05-12117. 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.

BNSF Railway Company

The BNSF Railway Company (BNSF) seeks a waiver of compliance from certain provisions of 49 CFR Part 232, Brake System Safety Standards for Freight and Other Non-Passenger Trains and Equipment. Specifically, § 232.215(a), transfer train brake tests for trains moving from Old South Yard to New South Yard in Houston, Texas, a distance of approximately 1/4 mile.

New South Yard is located approximately one-fourth of a mile south of Old South Yard. Both yards are approximately one mile in length. The two yards are separated by a one-fourth mile section of main track. Train speed in both yards is 10 mph. Maximum speed on the main track is 20 mph, but trains operating between the two yards operate at 10 mph and must be prepared to stop within one-half the range of vision. The grade of the main track is level, sight distance is unobstructed, and there are no at-grade road crossings or grade separations on the main track.

After a review of the particulars at this location, FRA determined that any cars moved between Old South Yard and New South Yard constitutes a train movement, thus requiring an air brake test. BNSF contends that an air brake test is not required at this particular location for cars being moved from one yard to the other. They base their opinion on the multi-factor analysis as presented in the preamble to the Power Brake Regulations published in the Federal Register, January 17, 2001. See 66 FR 4148. BNSF believes all of the moves between the two yards are switching moves.

Based on FRA's ruling, BNSF is requesting that a waiver be granted for cars moving from Old South Yard to New South Yard without performing an air brake test, to facilitate the movement of cars through this already congested area. BNSF claims they have been operating within and between the yards since 1998, using only the locomotive's brakes to control the movement. In addition to moving cars between the two yards, the main track is often used while switching service is occurring within each yard, due to the small size of the yards. BNSF does not believe that there are any inherent safety risks or additional costs involved if the petition is granted.

Interested parties are invited to submit written comments to FRA. All written communications concerning this petition should identify the appropriate docket number (e.g., Docket Number FRA-2004-19949) and must be submitted in triplicate to the Associate Administrator for Safety, Federal Railroad Administration, 400 7th Street, SW., Washington, DC 20590-0001. Comments received within 30 days of the date of this notice will be considered by FRA before any final action is taken. Although FRA does not anticipate scheduling a public hearing in connection with these proceedings, 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 written communications concerning these proceedings are available for examination during regular business hours (9 a.m.-5 p.m.) at the Central Docket Management Facility, Room PL-401 (Plaza Level), 400 7th Street, SW., Washington, DC 20590. All documents in the public docket are also available for inspection and copying on the Internet at the docket facility's Web site http://dms.dot.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; Pages 19477-78) at http://dms.dot.gov.

Issued in Washington, DC on June 13, 2005.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.