 agreement (which had replaced the September 6, 1961 agreement).  Charyk took the revision to Deputy Secretary of Defense Roswell Gilpatric.  It appears that some CIA-suggested changes were incorporated sometime after Charyk left office.  On March 13, Gilpatric signed the slightly modified version on behalf of DoD.  It was sent to the CIA that day and immediately approved by DCI John McCone, who had replaced Allen Dulles in November 1961.9

The new agreement, while it did not include all the elements Charyk considered important, did substantially strengthen the authority of the NRO and its director.  It named the Secretary of Defense as the Executive Agent for the NRP.  The program would be “developed, managed, and conducted in accordance with policies and guidance jointly agreed to by the Secretary of Defense and the Director of Central Intelligence.”

The NRO would manage the NRP “under the direction, authority, and control of the Secretary of Defense.”  The NRO’s director would be selected by the Defense Secretary with the concurrence of the DCI, and report to the Defense Secretary.  The NRO director was charged with presenting to the Secretary of Defense “all projects” for intelligence collection and mapping and geodetic information via overflights and the associated budgets, scheduling all overflight missions in the NRP, as well as engineering analysis to correct problems with collection systems.  With regard to technical management, the DNRO was to “assign all project tasks such as technical management, contracting etc., to appropriate elements of the DoD and CIA, changing such assignments, and taking any such steps he may determine necessary to the efficient management of the NRP.”

Document 8
Department of Defense Directive Number TS 5105.23
Subject: National Reconnaissance Office
27 March 1964
Top Secret
4 pp.

This directive replaced the original June 1962 DoD Directive on the NRO, and remains in force today. The directive specifies the role of the Director of the NRO, the relationships between the NRO and other organizations, the director’s authorities, and security. It specified that documents or other material concerning National Reconnaissance Program matters would be handled within a special security system (known as the BYEMAN Control System).

Document 9
President’s Foreign Intelligence Advisory Board
Memorandum for the President
Subject: National Reconnaissance Program
2 May 1964
Top Secret
11 pp.

The 1963 CIA-DoD agreement on the NRP did not end the battles between the CIA and NRO–as some key CIA officials, including ultimately DCI John McCone, sought to reestablish a major role for the CIA in the satellite reconnaissance effort.  The continuing conflict was examined by the PFIAB.

The board concluded that “the National Reconnaissance Program despite its achievements, has not yet reached its full potential.”  The fundamental cause for the NRP’s shortcomings was “inadequacies in organizational structure.”  In addition, there was no clear division of responsibilities and roles between the Defense Department, CIA, and the DCI.

The recommendations of the board represented a clear victory for the NRO and its director.  The DCI should have a “large and important role” in establishing intelligence collection requirements and in ensuring that the data collected was effectively exploited, according to the board.  In addition, his leadership would be a key factor in the work of the United States Intelligence Board relating to the scheduling of space and airborne reconnaissance missions.

But the board also recommended that President Johnson sign a directive which would assign to NRO’s Air Force component (the Air Force Office of Special Projects) systems engineering, procurement, and operation of all satellite reconnaissance systems.

Document 10
Agreement for Reorganization of the National Reconnaissance Program
13 August 1965
Top Secret
6 pp.

Despite the recommendations of the May 2, 1964 PFIAB report, which were challenged by DCI John McCone, no action was taken to solidify the position of the NRO and its director.  Instead prolonged discussions over a new agreement continued into the summer of 1965.  During this period the CIA continued work on what would become two key satellite programs–the HEXAGON/KH-9 imaging and RHYOLITE signals intelligence satellites.

In early August, Deputy Secretary of Defense Cyrus Vance and CIA official John Bross reached an understanding on a new agreement, and it was signed by Vice Adm. William F. Raborn (McCone’s successor) and Vance on August 13, 1965.  It represented a significant victory for the CIA, assigning key decision-making authority to an executive committee, authority that was previously the prerogative of the NRO director as the agent of the Secretary of Defense.

The Secretary of Defense was to have “the ultimate responsibility for the management and operation of the NRO and the NRP,” and have the final power to approve the NRP budget.  The Secretary also was empowered to make decisions when the executive committee could not reach agreement.

The DCI was to establish collection priorities and requirements for targeting NRP operations, as well as establish frequency of coverage, review the results obtained by the NRP and recommend steps for improving its results if necessary, serve on the executive committee, review and approve the NRP budget, and provide security policy guidance.

The NRP Executive Committee established by the agreement would consist of the DCI, Deputy Secretary of Defense, and Special Assistant to the President for Science and Technology.  The committee was to recommend to the Secretary of Defense the “appropriate level of effort for the NRP,” approve or modify the consolidated NRP and its budget, approve the allocation of responsibility and the corresponding funds for research and exploratory development for new systems.  It was instructed to insure that funds would be adequate to pursue a vigorous research and development program, involving both CIA and DoD.  The executive committee was to assign development of sensors to the agency best equipped to handle the task.

The Director of the NRO would manage the NRO and execute the NRP “subject to the direction and control of the Secretary of Defense and the guidance of the Executive Committee.”  His authority to initiate, improve, modify, redirect or terminate all research and development programs in the NRP, would be subject to review by the executive committee.  He could demand that all agencies keep him informed about all programs undertaken as part of the NRP.

Document 11
Analysis of “A $1.5 Billion Secret in Sky” Washington Post, December 9, 1973
Not dated
Top Secret
33 pp.

Throughout the 1960s, the United States operation of reconnaissance satellites was officially classified, but well known among specialists and the press.  However, it was not until January 1971 that the NRO’s existence was first disclosed by the media, when it was briefly mentioned in a New York Times article on intelligence and foreign policy.

A much more extensive discussion of the NRO appeared in the December 9, 1973 Washington Post as a result of the inadvertent mention of the reconnaissance office in a Congressional report.  The NRO prepared this set of classified responses to the article, clearly intended for those in Congress who might be concerned about the article’s purported revelations about the NRO’s cost overruns and avoidance of Congressional oversight.

Document 12
E.C. Aldridge, Jr. (Director, NRO)
Letter to David L. Boren, Chairman,
Senate Select Committee on Intelligence
21 November 1988
Secret
3 pp.

The late 1980s saw the beginning of what eventually would be a wide-ranging restructuring of the NRO.  In November 1988 NRO director Edward “Pete” Aldridge wrote to Senator David Boren, Chairman of the Senate Select Committee on Intelligence, concerning the findings of an extensive study (the NRO Restructure Study) of the organizational structure of the NRO.

Aldridge proceeded to report that, after having discussed the study’s recommendations with Secretary of Defense Frank Carlucci and Director of Central Intelligence William Webster, he was directing the development of plans to implement the recommendations.  Specific changes would include the creation of a centralized systems analysis function “to conduct cross-system trades and simulations within the NRO,” creation of a “User Support” function to improve NRO support to intelligence community users as well as to the growing number of operational military users, and the dispersal of the NRO Staff to the new units, with the staff being replaced by a group of policy advisers.  In addition, Aldridge foresaw the establishment of an interim facility “to house the buildup of the new functions and senior management.”  The ultimate goal, projected for the 1991-92 period, would be the “collocation of all NRO elements [including the Los Angeles-based Air Force Office of Special Projects] . . . in the Washington, D.C. area.”

Document 13
Memorandum of Agreement
Subject: Organizational Restructure of the National Reconnaissance Office
15 December 1988
Secret
2 pp.

This memorandum of agreement, signed by the Director of the NRO and the directors of the NRO’s three programs commits them to the restructuring discussed in Edward Aldridge’s November 21 letter to Senator Boren.

Many changes recommended by Aldridge, who left office at the end of 1988, were considered by a 1989 NRO-sponsored review group and subsequently adopted.

Document 14
Report to the Director of Central Intelligence
DCI Task Force on The National Reconnaissance Office, Final Report
April 1992
Secret
35 pp.

This report was produced by a panel chaired by former Lockheed Corporation CEO Robert Fuhrman, whose members included both former and serving intelligence officials.  It focused on a variety of issues other than current and possible future NRO reconnaissance systems.  Among the issues it examined were mission, organizational structure, security and classification.

One of its most significant conclusions was that the Program A,B,C structure that had been instituted in 1962 (see Document 6) “does not enhance mission effectiveness” but “leads to counterproductive competition and makes it more difficult to foster loyalty and to maintain focus on the NRO mission.”  As a result, the panel recommended that the NRO be restructured along functional lines with imagery and SIGINT directorates.  This change was made even before the final version of the report was issued.

The report also noted that while the NRO’s existence was officially classified it was an “open secret” and that seeking to attempt to maintain such “open secrets … weakens the case for preserving ‘real’ secrets.”  In addition, such secrecy limited the NRO’s ability to interact with customers and users.  The group recommended declassifying the “fact of” the NRO, as well as providing information about the NRO’s mission, the identities of senior officials, headquarters locations, and the NRO as a joint Intelligence Community-Defense Department activity.

Document 15
National Security Directive 67
Subject: Intelligence Capabilities: 1992-2005
30 March 1992
Secret
2 pp.

NSD 67 directed a number of changes in U.S. intelligence organization and operations.  Among those was implementation of the plan to restructure the NRO along functional lines–eliminating the decades old Program A (Air Force), B (CIA), and C (Navy) structure and replacing it with directorates for imaging, signals intelligence, and communication systems acquisition and operations–as recommended by the Fuhrman panel.  As a result, Air Force, CIA, and Navy personnel involved in such activities would now work together rather than as part of distinct NRO components.

Document 16
Email message
Subject: Overt-Covert-DOS-REP-INPUT
27 July 1992
Secret
1 p.

In addition to the internal restructuring of the NRO, 1992 saw the declassification of the organization, as recommended by the Fuhrman report (Document 14), for a number of reasons–to facilitate interaction with other parts of the government, to make it easier for the NRO to support military operations, and in response to Congressional pressure to acknowledge the obvious.  As part of the process of considering declassification NRO consulted Richard Curl, head of the Office of Intelligence Resources of the State Department’s Bureau of Intelligence and Research–the office which provides INR with expertise and support concerning technical collection systems.  Curl recommended a low-key approach to declassification.

Document 17
Memorandum for Secretary of Defense, Director of Central Intelligence
Subject: Changing the National Reconnaissance Office (NRO) to an Overt Organization
30 July 1992
Secret
3 pp.

w/ attachments:
Document 17a: Mission of the NRO, 1 p.

Document 17b:  Implications of Proposed Changes, 4 pp. (Two versions)
 Version One
 Version Two

These memos, from Director of the NRO Martin Faga, represent key documents in the declassification of the NRO. The memo noted Congressional pressure for declassification and that Presidential certification that declassification would result in “grave damage to the nation … would be difficult in this case.”

Faga reported that as a result of an NRO review he recommended declassifying the fact of NRO’s existence, issuing a brief mission statement, acknowledging the NRO as a joint DCI-Secretary of Defense endeavor, and identifying top level NRO officials. He also noted that his recommendations attempted to balance concerns about classifying information that realistically could not be protected, while maintaining an ability to protect matters believed to require continued protection.

Secretary of Defense Richard Cheney, DCI Robert Gates, and President Bush approved the recommendations in September and a three-paragraph memorandum to correspondents acknowledging the NRO and NRP was issued on September 18, 1992.

Document 17b comes in two versions, representing different security reviews.  Material redacted from the first version includes provisions of National Security Directive 30 on space policy, expression of concern over “derived disclosures,” and the assessment that the “high degree of foreign acceptance of satellite reconnaissance, and the fact that we are not disclosing significant new data,” would not lead to any significant foreign reaction.  Another redacted statement stated that “legislation . . . exempting all NRO operational files from [Freedom of Information Act] searches” was required.

Document 18
Final Report: National Reconnaissance Program Task Force for the Director of Central Intelligence
September 1992
Top Secret
15 pp.

The end of the Cold War and collapse of the Soviet Union required the U.S. intelligence community and NRO to reconsider how U.S. overhead reconnaissance systems were employed and what capabilities future systems should possess.  To consider these questions DCI Robert Gates appointed a task force, chaired by his eventual successor, R. James Woolsey.

The final report considers future needs and collection methods, industrial base considerations, procurement policy considerations, international industrial issues, and transition considerations.  Its recommendations included elimination of both some collection tasks as well as some entire types of present and planned collection systems.

Document 19
NRO Protection Review, “What is [BYEMAN]?”
6 November 1992
Top Secret
18 pp.

Traditionally, the designations of Sensitive Compartmented Information (SCI) compartments–such as UMBRA to indicate particularly sensitive communications intelligence and RUFF to intelligence based on satellite imagery–have themselves been classified.  In recent years, however, the NSA and CIA have declassified a number of such terms and their meaning. One exception has been the term “BYEMAN”– the BYEMAN Control System being the security system used to protect information related to NRO collection systems (in contrast to their products) and other aspects of NRO activities, including budget and structure.  Thus, the term BYEMAN has been deleted in the title of the document and throughout the study–although the term and its meaning has become known by specialists and conveys no information beyond the text of any particular document.

