[Federal Register Volume 76, Number 221 (Wednesday, November 16, 2011)]
[Notices]
[Pages 71117-71119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29616]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

[Docket Number FRA-2011-0077]


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.
    The National Passenger Railroad Corporation (Amtrak) hereby 
petitions FRA for a temporary waiver from 49 CFR part 214, subpart C, 
seeking relief from the requirement to provide Roadway Worker 
Protection (RWP) for contractors and contractor employees (herein 
referred to as ``workers'') using hand tools within the 4-foot fouling 
envelope of a track in publicly accessible areas, specifically 
passenger station platforms. The waiver is sought for the express 
purpose of performing manual snow removal with hand tools, which extend 
into the tactile warning area of a passenger platform (if equipped with 
a tactile warning strip) or other warning areas beyond and including a 
similarly positioned and contrasting painted line (if not equipped), 
while the worker is behind the area and in a position of safety. The 
tactile warning area is the area beyond and including a 24-inch wide 
strip of truncated domes that is installed along the full length of the 
public use areas of a passenger platform (pursuant to the Americans 
with Disabilities Act (ADA) standards) and that is generally positioned 
approximately 24 inches from the outside of the nearest rail. The 
request for relief from the regulation is limited to platforms outside 
of the Northeast Corridor at stations for which Amtrak is not the 
operating railroad.
    Section 214.7 defines fouling a track as ``the placement of an 
individual or an item of equipment in such proximity to a track that 
the individual or equipment could be struck by a moving train or on-
track equipment or, in any case, is within four feet of the field side 
of the near running rail.'' In the case of a platform, 4 feet from the 
field side of the rail generally encompasses the space between the 
outside of the nearest rail and the platform plus the width of a 24-
inch ADA-required tactile strip.
    Currently, workers performing passenger station snow removal 
activities, which breach the tactile (or painted) warning area with 
hand tools, must be provided with on-track safety in accordance with 
the RWP rule, while pedestrians and the riding public may move 
throughout the system in the very same areas without restriction.
    Contractor workers performing snow removal on passenger service 
infrastructure not owned by Amtrak are not qualified to provide on-
track safety. Thus, workers may remove snow from platform areas behind 
the tactile (or paint-delineated) warning area, but must not remove 
snow in the area of the tactile (or paint-delineated) warning area 
without first establishing on-track safety in accordance with the RWP 
rule. As a result of this requirement, hazardous conditions on 
platforms remain unaddressed. Amtrak believes that the proposed 
``Alternate Protection'' protocol used for specific snow removal 
activities will permit workers to address unsafe platform conditions 
from a safe location in a safe and timely manner without the worker 
being struck by a train while occupying the area of the platform behind 
the tactile warning strip or contrasting painted line.

[[Page 71118]]

