2010-11211. 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.

Pacific Locomotive Association, Inc.

The Pacific Locomotive Association, Inc. (PLA), operators of the Niles Canyon Railway Museum (NCRY), requests Special Approval to continue their operation of former freight equipment that was converted for use as tourist/excursion passenger cars or museum exhibits. NCRY operates a tourist/museum railroad on approximately 13 miles of former Southern Pacific Company right-of-way between Niles and Pleasanton, California. The museum railroad is staffed by volunteer members of PLA, a non-profit organization since 1965, for historical and educational purposes and does not interchange freight.

The petitioner requests this relief from the requirements of Title 49 CFR 215.203 Restricted cars, and 215.303 Stenciling of restricted cars, for both their freight equipment used in their tourist railroad operations, and for “photo freights,” which are non-revenue service freight trains of antiquated equipment. They provide the public with an opportunity to view freight trains of a by-gone era for educational purposes. The cars are operated at a maximum speed of 20 miles per hour and typically operate at a maximum of 40 total miles distance per day. There are four classes of cars operated on NCRY: passenger use, cabooses, freight cars, and roster cars. The cars for passenger use are open freight cars with seats designed for passenger viewing of the scenery of the Niles Canyon. These cars carry a total weight, passengers and seats, of 10 tons which is nominally 25% of their designed capacity. The cabooses are typically used for small private parties. Additional seats have been added for patrons and always have a PLA car attendant on board.

As an operating railroad museum, NCRY has restored some of their freight cars with the original paint schemes and reporting marks in an effort to interpret the history of West Coast railroading in the early 20th century. When used in “photo freight” trains, these restored antiquated freight cars are operated empty, and typically, these events are held only 2-4 times per year. In addition, some of these cars such as side-dump gondola cars are also used in maintenance-of-way service to aid in maintain the museum's railroad. The cars listed as “roster cars” are additional equipment that NCRY has available for future restoration. The equipment will be added to the active roster when the appropriate repairs or maintenance has been completed.

NCRY operates an annual seasonal train between November 27th and December 23rd, Friday-Sunday, and the remaining operations on Sundays with open cars during spring, summer, and fall. An annual “Steam Fest” is another important event held on two weekends in March. This event involves use of restricted freight equipment converted for passenger use to achieve the patron capacity necessary. The loss of seating due to the removal from service of these freight/converted freight cars would adversely impact NCRY's revenue and their ability to maintain and preserve the museum's collection.

NCRY has operated since 1988, and continues to endeavor to maintain all equipment, operations, and track to FRA's compliance standards. To date, no FRA safety violations have been issued to NCRY, and no equipment-related derailments or accidents have occurred since May 1988, when the museum began operating.

In summary, NCRY requests relief from the regulatory requirements of 49 CFR 215.203 Restricted cars, and 215.303 Stenciling of restricted cars, for antiquated freight equipment used in tourist/excursion service. A comprehensive listing of the 51 pieces of equipment is provided at “Exhibit A” in Docket Number FRA-2010-0007, including the reason(s) for their restricted use.

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-2010-0007) and may be submitted by any of the following methods:

• Web site: http://www.regulations.gov. Follow the online instructions for submitting comments.
• Fax: [phone].
• 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 document (or signing the document, 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 (65 FR 19477) or at http://www.dot.gov/​privacy.html.

Issued in Washington, DC on May 6, 2010.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.