This study addresses the use of the BYEMAN classification within the NRO, its impact on contractors and other government personnel, and the consequences of the current application of the BYEMAN system.  The study concludes that placing information in the highly restrictive BYEMAN channels (in contrast to classifying the information at a lower level) may unduly restrict its dissemination to individuals who have a legitimate need to know.

Document 20
NRO Strategic Plan
18 January 1993
Secret
19 pp.

A study headed by James Woolsey (Document 18), President Clinton’s first DCI, heavily influenced the contents of this early 1993 document.  The plan’s introduction notes that while some collection tasks will no longer be handled by overhead reconnaissance the “uncertain nature of the world that is emerging from the end of the ‘cold war’ places a heavy premium on overhead reconnaissance.”  At the same time, “this overhead reconnaissance challenge must be met in an era of a likely reduced national security budget.”

The strategic plan is described in the introduction, as “the ‘game plan’ to transition current overhead collection architectures into a more integrated, end-to-end architecture for improved global access and tasking flexibility.”

The document goes on to examine the strategic context for future NRO operations, NRO strategy, strategic objectives, and approaches to implementation.  Strategic objectives include improving the responsiveness of NRO systems by developing an architecture that spans the entire collection and dissemination process, from the identification of requirements to dissemination of the data collected.

Document 21
National Reconnaissance Office: Collocation Construction Project, Joint DOD and CIA Review Report
November 1994
Unclassified
28 pp.

In an August 8, 1994 press conference, Senators Dennis DeConcini (D-Az.) and John Warner (R-Va.), the chairman and vice chairman of the Senate Select Committee on Intelligence accused the NRO of concealing from Congress the cost involved in building a new headquarters to house government and contractor employees.  Previously NRO activities in the Washington area were conducted from the Pentagon and rented space in the Washington metropolitan area.  The collocation and restructuring decisions of the late 1980s and early 1990s had resulted in a requirement for a new headquarters facility.10

The accusations were followed by hearings before both the Senate and House intelligence oversight committees–with House committee members defending the NRO and criticizing their Senate colleagues.  While they noted that some of the documents presented by the NRO covering total costs were not presented with desirable clarity, the House members were more critical of the Senate committee for inattention to their committee work.11

This joint DoD and CIA review of the project, found “no intent to mislead Congress” but that “the NRO failed to follow Intelligence Community budgeting guidelines, applicable to all the intelligence agencies,” that would have caused the project to be presented as a “New Initiative,” and that the cost data provided by the NRO “were not presented in a consistent fashion and did not include a level of detail comparable to submissions for . . . intelligence community construction.”

Document 22
Memorandum for Director of Central Intelligence
Subject: Small Satellite Review Panel
Unclassified
July 1996

The concept of employing significantly smaller satellites for imagery collection was strongly advocated by Rep. Larry Combest during his tenure (1995-97) as chairman of the House Permanent Select Committee on Intelligence.  As a result the DCI was instructed to appoint a panel of experts to review the issue.12

Panel members included former NRO directors Robert Hermann and Martin Faga; former NRO official and NSA director Lew Allen; scientist Sidney Drell and four others.  The panel’s report supported a radical reduction in the size of most U.S. imagery satellites.  The panel concluded that “now is an appropriate time to make a qualitative change in the systems architecture of the nation’s reconnaissance assets,” in part because “the technology and industrial capabilities of the country permit the creation of effective space systems that are substantially smaller and less costly than current systems.”  Thus, the panel saw “the opportunity to move towards an operational capability for . . . imagery systems, that consists of an array of smaller, cheaper spacecraft in larger number with a total capacity which is at least as useful as those currently planned and to transport them to space with substantially smaller and less costly launch vehicles.”13

The extent to which those recommendations have influenced NRO’s Future Imagery Architecture plan is uncertain–although plans for large constellations of small satellites have not usually survived the budgetary process.

Document 23
Defining the Future of the NRO for the 21st Century, Final Report, Executive Summary
August 26, 1996
Unclassified
30 pp.

This report was apparently the first major outside review of the NRO conducted during the Clinton administration, and the first conducted after the NRO’s transformation to an overt institution and its restructuring were firmly in place.

Among those conducting the review were former Vice Chairman of the Joint Chiefs of Staff, Adm. David E. Jeremiah, former NRO director Martin Faga, and former Deputy Director of Central Intelligence John McMahon.  Issues studied by the panel included, inter alia, the existence of a possible alternative to the NRO, NRO’s mission in the 21st Century, support to military operations, security, internal organization, and the relationship with NRO’s customers.

After reviewing a number of alternatives, the panel concluded that no other arrangement was superior for carrying out the NRO mission.  It did, however, recommend, changes with regards to NRO’s mission and internal organization.  The panel concluded that where the NRO’s current mission is “worldwide intelligence,” its future mission should be “global information superiority,” which “demands intelligence capabilities unimaginable just a few years ago.”  The panel also recommended creation of a fourth NRO directorate, which was subsequently established, to focus solely on the development of advanced systems, in order to “increase the visibility and stature of technology innovation in the NRO.”

 

Notes
1. Michael R. Beschloss, Mayday: Eisenhower, Khrushchev and the U-2 Affair (New York: Harper & Row, 1986), pp.241-42; John Ranelagh, The Agency: The Rise and Decline of the CIA, From Wild Bill Donovan to William Casey (New York: Simon & Schuster, 1986), p. 319; Gregory W. Pedlow and Donald Welzenbach, The Central Intelligence Agency and Overhead Reconnaissance: The U-2 and OXCART Programs, 1954-1974 (Washington, D.C.: CIA, 1992), pp. 170-93.2. Kenneth Greer, “Corona,” Studies in Intelligence, Supplement 17, Spring 1973 in Kevin C. Ruffner (Ed.), CORONA: America’s First Satellite Program (Washington, D.C.: Central Intelligence Agency, 1995), pp. 3-40; Gen. Thomas D. White, Air Force Chief of Staff to General Thomas S. Power, Commander in Chief, Strategic Air Command, June 29, 1960, Thomas D. White Papers, Library of Congress, Box 34, Folder “2-15 SAC.”

3. “Special Meeting of the National Security Council to be held in the Conference Room of the White House from 8:30 a.m. to 10 a.m., Thursday, August 25, 1960, undated, National Security Council Staff Papers, 1948-61, Executive Secretary’s Subject File Series, Box 15, Reconnaissance Satellites [1960], DDEL.

4. “Reconnaissance Satellite Program,” Action No.1-b at Special NSC Meeting on August 25, 1960, transmitted to the Secretary of Defense by Memo of September 1, 1960; G.B. Kistiakowsky to Allen Dulles, August 25, 1960, Special Assistant for Science and Technology, Box No. 15, Space [July-Dec 1960], DDEL.

5. Carl Berger, The Air Force in Space Fiscal Year 1961, (Washington, D.C.: Air Force Historical Liaison Office, 1966), pp.41-42; Secretary of the Air Force Order 115.1, “Organization and Functions of the Office of Missile and Satellite Systems,” August 31, 1960; Robert Perry, A History of Satellite Reconnaissance, Volume 5: Management of the National Reconnaissance Program, 1960-1965, (Washington, D.C., NRO, 1969), p. 20; Secretary of the Air Force Order 116.1, “The Director of the SAMOS Project,” August 31, 1960.

6. Perry, A History of Satellite Reconnaissance, Volume 5, p. 20.

7. Jeffrey T. Richelson, “Undercover in Outer Space: The Creation and Evolution of the NRO,” International Journal of Intelligence and Counterintelligence, 13, 3 (Fall 2000): 301-344.

8. Ibid.; GRAB: Galactic Radiation and Background (Washington, D.C.: NRL, 1997); Dwayne A. Day, “Listening from Above: The First Signals Intelligence Satellite,” Spaceflight, August 1999, pp. 339-347; NRO, Program Directors of the NRO: ABC&D, 1999.

9. Perry, A History of Satellite Reconnaissance, Volume 5, pp. 93, 96-97.

10. Pierre Thomas, “Spy Unit’s Spending Stuns Hill,” Washington Post, August 9, 1994, pp. A1, A6.

11. Walter Pincus, “Spy Agency Defended by House Panel,” Washington Post, August 12, 1994, p. A21; U.S. Congress, House Permanent Select Committee on Intelligence, NRO Headquarters Project (Washington, D.C.: U.S. Government Printing Office, 1995), pp. 3-4.

12. Walter Pincus, “Congress Debates Adding Smaller Spy Satellites to NRO’s Menu,” Washington Post, October 5, 1995, p. A14; Joseph C. Anselmo, “House, Senate at Odds Over Intel Small Sats,” Aviation Week & Space Technology, January 1, 1996, p. 19.

13. Small Satellite Review Panel, Memorandum for: Director of Central Intelligence, Subject: Small Satellite Review Panel, July 1996.

Revealed – Former CIA Officer Kiriakou Calls Leak Prosecution Selective, Vindictive

Former CIA officer John Kiriakou, who is charged with unauthorized disclosure of a covert officer’s identity and other classified information, says that the case against him is driven by government animosity, and that he is a target of selective prosecution.

“When White House aides leaked stories about the heroes who killed Osama Bin Laden, they were not prosecuted.  When the Washington Post was granted access to the covert director of the CTC for a profile of those directing America’s ‘war on terror,’ no one was prosecuted,” his attorneys wrote in a newly disclosed motion for dismissal.

“But when John Kiriakou gave an interview where he admitted the United States used waterboarding and when he further opined that waterboarding was ineffective, the government went after him,” the motion stated.

“The United States has improperly selected him for prosecution based on his exercise of his constitutional rights and on the animus the United States holds toward him” while “the government has tolerated other disclosures because they resulted in press favorable to the government.”

A copy of the June 12 defense motion was cleared for public release yesterday.

In a separate motion for dismissal, Mr. Kiriakou’s attorneys challenged the constitutionality of the statutes under which he is being prosecuted, including the Intelligence Identities Protection Act and section 793(d) of the Espionage Act, which they argued are “unconstitutionally vague and overbroad.”

Furthermore, because overclassification is rampant, they said, the classification status of any particular information is not a reliable index of its sensitivity.

“The government’s acknowledged practice of over-classification means that not all classified information actually has the potential to damage national security if released….  The fact that information is classified does not actually clarify whether its disclosure… could cause any injury to the United States.”

A government response to the defense motions is due by July 2.

Anatoly S. Chernyaev Diary, 1972 – TOP-SECRET from the NSA


click for full sizeFirst trip with Gorbachev. Chernyaev in Belgium, October 1972.

Anatoly S. Chernyaev Diary, 1972

Soviet government official Anatoly Chernyaev records an insider’s view of the Brezhnev era

National Security Archive Electronic Briefing Book No. 379

Translated and edited by Anna Melyakova and Svetlana Savranskaya “Anatoly Chernyaev’s diary is one of the great internal records of the Gorbachev years, a trove of irreplaceable observations about a turning point in history. There is nothing else quite like it, allowing the reader to sit at Gorbachev’s elbow at the time of perestroika and glasnost, experiencing the breakthroughs and setbacks. It is a major contribution to our understanding of this momentous period.”
— David E. Hoffman, Pulitzer Prize-winning author of The Dead Hand

“Remarkable diary …”
— Historian Amy Knight, New York Review of Books, April 6, 2012


click for full sizeChernyaev, Anatoly Kovalev and Alexander Bovin in Zavidovo.

click for full sizeChernyaev and Georgy Arbatov in Zavidovo.

Washington, D.C., May 25, 2012 – Today the National Security Archive publishes excerpts from Anatoly S. Chernyaev’s diary of 1972 for the first time in English translation with edits and postscript by the author. While the diary for the Gorbachev years, 1985-1991, published before and widely used in scholarly work on the end of the Cold War provided a major source on the Gorbachev reforms, the earlier years of the diary give the reader a very rare window into the workings of the Brezhnev inner circle in the 1970s.

The portrait of the Soviet leader Leonid Brezhnev, whom most Americans remember from his later years as frail and incomprehensible, emerges very differently from the earliest in the series of diaries donated by Anatoly Sergeyevich Chernyaev to the National Security Archive. In 1972, Chernyaev, deputy head of the International Department of the Central Committee, started keeping a systematic diary, recording his attendance at Politburo meetings, his participation in meetings at the state dacha in Zavidovo (where the experts and speechwriters met to draft speeches and reports for the General Secretary), visits abroad, and the daily life of a high-level Soviet apparatchik.

In 1972, Brezhnev is a skillful negotiator, who prepares seriously for Richard Nixon’s first visit to Moscow, who discusses texts of his speeches with leading Moscow intellectuals whom he brought into his inner circle as speechwriters and consultants, who is essentially non-ideological in his dealings with foreign leaders-negotiating arms control and economic agreements with Nixon while the U.S. forces are bombing the Soviet communist ally Vietnam, preferring Georges Pompidou to the leader of French communists Georges Marchais, and”brainwashing” Pakistani leader Bhutto. The two most striking differences between the aging Brezhnev of the late 1970s-early 1980s and the Brezhnev of this diary are that the General Secretary is clearly in charge of the Politburo sessions and that he actively consults with leading experts and intellectuals, such as Georgy Arbatov, Nikolai Inozemtsev, Alexander Bovin and Chernyaev himself.

