Skip to Content


Petition for Waiver of Compliance

Document Details

Information about this document as published in the Federal Register.

Published Document

This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

Start Preamble

In accordance with Part 211 of Title 49 Code of Federal Regulations (CFR), notice is hereby given that the Federal Railroad Administration (FRA) has received a request for a waiver of compliance from certain requirements of its safety standards. 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.

Mr. David Kloke

Mr. David Kloke, a private individual, has constructed a newly built (2009) replica of a steam locomotive originally built in the 1800's. The Leviathan #63 represents one of the four locomotives constructed by the Schenectady Locomotive Works for the Central Pacific Railroad in 1869; and is a sister to the Jupiter #60, of which a replica constructed in 1979, from the same blueprints and tooling is owned and operated by the National Park Service at Promontory Summit, Utah.

The Leviathan is constructed to educate the public concerning early American railroad history and simultaneously convey knowledge about the design, capabilities, operation, and history of this type of locomotive. Mr. Kloke states that Leviathan is not to be put into regular commerce as either a passenger or freight locomotive. Nevertheless, it will occasionally pull some cars appropriate for its historic and educational mission, and will be used only for special events.

As a newly constructed locomotive, Leviathan cannot avail itself of several provisions of Title 49 CFR that are grandfathered for antiquated equipment, such as Leviathan represents. By letter of February 4, 2011, and supplemental letter of March 31, 2011, Mr. Kloke petitions that due to the unique purpose, nature, and use of this locomotive, certain regulations under 49 CFR part 223, 231.15(b) and (d), and 231.17(c) should be determined to be inapplicable to the Leviathan. In the event FRA does not determine the inapplicability of these regulations, Mr. Kloke requests relief from 49 CFR part 223, Safety Glazing Standards (§ 223.9 Requirements for new or existing equipment) and 49 CFR part 231, Railroad Safety Appliance Standards (§ 231.15 (b) and (d), Steam locomotives used in road service—Pilot sill-steps and Side handholds and (§ 231.17(c), Specifications common to all steam locomotives—Handrails).

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-2011-0011) and may be submitted by any of the following methods:

  • Web site: Follow the online instructions for submitting comments.
  • Fax: 202-493-2251.
  • Mail: Docket Operations Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 20590.
  • Hand Delivery: 1200 New Jersey Avenue, SE., Room W12-140, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, 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; Page 19477) or at​privacy.html.

Start Signature

Issued in Washington, DC, on April 13, 2011.

Robert C. Lauby,

Deputy Associate Administrator for Regulatory and Legislative Operations.

End Signature End Preamble

[FR Doc. 2011-9384 Filed 4-18-11; 8:45 am]