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Notice

Petition for Waiver of Compliance

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In accordance with part 211 of title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) received a request for a waiver of compliance from certain requirements of its safety regulations. The individual petition is described below including, the party seeking relief, the regulatory provisions involved, the nature of the relief being requested, and the petitioner's arguments in favor of relief.

Norfolk Southern Corporation

The Norfolk Southern Corporation (NS) seeks a waiver of compliance from certain provisions of the Railroad Operating Practices regulations, 49 CFR part 218, regarding blue signal protection of workers. Specifically, NS requests that FRA waive the provisions of §§ 218.22(c)(5), 218.22(h), and 221.16 that address inspection, placement and removal of rear end markers and/or end of train devices.

Section 218.22(c) states in part:

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A utility employee may be assigned to and serve as a member of a train or yard crew without the protection otherwise required by subpart D of part 218 of this chapter only under the following conditions: . . . (5) The utility employee is performing one or more of the following functions: . . . inspect, test, install remove or replace a rear end marking device or end of train device. Under all other circumstances a utility employee working on, under, or between railroad rolling equipment must be provided with blue signal protection in accordance with §§ 218.23 through 218.30 of this part.

Section 218.22(h) states: “Nothing in this section shall affect the alternative form of protection specified in § 221.16 of this chapter with respect to inspection of rear end marking devices.”

Section 221.16 states:

Inspection procedure. (a) Prior to operating the activation switch or covering the photoelectric cell when conducting this test, a non-train crew person shall determine that he is being protected against the unexpected movement of the train either under the procedures established in part 218 of this chapter or under the provisions of paragraph (b) of this section.

(b) In order to establish the alternative means of protection under this section, (1) the train to be inspected shall be standing on a main track; (2) the inspection task shall be limited to ascertaining that the marker is in proper operating condition; and (3) prior to performing the inspection procedure, the inspector shall personally contact the locomotive engineer or hostler and be advised by that person that they are occupying the cab of the controlling locomotive and that the train is and will remain secure against movement until the inspection has been completed.

Currently, the regulation requires that any railroad employee that installs or removes an end of train device or rear marker would have to establish blue signal protection, unless it is a train or yard crew member or utility employee performing the task on the equipment he/she is called to operate. Furthermore, FRA has determined that removing or replacing a battery in an EOT, while the device is in place on the rear of a train, requires blue signal protection since this activity is a service and repair to the device. Therefore, the only way a utility employee, train or yard crew member can legally remove or replace the EOT battery, without establishing blue signal protection, is to remove the EOT from the rear of the train and perform the battery work outside the area normally protected by the blue signal.

NS believes that if certain tasks are restricted and effective communication is established, it would be possible to sanction an alternative means of protection that is the functional equivalent of full compliance with the existing rule. NS's alternative protection methodology, which requires that the person occupying the cab compartment of the controlling locomotive to have an effective communication link to the inspector, assures the inspector that the train is secure against movement and will remain that way until the installation, removal, inspection, test or battery change has been completed. NS proposes to use the following alternative procedures for inspection, placement and removal of rear end markers or end of train devices, and to change the battery on those devices while on the train:

(1) Any person inspecting, testing, installing, or removing a rear end marking device or end of train device or replacing the battery on such device shall determine that he or she is being protected against the unexpected movement of the train either under the procedures established in 49 CFR sections 218.25, 218.27, and 218.29, or under the following provisions:

(a) Blue signal protection must be provided for any person who is not a member of the train or yard crew assigned to the train on which the device to be inspected or tested is installed when inspecting or testing the device except when:

(i) the rear end of the train is standing on a main track, or if on other than main track, access to that portion of the track on which the rear end of the train is standing is physically restricted by either: (1) Lining and locking the switch providing access to that portion of the track away from movement onto that portion of the track, or (2) positioning a locked derail on that portion of the track at least 50 feet from the rear of the train;

(ii) the inspection or testing task is limited to ascertaining that the device is in proper operating condition; and (iii) the person performing the inspection or testing procedure has communicated directly with the locomotive engineer prior to performing the task and has been advised by the locomotive engineer that the controlling locomotive is coupled onto that equipment, that he or she is occupying the cab of the controlling locomotive, and that the train is and will remain secure against movement until the locomotive engineer has been notified by the person performing the inspection that the task has been completed.