Chernyaev’s daily duties are centered around the international communist movement, interactions with representatives from European communist parties. The reader sees Chernyaev’s emerging disillusionment with his work, which in comparison to real foreign policy, like preparation for Nixon’s visit, feels meaningless. Chernyaev comes to believe that “the Communist Movement right now is nothing more than an ideological addendum to our foreign policy,” and that the Soviet authority in the progressive movements in the world is shrinking: “nobody believes us anymore, no matter how we portray the Chinese and try to explain our Marxist-Leninist purity.”

He sees the future in a different direction. After Nixon’s visit, Chernyaev is asked to draft Brezhnev’s speech on Soviet-American relations and thus is allowed to see all the materials from the meeting, including all transcripts of conversation. Impressed with the quality of interaction and the non-ideological spirit of it, Chernyaev anticipates a new era: “Be that as it may, but we’ve crossed the Rubicon. The great Rubicon of world history. These weeks of May 1972 will go down in history as the beginning of an era of convergence.”

But the new era will only come thirteen years later. In 1972, he sees the first almost imperceptible sign from the future. In October 1972, he is asked to accompany first secretary of the Stavropol region on a trip to Belgium. This is where Chernyaev meets and spends time with Mikhail Gorbachev for the first time. Astonishingly, as Chernyaev later admits, he did not record this meeting in the diary at the time. Only photographs documented this auspicious meeting where Chernyaev sits on the left hand of the future Soviet leader, whose right hand he was destined to become in the late 1980s.

 


SECRET from Cryptome – FAA Sets Large ND Drone Training Airspace

[Federal Register Volume 77, Number 119 (Wednesday, June 20, 2012)]
[Rules and Regulations]
[Pages 36907-36914]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-15008]

========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
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========================================================================

Federal Register / Vol. 77, No. 119 / Wednesday, June 20, 2012 / 
Rules and Regulations

[[Page 36907]]

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 73

[Docket No. FAA-2011-0117; Airspace Docket No. 09-AGL-31]

Establishment of Restricted Areas R-5402, R-5403A, R-5403B, R-
5403C, R-5403D, R-5403E, and R-5403F; Devils Lake, ND

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action establishes restricted area airspace within the 
Devils Lake Military Operations Area (MOA), overlying Camp Grafton 
Range, in the vicinity of Devils Lake, ND. The new restricted areas 
permit realistic training in modern tactics to be conducted at Camp 
Grafton Range while ensuring the safe and efficient use of the National 
Airspace System (NAS) in the Devils Lake, ND, area. Unlike restricted 
areas which are designated under Title 14 Code of Federal Regulations 
(14 CFR) part 73, MOAs are not regulatory airspace. However, since the 
restricted areas overlap the Devils Lake East MOA, the FAA is including 
a description of the Devils Lake East MOA change in this rule. The MOA 
change described herein will be published in the National Flight Data 
Digest (NFDD).

DATES: Effective Dates: Effective date 0901 UTC, July 26, 2012.

FOR FURTHER INFORMATION CONTACT: Colby Abbott, Airspace, Regulations 
and ATC Procedures Group, Office of Airspace Services, Federal Aviation 
Administration, 800 Independence Avenue SW., Washington, DC 20591; 
telephone: (202) 267-8783.

SUPPLEMENTARY INFORMATION: 

History

    On November 28, 2011, the FAA published in the Federal Register a 
notice of proposed rulemaking (NPRM) to establish Restricted Areas R-
5402, R-5403A, R-5403B, R-5403C, R-5403D, R-5403E, and R-5403F in the 
vicinity of Devils Lake, ND (76 FR 72869). Interested parties were 
invited to participate in this rulemaking effort by submitting written 
comments on the proposal. In response to public request, the FAA 
extended the comment period for 30 additional days (77 FR 1656; January 
11, 2012). There were 43 comments received in response to the NPRM with 
42 opposing various aspects of the proposal and one comment supporting 
the proposal as published. All comments received were considered before 
making a determination on this final rule. The following is a 
discussion of the substantive comments received and the agency's 
response.

Discussion of Comments

    One commenter contended that the 500 feet above ground level (AGL) 
base for R-5402 would impact low level, aerial operations such as crop 
dusters, wildlife and agricultural surveys, and emergency medical 
access. The FAA recognizes that when active, R-5402 would restrict 
nonparticipating aircraft from operating within its boundaries. To 
mitigate impacts to the aviation activities described above, the United 
States Air Force (USAF) has agreed to implement scheduling coordination 
measures to de-conflict laser operations and accommodate access by 
local farming, ranching, survey, and medical aviation interests when 
they need to fly in or through R-5402, when it is active.
    Another commenter noted that VFR traffic would have to 
circumnavigate active restricted airspace resulting in increased time 
and distances flown. The FAA acknowledges restricted area airspace 
segregates nonparticipating aircraft from hazardous activities 
occurring inside the restricted area and that, on occasion, 
nonparticipating aircraft affected by the restricted area will have to 
deviate from preferred routings to remain clear. The lateral boundaries 
and altitudes of the restricted area complex were defined to minimize 
impacts to nonparticipant aircraft, yet still support the military in 
accomplishing its training mission. The subdivided configuration of the 
restricted area complex, the altitude stratifications, and the entire 
restricted area complex designated as ``joint use,'' affords 
nonparticipant aircraft access to the portions of restricted area 
airspace not in use by the military to the greatest extent possible.
    One commenter expressed concern that segregating airspace for new 
types of aircraft sets a dangerous precedent. The FAA agrees and 
maintains its policy to establish restricted area airspace when 
determined necessary to confine or segregate activities considered 
hazardous to nonparticipating aircraft. The FAA considers UAS 
operations to be non-hazardous. However, the FAA recognizes that some 
UAS platforms have the ability to employ hazardous ordnance or sensors. 
Since the MQ-1 Predator [UAS] laser is non-eye safe and will be used 
during training sorties flown by the military, its use constitutes a 
hazardous activity that must be confined within restricted area 
airspace to protect nonparticipating aircraft.
    Two commenters suggested that Special Use Airspace (SUA) should be 
ceded back to civil control when not in use. The FAA proposed that the 
restricted areas be designated as ``joint use'' airspace, specifically 
to afford the highest level of access to NAS users and limit this 
access only when necessary. This rule provides that when the restricted 
areas are not needed by the using agency, the airspace will be returned 
to the controlling agency, Minneapolis Air Route Traffic Control 
Center, for access by other NAS users.
    Another commenter recommended that the proposed restricted area 
airspace be developed for concurrent use. The FAA considered the 
commenters use of ``concurrent use'' to mean ``sharing the same 
airspace, at the same time, between participating and nonparticipating 
aircraft.'' As noted previously, restricted areas are established to 
confine or segregate activities considered hazardous to 
nonparticipating aircraft; such as dropping bombs, firing guns/
missiles/rockets, or lasing with a non-eye safe laser. Concurrent use, 
as described above, would not be prudent in such an environment as it 
constitutes an unacceptable risk to nonparticipating aircraft.
    Twenty-two commenters stated that the proposed restricted areas 
should

[[Page 36908]]

have been developed in conjunction with the North Dakota Airspace 
Integration Team (NDAIT), a group formed to find solutions to UAS 
integration into the NAS, as well as coordinate UAS activities state-
wide. To clarify, the focus of this proposed action is consideration of 
establishing restricted areas to support hazardous military training 
activities, not UAS integration into the NAS. The FAA notes that the 
NDAIT was not established until after the USAF airspace proposal was 
submitted to the FAA and many of the NDAIT members took the opportunity 
to submit comments on the proposal.
    One commenter stated that the proposed airspace should be 
environmentally assessed for the broad array of military aircraft that 
would be expected to employ in conjunction with UAS. The FAA agrees and 
has confirmed that the Environmental Impact Statement for the bed down 
of the MQ-1 Predator at Grand Forks Air Force Base (AFB) addresses 
other aircraft that would likely train with the UAS in the proposed 
restricted area airspace complex.
    Another commenter stated that the proposed restricted area airspace 
would eventually be activated almost full time as is the current 
Temporary Flight Restriction (TFR) over Grand Forks AFB. The TFR 
referred to by the commenter is contained in the Special Security 
Instruction authorized under 14 CFR 99.7 for Customs and Border 
Protection (CBP) UAS operations conducted from Grand Forks AFB. 
Although the TFR is active while the CBP UAS is flying, it allows 
airspace access by non-participant aircraft using procedural separation 
rules. The restricted areas proposed by this action are being 
established with specific times of designation, to support the 
hazardous non-eye safe laser training conducted by the USAF. The times 
are described by ``core hours'' and also may be activated by NOTAM to 
allow for training periods outside the core hours, i.e. at night.
    Twenty commenters argued that the proposal is contrary to FAA 
policy, in that it is designed for the sole purpose of separating non-
hazardous types of VFR aircraft. The FAA has established this 
restricted area airspace to confine the MQ-1 Predator employment of a 
non-eye safe targeting laser, which is hazardous to nonparticipating 
pilots. This laser training for UAS pilots must be contained in 
restricted areas to confine the hazardous activity, as well as protect 
non-participating aircraft flying in the vicinity of the restricted 
areas. Even though the Predator operations in the restricted areas will 
normally occur in Visual Meteorological Conditions (VMC), the UAS will 
be on an IFR flight plan in accordance with U.S. Air Force 
requirements.
    Two commenters requested that the FAA establish a formal, annual 
review process and public report on the use and impacts of any 
designated airspace associated with UAS activity in Grand Forks, ND. 
The request to establish a formal annual review process with public 
reporting on use and impacts falls outside the scope of this proposed 
action. However, the FAA has a Restricted Area Annual Utilization 
reporting program already established to assist the FAA in managing 
special use airspace areas established throughout the NAS. These annual 
utilization reports provide objective information regarding the types 
of activities being conducted, as well as the times scheduled, 
activated, and actual use, which the FAA uses to assess the appropriate 
use of the restricted areas.
    Nineteen commenters recommended that proposed restricted airspace 
have a ``sunset'' date. The restricted areas are established to confine 
hazardous non-eye safe laser training, which will continue as long as 
the Predator UAS are operating from Grand Forks AFB. Technology 
developments to integrate UAS into the NAS with manned aircraft, as 
well as military Tactics, Techniques and Procedures (TTP) maturation 
may provide an opportunity to reconfigure the restricted area airspace 
at a future date, but the requirement for restricted area airspace will 
exist as long as the non-eye safe laser training is conducted.
    One commenter recommended a requirement for equipping the UAS with 
forward viewing sensors that would enable the UAS to comply with 14 CFR 
part 91 see-and-avoid rules. While the FAA is working with the industry 
to develop see-and-avoid solutions for the safe and eventual seamless 
integration of UAS into the NAS, this suggestion is outside the scope 
of this action.
    One commenter asked that the proposal be tabled until the FAA 
publishes its final Order/Advisory Circular regarding UAS operations in 
the NAS. The Order/Advisory Circular address the integration of UAS in 
the NAS, which is separate from the action of establishing restricted 
area airspace to confine hazardous non-eye safe laser training 
activities. This action is necessary to support the military's training 
requirement beginning this summer. The FAA is completing this airspace 
action separate from its UAS NAS integration guidance development 
efforts.
    Several commenters recommended that instead of creating new SUA for 
these activities that the USAF use existing restricted areas or the 
airspace subject to flight restrictions under Sec.  99.7 SSI and used 
by the Customs & Border Protection Agency (CBP) at Grand Forks AFB. The 
FAA advocates the use of existing SUA and requires proponents to 
examine all reasonable alternatives, prior to considering the need to 
establish new SUA. In this case, the USAF conducted an extensive 
analysis of alternatives and considered criteria including proximity to 
Grand Forks AFB, existence of a suitable air-to-ground range for laser 
targeting, and air traffic density both en route and at the training 
complex. The Beaver MOA in north central Minnesota is approximately 
three times as far as the proposed airspace, has much heavier air 
traffic density, and has no air-to-ground gunnery range. The Tiger MOAs 
in north central North Dakota are the same distance as the proposed 
airspace, have favorable air traffic density, but have no air-to-ground 
gunnery range. The airspace in the vicinity of the existing CBP Sec.  
99.7 SSI flight restriction would be closer, but has much higher 
traffic density and complexity, and has no air-to-ground range. 
Additionally, there were no useable restricted areas within reasonable 
distance of Grand Forks AFB for consideration. The FAA believes the 
USAF considered and analyzed the alternatives to this action and that 
establishing new SUA is the only reasonable option.
    One commenter suggested that the restricted area complex be moved 
north of Devils Lake. The FAA notes that the USAF studied an 
alternative of establishing restricted areas in the Tiger North and 
Tiger South MOAs, located north of Devils Lake, ND. While proximity to 
Grand Forks AFB and the air traffic density compared favorably to the 
proposed airspace area, the lack of an air-to-ground gunnery range 
suitable for hazardous laser training made this option operationally 
unfeasible. The FAA accepted the USAF's consideration and analysis of 
this alternative and proposed establishing the restricted areas set 
forth in this action.
    One commenter recommended that the proposed airspace be moved to 
another state as it would impact flying training in the vicinity of 
Grand Forks. This airspace proposal resulted from Congress' Base 
Realignment and Closure Commission of 2005 decision to retain Grand 
Forks Air Force Base in North Dakota for an emerging UAS mission. As 
addressed previously, Beaver MOA in north central Minnesota is the 
nearest SUA outside of North Dakota. It was approximately three times 
the distance from Grand Forks AFB, has much higher

