[Federal Register Volume 67, Number 23 (Monday, February 4, 2002)]
[Notices]
[Pages 5143-5145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-2558]


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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) 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.

Norfolk Southern Corporation

[Docket Number FRA-2001-10515]

    The Norfolk Southern Corporation (NS) 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, NS requests that FRA waive the provisions of 
Secs. 218.22(c)(5), 218.22(h), and 221.16 that address inspection, 
placement and removal of rear end markers and/or end of train devices.
    Section 218.22(c) states in part:


[[Page 5144]]


    A utility employee may be assigned to and 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 end 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 Secs. 218.23 through 218.30 of this 
part.

    Section 218.22(h) states: ``Nothing in this section shall affect 
the alternative form of protection specified in Sec. 221.16 of this 
chapter with respect to inspection of rear end marking devices.''
    Section 221.16 states:

    Inspection procedure. (a) Prior to operating the activation 
switch or covering the photoelectric cell when conducting this test, 
a non-train crew person shall determine that he is being protected 
against the unexpected movement of the train either under the 
procedures established in part 218 of this chapter or under the 
provisions of paragraph (b) of this section.
    (b) In order to establish the alternative means of protection 
under this section, (1) the train to be inspected shall be standing 
on a main track; (2) the inspection task shall be limited to 
ascertaining that the marker is in proper operating condition; and 
(3) prior to performing the inspection procedure, the inspector 
shall personally contact the locomotive engineer or hostler and be 
advised by that person that they are occupying the cab of the 
controlling locomotive and that the train is and will remain secure 
against movement until the inspection has been completed.

    Currently, the regulation requires that any railroad employee that 
installs or removes an end of train device or rear marker would have to 
establish blue signal protection, unless it is a train or yard crew 
member or utility employee performing the task on the equipment he/she 
is called to operate. Furthermore, 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 activity is a 
service and repair to the device. Therefore, the only way a utility 
employee, train or 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.
    NS believes that if certain tasks are restricted and effective 
communication is established, it would be possible to sanction an 
alternative means of protection that is the functional equivalent of 
full compliance with the existing rule. NS's alternative protection 
methodology, which requires that the person occupying the cab 
compartment of the controlling locomotive to have an effective 
communication link to the inspector, assures the inspector that the 
train is secure against movement and will remain that way until the 
installation, removal, inspection, test or battery change has been 
completed. NS proposes to use the following alternative procedures for 
inspection, placement and removal of rear end markers or end of train 
devices, and to change the battery on those devices while on the train:

    (1) Any person inspecting, testing, installing, or removing a 
rear end marking device or end of train device or replacing the 
battery on such device shall determine that he or she is being 
protected against the unexpected movement of the train either under 
the procedures established in 49 CFR sections 218.25, 218.27, and 
218.29, or under the following provisions:
    (a) Blue signal protection must be provided for any person who 
is not a member of the train or yard crew assigned to the train on 
which the device to be inspected or tested is installed when 
inspecting or testing the device except when:
    (i) the rear end of the train is standing on a main track, or if 
on other than main track, access to that portion of the track on 
which the rear end of the train is standing is physically restricted 
by either: (1) Lining and locking the switch providing access to 
that portion of the track away from movement onto that portion of 
the track, or (2) positioning a locked derail on that portion of the 
track at least 50 feet from the rear of the train;
    (ii) the inspection or testing task is limited to ascertaining 
that the device is in proper operating condition; and (iii) the 
person performing the inspection or testing procedure has 
communicated directly with the locomotive engineer prior to 
performing the task and has been advised by the locomotive engineer 
that the controlling locomotive is coupled onto that equipment, that 
he or she is occupying the cab of the controlling locomotive, and 
that the train is and will remain secure against movement until the 
locomotive engineer has been notified by the person performing the 
inspection that the task has been completed.
    (b) Blue signal protection must be provided for any person who 
is not a member of the train or yard crew assigned to the train 
being serviced when installing or removing the device or
    Replacing the batteries on the device except when: (i) The train 
on which the device is to be installed or removed or have the 
batteries replaced on is standing on a main track, or if on other 
than main track, access to that portion of the track on which the 
rear end of the train is standing is physically restricted by 
either: (1) Lining and locking the switch providing access to that 
portion of the track away from movement onto that portion of the 
track, or (2) Positioning a locked derail on that portion of the 
track at least 50 feet from the rear of the train; (ii) the 
locomotive engineer has made and maintains an automatic brake 
reduction sufficient to prevent the train from moving, but of not 
less than 10 pounds per square inch; and (iii) the person performing 
the task has communicated directly with the locomotive engineer 
assigned to the controlling locomotive of the train, prior to 
installing or removing the device or replacing the batteries, and 
been advised by the locomotive engineer that he or she is occupying 
the controlling locomotive and that the train is and will remain 
secure against movement until the locomotive engineer has been 
notified by the person performing the task that the task has been 
completed. (2) Procedures will be implemented over Norfolk Southern 
system as personnel are properly trained in the above procedures.

