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[Federal Register Volume 74, Number 120 (Wednesday, June 24, 2009)]
[Notices]
[Pages 30204-30205]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14832]

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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) 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.

BNSF Railway Company

[Waiver Petition Docket Number FRA-2009-0048]

    The BNSF Railway Company (BNSF) requests a waiver of compliance 
from the requirements of 49 CFR Part 240, Qualification and 
Certification of Locomotive Engineers, specifically, Sec.  240.129. 
BNSF's specific request is for a waiver from the requirement that 
locomotive engineers have annual operational performance evaluations as 
provided under the procedures pursuant to Sections 240.129(b), (c), and 
(e).
    Section 240.129(b) requires a railroad to ``have procedures for 
monitoring the operational performance of those it has determined as 
qualified as a locomotive engineer.'' Section 240.129(c) provides the 
requirements of the procedures referenced under (b), including that the 
engineer ``shall be annually monitored (check ride) by a Designated 
Supervisor of Locomotive Engineers'' and is either ``accompanied by the 
designated supervisor'' or ``has his or her train handling activities 
electronically recorded.'' BNSF has a program to comply with these 
requirements. Section 240.129(e) requires the railroad to have an 
operational testing and monitoring program in place, and to perform at 
least one unannounced test each calendar year. This program must be 
designed to monitor compliance with railroad operating rules and other 
directives, and to examine and test such compliance.
    BNSF is currently working to implement an automatic control system 
that will allow the engineer certification database to connect directly 
to the crew database. By connecting these systems, BNSF will then be 
able to constantly validate information to safeguard against engineers 
falling outside of the provisions of Section 240.129. Once this system 
is fully functioning, individuals who are not current on the check-ride 
requirement or operational testing will automatically be prevented from 
operating a locomotive until such time as they meet the requirements of 
this rule. BNSF plans to have this system in place and fully functional 
by the end of August 2009. As a result, the relief granted under this 
waiver request will neither lead to a degradation of safety nor to any 
conflict with the intent of the rule.
    BNSF has several employees certified under 49 CFR Part 240 for 
service who are not currently performing the duties that require this 
certification. Some of these individuals have bid on and taken 
positions in other service, while others have been furloughed. As a 
result, these individuals are not in a position to operate locomotives 
as an engineer. BNSF requests relief from Section 240.129 to avoid 
having to perform operational performance evaluations on individuals 
who are currently out of locomotive engineer service. Waiving 
performance of these evaluations on individuals not currently active as 
locomotive engineers is consistent with the general application of Part 
240, which applies to ``any person who operates locomotives.''
    These individuals are not operating locomotives, nor will they be 
allowed to operate locomotives under BNSF's control system. Performance 
of the operational evaluation on individuals not currently operating 
locomotives causes safety concerns because it requires calling a person 
in for the sole purpose of an evaluation ride and also because it would 
lead to those individuals achieving technical compliance with the rule 
only to go back to prolonged service in areas other than operation of 
locomotives. BNSF's proposal provides the operational evaluation at a 
time prior to the full operation of a locomotive, in compliance with 
the rules, but also at a time that is contemporary to the return to the 
active operation of locomotives.
    BNSF requests this waiver as a method of ensuring that active 
locomotive engineers receive timely and appropriate training and 
monitoring as required for compliance with the rule. Through granting 
this waiver, BNSF believes there will be no negative impact on safety. 
As described, BNSF will not permit any locomotive engineer to operate a 
locomotive without being in full compliance with Part 240, including 
Section 129, of which relief is requested. BNSF believes this process 
will promote enhanced safety by providing for the operational 
performance evaluations to be done as these engineers return to active 
engine service such that safe operation is fresh in their minds upon 
their return.
    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-
2009-0048) 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. 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 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

[[Page 30205]]

published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

    Issued in Washington, DC on June 17, 2009.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program 
Development.
[FR Doc. E9-14832 Filed 6-23-09; 8:45 am]
BILLING CODE 4910-06-P
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