[[Page 36909]]

air traffic density airspace, and has no air-to-ground gunnery range 
for hazardous laser training. The FAA recognizes the proposed 
restricted areas could impact civil flight training, largely conducted 
by the University of North Dakota and east of the proposed complex. 
Additionally, nearly all civil flight training activity that currently 
occurs in the vicinity of the restricted areas would take place below 
the proposed R-5403 footprint. Whereas the floor of R-5402 goes down to 
500 feet above ground level (AGL), its cylinder footprint was reduced 
to a 7 NM radius around R-5401 and the Camp Grafton Range to mitigate 
impacts to these civil operations. This airspace action provides a 
reasonable balance between military training requirements and 
accommodation of non-participant flight training.
    Three commenters stated that the vast size of the restricted area 
complex is not necessary. The restricted areas being established by 
this action provide the minimum vertical and lateral tactical 
maneuvering airspace required for UAS operators to accomplish target 
acquisition prior to attack, and then contain the non-eye safe laser 
during firing. The restricted area complex was configured to confine 
two UAS operating on independent mission profiles at the same time, 
while minimizing airspace impacts to non-participating aircraft. As the 
UAS training flight transitions from one phase of the mission profiles 
to another, unused segments will be deactivated and returned to the NAS 
consistent with the FAA's Joint Use Airspace policy. The subdivided and 
stratified configuration of the restricted area complex enables the 
USAF to only activate the restricted areas needed for their training 
sorties while leaving the rest of the complex inactive and available 
for NAS users. The FAA believes the segmentation and stratification of 
the complex will enhance civil access to those parts of the complex not 
activated for USAF training requirements. Actual procedures for 
restricted area activation and deactivation will be defined in a Letter 
of Procedure between the using and controlling agencies.
    Two commenters asked if the USAF could find a less cluttered area 
with more suitable weather for MQ-1 Predator operations. The FAA 
acknowledges that weather challenges will exist for the MQ-1 Predator 
operations at Grand Forks AFB. The decision to base Predator UAS at 
Grand Forks AFB, however, was mandated by Congress. The restricted 
areas proposed by this action were situated and proposed in the only 
location that met the USAF's operational requirements of proximity to 
launch/recovery base, low air traffic density, and availability of an 
existing air-to-ground gunnery range suitable for the hazardous non-eye 
safe laser training activities.
    One commenter contended that Alert Areas are more appropriate for 
UAS training activity. Alert Areas are designated to inform 
nonparticipating pilots of areas that contain a high volume of pilot 
training operations, or an unusual type of aeronautical activity, that 
they might not otherwise expect to encounter. However, only those 
activities that do not pose a hazard to other aircraft may be conducted 
in an Alert Area. Since employment of the non-eye safe laser carried by 
the MQ-1 Predator UAS is an activity hazardous to non-participants, an 
Alert Area is not an appropriate airspace solution.
    Two commenters stated that the Air Force is proposing restricted 
areas as a means to mitigate for lack of see-and-avoid capability for 
UAS operations. They noted, correctly, that the Air Force could use 
ground-based or airborne assets to provide see-and-avoid compliance 
instead. FAA policy dictates that restricted areas are established to 
confine activities considered hazardous to non-participating aircraft. 
As mentioned previously, the focus of this action is establishing 
restricted areas to support hazardous military training activities, not 
UAS integration into the NAS. As such, the FAA does not support 
establishing restricted areas as a solution to overcome UAS inability 
to comply with 14 CFR Part 91 see-and-avoid requirements. The FAA is 
establishing the restricted areas addressed in this action to confine 
the hazardous non-eye safe laser training activities conducted by the 
USAF.
    One commenter stated that new restricted airspace should be offset 
by reallocation of unused SUA elsewhere in the NAS. The proposed 
restricted areas fall almost entirely within the existing Devils Lake 
East MOA. When activated, the new restricted areas will be, in effect, 
replacing existing SUA. Although the regulatory and non-regulatory 
process for establishing SUA is not directly linked to the restricted 
area and MOA annual utilization reporting process, the FAA does review 
restricted area and MOA utilization annually. If candidate SUA areas 
are identified, the FAA works with the military service to 
appropriately return that airspace to the NAS.
    Seventeen commenters stated that Predator pilots can get the same 
training through simulation. The FAA cannot determine for the USAF the 
value of simulated UAS operator training over actual flying activities. 
The USAF is heavily investing in Live, Virtual, and Constructive (LVC) 
training options. As the commenters infer, the migration to a virtual 
training environment would be expected to reduce the demand for 
activating R-5402 and R-5403A-F. However, actual employment of the non-
eye safe laser will still be required for both training proficiency and 
equipment validation. This action balances the training airspace 
requirements identified by the USAF as it matures its UAS capabilities 
with the airspace access requirements of other NAS users.
    Twenty commenters addressed the increased collision hazard due to 
air traffic compression at lower altitudes and around the periphery of 
the proposed complex. The FAA recognizes that compression could occur 
when the restricted areas are active; however, the actual impact will 
be minimal. The FAA produced traffic counts for the 5 busiest summer 
days and 5 busiest winter days of 2011 during the proposed times of 
designation (0700-2200L) from 8,000 feet MSL to 14,000 feet MSL. Totals 
for all IFR and known VFR aircraft ranged between 4 and 22 aircraft 
over the 17-hour span. Volumes such as this are easily managed by 
standard ATC procedures. To enhance non-radar service in the far 
western part of the proposed complex, the FAA is considering a separate 
rulemaking action to modify V-170 so that it will remain clear of R-
5402 to the west. On average, four aircraft file V-170 over a 24-hour 
day. Lastly, the FAA is nearing completion of a project to add three 
terminal radar feeds, from Bismarck, Fargo, and Minot AFB, covering the 
restricted area airspace area into Minneapolis ARTCC. These feeds will 
improve low altitude radar surveillance and enhance flight safety 
around the proposed restricted areas.
    One commenter argued that the proposed airspace should be limited 
to daylight hours only. While daytime flying is usually safer in a 
visual see-and-avoid environment; when it comes to the military 
training for combat operations, darkness provides a significant 
tactical advantage and UAS must be capable of operating both day and 
night. While the USAF has a valid and recurring requirement to train 
during hours of darkness, the USAF was able to accept a 2-hour 
reduction in the published times of designation core hours from ``0700-
2200 daily, by NOTAM 6 hours in advance,'' to ``0700-2000 daily, by 
NOTAM 6 hours in advance.''

[[Page 36910]]

    Another commenter sought details on the UAS lost link plan. 
Although the lost link plan is not within the scope of this action, the 
FAA does require detailed procedures for UAS lost link situations for 
all UAS operations. These procedures will be similar to those in place 
today for UAS operations across the NAS. The servicing ATC facility and 
UAS operators closely coordinate lost link procedures and will 
incorporate them into the implementing Letters of Procedure (LOP) for 
the restricted areas established in this rule.
    Two commenters commented that the proposed restricted area complex 
stratification and segmentation was confusing and would lead to SUA 
airspace incursions. The FAA promotes stratifications and segmentation 
of large SUA complexes to maximize the safety and efficiency of the NAS 
and to enable more joint use opportunities to access the same airspace 
by non-participating aircraft. Sub-dividing the complex permits 
activation of a small percentage of the overall complex at any one time 
while still providing for a diverse set of training profiles during UAS 
sorties, which is especially well-suited for long duration UAS training 
missions. Additionally, enhanced joint use access eases compression of 
air traffic in the local area; thus, increasing flight safety.
    Nineteen commenters noted that UAS will not be able to see-and-
avoid large flocks of birds using migratory flyways, which could create 
a hazard for personnel on the ground. Both Grand Forks AFB and the 
University of North Dakota flight school, located at the Grand Forks 
International Airport, have conducted extensive research into bird 
strike potential and prevention. Their research found that more than 90 
percent of bird strikes occur below 3,500 feet AGL and that there are 
predictable windows for migratory bird activity, which are adjusted 
year-to-year based on historical and forecast weather patterns. Also, 
bird strikes are nearly twice as likely to occur at night compared to 
the day. The USAF has long standing bird strike avoidance procedures 
specifically customized for Grand Forks AFB, which will be optimized 
for UAS operations. Other mitigations include having the bases of the 
restricted airspace well above most bird activity, conducting most 
training during daylight hours, and adjusting UAS operations during 
seasonal migratory activity. These mitigations conform to both civil 
and military standard bird strike avoidance measures that are in place 
across the NAS.
    Eighteen commenters contended that persons and property under the 
proposed airspace would not be protected from the non-eye safe laser 
training. The USAF conducted a laser safety study in 2009 for the Camp 
Grafton Air-to-Ground Range. This range, where the laser targets will 
be placed, lies within the existing R-5401. The study examined laser 
and aircraft characteristics, topography, target composition, and 
employment parameters, and determined that the proposed airspace would 
adequately protect persons and property outside the footprint of R-
5401. Personnel working at the range will use proper protective gear 
should they need to access the target areas during laser employment 
periods. The FAA has reviewed and accepts the USAF's laser safety 
study. The restricted areas established by this action are designed to 
allow laser employment without hazard to persons and property in the 
vicinity of R-5401.
    Two commenters stated that it is dangerous to mix UAS with visual 
flight rules (VFR) air traffic. UAS are permitted to fly outside 
restricted area airspace in the NAS today and in the vicinity of VFR 
aircraft, under FAA approved Certificate of Waiver or Authorization 
(COA). Specific to this action, UAS operations will be occurring inside 
restricted area airspace that is established to confine the hazardous 
non-eye safe laser training activities; thus, segregated from 
nonparticipating aircraft.
    One commenter said that VFR pilot violations will increase and 
those less informed will pose a safety hazard. The FAA interpreted the 
commenters use ``violations'' to mean SUA airspace incursions. VFR 
pilots must conduct thorough pre-flight planning and are encouraged to 
seek airborne updates from ATC on the status of SUA. The FAA finds that 
the restricted areas established by this action pose no more risk of 
incursion or safety hazard than other restricted areas that exist in 
the NAS.
    Two commenters observed that the NPRM failed to identify how UAS 
would transit from Grand Forks AFB to the proposed restricted areas. 
The FAA considers UAS transit and climb activities to be non-hazardous; 
therefore, establishing new restricted areas for transit and climb 
purposes is inappropriate. While UAS transit and climb activities are 
non-hazardous, they are presently atypical. Therefore, specifics on 
transit and climb ground tracks, corridor altitudes and widths, and 
activation procedures will be accomplished procedurally and consistent 
with existing COA mitigation alternatives available today. The 
establishment of restricted areas airspace is focused on the hazardous 
non-eye safe laser training activities.
    Twenty four commenters noted that the proposed restricted areas 
would block V-170 & V-55 and impact V-169 & V-561. The FAA acknowledges 
that the proposed restricted area complex will have a minimal impact on 
three of the four Victor airways mentioned, depending on the restricted 
areas activated. The airway analysis began with V-170, which runs 
between Devils Lake, ND, and Jamestown, ND, with a Minimum En route 
Altitude (MEA) of 3,500 feet MSL along the effected segment of the 
airway. An average of four aircraft per day filed for V-170. R-5402, 
when active, impacts V-170 from 1200 feet AGL to 10,000 feet MSL. The 
FAA is considering a separate rulemaking action to modify V-170 by 
creating a slight ``dogleg'' to the west, which would allow unimpeded 
use of V-170 below 8,000 feet MSL regardless of the status of R-5402. 
Impacts to V-170 above 8,000 feet MSL are dependent upon which 
restricted areas are active.
    V-55 runs between Grand Forks, ND, and Bismarck, ND, with an MEA of 
8,000 feet MSL along the affected segment of the airway. An average of 
7 aircraft per day filed for V-55. Activation of R-5402, R-5403A, R-
5403B, or R-5403C would have no impact on V-55. The FAA raised the 
floor of R-5403D to 10,000 feet MSL and reduced the blocks for R-5403D 
and R-5403E to 2,000 feet each to allow ATC more flexibility to climb/
descend IFR traffic on V-55. The FAA is also considering establishing a 
Global Positioning Satellite MEA along the affected segment of V-55 to 
allow properly equipped non-participating aircraft to fly the V-55 
ground track, but at a lower altitude.
    V-561 runs between Grand Forks, ND, and Jamestown, ND, with an MEA 
of 4,000 feet MSL along this segment of the airway. An average of two 
aircraft per day filed for V-561. When activated, the southeast corner 
of R-5403D, R-5403E, and R-5403F encroach upon V-561 from 10,000 feet 
MSL-11,999 feet MSL, 12,000 feet MSL-13,999 feet MSL, or 14,000 feet 
MSL-17,999 feet MSL, respectively.
    V-169 runs between Devils Lake, ND, and Bismarck, ND, with an MEA 
of 3,500 feet MSL along this segment. The nearest point of any 
restricted area is 5 nautical miles (NM) from the centerline of V-169. 
Since Victor airways are 4 NM wide; the restricted areas do not 
encumber the use of V-169.
    The FAA acknowledges potential impacts to users on Victor airways 
V-55, V-170, and V-651 by the restricted areas established in this 
action.

