
[Federal Register: November 2, 2010 (Volume 75, Number 211)]
[Notices]               
[Page 67451-67453]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no10-122]                         

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

 
Petition for Waiver of Compliance

    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.

[[Page 67452]]

National Railroad Passenger Corporation

[Waiver Petition Docket Number FRA-2010-0152]

    The National Railroad Passenger Corporation (Amtrak) seeks a waiver 
for relief of sanctions from 49 CFR 240.117(e)(1) through (4), 240.305, 
and 240.307. 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 a detailed listing of these sections.
    Amtrak and selected employees of Amtrak's rail system, represented 
by the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the 
United Transportation Union (UTU), desire to participate in a 
Confidential Close Call Reporting System (C3RS) Demonstration Pilot 
Project sponsored by FRA's Office of Railroad Policy and Development 
and the Office of Railroad Safety. The C3RS Demonstration Pilot Project 
is one of the action items included in FRA's Rail Safety Action Plan 
announced on January 25, 2006.
    In other industries such as aviation, 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 
2005, FRA completed an overarching memorandum of understanding (MOU) 
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 decisionmaking concerning regulatory and other options to address 
human factor-caused accidents. Experiences on the Norwegian Railway 
(Sernbaneverket) showed a 40-percent reduction in accidents after 3 
years of implementation of a similar program. In a manufacturing 
environment, Syncrude, a mining company, experienced a 33-percent 
reduction in lost time frequency after 1 year of implementing a close 
call system.
    Amtrak, BLET, and UTU have developed and signed an implementing 
memorandum of understanding (IMOU) (based on FRA's overarching MOU) as 
a first step in commencing the demonstration pilot project. The project 
would involve approximately 1,400 yard; road service, and yardmaster 
employees operating within the boundaries of the C3RS pilot 
demonstration project as defined below:
    1. South Hampton Street, Boston, MA, from the eastern fouling point 
of the diamond at the east end of the yard to the western limits of the 
yard including the ``Chute'' track, including loop tracks.
    2. New Haven Parcel G, New Haven, CT, from the westbound home 
signal on the lead track east into all yard tracks.
    3. Sunnyside Yard, Long Island City, NY, all tracks in Sunnyside 
Yard east of ``F'' Interlocking, including loop tracks.
    4. Penn Coach Yard and Race Street Engine House, Philadelphia, PA, 
between South Street and Spring Garden Street, to also include 1 and 2 
lead tracks, excluding main tracks.
    5. Washington, DC, all nonsignal tracks that may be accessed 
between New York Avenue and Virginia Avenue, exclusive of Station 
Tracks 7-30.
    6. Miami, FL, the Miami Amtrak Station Tracks 1-4; all Hialeah Yard 
Tracks 1-6, Rip 1-3, the North and South Coach Yard leads. The Amtrak 
lead and loop track from a point south of the Amtrak hold-out signal, 
located at Milepost SXI033.1, which is the southern end of TCS 
territory, on the CSX Transportation Jacksonville Division, Miami 
Subdivision.
    7. Los Angeles, CA, roundhouse lead from Control Point (CP) San 
Diego Jet south including all tracks in the North Yard, 8th Street S&I 
and adjacent tracks, the 90's Yard, Redondo Locomotive Shop, and the PM 
Line/Wheel Pit tracks. It would not include the Back Way track within 
the limits of CP Olympic.
    8. Chicago, IL, Central Division Limits of Brighton Park Mechanical 
Facility; Chicago Terminal from and including 21st Street Interlocking, 
to and including CP Canal. The Chicago Terminal also includes all 
station tracks in Chicago Union Station and all tracks in the Amtrak 
Chicago Yard and mechanical facilities.
    9. Seattle, WA, Seattle King Street Station to Lander Street for 
all tracks other than BNSF Railway mainline.
    This IMOU was sent to FRA for consideration and accepted on May 11, 
2010. As referenced in the IMOU, certain ``close calls'' may be 
properly reported by the employees involved and later discovered by 
Amtrak, 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 Amtrak discipline. Amtrak, BLET, and UTU also 
desire to shield the reporting employees and Amtrak from punitive 
sanctions that would otherwise arise as provided in selected sections 
of 49 CFR 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 Demonstration Project (5 years from implementation or until 
the demonstration project is completed, or until 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 AMTRAK DISCIPLINE AND/OR 
DECERTIFICATION AND FROM FRA ENFORCEMENT--Amtrak 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 Amtrak or another entity's operations or equipment or to 
injure other individuals, or the employee's action or lack of action 
purposely 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 the 
inappropriate use of controlled substances.
    4. The report is rejected in accordance with Article 6.1.
    5. The event resulted in any type of train accident without 
regard to monetary damages.
    6. The event caused or is alleged to have caused any injury, 
illness, or medical treatment of any kind to any person involved in 
the event.
    7. The event resulted in an identifiable release of a hazardous 
material.
    8. The event was a real-time observation made by an FRA-
certified inspector or railroad employee, and was reported to and 
verified by Amtrak management, except as provided in Article 6.4.

    Amtrak and other parties signatory to the IMOU dated May 11, 2010, 
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. Without the requested waiver of sanctions 
and exemption from mandatory revocation of the engineer's certificate, 
the employees involved in the incidents described above will not file a 
report of the incidents. The incidents will likely go undetected and 
there will be no opportunity for analysis, data trending, or 
appropriate corrective actions.
    All parties signatory to the IMOU and participating in the 
demonstration pilot project believe that the C3RS Demonstration Project 
and granting this waiver petition is in the public interest and 
consistent with improving railroad safety. Results of improved safety 
performance have also been observed in

[[Page 67453]]

other modes of transportation and other industries following the 
implementation of C3RS. The Federal Aviation Administration (FAA) 
reports numerous safety benefits from their C3RS compared to non-U.S. 
flight operations (See FAA Aviation Safety Reporting System Web site). 
Examples of C3RS benefits from the U.S. Coast Guard (USCG) have 
included: ``Response cost decline 30-40 percent resulting in potential 
USCG savings of $12-$16 million and potential shipping industry savings 
of $39-$52 million: Potential reduction in seamen injuries and claims 
category savings range between 15-45 percent; potential savings 
industry-wide scale = $100's of millions.'' All parties believe that 
the improvements cited will have a significant impact on safety in 
Amtrak operations.
    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-
2010-0152) 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 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; Page 19477-78) or at http://
www.dot.gov/privacy.html.

    Issued in Washington, DC on October 27, 2010.
Robert C. Lauby,
Deputy Associate Administrator for Regulatory and Legislative 
Operations.
[FR Doc. 2010-27678 Filed 11-1-10; 8:45 am]
BILLING CODE 4910-06-P

