Description: Safety News - 02/14/2000 - BMWE Opposes Waiver for Canadian Pacific Railway.

FRARWS
The Docket Clerk
DOT Central Docket Management System
U.S. Dept. of Transportation, Room PL 401
400 Seventh Street, S.W.
Washington, D.C. 20590-0001

Re: Waiver Petition Docket Number FRA-1999-6639

Dear Sir or Madam:

The Brotherhood of Maintenance of Way Employes (BMWE) opposes the granting of a permanent waiver of compliance from the requirements of 49 CFR Parts 215.3 (c)(3) and 215.305 to the Canadian Pacific Railway (CPR) in the above-referenced docket.

Section 215.3(c)(3) currently excludes maintenance of way equipment from compliance with Section 215 when it is not used in revenue service and is stenciled in accordance with Section 215.305. Section 215.305 requires that maintenance of way equipment be stenciled with the letters "MW" in clearly legible print at least 2 inches in height on each side of the car. CPR states that "Section 19.1 of the Canadian rules exclude maintenance of way equipment when stenciled with the letters 'RSE'." CPR and its subsidiaries, Delaware and Hudson and Soo Line, therefore request a permanent waiver from compliance to allow CPR marked service equipment to be excluded from the requirements of Part 215.

BMWE opposes CPR's request for a number of reasons. First, an important distinction between the U.S. and Canadian rules is that Section 19.1 of the Canadian Railway Freight Car Inspection and Safety Rules exempt a broad category of "railway company service equipment cars," provided "RSE" is stenciled or otherwise displayed on each side of the car. The "RSE" designation under Canadian rules include, but is not specific to, maintenance of way cars. Thus, BMWE considers the CP waiver petition to be overly broad in that it is not specific and would be applicable to literally thousands of "railway company service equipment cars" which potentially could end up in service in the U.S.

Also, without prejudice to our position that all freight cars should be subject to the minimum standards set forth in Part 215, we oppose the use of the Canadian markings primarily because such markings would generally be unfamiliar, and therefore meaningless, to the majority of railroad workers in the U.S. FRA's requirement that "equipment be stenciled or marked "MW" in clearly legible letters at least 2 inches in height on each side of the car" is meant to provide clear and unambiguous notice to railroad personnel that use of the car is restricted due to its exemption from the requirements of Part 215. Train crews and engineering and mechanical department employees in the U.S. are trained to recognize and understand the "MW" marking and its designation that a car so marked is exempt from the minimum safety requirements of Part 215 and prohibited from use in revenue service. U.S. rail workers are not trained to recognize and understand the Canadian "RSE" marking and CPR's waiver request does not at all address the issue of employee training.

Under the Part 215.3(c)(3) exemption, freight cars stenciled in accordance with Part 215.305 are exempt from pre-departure and periodic inspection requirements for freight cars. MW stenciled cars are also exempt from the minimum safety requirements of Part 215 governing the inspection and repair of defective car bodies, wheels, trucks, axles, bearings, couplers, uncouplers, cushioning devises and other suspension, draft and car body defects. Thus, it is imperative to railroad safety that railroad personnel recognize an exempt car's markings and equate that recognition with the service restrictions mandated in Part 215.3(c)(3).

Allowing the Canadian designation "RSE" to substitute for the widely recognized MW stenciling requirement would obscure the car's designation as non-compliant (215 exempt) equipment not meeting the minimum safety requirements of Part 215 and prohibited from use in revenue service. The resulting confusion could easily lead to non-215 compliant cars stenciled with the unfamiliar Canadian marking "RSE" to be inadvertently utilized in revenue service on a U.S. railroad. U.S. rail workers are totally unfamiliar with the Canadian "RSE" marking and 49 CFR Part 215 does not contain any cross-reference to the Canadian RSE marking. Thus, the petition for waiver should be denied due to a widespread lack of recognition of "RSE" markings in the U.S. and the increased potential for unintentional utilization of Canadian "RSE"exempt freight cars in revenue service or other high-speed operations.

Also, as a matter of background, proposed revisions to Part 215 published in a Notice of Proposed Rulemaking (Docket No. RSFC-7, Notice 1) dated March 10 1994 (59 FR 11238) have not yet been acted upon. In that NPRM, FRA proposed to add to the present regulation an additional condition which must be met before a freight car in maintenance of way service can be operated without complying with Part 215: the equipment must be operated at a speed of less than 20 MPH. BMWE continues to support this proposed revision to Part 215.3(c)(3) to close a current loophole in the regulation which does not explicitly prohibit 215 exempt equipment from operating at track speed in non-revenue service. This is a recognized safety issue in the U.S. and we, therefore, oppose CPR's waiver request due to the increased likelihood that "RSE" marked cars could inadvertently end up in revenue service trains or other high-speed operations unintended for MW exempt cars.

According to the supplemental information published by FRA in pending Docket No. RSFC-7, Notice 1,

"FRA has isolated at least 26 accidents involving maintenance of way stenciled cars between January 1, 1980 and July 1, 1987 in which defective components, which would have otherwise have been regulated by these standards, were the probable cause of the accident. These accidents resulted in property damage exceeding $1 million. Because of data limitations regarding identification of maintenance of way cars, the study could not include any maintenance of way cars entering the fleet since 1984. That limitation, together with the fact that our field inspections forces report increasing observation of such cars used in revenue trains, leads to the conclusion that the risk is substantial today and likely to grow in the future." (FR 59 11239, dated 3/10/94)

Furthermore, in our January 30, 1998 comments to Docket No. RSFC-7, Notice No. 1, BMWE requested that FRA additionally amend Part 215 to prohibit employees or personnel from riding on, occupying, or being transported on freight cars or equipment which do not meet all the safety requirements of Part 215.

FRA has publicly recognized that the current MW exemption under 215.3(c)(3) contains an anomaly which allows exempt cars to be operated at track speed in non-revenue service. FRA field inspection forces have also reported increased observation of exempt cars used in revenue trains. Thus, it makes little sense to allow a permanent waiver of compliance from FRA stenciling requirements which could lead to inadvertent placement of an additional number of exempt "RSE" marked cars in revenue service or other high-speed operations. Additionally, concerns related to recognition of service limitations applicable to "RSE" marked cars in the U.S., as well as concerns for the safety of railroad personnel who must work on and around this equipment, makes granting of this waiver ill-advised. BMWE urges the Federal Railroad Administration to reject CPR's request for a permanent waiver of compliance from the requirements of Part 215.3 (c)(3) and further urges FRA to proceed with its proposed revisions to Part 215 based upon the NPRM and comments filed in Docket No. RSFC-7, Notice No. 1.

Respectfully,
President