[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