
[Federal Register: October 27, 2009 (Volume 74, Number 206)]
[Notices]               
[Page 55286-55287]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc09-126]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

 
Petition for Waiver of Compliance

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

New Jersey Transit Rail Corporation

[Docket Number FRA-2009-0096]

    The New Jersey Transit Rail Corporation (NJTR) seeks a waiver from 
the requirements of 49 CFR 240.117(e)(1) through (4), 49 CFR 240.305, 
and 49 CFR 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 49 CFR Part 240 for the specific 
regulatory requirements.
    NJTR and selected employees of NJTR's rail system represented by 
the American Train Dispatchers Association (ATDA), 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). The Action Plan is 
available at http://www.fra.dot.gov. In addition, 49 U.S.C. 20156, 
enacted as part of the Rail Safety Improvement Act of 2008 (Pub. L. 
110-432) authorizes the conduct of ``pilot programs'' designed to 
evaluate and manage railroad safety risks. The Pilot Project is one 
such program.

[[Page 55287]]

    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 reporting employees 
from discipline (and the employers from punitive sanctions levied by 
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 
are 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.
    NJTR, ATDA, BLET, UTU, the Bureau of Transportation Statistics 
(BTS) and FRA 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 Pilot Project. The 
Pilot Project would involve approximately 1,400 yard, road service, 
yardmaster, and train dispatcher employees working within the 
boundaries of NJTR's operating territory (including the Southern Tier 
and Pascack Valley Line, but not Conrail and Amtrak operating 
territories). As referenced in the IMOU, certain ``close calls'' may be 
properly reported by the employee(s) involved and later discovered by 
NJTR, 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 NJTR discipline. NJTR, ATDA, BLET, and UTU also 
desire to shield the reporting employee(s) and NJTR from punitive 
sanctions that would otherwise arise as provided in certain sections of 
49 CFR Part 240 for properly reported close call events as defined in 
the IMOU. The waiver petition is requested for the duration of the 
Pilot Project (5 years from implementation or until the demonstration 
project is completed or parties to the IMOU withdraw as described in 
the IMOU, whichever is first).

    Note:  Article 7.2 (of the IMOU) CONDITIONS UNDER WHICH A 
REPORTING EMPLOYEE IS NOT PROTECTED FROM NJTR DISCIPLINE AND/OR 
DECERTIFICATION AND OTHER FRA ENFORCEMENT--NJTR 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:

    1. The employee's action or lack of action was intended to damage 
NJTR or another entity's operations or equipment or to injure other 
individuals, or intentionally places others in danger (e.g., sabotage);
    2. The employee's action or lack of action involved a criminal 
offense;
    3. The employee's behavior involved substance abuse or 
inappropriate use of controlled substances;
    4. If the report is rejected by BTS or the Peer Review Team (PRT);
    5. The event resulted in any type of accident and/or has caused or 
alleged to have caused any injury, illness, or medical treatment of any 
kind to any person involved in the event;
    6. The event resulted in an identifiable release of a hazardous 
material; or
    7. The event was observed in real-time by FRA and/or a railroad 
employee and reported to NJTR management; or
    8. The event was observed in real time as part of Efficiency 
Testing.
    Similarly, an employee is not exempt from discipline and/or 
decertification for a violation that NJTR 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, NJTR or FRA may use event recorder information to support 
discipline and/or decertification and/or enforcement. For example, a 
NJTR 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, NJTR indicated that the parties signatory to the 
IMOU believe the data from these properly reported close call incidents 
as defined in the IMOU will be invaluable in analysis and development 
of effective corrective actions. NJTR 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 incidents 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), NJTR further indicated that all parties 
signatory to the IMOU and participating in the Pilot Project believe 
that the 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 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-
2009-0096) 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 20 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 October 21, 2009.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program 
Development.
[FR Doc. E9-25815 Filed 10-26-09; 8:45 am]

BILLING CODE 4910-06-P
