

[Federal Register: December 28, 2007 (Volume 72, Number 248)]
[Notices]               
[Page 73968-73969]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de07-216]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

 
Petition for a Waiver of Compliance

    In accordance with Title 49 Code of Federal Regulations (CFR) 
Sec. Sec.  211.9 and 211.41, notice is hereby given that the Federal 
Railroad Administration (FRA) received a request for a waiver of 
compliance with 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.

Canadian Pacific Railway

[Waiver Petition Docket Number FRA-2007-0008]

    The Canadian Pacific Railway (CP) seeks a waiver from the 
requirements of 49 CFR 240.117(e)(1) through (4), 240.305, and 240.307, 
in connection with implementation of a Close Call Reporting System 
(C3RS) Demonstration Pilot Project (Pilot Project) sponsored by FRA's 
Office of Research and Development. These sections of the regulation 
relate to punitive actions that are required to be taken against 
locomotive engineers for the violation of certain railroad operating 
rules. Refer to Part 240 for a detailed listing of these sections.
    CP and the employees of CP's Chicago Service Area, represented by 
the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the 
United Transportation Union (UTU), desire to participate in the Pilot 
Project, which is one of the action items included in FRA's Action Plan 
for Addressing Critical Railroad Safety Issues (Action Plan) announced 
on January 25, 2006.
    As noted in the Action Plan, in other industries such as aviation 
and mining, as well as in the European railway industry, implementation 
of ``close call'' reporting systems that shield the reporting employee 
from discipline (and the employer from punitive sanctions levied by the 
regulation) have contributed to major reductions in accidents. In March 
of 2005, FRA completed an overarching memorandum of understanding with 
railroad labor organizations and management to develop pilot programs 
to document close calls, i.e., unsafe events that do not result in a 
reportable accident but very well could have. Participating railroads 
will be expected to develop corrective actions to address the problems 
that may be revealed. The aggregate data may prove useful in FRA's 
decision-making concerning regulatory and other options to address 
human factor-caused accidents.
    CP, BLET, and UTU have developed and signed an implementing 
memorandum of understanding (IMOU), based on the FRA's overarching 
memorandum of understanding, as a first step in commencing the 
demonstration pilot project. The project would involve approximately 
350 yard and road service employees operating between Newport, 
Minnesota, (Mile Post (MP) 402.5C, River Subdivision) and Tower A-20 
(MP 20.5, C&M Subdivision), and all track between those mileposts, 
including track on the following subdivisions: River, Tomah, Watertown, 
M&P, the CN Valley, and C&M. This IMOU was sent to FRA for 
consideration and acceptance on October 8, 2007. As referenced in the 
IMOU, certain ``close calls'' may be properly reported by the 
employee(s) involved and later discovered by CP, for example, through 
subsequent retrospective analysis of locomotive event recorder data, 
etc. In order to encourage employee reporting of close calls, the IMOU 
contains provisions to shield the reporting employee from CP 
discipline. CP, BLET, and UTU also desire to shield the reporting 
employee(s) and CP from punitive sanctions that would otherwise arise 
as provided in selected sections of Part 240 for properly reported 
close call events as defined in the C3RS IMOU.
    The waiver petition is requested for the duration of the C3RS Pilot 
Project (5 years from implementation or until the Pilot Project is 
completed or parties to the IMOU withdraw as described in the IMOU, 
whichever comes first).

    Note: According to Article 7.2 of the IMOU, ``Conditions under 
which a reporting employee is not protected from CP discipline and/
or decertification and from FRA enforcement,'' CP employees included 
in this C3RS/IMOU receive no protection from discipline and/or 
decertification or from FRA enforcement action when one or more of 
the following conditions occur:


     The employee's action or lack of action was intended to 
damage CP or another entity's operations or equipment, or to injure 
other individuals or purposely place others in danger (e.g., 
sabotage);
     The employee's action or lack of action involved a 
criminal offense;
     The employee's behavior involved substance abuse or 
inappropriate use of controlled substances;
     The report is rejected by the Bureau of Transportation 
Statistics Peer Review Team;
     The event resulted in a railroad accident/incident that 
qualifies as reportable under Sec.  225.11;
     The event resulted in an identifiable release of a 
hazardous material; or
     The event was observed in real-time and reported to CP 
management (such as a train dispatcher or operator observing a 
signal violation) or was observed as part of proficiency testing.

    Proficiency testing (e.g., operating rule efficiency testing, 
signal compliance testing) generally consists of real-time observations 
and do not qualify for exemption. Similarly, an employee is not exempt 
from discipline and/or decertification for a violation that CP or FRA 
identifies contemporaneously (e.g., a block circuit is occupied by a 
train without authority, and the train dispatcher notices it before the 
train backs off the circuit) before the employee files a close call 
report. In such situations, CP or FRA may use event recorder 
information to support discipline and/or decertification and/or 
enforcement. For example, a CP official who observes a train operate 
past a signal that requires a stop may use any relevant data recorded 
by the locomotive's event recorder in pursuing disciplinary action 
against the train crew, regardless of whether a member of the crew 
timely files a close call report.
    In its petition, CP indicated that the parties signatory to the 
IMOU, dated August 21, 2007, believe the data from these properly 
reported close call incidents, as defined in the IMOU, will be 
invaluable in the analysis and development of effective corrective 
actions. CP expressed the view that without the requested waiver the 
employee(s) involved in incidents such as those described above will 
not file reports of the incidents and that the incident(s) will likely 
go undetected, resulting in no opportunity for analysis, data trending, 
or appropriate corrective actions. Noting the success of close call 
reporting systems in other industries (e.g., aviation and maritime), CP 
further indicated that all parties signatory to the IMOU and 
participating in the Pilot Project believe that the Pilot Project and 
requested regulatory relief is in the public interest and consistent 
with railroad safety.
    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

[[Page 73969]]

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-
2007-0008) and may be submitted by any of the following methods:
     Web site: http://www.regulations.gov. 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 http://www.regulations.gov.

    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 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).

    Issued in Washington, DC, on December 19, 2007.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program 
Development.
[FR Doc. E7-25141 Filed 12-27-07; 8:45 am]

BILLING CODE 4910-06-P