[[Page 36911]]

However, based on the 13 total average daily flights filing for V-55, 
V-170, and V-651 in the same airspace as the proposed restricted area 
complex (V-169 is not affected by the proposed airspace), the impacts 
of the restricted areas on the three affected airways is considered 
minimal. These aircraft have air traffic control procedural 
alternatives available to include vectoring, altitude change, or re-
routing as appropriate.
    Nineteen commenters found that transcontinental and local area 
flights would be forced to deviate around restricted areas, increasing 
cost and flight time. The FAA understands that when the restricted 
areas are active, non-participation aircraft will have to accomplish 
course deviations or altitude changes for avoidance, which can increase 
distances flown and costs incurred. For this action, the FAA and USAF 
worked together to define the minimum airspace volume necessary to meet 
USAF training mission requirements and maximize airspace access to 
other users of the NAS. Reducing the overall size and internally 
segmenting and stratifying the complex have reduced course deviation 
distances and altitude changes required by non-participants to avoid 
active restricted areas. Additionally, the USAF as agreed to 
temporarily release active restricted airspace back to ZMP for non-
participant transit during non-routine/contingency events (i.e. due to 
weather, icing, aircraft malfunction, etc.). Air traffic in this part 
of the NAS is relatively light and the level of impact associated with 
establishing the restricted areas in this action is considered minimal 
when balanced against valid military training requirements.
    Twenty-four comments were received stating that four hours prior 
notice is insufficient lead time for activation by NOTAM, with most 
recommending that the prior notification time be increased to six 
hours. The FAA recognizes that many aircraft today have flight 
durations long enough that flight planning before takeoff may occur 
outside of the 4-hour window. Restricted areas provide protected 
airspace for hazardous operations with no option to transit when 
active, so changes in airspace status after flight planning would have 
an impact on routing or altitude. These impacts could be reduced by 
increasing the NOTAM notification time; therefore the proposed time of 
designation for R-5402 and R-5403A-F is amended to ``0700-2000 daily, 
by NOTAM 6 hours in advance; other times by NOTAM.''
    One commenter stated that the SUA should be limited to published 
times of designation or times that can be obtained through an Automated 
Flight Service Station (AFSS) or ZMP. The times of designation for the 
restricted areas conforms to FAA policy and provides military users the 
operational flexibility to adjust for unpredictable, yet expected 
events, such as poor weather conditions or aircraft maintenance delays. 
By establishing the restricted areas with a ``By NOTAM'' provision for 
activations, the AFSS will receive scheduled activation times at least 
6 hours in advance and can provide activation information when 
requested. Additionally, ZMP can provide the most current restricted 
areas status to airborne aircraft, workload permitting, as an 
additional service to any requesting IFR or VFR aircraft.
    Nineteen commenters contended that local and transient pilots would 
avoid the restricted areas regardless of the activation status. The FAA 
understands that some pilots may opt to avoid the vicinity of this 
proposed airspace complex; however, pilots have multiple ways to obtain 
SUA schedule information during preflight planning and while airborne 
to aid their situational awareness. Daily SUA schedules will be 
available on the sua.faa.gov Web site, NOTAMs will be issued at least 6 
hours prior to activating the restricted areas, and AFSS will brief SUA 
NOTAMS upon request. Airborne updates will also be available through 
ZMP or AFSS. Lastly, the USAF will provide a toll-free phone number for 
inclusion on aeronautical charts that will enable NAS users to contact 
the scheduling agency for SUA status information; similar to what is in 
place for the Adirondack SUA complex in New York.
    Two commenters requested that the FAA chart an ATC frequency for 
updates on the restricted areas. The FAA has frequencies listed on both 
the L-14 IFR Enroute Low Altitude Chart and the Twin Cities Sectional 
Aeronautical Chart already. Upon review, the VHF frequency listed on 
the IFR Enroute Low Altitude Chart near where R-5402 and R-5403A-F 
restricted areas will be established was found to be different than the 
frequency listed on the Sectional Aeronautical Chart listing of SUA for 
the existing R-5401 (which R-5402 and R-5403A-F will overlay). The FAA 
is taking action to correct the discrepancy so that matching 
frequencies are charted.
    Seventeen commenters stated that the NOTAM system is generally 
inadequate to inform users of SUA status, and the number of components 
to this restricted airspace would lead to intricate and confusing 
NOTAMs. The restricted area complex is comprised of 7 individual areas 
and structured to minimize complexity and maximize nonparticipant 
access when not required for military use during certain phases of a 
training mission. The overall complex configuration, with seven sub 
areas, is a reasonable balance between efficiency, complexity, and 
military requirements. The NOTAM system is designed to disseminate many 
types of aeronautical information, including restricted area status 
when activation is ``By NOTAM'' or outside published times of 
designation. Because of the ``By NOTAM'' provision in the legal 
description times of designation, activation NOTAMs for R-5402 and R-
5403A-F will be included in verbal briefings from AFSS, upon pilot 
request.

The Rule

    The FAA is amending 14 CFR part 73 to expand the vertical and 
lateral limits of restricted area airspace over the Camp Grafton Range 
to contain hazardous non-eye safe laser training operations being 
conducted by the emerging UAS mission at Grand Forks Air Force Base 
(AFB); thus, transforming the range into a viable non-eye safe laser 
training location. Camp Grafton Range is currently surrounded by R-
5401; however, the lateral boundaries and altitude are insufficient to 
contain the laser training mission profiles and tactics flown in combat 
operations today. This action supplements R-5401 by establishing 
additional restricted areas, R-5402, R-5403A, R-5403B, R-5403C, R-
5403D, R-5403E, and R-5403F, to provide the vertical and lateral 
tactical maneuver airspace needed for UAS target acquisition prior to 
attack, and to contain the non-eye safe laser during laser target 
designation training operations from medium to high altitudes.
    The restricted area R-5402 is defined by a 7 nautical mile (NM) 
radius around the center of R-5401, with the northern boundary adjusted 
to lie along the 47[deg]45'00'' N latitude. The restricted area 
altitude is upward from 500 feet above ground level to, but not 
including 10,000 feet MSL. This new restricted area provides a pathway 
for the non-eye safe laser beam to transit from R-5403A, R-5403B, and 
R-5403C (described below) through the existing R-5401 and onto Camp 
Grafton Range.
    The restricted areas R-5403A, R-5403B, and R-5403C share the same 
lateral boundaries, overlying R-5402 and layered in ascending order. 
The northern boundary of these R-5403 areas, as described in the 
regulatory text, share the same northern boundary as R-5402, the 
47[deg]45'00'' N latitude. The

[[Page 36912]]

western boundary lies approximately 14 NM west of R-5402 along the 
99[deg]15'00'' W longitude and the eastern boundary lies approximately 
7 NM east of R-5402 along the 98[deg]15'00'' W longitude. Finally, the 
southern boundary is established to remain north of the protected 
airspace for V-55. The restricted area altitudes, in ascending order, 
are defined upward from 8,000 feet MSL to, but not including 10,000 
feet MSL for R-5403A; upward from 10,000 feet MSL to, but not including 
14,000 feet MSL for R-5403B; and upward from 14,000 feet MSL to, but 
not including Flight Level (FL) 180 for R-5403C. The additional lateral 
and vertical dimensions provided by these restricted areas, in 
conjunction with R-5401, R-5402, R-5403D, R-5403E, R-5403F, establish 
the maneuvering airspace needed for UAS aircraft to practice the 
tactical maneuvering and standoff target acquisition training 
requirements necessary for the combat tactics and mission profiles 
flown today and to contain the hazardous non-eye safe laser, when 
employed, completely within restricted airspace.
    The areas R-5403D, R-5403E, and R-5403F also share the same lateral 
boundaries, adjacent to and southeast of R-5403A, R-5403B, and R-5403C, 
and are also layered in ascending order. The northern boundary of these 
R-5403 areas, as described in the regulatory text, shares the southern 
boundary of R-5403A, R-5403B, and R-5403C. The western boundary point 
reaches to the 99[deg]15'00'' W longitude and the eastern boundary lies 
along the 98[deg]15'00'' W longitude. Finally, the southern boundary is 
established to lie along the 47[deg]15'00'' N latitude. The restricted 
area altitudes, in ascending order, are defined upward from 10,000 feet 
MSL to, but not including 12,000 feet MSL for R-5403D; upward from 
12,000 feet MSL to, but not including 14,000 feet MSL for R-5403E; and 
upward from 14,000 feet MSL to, but not including Flight Level (FL) 180 
for R-5403F. The additional lateral and vertical dimensions provided by 
these restricted areas, in conjunction with R-5401, R-5402, R-5403A, R-
5403B, R-5403C, and the Camp Grafton Range, establish the maneuvering 
airspace, standoff target acquisition, and hazardous non-eye safe laser 
employment training completely within restricted airspace, as noted 
above.
    During the NPRM public comment period, it was realized that the 
proposal section of the NPRM preamble described the southern boundary 
for the proposed R-5403D, R-5403E, and R-5403F to lay along the 
47[deg]30'00'' N latitude, in error. However, the regulatory text in 
the NPRM correctly described the southern boundary for these proposed 
restricted areas to lie along the 47[deg]15'00'' N latitude. This 
action confirms the southern boundary for R-5403D, R-5403E, and R-5403F 
is along the 47[deg]15'00'' N latitude.
    Restricted areas R-5402, R-5403A, R-5403B, R-5403C, R-5403D, R-
5403E, and R-5403F are all designated as ``joint-use'' airspace. This 
means that, during periods when any of the restricted airspace areas 
are not needed by the using agency for its designated purposes, the 
airspace will be returned to the controlling agency for access by other 
NAS users. The Minneapolis Air Route Traffic Control Center is the 
controlling agency for the restricted areas.
    Lastly, to prevent confusion and conflict by establishing the new 
restricted areas in an existing MOA, and having both SUA areas active 
in the same volume of airspace at the same time, the Devils Lake East 
MOA legal description is being amended in the NFDD. The Devils Lake 
East MOA amendment will exclude R-5401, R-5402, R-5403A, R-5403B, R-
5403C, R-5403D, R-5403E, and R-5403F when the restricted areas are 
active. The intent is to exclude the restricted areas in Devils Lake 
East MOA individually as they are activated. This MOA amendment will 
prevent airspace conflict with overlapping special use airspace areas.

Regulatory Notices and Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866 and Executive Order 13563 direct 
that each Federal agency shall propose or adopt a regulation only upon 
a reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. 
L. 96-354) requires agencies to analyze the economic impact of 
regulatory changes on small entities. Third, the Trade Agreements Act 
(Pub. L. 96-39) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. In 
developing U.S. standards, the Trade Act requires agencies to consider 
international standards and, where appropriate, that they be the basis 
of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4) requires agencies to prepare a written assessment of 
the costs, benefits, and other effects of proposed or final rules that 
include a Federal mandate likely to result in the expenditure by State, 
local, or tribal governments, in the aggregate, or by the private 
sector, of $100 million or more annually (adjusted for inflation with 
base year of 1995). This portion of the preamble summarizes the FAA's 
analysis of the economic impacts of this final rule.
    Department of Transportation Order DOT 2100.5 prescribes policies 
and procedures for simplification, analysis, and review of regulations. 
If the expected cost impact is so minimal that a proposed or final rule 
does not warrant a full evaluation, this order permits that a statement 
to that effect and the basis for it to be included in the preamble if a 
full regulatory evaluation of the cost and benefits is not prepared. 
Such a determination has been made for this final rule. The reasoning 
for this determination follows:
    As presented in the discussion of comments section of this 
preamble, commenters stated that there could be the following potential 
adverse economic impacts from implementing this final rule: the rule 
will block V-170 and V-55 and limit the use of V-169 and V-561; VFR and 
local area flights will be forced to deviate around restricted areas, 
increasing cost and flight time; and the 500 feet AGL floor for R-5402 
will affect low level aerial operations such as crop dusters, wildlife 
and agricultural surveys, and emergency medical access.
    With respect to the first potential impact, as discussed in the 
preamble, the FAA acknowledges that users of Victor airways V-55, V-
170, and V-561 could be potentially affected when the restricted areas 
established in this action are active; however users of V-169 will not 
be affected at all. Users of V-170 from 1200 feet AGL to 8,000 feet MSL 
would be affected only when R-5402 is active. The FAA's has determined 
that there is an average of 4 flights per day between Devils Lake, ND, 
and Jamestown, ND. Of these flights, 90 percent are general aviation 
flights (many of them University of North Dakota training flights) and 
10 percent are military or air taxi flights. The potential effect on 
users of V-170 could be offset by several actions. One action would be 
to modify V-170 by creating a slight ``dogleg'' further west of R-5402 
to allow unimpeded use of V-170 below 8,000 feet MSL regardless of the 
status of R-5402. The FAA estimates that this ``dogleg'' would add 
about 5 miles to the length of the flight between Devils Lake and 
Jamestown. Another action would be for air traffic control to either 
vector the aircraft west of R-5402 or climb the aircraft to 8,000 feet 
MSL to avoid R-5402. V-170 above 8,000 feet MSL, V-55, and V-561 can 
still be used by the public, even during military training