    NS believes that this alternative procedure provides the non-train 
crew employee with protection equal to a member of a train crew 
performing the same operation. On main track the protections are 
basically the same as the protection for a train crew person. On yard 
track this method provides similar protection as a member of the train 
crew with additional protection on the end of the track where the 
inspection, test, or battery change is performed. These measures so 
minimize the risks of injury that it is appropriate to authorize the 
unit removal, installation, inspection, testing and battery change 
without full blue signal protection. NS also believes that granting 
this waiver will minimize train delays and improve efficiencies without 
compromising the safety of their employees.
    This waiver petition raises issues that are subject to active 
rulemaking through the Railroad Safety Advisory Committee (RSAC). 
Although no formal resolution has been reached, FRA believes that the 
ramifications of affording the requested relief insofar as it pertains 
to train crews (including utility employees assigned to work with train 
crews) have been extensively discussed in the RSAC working group, 
permitting identification of issues and consideration of available 
information. Accordingly, FRA requests comment on the NS petition to 
the extent it applies to the circumstances under which train crew 
members and associated utility employees may perform the specific 
tasks. FRA would expect any relief extended under this docket to 
terminate upon adoption of a final rule in the expected, forthcoming 
rulemaking proceeding.
    FRA notes that issues regarding providing further exceptions from 
blue signal protection with respect to non-operating employees 
(performing specified duties on main and other-than-main track) have 
not, in FRA's view, been adequately developed in the

[[Page 5145]]

RSAC. Nor did NS provide persuasive analysis in support of the petition 
that would permit issuance of relief in this regard. Train and engine 
employees, including yard operating personnel functioning as utility 
employees, are accustomed to working under the railroad operating rules 
and ensuring securement of equipment from movement without use of blue 
signal protection. They are accustomed to working as a unit, placing a 
premium on effective communication. Other employees involved in 
inspecting and testing equipment, by contrast, are accustomed to 
functioning with full blue signal protection, including, as a general 
matter, securement of switches providing access to the rolling stock on 
which they are working (see 49 U.S.C. 20131). It may be possible to 
disturb these patterns of work and allow additional flexibility in the 
application of the blue signal regulations. However, the dialogue among 
those most familiar with these issues it not yet sufficiently advanced 
for FRA to venture a judgment on that issue. Accordingly, FRA has 
denied the requested relief insofar as the request applies to the 
duties of non-operating employees, without prejudice to future 
consideration of this issue (including ongoing RSAC deliberations).
    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-
2001-10515) and must be submitted to the Docket Clerk, DOT Central 
Docket Management Facility, 400 Seventh Street, SW, Room PL-401, 
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 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.

    Issued in Washington, DC, on January 25, 2002.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program 
Development.
[FR Doc. 02-2558 Filed 2-1-02; 8:45 am]
BILLING CODE 4910-06-P