(b) Blue signal protection must be provided for any person who is not a member of the train or yard crew assigned to the train being serviced when installing or removing the device or

Replacing the batteries on the device except when: (i) The train on which the device is to be installed or removed or have the batteries replaced on is standing on a main track, or if on other than main track, access to that portion of the track on which the rear end of the train is standing is physically restricted by either: (1) Lining and locking the switch providing access to that portion of the track away from movement onto that portion of the track, or (2) Positioning a locked derail on that portion of the track at least 50 feet from the rear of the train; (ii) the locomotive engineer has made and maintains an automatic brake reduction sufficient to prevent the train from moving, but of not less than 10 pounds per square inch; and (iii) the person performing the task has communicated directly with the locomotive engineer assigned to the controlling locomotive of the train, prior to installing or removing the device or replacing the batteries, and been advised by the locomotive engineer that he or she is occupying the controlling locomotive and that the train is and will remain secure against movement until the locomotive engineer has been notified by the person performing the task that the task has been completed. (2) Procedures will be implemented over Norfolk Southern system as personnel are properly trained in the above procedures.

NS believes that this alternative procedure provides the non-train crew employee with protection equal to a member of a train crew performing the same operation. On main track the protections are basically the same as the protection for a train crew person. On yard track this method provides similar protection as a member of the train crew with additional protection on the end of the track where the inspection, test, or battery change is performed. These measures so minimize the risks of injury that it is appropriate to authorize the unit removal, installation, inspection, testing and battery change without full blue signal protection. NS also believes that granting this waiver will minimize train delays and improve efficiencies without compromising the safety of their employees.

This waiver petition raises issues that are subject to active rulemaking through the Railroad Safety Advisory Committee (RSAC). Although no formal resolution has been reached, FRA believes that the ramifications of affording the requested relief insofar as it pertains to train crews (including utility employees assigned to work with train crews) have been extensively discussed in the RSAC working group, permitting identification of issues and consideration of available information. Accordingly, FRA requests comment on the NS petition to the extent it applies to the circumstances under which train crew members and associated utility employees may perform the specific tasks. FRA would expect any relief extended under this docket to terminate upon adoption of a final rule in the expected, forthcoming rulemaking proceeding.

FRA notes that issues regarding providing further exceptions from blue signal protection with respect to non-operating employees (performing specified duties on main and other-than-main track) have not, in FRA's view, been adequately developed in the Start Printed Page 5145RSAC. Nor did NS provide persuasive analysis in support of the petition that would permit issuance of relief in this regard. Train and engine employees, including yard operating personnel functioning as utility employees, are accustomed to working under the railroad operating rules and ensuring securement of equipment from movement without use of blue signal protection. They are accustomed to working as a unit, placing a premium on effective communication. Other employees involved in inspecting and testing equipment, by contrast, are accustomed to functioning with full blue signal protection, including, as a general matter, securement of switches providing access to the rolling stock on which they are working (see 49 U.S.C. 20131). It may be possible to disturb these patterns of work and allow additional flexibility in the application of the blue signal regulations. However, the dialogue among those most familiar with these issues it not yet sufficiently advanced for FRA to venture a judgment on that issue. Accordingly, FRA has denied the requested relief insofar as the request applies to the duties of non-operating employees, without prejudice to future consideration of this issue (including ongoing RSAC deliberations).

Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA in writing, before the end of the comment period and specify the basis for their request.

All communications concerning these proceedings should identify the appropriate docket number (e.g., Waiver Petition Docket Number FRA-2001-10515) and must be submitted to the Docket Clerk, DOT Central Docket Management Facility, 400 Seventh Street, SW, Room PL-401, Washington, DC 20590-0001. Communications received within 45 days of the date of this notice will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable. All written communications concerning these proceedings are available for examination during regular business hours (9 a.m.—5 p.m.) at the above facility. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's web site at http://dms.dot.gov.

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Issued in Washington, DC, on January 25, 2002.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.

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[FR Doc. 02-2558 Filed 2-1-02; 8:45 am]

BILLING CODE 4910-06-P