[[Page 36913]]

operations, if the nonparticipant aircraft flies at a different 
altitude than the altitudes the military is using at that time. The FAA 
has determined that these adjustments will result in minimal cost to 
the affected operators.
    With respect to the second potential impact, with the exception of 
R-5402, the public will not be required to deviate around the 
restricted areas, even during military operations, as long as the 
nonparticipating aircraft flies at an altitude above or below the 
altitudes that the military is using at that time. The FAA has 
determined that these altitude adjustments will have a minimal effect 
on cost.
    With respect to the third potential impact, the USAF has agreed to 
implement scheduling coordination measures for R-5402 that will 
accommodate access by local farming, ranching, survey, and medical 
aviation interests. Further, when any of the restricted areas are not 
needed by the USAF for its intended purposes, the airspace will be 
returned to the controlling agency, Minneapolis Air Route Traffic 
Control Center, for access by other NAS users; providing considerable 
time for these interests to perform most of their aviation activities 
in a timely manner. The FAA has determined that these potential 
disruptions in public aviation will have a minimal effect on cost.
    The FAA has, therefore, determined that this final rule is not a 
``significant regulatory action'' as defined in section 3(f) of 
Executive Order 12866, and is not ``significant'' as defined in DOT's 
Regulatory Policies and Procedures.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) 
establishes ``as a principle of regulatory issuance that agencies shall 
endeavor, consistent with the objectives of the rule and of applicable 
statutes, to fit regulatory and informational requirements to the scale 
of the businesses, organizations, and governmental jurisdictions 
subject to regulation. To achieve this principle, agencies are required 
to solicit and consider flexible regulatory proposals and to explain 
the rationale for their actions to assure that such proposals are given 
serious consideration.'' The RFA covers a wide-range of small entities, 
including small businesses, not-for-profit organizations, and small 
governmental jurisdictions.
    Agencies must perform a review to determine whether a rule will 
have a significant economic impact on a substantial number of small 
entities. If the agency determines that it will, the agency must 
prepare a regulatory flexibility analysis as described in the RFA.
    However, if an agency determines that a rule is not expected to 
have a significant economic impact on a substantial number of small 
entities, section 605(b) of the RFA provides that the head of the 
agency may so certify and a regulatory flexibility analysis is not 
required. The certification must include a statement providing the 
factual basis for this determination, and the reasoning should be 
clear.
    The FAA received two comments from small business owners and a 
comment from the North Dakota Agricultural Aviation Association 
(NDAAA), representing agricultural aviation operators. The comments 
from the business owners expressed concerns about the availability of 
airspace and that they would be diverted from their normal flight 
plans, thereby increasing their costs. As previously stated in this 
preamble, however, these routes will not be closed even during military 
operations--they can be flown by nonparticipant aircraft so long as 
those aircraft are not at the altitudes being used by the military. The 
NDAAA comment that agricultural aircraft are frequently ferried at 
altitudes greater than 500 feet applies only to those aircraft in R-
5402--not in any of the other areas. As previously noted, the agreement 
with the USAF and the fact that there are no restrictions in R-5402 
when it is not being used by the military will minimize the potential 
economic impact to agricultural aviation operations in this airspace.
    While the FAA believes that one air taxi operator, a few small 
business operators, and a few agricultural aviation operators 
constitute a substantial number of small entities, based on the 
previous analysis, the FAA determined that the final rule will have a 
minimal economic impact.
    Therefore, as the acting FAA Administrator, I certify that this 
rule will not have a significant economic impact on a substantial 
number of small entities.

International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the 
Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal 
agencies from establishing standards or engaging in related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Pursuant to these Acts, the establishment of standards is not 
considered an unnecessary obstacle to the foreign commerce of the 
United States, so long as the standard has a legitimate domestic 
objective, such the protection of safety, and does not operate in a 
manner that excludes imports that meet this objective. The statute also 
requires consideration of international standards and, where 
appropriate, that they be the basis for U.S. standards. The FAA has 
assessed the potential effect of this final rule and determined that it 
will have only a domestic impact and therefore no effect on 
international trade.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires each Federal agency to prepare a written statement 
assessing the effects of any Federal mandate in a proposed or final 
agency rule that may result in an expenditure of $100 million or more 
(in 1995 dollars) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector; such a mandate 
is deemed to be a ``significant regulatory action.'' The FAA currently 
uses an inflation-adjusted value of $143.1 million in lieu of $100 
million. This final rule does not contain such a mandate; therefore, 
the requirements of Title II of the Act do not apply.

Environmental Review

    Pursuant to Section 102(2) of the National Environmental Policy Act 
of 1969 (NEPA), the Council on Environmental Quality (CEQ) regulations 
implementing NEPA (40 CFR parts 1500-1508), and other applicable law, 
the USAF prepared and published The BRAC Beddown and Flight Operations 
of Remotely Piloted Aircraft at Grand Forks Air Force Base, North 
Dakota'' dated July 2010 (hereinafter the FEIS) that analyzed the 
potential for environmental impacts associated with the proposed 
creation of Restricted Areas R-5402, R-5403A, R-5403B, R-5403C, R-
5403D, R-5403E, and R-5403F. In September 2010, the USAF issued a 
Record of Decision based on the results of the FEIS. In accordance with 
applicable CEQ regulations (40 CFR 1501.6) and the Memorandum of 
Understanding (MOU) between FAA and Department of Defense (DOD) dated 
October 2005, the FAA was a cooperating agency on the FEIS. The FAA has 
conducted an independent review of the FEIS and found that it is an 
adequate statement. Pursuant to 40 CFR 1506.3(a) and (c), the FAA is 
adopting the portions of the FEIS for this action that support the 
establishment of the above named restricted areas. The FAA has 
documented its partial adoption in a separate document entitled 
``Partial Adoption of Final EIS and Record of

[[Page 36914]]

Decision for the Establishment of Restricted Areas R-5402 and 5403.'' 
This final rule, which establishes restricted areas R-5402, R-5403A, R-
5403B, R-5403C, R-5403D, R-5403E, and R-5403F, will not result in 
significant environmental impacts. A copy of the FAA Partial Adoption 
of FEIS and ROD has been placed in the public docket for this 
rulemaking and is incorporated by reference.

FAA Authority

    The FAA's authority to issue rules regarding aviation safety is 
found in Title 49 of the United States Code. Subtitle I, Section 106 
describes the authority of the FAA Administrator. Subtitle VII, 
Aviation Programs, describes in more detail the scope of the agency's 
authority.
    This rulemaking is promulgated under the authority described in 
Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the 
FAA is charged with prescribing regulations to assign the use of the 
airspace necessary to ensure the safety of aircraft and the efficient 
use of airspace. This regulation is within the scope of that authority 
as it establishes restricted area airspace at Camp Grafton Range, near 
Devils Lake, ND, to enhance safety and accommodate essential military 
training.

List of Subjects in 14 CFR Part 73

    Airspace, Prohibited areas, Restricted areas.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration amends 14 CFR part 73 as follows:

PART 73--SPECIAL USE AIRSPACE

0
1. The authority citation for part 73 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 
24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  73.54  [Amended]

0
2. Section 73.54 is amended as follows:
* * * * *

R-5402 Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]45'00'' N., long. 
98[deg]47'19'' W.; to lat. 47[deg]45'00'' N., long. 98[deg]31'25'' 
W.; then clockwise on a 7 NM arc centered on lat. 47[deg]40'31'' N., 
long. 98[deg]39'22'' W.; to the point of beginning, excluding the 
airspace within R-5401 when active, and R-5403A when active.
    Designated altitudes. 500 feet AGL to, but not including, 10,000 
feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in 
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron, 
Hector International Airport, Fargo, ND.
* * * * *

R-5403A Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]45'00'' N., long. 
99[deg]15'00'' W.; to lat. 47[deg]45'00'' N., long. 98[deg]15'00'' 
W.; to lat. 47[deg]35'39'' N., long. 98[deg]15'00'' W.; to lat. 
47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point of 
beginning.
    Designated altitudes. 8,000 feet MSL to, but not including, 
10,000 feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in 
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron, 
Hector International Airport, Fargo, ND.

R-5403B Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]45'00'' N., long. 
99[deg]15'00'' W.; to lat. 47[deg]45'00'' N., long. 98[deg]15'00'' 
W.; to lat. 47[deg]35'39'' N., long. 98[deg]15'00'' W.; to lat. 
47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point of 
beginning.
    Designated altitudes. 10,000 feet MSL to, but not including, 
14,000 feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in 
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron, 
Hector International Airport, Fargo, ND.

R-5403C Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]45'00'' N., long. 
99[deg]15'00'' W.; to lat. 47[deg]45'00'' N., long. 98[deg]15'00'' 
W.; to lat. 47[deg]35'39'' N., long. 98[deg]15'00'' W.; to lat. 
47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point of 
beginning.
    Designated altitudes. 14,000 feet MSL to, but not including, FL 
180.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in 
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron, 
Hector International Airport, Fargo, ND.

R-5403D Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]35'39'' N., long. 
98[deg]15'00'' W.; to lat. 47[deg]15'00'' N., long. 98[deg]15'00'' 
W.; to lat. 47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point 
of beginning.
    Designated altitudes. 10,000 feet MSL to, but not including, 
12,000 feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in 
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron, 
Hector International Airport, Fargo, ND.

R-5403E Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]35'39'' N., long. 
98[deg]15'00'' W.; to lat. 47[deg]15'00'' N., long. 98[deg]15'00'' 
W.; to lat. 47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point 
of beginning.
    Designated altitudes. 12,000 feet MSL to, but not including, 
14,000 feet MSL.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in 
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron, 
Hector International Airport, Fargo, ND.

R-5403F Devils Lake, ND [New]

    Boundaries. Beginning at lat. 47[deg]35'39'' N., long. 
98[deg]15'00'' W.; to lat. 47[deg]15'00'' N., long. 98[deg]15'00'' 
W.; to lat. 47[deg]15'00'' N., long. 99[deg]15'00'' W.; to the point 
of beginning.
    Designated altitudes. 14,000 feet MSL to, but not including, FL 
180.
    Time of designation. 0700-2000 daily, by NOTAM 6 hours in 
advance; other times by NOTAM.
    Controlling agency. FAA, Minneapolis ARTCC.
    Using agency. U.S. Air Force, 119th Operations Support Squadron, 
Hector International Airport, Fargo, ND.

    Issued in Washington, DC, on June 14, 2012.
Paul Gallant,
Acting Manager, Airspace, Regulations and ATC Procedures Group.
[FR Doc. 2012-15008 Filed 6-19-12; 8:45 am]
BILLING CODE 4910-13-P

 

Das neue “GoMoPa”-System der WordPress – Blogs oder “Der Bauer erkennt seine Schweine am Gang.”

Liebe Leser,

“GoMoPa” hat mit immer neuen WordPress-Blogs zwei Dinge vor:

– von negativen Meldungen abzulenken

– themenspezifische Angriffe zu starten.

Früher bediente sich die dubiose selbsternannte “Finanznachrichtenagentur” eines Blog-Netzwerkes aus teilweise fremden Blogs.

Scheinbar sind wohl diese Blogger auf Distanz zu der laut Eigenaussage “Financial Intelligence” gegangen.

Im Übrigen bedeutet Intelligence im Englischen Sprachgebrauch “Geheimdienst”.

Wohl kein Zufall – sieht man sich das STASI-Netzwerk um den STASI-Obersten Ehrenfried Stelzer, den “Ersten Kriminologen der DDR”  an.

Wie schreibt “GoMoPa” so schön und ich darf die dubiosen Genossen hier – als Sohn eines Landwirtes, der auf dem Bauernhof groß geworden ist, – mit besonderer Freude zitieren: “Der Bauer erkennt seine Schweine am Gang !”

Eben…

Herzlichst Ihr

Bernd Pulch

Magister der Publizistik, Germanistik und Komparatistik

TOP-SECRET from the FBI – Leader of Crips Gang Pleads Guilty in Virginia to Prostituting Eight Juveniles

ALEXANDRIA, VA—Justin Strom, aka “Jae,” “Jae Dee,” or “J-Dirt,” 26, of Lorton, Virginia, pleaded guilty today to recruiting at least eight juvenile girls to engage in commercial sex for his street gang’s prostitution business.

