2010-27678. 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.

National Railroad Passenger Corporation

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 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: [phone].
• 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.