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 §§ 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 § 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 § 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), 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 .