Neil H. MacBride, U.S. Attorney for the Eastern District of Virginia; Kenneth T. Cuccinelli, II, Attorney General of Virginia; Colonel David Rohrer, Fairfax County, Virginia Chief of Police; and Ronald T. Hosko, Special Agent in Charge of the FBI’s Washington Field Office Criminal Division, made the announcement after the plea was accepted by U.S. District Judge James C. Cacheris.

“For six years, Justin Strom profited from preying on teenage girls and others he recruited as prostitutes in a commercial sex ring,” said U.S. Attorney MacBride. “Strom is the fifth and final Underground Gangster Crips gang member to plead guilty to sex trafficking a juvenile—a very serious crime that carries a potential life sentence.”

“Justin Strom robbed these girls of their childhoods, their innocence, and their trust, and he did that in the most base, vile, and despicable way possible,” said Attorney General Cuccinelli. “Nothing can ever repair the damages Strom inflicted on his victims, but it’s our hope that today’s guilty plea will help them begin a path towards healing and moving forward.”

“Today, a fifth member of the Underground Gangster Crips pleaded guilty to strong-arming and pimping underage girls in the illegal sex trade—a trade that is taking place here in some of the most affluent neighborhoods in our nation,” said Special Agent in Charge Hosko. “These gang members admitted that they beat and intimidated young girls they met on the Internet or in Metro stops in our area. They preyed on some of the most vulnerable in our society, and today Justin Strom admitted to these crimes.”

“This gang-driven prostitution ring was a direct threat to the safety and welfare of young women,” said Chief Rohrer. “With the help of our federal partners, we will continue to work aggressively and consistently to rid Fairfax County of gang violence and criminal operations wherever and whenever we find it.”

Strom pleaded guilty to sex trafficking of a child, which carries a mandatory minimum of 10 years in prison and maximum penalty of life in prison. Sentencing is scheduled for September 14, 2012.

According to a statement of facts filed with his plea agreement and other court records, Strom is a member of the Underground Gangster Crips (UGC) set based in Fairfax County. From 2006 through March 2012, Strom misrepresented his identity online to recruit females—including juveniles—through online social networking sites such as Facebook, MySpace, and Datehookup and enticed the girls to use their good looks to earn money through prostitution. He and others posted numerous advertisements on Backpage, Craigslist, and other websites to solicit customers to pay to have sex with juvenile and adult prostitutes.

Strom admitted that he knowingly enticed at least eight juvenile girls to engage in prostitution for his business and that he received proceeds from this illicit conduct for approximately six years.

On March 28, 2012, Strom was among five members and associates of the UGC set based in Fairfax County charged with running a prostitution business that recruited and trafficked high school girls. Four previously pleaded guilty, and Strom’s guilty plea today marks the fifth and final conviction in this case.

Donyel Pier Dove, aka “Bleek,” 27, of Alexandria, Virginia, pleaded guilty on May 17, 2012 to sex trafficking of a juvenile. He also pleaded guilty to use of a firearm during a crime of violence in relation to two armed robberies of 7-11 stores in Manassas, Virginia, in March 2012 and to possession of a firearm by a convicted felon in Fairfax, which also occurred in March 2012. Dove faces a mandatory minimum penalty of five years and a maximum of life on the use of a firearm charge and a maximum of 10 years in prison on the possession of a firearm charge. He is scheduled to be sentenced on August 10, 2012 by U.S. District Judge Anthony J. Trenga.

On May 14, 2012, Henock Ghile, aka “Knots,” 23, of Springfield, Virginia, pleaded guilty to sex trafficking of a juvenile. In court, Ghile admitted that he was a UGC gang associate and that from May 2011 through September 2011, he transported two 17-year-old girls to work as prostitutes. Sentencing has been scheduled for August 3, 2012, before U.S. District Judge Claude M. Hilton.

On April 14, 2012, two others associated with the UGC prostitution operation—Michael Tavon Jefferies, aka “Loc,” 21, of Woodbridge, Virginia; and Christopher Sylvia, 23, of Springfield, Virginia—pleaded guilty to sex trafficking of a juvenile. Jefferies is scheduled to be sentenced on July 6, 2012 before U.S. District Judge Leonie M. Brinkema. Sylvia is scheduled for sentencing on July 20, 2012 before U.S. District Judge Gerald Bruce Lee.

This case was investigated by the Fairfax County Police Department and the FBI’s Washington Field Office, with assistance from the Northern Virginia Human Trafficking Task Force. Virginia Assistant Attorney General and Special Assistant U.S. Attorney Marc Birnbaum and Assistant U.S. Attorney Inayat Delawala are prosecuting the case on behalf of the United States.

Founded in 2004, the Northern Virginia Human Trafficking Task Force is a collaboration of federal, state, and local law enforcement agencies—along with non-governmental organizations—dedicated to combating human trafficking and related crimes.

SECRET – New York Fusion Center Bulletin: Use of Cloned Vehicles in Terrorist or Criminal Operations

https://publicintelligence.net/wp-content/uploads/2012/06/NYSIC-ClonedVehicles.png

Criminals and terrorists have long used official vehicles, “cloned” vehicles (those painted/decorated to appear official), or seemingly legitimate vehicles (e.g. livery, maintenance or delivery) to circumvent security measures at targets of interest.

There have been numerous terrorist attacks overseas wherein operatives used police vehicles or ambulances (or vehicles painted to resemble same) to conceal improvised explosive devices. Within the US Homeland, the most common use of cloned official vehicles by criminals is for drug smuggling; however, at least one terrorist targeting New York envisioned misusing vehicles that would appear to be legitimate, in order to conduct an attack. Dhiren Barot, an al Qaeda operative involved in the 2004 Financial Centers Plot, allegedly plotted to detonate three limousines packed with explosives and gas cylinders in underground parking lots in Manhattan. While the limousines would not have masqueraded as “official vehicles” per se they would have appeared to be legitimately entering those parking structures.

Law enforcement officials and the general public should remain alert to potential fake or cloned official vehicles, with special attention near high-profile targets and mass gatherings at special events, such as upcoming Memorial Day and 4th of July holiday parades and celebrations, or large sporting events scheduled this summer across the State. These events provide the opportunity for terrorists to inflict mass casualties and evade detection by blending into large crowds.

Officials should also be mindful of locations where official vehicles may gain exclusive access, such as parking garages or loading docks proximate to potential targets of interest. Officials at such locations should know how to verify markings on any official vehicles likely to be present. Law enforcement outreach to security staff at these locations during routine patrols is encouraged.

DOWNLOAD THE ORIGINAL DOCUMENT HERE

NYSIC-ClonedVehicles

TOP-SECRET from the FBI – Manhattan U.S. Attorney and FBI Assistant Director in Charge Announce 24 Arrests in Eight Countries as Part of International Cyber Crime Takedown

Preet Bharara, the United States Attorney for the Southern District of New York, and Janice K. Fedarcyk, the Assistant Director in Charge of the New York Field Office of the Federal Bureau of Investigation (FBI), announced today the largest coordinated international law enforcement action in history directed at “carding” crimes—offenses in which the Internet is used to traffic in and exploit the stolen credit card, bank account, and other personal identification information of hundreds of thousands of victims globally. Today’s coordinated action—involving 13 countries, including the United States—resulted in 24 arrests, including the domestic arrests of 11 individuals by federal and local authorities in the United States, and the arrests of 13 individuals abroad by foreign law enforcement in seven countries. In addition, the federal and local authorities and authorities overseas today conducted more than 30 subject interviews and executed more than 30 search warrants. Today’s coordinated actions result from a two-year undercover operation led by the FBI that was designed to locate cybercriminals, investigate and expose them, and disrupt their activities.

Cyber Takedown Graphic

Eleven individuals were arrested today, and one last night, in the United States: Christian Cangeopol, a/k/a “404myth,” was arrested today in Lawrenceville, Georgia; Mark Caparelli, a/k/a “Cubby,” was arrested in San Diego, California; Sean Harper, a/k/a “Kabraxis314,” was arrested in Albuquerque, New Mexico; Alex Hatala, a/k/a “kool+kake,” was arrested in Jacksonville, Florida; Joshua Hicks, a/k/a “OxideDox,” was arrested in Bronx, New York; Michael Hogue, a/k/a “xVisceral,” was arrested in Tucson, Arizona; Mir Islam, a/k/a “JoshTheGod,” was arrested in Manhattan, New York; Peter Ketchum, a/k/a “IwearaMAGNUM,” was arrested in Pittsfield, Massachusetts; Steven Hansen, a/k/a “theboner1,” was arrested in Wisconsin, where he is currently serving a prison sentence on state charges. In addition, two minors, whose names will not be made public, were arrested by local authorities in Long Beach and Sacramento, California. Hicks and Islam will be presented later today before a magistrate judge in the Southern District of New York. The other federally arrested defendants will be presented before magistrate judges in the corresponding federal districts of arrest.

Another 13 individuals were arrested today in seven foreign countries. Eleven of those individuals were arrested as a result of investigations commenced in foreign jurisdictions based in part on information arising out of the undercover operation and provided by the FBI to foreign law enforcement. Those 11 arrests occurred in the United Kingdom (6 arrests), Bosnia (2), Bulgaria (1), Norway (1), and Germany (1). Two additional defendants were arrested today in foreign countries based on provisional arrest warrants obtained by the United States in connection with complaints unsealed today in the Southern District of New York. Those two individuals are Ali Hassan, a/k/a/ “Badoo,” who was arrested in Italy; and Lee Jason Juesheng, a/k/a “iAlert,” a/k/a “Jason Kato,” who was arrested in Japan. Australia, Canada, Denmark, and Macedonia conducted interviews, executed search warrants, or took other coordinated action in connection with today’s takedown.

Charges were also unsealed in the Southern District of New York against four additional defendants who remain at large.

Manhattan U.S. Attorney Preet Bharara said, “As the cyber threat grows more international, the response must be increasingly global and forceful. The coordinated law enforcement actions taken by an unprecedented number of countries around the world today demonstrate that hackers and fraudsters cannot count on being able to prowl the Internet in anonymity and with impunity, even across national boundaries. Clever computer criminals operating behind the supposed veil of the Internet are still subject to the long arm of the law.

The allegations unsealed today chronicle a breathtaking spectrum of cyber schemes and scams. As described in the charging documents, individuals sold credit cards by the thousands and took the private information of untold numbers of people. As alleged, the defendants casually offered every stripe of malware and virus to fellow fraudsters, even including software-enabling cyber voyeurs to hijack an unsuspecting consumer’s personal computer camera. To expose and prosecute individuals like the alleged cyber criminals charged today will continue to require exactly the kind of coordinated response and international cooperation that made today’s arrests possible.”

FBI Assistant Director in Charge Janice K. Fedarcyk said, “From New York to Norway and Japan to Australia, Operation Card Shop targeted sophisticated, highly organized cyber criminals involved in buying and selling stolen identities, exploited credit cards, counterfeit documents, and sophisticated hacking tools. Spanning four continents, the two-year undercover FBI investigation is the latest example of our commitment to rooting out rampant criminal behavior on the Internet.

Cyber crooks trade contraband and advance their schemes online with impunity, and they will only be stopped by law enforcement’s continued vigilance and cooperation. Today’s arrests cause significant disruption to the underground economy and are a stark reminder that masked IP addresses and private forums are no sanctuary for criminals and are not beyond the reach of the FBI.”

The following allegations are based on the Complaints unsealed today in Manhattan federal court:

Background on Carding Crimes

“Carding” refers to various criminal activities associated with stealing personal identification information and financial information belonging to other individuals—including the account information associated with credit cards, bank cards, debit cards, or other access devices—and using that information to obtain money, goods, or services without the victims’ authorization or consent. For example, a criminal might gain unauthorized access to (or “hack”) a database maintained on a computer server and steal credit card numbers and other personal information stored in that database. The criminal can then use the stolen information to, among other things, buy goods or services online; manufacture counterfeit credit cards by encoding them with the stolen account information; manufacture false identification documents (which can be used in turn to facilitate fraudulent purchases); or sell the stolen information to others who intend to use it for criminal purposes. Carding refers to the foregoing criminal activity generally and encompasses a variety of federal offenses, including, but not limited to, identification document fraud, aggravated identity theft, access device fraud, computer hacking, and wire fraud.

“Carding forums” are websites used by criminals engaged in carding (“carders”) to facilitate their criminal activity. Carders use carding forums to, among other things, exchange information related to carding, such as information concerning hacking methods or computer-security vulnerabilities that could be used to obtain personal identification information; and to buy and sell goods and services related to carding—for example, stolen credit or debit card account numbers, hardware for creating counterfeit credit or debit cards, or goods bought with compromised credit card or debit card accounts. Carding forums often permit users to post public messages—postings that can be viewed by all users of the site—sometimes referred to as threads. For example, a user who has stolen credit card numbers may post a public thread offering to sell the numbers. Carding forums also often permit users to communicate one-to-one through so-called private messages. Because carding forums are, in essence, marketplaces for illegal activities, access is typically restricted to avoid law enforcement surveillance. Typically, a prospective user seeking to join a carding forum can only do so if other, already established users vouch for him or her, or if he or she pays a sum of money to the operators of the carding forum. User accounts are typically identified by a username and access is restricted by password. Users of carding forums typically identify themselves on such forums using aliases or online nicknames (“nics”).

