[Federal Register Volume 69, Number 183 (Wednesday, September 22, 2004)]
[Notices]
[Pages 56820-56821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21242]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Waiver Petition Docket Number FRA-2003-17989]


Canadian Pacific Railway; Supplementary Notice of Waiver Request; 
Notice of Public Hearing; and Extension of Comment Period

    On July 19, 2004, FRA published a notice in the Federal Register 
announcing Canadian Pacific Railway Company's (CPR) request to be 
granted a waiver of compliance from certain provisions of the Railroad 
Operating Practices regulations, 49 CFR part 218, regarding blue signal 
protection of workers, on behalf of themselves and their U.S. 
subsidiaries the Delaware & Hudson and the Soo Line Railroads. See 68 
FR 43047. Specifically, CPR 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.
    Both Sec. Sec.  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 221.16 of title 49, Code of Federal 
Regulations, permits inspection of an EOT which is on a train standing 
on a main track after establishing contact with the engineer in charge 
of the movement, but does not authorize removal or battery replacement. 
Section 218.22(c)(5) specifically identifies those functions that may 
be performed by a utility employee without providing the blue signal 
protection required by 49 CFR part 218. One of the enumerated functions 
is the inspection, testing, installation, removal or replacement of an 
EOT device.
    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 for a utility employee since this task is a service 
and repair to the device and does not constitute the inspection, 
testing, installation, removal or replacement of the device. Therefore, 
the only way a utility employee 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.
    CPR contends that safety would be enhanced if the individual was 
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 is handling a small NiCad battery, as opposed to lifting 
the EOT device that weighs 32-34 pounds. It is CPR's position, 
supported by the BNSF waiver (FRA Docket No. 2001-10660), that changing 
EOT batteries in situ requires less time, places the employee in less 
immediate danger, and creates less physical strain than removing and 
replacing the entire EOT. CPR sought to make it clear that this waiver 
request is intended to cover only train and yard employees working on 
their own assigned equipment and properly assigned transportation 
utility employees. It is not intended to cover mechanical or other 
employees who clearly require blue flag protection to work in or under 
equipment.
    The plain language of the definition of ``worker,'' contained in 
Sec.  218.5, excludes members of train and yard crews from the blue 
signal protection provisions, contained in 49 CFR part 218, except when 
assigned to inspect, test, repair, or service railroad rolling 
equipment that is not part of the train or yard movement they have been 
called to operate. Thus, in light of the express exception to the 
definition of ``worker'' contained in Sec.  218.5, the blue signal 
protection provisions simply do not apply to situations involving the 
replacement of EOT batteries by train and engine employees on equipment 
they are called to operate. Accordingly, FRA concludes that CPR's 
request for a waiver to permit train and yard crew members to perform 
such duties on equipment they are called to operate should be dismissed 
as unnecessary. Any party seeking the legal basis for this conclusion 
should submit their request to FRA's Office of Chief Counsel, Federal 
Railroad Administration, RCC-10, Mail Stop 10, 1120 Vermont Avenue, 
NW., Washington, DC 20005. FRA will communicate separately with BNSF 
concerning Docket No. 2001-10660.
    As a result of the comments received by FRA concerning this waiver 
petition, FRA has determined that a public hearing is necessary before 
a final decision is made on this petition. Accordingly, a public 
hearing is hereby set to begin at 9 a.m. on October 13, 2004, at the 
Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, 
DC 20005, in the 7th floor conference room. Interested parties are 
invited to present oral statements at this hearing.
    The hearing will be informal and will be conducted in accordance 
with FRA's Rules of Practice (49 CFR part 211.25) by a representative 
designated by FRA. FRA's representative will make an opening statement 
outlining the scope of the hearing, as well as any additional 
procedures for the conduct of the hearing. The hearing will be a non-
adversarial proceeding in which all interested parties will be given 
the opportunity to express their views regarding this waiver petition, 
without cross-examination. After all initial statements have been 
completed, those persons wishing to make a brief rebuttal will be given 
an opportunity to do so in the same order in which initial statements 
were made.
    FRA further extends the comment period in this proceeding through 
October 22, 2004, and reserves the right to announce a further 
extension of the comment period exclusively for the purpose of 
receiving post-hearing submissions should that appear appropriate in 
the judgment of the chair based on testimony received and questions 
posed by the FRA panel. All communications concerning these proceedings 
should identify the appropriate docket number (e.g., Waiver Petition 
Docket Number FRA-2003-17989) and must be submitted to the Docket 
Clerk, DOT Docket Management Facility, Room PL-401 (Plaza Level),

[[Page 56821]]

400 7th Street, SW., Washington, DC 20590. 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 15, 2004.
Grady C. Cothen, Jr.,
Acting Associate Administrator for Safety.
[FR Doc. 04-21242 Filed 9-21-04; 8:45 am]
BILLING CODE 4910-06-P