[Federal Register Volume 75, Number 249 (Wednesday, December 29, 2010)]
[Notices]
[Pages 82138-82139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32826]
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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) received a request for a waiver of compliance with 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.
City of Vancouver, Washington
[Waiver Petition Docket Number FRA-2010-0170]
The City of Vancouver, WA (City), seeks a permanent waiver of
compliance from a certain provision of 49 CFR part 222, Use of
Locomotive Horns at Highway-Rail Grade Crossings. The City intends to
establish a New Quiet Zone under the provisions of 49 CFR 222.39.
Specifically, the City is seeking a waiver from the provisions of 49
CFR 222.25(b)(1), which discusses the treatment of private highway-rail
grade crossings located in New Quiet Zones that allow access to the
public or to active industrial or commercial sites, so that a private
crossing that provides access to three homes (one of which includes an
office for the provision of professional counseling services) does not
have to be treated in accordance with the recommendations of a
diagnostic team.
Title 49 CFR 222.25(b)(1) reads as follows: ``Private highway-rail
grade crossings that are located in New Quiet Zones or New Partial
Quiet Zones and allow access to the public, or which provide access to
active industrial or commercial sites must be evaluated by a diagnostic
team and equipped or treated in accordance with the recommendations of
such diagnostic team.''
The City is in the process of establishing a New Quiet Zone along
the BNSF Railway's (BNSF) Northwest Division, Fallbridge Subdivision,
which would extend from approximately Milepost (MP) 17.82 to MP 19.63.
The New Quiet Zone will consist of three public at-grade crossings: SE
139th Avenue (DOT 090090W), SE 147th Avenue (DOT
090092K) and SE 164th Avenue (DOT 090093S). (Note:
The City's waiver petition erroneously provides the number as DOT
090094Y, which is a private highway-rail grade crossing that
is not included in the proposed quiet zone). The New Quiet Zone also
will include in the waiver a private highway-rail grade crossing,
referred to as SE 144th Avenue (DOT 090091D) due to its close
proximity to SE 144th Avenue, even though the crossing in question is
not a public highway-rail grade crossing. This private highway-rail
grade crossing is located between the SE 139th Avenue and SE 147th
Avenue public highway-rail grade crossings. The City believes that FRA
did not have complete and accurate information regarding the nature and
use of this private crossing and therefore was not able to evaluate all
pertinent factors and information when it determined that the private
crossing allowed access to the public.
The City seeks a waiver of FRA's determination that the private
crossing at SE 144th Avenue allows access to the public due to a
resident's possession of a Home Occupation Permit under Vancouver
Municipal Code Chapter 20.860. If FRA does not change its
determination, the City seeks a waiver from complying with the
provisions of 49 CFR 222.25(b)(1) so that the private crossing does not
have to be treated in accordance with the recommendation of the
diagnostic team.
The City provides several reasons why the private crossing at SE
144th Avenue does not meet the intent of 49 CFR 222.25(b)(1) and should
be treated as a private crossing without public access. First, it
states that the crossing does not allow access to the general public as
the crossing has signs stating: ``PRIVATE RR CROSSING. NO TRESPASSING.
RIGHT TO PASS BY PERMISSION SUBJECT TO CONTROL OF OWNER THE BNSF RWY
CO.'' Only homeowners or invitees of the homeowners are given
permission to cross. ``Invitees'' would be either invited guests or
invited counseling patients. Access allowed under the Home Occupation
Permit is solely for the provision of professional counseling services
by appointment at the invitation of the home owner providing those
services at their residence. In addition, that permit limits the
maximum number of vehicle trips (customer, employee, and delivery
vehicles) to an aggregate total of not more than six per day.
Secondly, the City notes that a counseling patient's visit is
arranged by appointment so that there would be no random arrival of
patients. Members of the general public, without an invitation and
without an appointment, are not allowed. The counseling patient is
passing with the expressed permission of the owner. They are not
uninvited random members of the public. From a safety standpoint, there
is no material difference between clients invited to the counselor's
residence and social guests invited to any residence. The use of this
private crossing is minimal and highly restrictive. It is completely
different than having a park on the other side of the crossing, a beach
open to the general public, or a bait shop or similar open commercial
establishment where uninvited members of the general public would have
a reason to visit and traverse the crossing. The City believes these
are examples of the types of situations that were intended to be
covered under 49 CFR 222.25(b)(1), not the situation that exists at the
SE 144th Avenue private crossing.
Thirdly, the City states that the volume of traffic on this private
crossing is not significant by FRA highway-rail grade crossing
standards. The volume of traffic has been measured on the private
roadway and is less than the number of trips normally expected to be
generated by the three homes that it services. It was measured at 20
vehicles per day and the Institute for Transportation Engineers Trip
Generation Handbook estimates three homes should produce 30 vehicle
trips per day. The number of invited counseling patients and related
traffic is also limited under the Home Occupation Permit, referenced
above, to no more than 6 trips per day total.
The City convened two diagnostic team meetings in order to evaluate
the
[[Page 82139]]
SE 144th Avenue private crossing and to identify a low cost safety
improvement for the crossing. BNSF only supported a full supplemental
safety measure (SSM) consisting of a four-quadrant gate improvement.
This would result in significant civil improvements and associated
costs (estimated to be more than $500,000) and environmental impacts to
a nearby wetland. At the second diagnostic team meeting, input from
additional parties was sought out, and included representatives from
the Washington State Department of Transportation Rail Office, Amtrak,
and the Washington Utility and Transportation Commission. The
diagnostic team, again, was not able to reach consensus, so an SSM of a
four-quadrant gate system was recommended by BNSF as the default SSM.
The use of wayside horns was discussed but was unacceptable to the
residents in the area.
The City states that it works closely with BNSF on a variety of
projects and believes it has a good working relationship with the
railroad. The City contacted BNSF immediately regarding the proposed
waiver. The City requested BNSF's input on this waiver; however, BNSF
has indicated in a letter dated October 29, 2010, that it will not
support the City's petition. The City does not believe a joint
petition, in this particular case, significantly contributes to public
safety.
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-
2010-0170) 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 published on April 11, 2000 (Volume 65, Number 70; Pages
19477-78).
Issued in Washington, DC on December 23, 2010.
Robert C. Lauby,
Deputy Associate Administrator for Regulatory and Legislative
Operations.
[FR Doc. 2010-32826 Filed 12-28-10; 8:45 am]
BILLING CODE 4910-06-P