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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.

The Canadian Pacific Railway

(Docket Number FRA-2004-17989)

The Canadian Pacific Railway (CP) 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, to permit train and yard crew members, and utility employees to remove and replace batteries in two-way end-of-train telemetry devices (EOT), while the EOT is in place on the rear of the train the individual has been called to operate, without establishing any blue signal protection.

Section 218.5 defines worker as any railroad employee assigned to inspect, test, repair, or service railroad rolling equipment or their components, including brake systems. Members of train and yard crews are excluded except when assigned such work on railroad rolling equipment that is not part of the train or yard movement they have been called to operate (or assigned to as “utility employees”). Utility employees assigned to Start Printed Page 43048and functioning as temporary members of a specific train or yard crew (subject to the conditions set forth in § 218.22 of this chapter), are excluded only when so assigned and functioning.

Both §§ 218.25 and 218.27, requires blue signal protection when workers are on, under, or between rolling equipment on main track or other than main track. § 218.22(b) states in part:

A utility employee may be assigned to 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 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.

The 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 task is a service and repair to the device. Therefore, the only way a utility employee or a train and 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.

CP contends that safety would be enhanced if the individual was allowed to perform the battery work without removing the device from the rear of the train. Exposure to injury is greatly reduced because the individual is handling a small NiCad battery, as opposed to lifting the EOT device that weighs 32-34 pounds. It is CP's position, supported by the BNSF waiver docket #10660, that changing EOT batteries in situ requires less time, places the employee in less immediate danger, and creates less physical strain than removing and replacing the entire EOT.

CP wants to make it clear that this waiver request is intended to cover only train and yard employees working on their own assigned equipment and properly assigned transportation utility employees. It is not intended to cover mechanical or other employees who clearly require blue flag protection to work in or under equipment.

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-2004-17989) and must be submitted to the Docket Clerk, DOT Docket Management Facility, Room PL-401 (Plaza Level), 400 7th Street, S.W., Washington, D.C. 20590. Communications received within 30 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

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78). The Statement may also be found at

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Issued in Washington, DC, on July 7, 2004.

Grady C. Cothen, Jr.,

Acting Associate Administrator for Safety.

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[FR Doc. 04-16254 Filed 7-16-04; 8:45 am]