E6-15754. Petition for a Waiver of Compliance

In accordance with Title 49 Code of Federal Regulations (CFR), Sections 211.9 and 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 Federal railroad safety regulations. The individual petitions are 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.

Union Pacific Railroad Company

The above parties seek a waiver for relief of sanctions from 49 CFR Part 240.117(e)(1) through (4), 49 CFR Part 240.305(a)(1) through (4) and (6) [excluding supervisors as indicated], and 49 CFR Part 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.

The Union Pacific Railroad (UP) and the employees of UP's North Platte Service Unit, represented by the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the United Transportation Union (UTU), desire to participate in a Close Call Reporting System (C3RS) Demonstration Pilot Project sponsored by FRA's Office of Research and Development. 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 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. 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.

The UP, 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 1,200 yard and road service employees headquartered in North Platte, Nebraska. This IMOU was sent to FRA for consideration and acceptance on August 28, 2006. As referenced in the IMOU, certain close calls may be properly reported by the employee(s) involved and later discovered by UP, 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 UP discipline.

The UP, BLET, and UTU also desire to shield the reporting employee(s) and UP 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 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 UP Discipline and/or Decertification and from FRA Enforcement: UP 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 UP 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 inappropriate use of controlled substances;

4. The close call report contains falsified information as determined by the Bureau of Transportation Statistics;

5. The event resulted in a railroad accident/incident that qualifies as reportable under 49 CFR Part 225.11;

6. The event resulted in an identifiable release of a hazardous material; or

7. The event was observed in real-time and reported to UP management (such as a train dispatcher or operator observing a signal violation) or was observed as part of Operating Practices testing.

Operating Practices 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 UP 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, UP or FRA may use event recorder information to support discipline and/or decertification and/or enforcement. For example, a UP official, who observes a train operating 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 files a close call report in a timely manner.

UP and other parties signatory to the IMOU dated August 25, 2006, 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 employee(s) involved in the incidents described above will not file a report of the incident. The incident(s) 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 close calls demonstration project and granting this waiver petition is in the public interest and consistent with improving railroad safety. All parties believe that the improvement in safety experienced in Norway as stated above: “the Norwegian Railway (Sernbaneverket) showed a 40 percent reduction in accidents after 3 years of implementation of a similar program.” These results of improved safety performance have also been observed in other modes of transportation and other industries following the implementation of a close calls reporting system.

The Federal Aviation Administration (FAA) reports numerous safety benefits from their close calls reporting system compared to non-U.S. flight operations (See FAA Web site). Examples of close call reporting system benefits from the U.S. Coast Guard include: “Response costs 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 on an industry-wide scale = $100s of millions.”

The parties are confident that railroad operations will benefit from this demonstration pilot project, and by full implementation of a close call reporting system, public and railroad safety will be improved.

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 2006-25862) and must be submitted to the Docket Clerk, DOT Docket Management Facility, Room PL-401 (Plaza Level), 400 7th Street, SW., Washington, DC 20590. 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://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). The Statement may also be found at http://dms.dot.gov.

Issued in Washington, DC on September 20, 2006.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.