Individuals who use stolen credit card information to purchase goods on the Internet are typically reluctant to ship the goods to their own home addresses, for fear that law enforcement could easily trace the purchases. Accordingly, carders often seek out “drop addresses”—addresses with which they have no association, such as vacant houses or apartments—where carded goods can be shipped and retrieved without leaving evidence of their involvement in the shipment. Some individuals used carding forums to sell “drop services” to other forum members, usually in exchange for some form of compensation. One frequently used form of compensation is a “1-to-1” arrangement in which the carder wishing to ship to the drop must ship two of whatever items he has carded—one for the provider of the drop to forward to the carder and the other for the provider of the drop to keep as payment in kind for the carder’s use of the drop. Another frequently used compensation arrangement is for the carder and the drop provider to agree to resell the carded items shipped to the drop and to split the proceeds between them.

Background on the Undercover Operation

In June 2010, the FBI established an undercover carding forum called “Carder Profit” (the “UC Site”), enabling users to discuss various topics related to carding and to communicate offers to buy, sell, and exchange goods and services related to carding, among other things. Since individuals engaged in these unlawful activities on one of many other carding websites on the Internet, the FBI established the UC Site in an effort to identify these cybercriminals, investigate their crimes, and prevent harm to innocent victims. The UC Site was configured to allow the FBI to monitor and to record the discussion threads posted to the site, as well as private messages sent through the site between registered users. The UC Site also allowed the FBI to record the Internet protocol (IP) addresses of users’ computers when they accessed the site. The IP address is the unique number that identifies a computer on the Internet and allows information to be routed properly between computers.

Access to the UC Site, which was taken offline in May 2012, was limited to registered members and required a username and password to gain entry. Various membership requirements were imposed from time to time to restrict site membership to individuals with established knowledge of carding techniques or interest in criminal activity. For example, at times, new users were prevented from joining the site unless they were recommended by two existing users who had registered with the site or unless they paid a registration fee.

New users registering with the UC Site were required to provide a valid e-mail address as part of the registration process. The e-mail addresses entered by registered members of the site were collected by the FBI.

Harm Prevented by the Undercover Operation

In the course of the undercover operation, the FBI contacted multiple affected institutions and/or individuals to advise them of discovered breaches in order to enable them to take appropriate responsive and protective measures. In doing so, the FBI has prevented estimated potential economic losses of more than $205 million, notified credit card providers of over 411,000 compromised credit and debit cards, and notified 47 companies, government entities, and educational institutions of the breach of their networks.

The Charged Conduct

As alleged in the complaints unsealed today in the Southern District of New York, the defendants are charged with engaging in a variety of online carding offenses in which they sought to profit through, among other means, the sale of hacked victim account information, personal identification information, hacking tools, drop services, and other services that could facilitate carding activity.

Michael Hogue, a/k/a “xVisceral,” offered malware for sale, including remote access tools (RATs) that allowed the user to take over and remotely control the operations of an infected victim-computer. Hogue’s RAT, for example, enabled the user to turn on the web camera on victims’ computers to spy on them and to record every keystroke of the victim-computer’s user. If the victim visited a banking website and entered his or her user name and password, the key logging program could record that information, which could then be used to access the victim’s bank account. Hogue sold his RAT widely over the Internet, usually for $50 per copy and boasted that he had personally infected “50-100” computers with his RAT and that he’d sold it to others who had infected “thousands” of computers with malware. Hogue’s RAT infected computers in the United States, Canada, Germany, Denmark, Poland, and possibly other countries.

Jarand Moen Romtveit, a/k/a “zer0,” used hacking tools to steal information from the internal databases of a bank, a hotel, and various online retailers, and then sold the information to others. In February 2012, in return for a laptop computer, Romtveit sold credit card information to an individual he believed to be a fellow carder, but who, in fact, was an undercover FBI agent.

Mir Islam, a/k/a “JoshTheGod,” trafficked in stolen credit card information and possessed information for more than 50,000 credit cards. Islam also held himself out as a member of “UGNazi,” a hacking group that has claimed credit for numerous recent online hacks, and as a founder of “Carders.Org,” a carding forum on the Internet. Last night, Islam met in Manhattan with an individual he believed to be a fellow carder—but who, in fact, was an undercover FBI agent—to accept delivery of what Islam believed were counterfeit credit cards encoded with stolen credit card information. Islam was placed under arrest after he attempted to withdraw illicit proceeds from an ATM using one of the cards. Today, the FBI seized the web server for UGNazi.com and seized the domain name of Carders.org, taking both sites offline.

Steven Hansen, a/k/a “theboner1,” and Alex Hatala, a/k/a, “kool+kake,” sold stolen CVVs, a term used by carders to refer to credit card data that includes the name, address, and zip code of the card holder, along with the card number, expiration date, and security code printed on the card. Hatala advertised to fellow carders that he got “fresh” CVVs on a “daily” basis from hacking into “DBs [databases] around the world.”

Ali Hassan, a/k/a “Badoo,” also sold “fulls,” a term used by carders to refer to full credit card data including cardholder name, address, Social Security number, birthdate, mother’s maiden name, and bank account information. Hassan claimed to have obtained at least some of them by having hacked into an online hotel booking site.

Joshua Hicks, a/k/a “OxideDox,” and Lee Jason Jeusheng, a/k/a “iAlert, a/k/a “Jason Kato,” each sold “dumps,” which is a term used by carders to refer to stolen credit card data in a form in which the data is stored on the magnetic strips on the backs of credit cards. Hicks sold 15 credit card dumps in return for a camera and $250 in cash to a fellow carder who, unbeknownst to Hicks, was an undercover FBI agent. Hicks met the undercover agent in downtown Manhattan to consummate the sale. Similarly, Jeusheng sold 119 credit card dumps in return for three iPad 2s to a carder who was an undercover FBI agent. Jeusheng provided his shipping address in Japan to the undercover agent, which in part led to his identification and arrest.

Mark Caparelli, a/k/a “Cubby,” engaged in a so-called “Apple call-in” scheme in which he used stolen credit cards and social engineering skills to fraudulently obtain replacement products from Apple Inc., which he then resold for profit.The scheme involved Caparelli obtaining serial numbers of Apple products he had not bought. He would then call Apple with the serial number, claim the product was defective, arrange for a replacement product to be sent to an address he designated, and give Apple a stolen credit card number to charge if he failed to return the purportedly defective product. Caparelli sold and shipped four iPhone 4 cell phones that he had stolen through the Apple call-in scheme to an individual whom he believed to be a fellow-carder, but who, in fact, was an undercover FBI agent.

Sean Harper, a/k/a “Kabraxis314,” and Peter Ketchum, a/k/a “iwearaMAGNUM,” each sold drop services to other carders in return for money or carded merchandise. Harper provided drop addresses in Albuquerque, New Mexico, to which co-conspirators sent expensive electronics, jewelry, and clothing, among other things. Ketchum advertised drop locations “spread across multiple cities” in the United States and allegedly received and shipped carded merchandise including sunglasses and air purifiers, as well as synthetic marijuana.

Christian Cangeopol CANGEOPOL, a/k/a “404myth,” engaged in illegal “instoring” at Walmart to obtain Apple electronic devices with stolen credit cards. Instoring is a term used by carders to refer to using stolen credit card accounts to make in-store, as opposed to online, purchases of items using stolen credit card information and matching fake identifications. As part of the alleged scheme, Cangeopol and a co-conspirator used stolen credit card data to order electronic devices on Walmart’s website; in selecting a delivery option, they opted to have items delivered to various Walmart stores in Georgia; Cangeopol then picked up the items using a fake identification; Cangeopol and the co-conspirator then resold the carded electronics and split the proceeds.

* * *

The attached chart reflects the name, age, residence of, and pending charges against each individual charged in the Southern District of New York.

Mr. Bharara praised the outstanding investigative work of the FBI and its New York Cyber Crime Task Force, which is a federal, state, and local law enforcement task force combating cybercrime. Mr. Bharara also commended the U.S. Attorney’s offices in the following districts: New Mexico, Arizona, Delaware, Massachusetts, California (Central and Southern districts), Florida (Middle district), Georgia (Northern), as well as the Manhattan District Attorney’s Office. He also thanked the following domestic law enforcement partners for their assistance: the New York City Police Department; the Essex, Vermont Police Department; the Eaton, Ohio Police Department; the Butler County, Ohio Sheriff’s Office; the Cedar Bluff, Alabama Police Department; the Modesto, California Police Department; the Louisiana State Police; the Suffolk County, New York Police Department; the Bakersfield, California Police Department; the Kern County, California District Attorney’s Office; the Long Beach, California Police Department; the Louisville, Kentucky Metro Police Department; and the Nelson County, Kentucky Sheriff’s Office.

Mr. Bharara acknowledged and thanked the following international law enforcement agencies: the United Kingdom’s Serious Organised Crime Agency, Royal Military Police, Thames Valley Police, Greater Manchester Police, Leicestershire Police, Hertfordshire Police, and Wiltshire Police; the Australian Federal Police; Bosnia’s Republika Srpska Ministry of Interior; the Bulgarian Ministry of Interior, General Directorate for Combating Organized Crime; the Danish National Police; the Royal Canadian Mounted Police; the French National High-Tech Crime Unit (OCLCTIC) of the Central Directorate of the Police Judiciaire; the German Bundeskriminalamt (BKA); the Italian Polizia di Stato, Compartimento Polizia Postale e delle Comunicazioni; the National Police Agency of Japan, Tokyo Metropolitan Police Department (Cyber Crimes Control Division), Ministry of Justice of Japan, Tokyo High Prosecutors Office, and the Ministry of Foreign Affairs of Japan; the Macedonian Ministry of Interior, Department Against Organized Crime; and the Norwegian National Police for their efforts. He also thanked the Computer Crime and Intellectual Property Section of the Department of Justice, as well as the Office of International Affairs at the Department of Justice.

This case is being handled by the Office’s Complex Frauds Unit. AUSAs James Pastore, Serrin Turner, Timothy Howard, Rosemary Nidiry, Alexander Wilson, and Sarah McCallum are in charge of the prosecution.

The relevant charging documents can be found on the SDNY website at: http://www.justice.gov/usao/nys/pressreleases/index.html.

List of Arrested Defendants Charged in SDNY Complaints

Defendant

SDNY Complaint Numer

Residence

Age

Charges and Maximum Penalties

Christian Cangeopol, a/k/a “404myth” 12 Mag. 1667 Lawrenceville, Georgia 19
  • Conspiracy to commit access device fraud (7.5 years in prison)
Mark Caparelli,

a/k/a “Cubby”

12 Mag. 1640 San Diego, California 20
  • Wire fraud (20 years in prison)
  • Access device fraud (10 years in prison)
Steven Hansen, a/k/a “theboner1” 12 Mag. 1641 Kentucky (in prison in Wisconsin) 23
  • Fraud in connection with identification information (Five years in prison)
Sean Harper, a/k/a “Kabraxis314” 12 Mag. 1638 Albuquerque, New Mexico 23
  • Conspiracy to commit access device fraud (7.5 years in prison)
Ali Hassan, a/k/a “Mr Badoo,” a/k/a “Mr.Badoo,” a/k/a “Badoo” 12 Mag. 1565 Milan, Italy 22
  • Conspiracy to commit wire fraud (20 years in prison)
  • Conspiracy to commit access device fraud, with object of possession 15 or more access devices (Five years in prison)
  • Aggravated identity theft (Two years mandatory consecutive in prison)
Alex Hatala, a/k/a “kool+kake” 12 Mag. 1669 Jacksonville, Florida 19
  • Fraud in connection with identification information (Five years in prison)
Joshua Hicks, a/k/a “OxideDox” 12 Mag. 1639 Bronx, New York 19
  • Access device fraud (10 years in prison)
Michael Hogue, a/k/a “xVisceral” 12 Mag. 1632 Tucson, Arizona 21
  • Conspiracy to commit computer hacking (10 years in prison)
  • Distribution of malware (10 years in prison)
Lee Jason Juesheng, a/k/a “iAlert,” a/k/a “Jason Kato” 12 Mag. 1605 Tokyo, Japan 23
  • Access device fraud (10 years in prison)
Peter Ketchum, Jr., a/k/a “iwearaMAGNUM” 12 Mag. 1651 Pittsfield, Massachusetts 21
  • Conspiracy to commit access device fraud (7.5 years in prison)
Jarand Moen Romtveit, a/k/a “zer0,” a/k/a “zer0iq” 12 Mag. 1656 Porsgrunn, Norway 25
  • Access device fraud (possession 15 unauthorized devices) (10 years in prison)
  • Access device fraud (affecting transactions with unauthorized devices) (15 years in prison)
  • Aggravated identity theft (Two years mandatory, consecutive in prison)
Mir Islam, a/k/a “JoshTheGod” Bronx, New York 18
  • Access device fraud (10 years in prison)
  • Access device fraud (affecting transactions with unauthorized devices) (15 years in prison