    Amtrak believes that an improvement to the safety of the riding 
public will take place in the form of faster response times, reduced 
hazardous walking conditions, and reduced passenger incidents should 
the waiver be granted. Amtrak submits that it is logical to assume that 
removing snow and ice from the tactile or paint-delineated warning 
areas of passenger station platforms would result in a reduction in 
slips, trips, and falls due to inclement weather at station platforms.
    Amtrak also believes that no negative impact to the safety of 
workers removing snow will occur under the plan based upon examination 
of publicly-available data regarding passenger and employee injuries 
and fatalities on railroad passenger station platforms. Rail transit 
systems, outside of the umbrella of FRA regulation, currently do not 
have prescriptive requirements regarding contractor and employee 
protection when removing snow from station platforms. Under Federal 
Transit Administration oversight, no consistent RWP requirements exist 
nationwide. Such systems are permitted to perform snow removal 
activities at station platforms in accordance with protection 
requirements that the transit agency itself adopts. Many rail transit 
agencies have adopted policies similar to the practices that Amtrak 
proposes in this waiver, with no appreciable difference in worker 
injuries and fatalities on station platforms when compared to FRA data.
    Amtrak conducted a comparative data analysis between transit 
systems and passenger railroads regarding worker injuries in station 
areas, as well as compared the average rate of injury to patrons within 
the transit industry to that of Amtrak's claimed injuries. The rate of 
worker injuries on transit systems in areas that regularly deal with 
climatic conditions, such as snow and ice, is consistent with (or in 
many cases below) the accident/injury rates of FRA-regulated passenger 
railroads in similar areas. While acknowledging that its analysis was 
not a comparison between data collected under the exact same conditions 
and criteria, Amtrak submits that there is value in comparison between 
similar modes of transportation. Amtrak believes that the program for 
alternate protection for snow removal at station platforms, as 
proposed, (1) Will provide an equivalent level of safety for workers 
who manually remove snow, according to the requirements under RWP, and 
(2) will improve the safety of the riding public. As such, Amtrak 
believes that relief from the application of fouling protection 
required when manually removing snow from a publicly accessible station 
platform is in the public's interest and consistent with railroad 
safety.
    Slippery or snow-covered platform surfaces pose a significant risk 
to passengers, especially if such conditions exist close to the 
platform's edge. This potential risk continues so long as the slippery 
or snow-covered surfaces exist. In contrast, the potential risk to 
workers is intermittent due to dependence upon the presence of a train. 
Considering the differing levels of potential risk from both time-based 
and quantity-based perspectives, risk to passengers is significantly 
greater than the potential risk to workers.
    Amtrak believes the RWP regulation was not written with 
consideration of risk to the traveling public, which occurs 
continuously so long as hazardous conditions due to snow-covered 
surfaces exist. Rather, the regulation is strictly focused on risk 
reduction for railroad workers. Passenger railroads are obligated to 
assign equal importance to the safety of passengers and workers. Amtrak 
believes that under the proposed procedures, workers will not be 
exposed to greater risk than they would under the on-track safety 
requirements (under the RWP rule) while manually removing snow; and 
passenger risk will be greatly reduced.
    To ensure that workers using the alternate program to remove snow 
from platforms are not exposed to undue risk, the following conditions 
are proposed by Amtrak in its alternate program:
    a. Workers are not permitted to use powered equipment, such as snow 
blowers, to clear the tactile edge area of snow without appropriate on-
track safety in accordance with the RWP rule.
    b. Any need for the worker to breach the strip or come within the 
4-foot clearance envelope to push snow from the platform will require 
on-track safety in accordance with the RWP rule.
    c. Amtrak will train workers to be constantly alert for the 
movement of trains and to remain in areas of the platform, which are 
inaccessible to trains.
    d. The Amtrak training program for alternate snow removal 
protection details the conditions under which on-track safety in 
accordance with the RWP rule is needed, as well as the explicit 
conditions under which workers may occupy the station areas behind the 
tactile edge to remove snow.
    e. The training program explains the purpose of a good faith 
challenge as well as how to execute a challenge should work need to be 
performed that requires on-track safety in accordance with the RWP rule 
or is otherwise thought to be unsafe by the worker.
    f. Workers must demonstrate an understanding of the types of 
conditions that would require protection above and beyond that which 
would be permitted under this proposal, as well as the methods to 
execute a good faith challenge.
    g. Prior to any work commencing, workers must hold a job briefing.
    h. Workers removing snow from station platforms under alternate 
snow removal protection will not be permitted to work in single-man 
crews.
    Under the alternate snow removal protection procedures, work groups 
would be required to appoint a safety monitor. The safety monitor would 
be required to conduct the job briefing and to maintain a means to 
contact Amtrak personnel as necessary. Safety monitors would observe 
all work for compliance with the requirements of the protection 
procedures and would ensure that all work would stop in the presence of 
a train.
    Amtrak is dedicated to ensuring the safety of the riding public, as 
well as the safety of contractors and employees. Amtrak does not wish 
to seek a waiver from the RWP requirements when a worker is fouling the 
track in order to remove snow from areas other than the platform (e.g., 
clearing an inner-track walkway, or when a worker is required to breach 
the tactile edge with his or her person).
    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-
2011-0077) and may be submitted by any of the following methods:
     Web site: http://www.regulations.gov. Follow the online 
instructions for submitting comments.
     Fax: (202) 493-2251.
     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.

[[Page 71119]]

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 any written 
communications and comments received into any of our dockets by the 
name of the individual submitting the document (or signing the 
document, 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 (65 FR 19477), or at 
http://www.dot.gov/privacy.html.

    Issued in Washington, DC, on November 9, 2011.
Robert C. Lauby,
Deputy Associate Administrator for Regulatory and Legislative 
Operations.
[FR Doc. 2011-29616 Filed 11-15-11; 8:45 am]
BILLING CODE 4910-06-P