02-30438. 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) 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.

Canadian National Railway Company

The Canadian National Railway Company and its wholly owned U.S. subsidiaries, Illinois Central Railroad Company, Wisconsin Central, LTD., Grand Trunk Western Railroad Company, Chicago Central & Pacific Railroad Company, and Duluth, Winnipeg & Pacific Railway Company (hereafter “CN”), 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, CN seeks 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. CN's waiver request is identical to the waiver granted to the Burlington Northern and Santa Fe Railway, FRA-2001-10660. CN's waiver request is only for the replacement of batteries in EOTs manufactured by Digitair PULSE and is not for any other EOT device.

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 and 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, require blue signal protection when workers are on, under, or between rolling equipment on main track or other than main track. Section 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.

CN contends that safety would be enhanced if the individual were 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 would be handling a battery pack that weighs 10.1 pounds or less, as opposed to lifting the EOT device that weighs 32-34 pounds. Also, it takes approximately five minutes to remove and then re-install the EOT device, as opposed to removing and replacing a battery pack that takes less than one minute to complete. CN contends that the time the employee is performing the safety sensitive task is reduced by 80 percent. Coupling and uncoupling the air hose between the car and EOT also poses a risk of a striking injury from the air hose, if the air pressure has not been completely released. CN also believes that there is potential for reduction in train delays if this waiver is granted, which could contribute to increased train velocity, efficiency of operations, and to CN's ongoing fuel conservation initiatives. In analyzing safety risks and benefits, CN believes that there are no adverse consequences or costs that will accrue from granting this petition. Also, there are no anticipated costs to the private sector, to the consumer, or to federal, state, and local governments if this waiver is granted.

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-2002-13570) and must be submitted to the Docket Clerk, DOT Central Docket Management Facility, Room PL-401 (Plaza Level) 400-7th Street, SW., Washington, DC 20590-0001. 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 (9:00 a.m.-5:00 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://dms.dot.gov.

Issued in Washington, DC on November 25, 2002.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.