Petition for a Waiver of Compliance, 56217-56219 [E6-15754]

Agencies

• Federal Railroad Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 186 (Tuesday, September 26, 2006)]
[Notices]
[Pages 56217-56219]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-15754]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration


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.

[[Page 56218]]

Union Pacific Railroad Company

[Waiver Petition Docket Number FRA-2006-25862]

    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

[[Page 56219]]

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 https://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 https://dms.dot.gov.

    Issued in Washington, DC on September 20, 2006.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program 
Development.
 [FR Doc. E6-15754 Filed 9-25-06; 8:45 am]
BILLING CODE 4910-06-P