E9-22578. 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.

Ballard Terminal Railroad Company, LLC (Waiver Petition Docket Number FRA-2009-0029)

The Ballard Terminal Railroad Company, LLC (BTRC) of Seattle, WA, has petitioned for a permanent waiver of compliance for one locomotive (BDTL 98) and one caboose (MSN 10056) from the requirements of the Railroad Safety Glazing Standards, Title 49 CFR part 223, which require certified glazing in all windows. BTRC operates two small freight railroads, namely 3-mile long Ballard Terminal Railroad (BDTL) since 1998, and 5-mile long Meeker Southern Railroad (MSN) since 2000, in western Washington state. BTRC states that they have been completely accident and incident free.

The subject locomotive BDTL 98 on the BDTL line is a 1940 EMC SW-1 600 hp switching locomotive whose side windows conform to Title 49 CFR 223.11 glazing requirements; however, the front and rear windows do not. The front and rear windows are glazed with 1/4 inch laminated safety glass that is in good condition with no discoloration. BTRC states that this very early EMC locomotive has different window geometry from the “post war” locomotives of the same series. As such, the cost of a set of custom windows meeting FRA requirements is basically prohibitive for their small company.

The subject caboose MSN 10056 on the MSN line is an ex-BNSF all steel caboose with cupola that is used primarily as a “shoving platform.” BTRC states that when they acquired the caboose, all of the windows were covered up with sheet metal. Upon removal of the sheet steel, it was discovered that all of the windows were old and damaged such that they were nearly opaque. Due to uncertainty of spare parts and cost considerations, BTRC replaced all of them with 1/4 inch laminated safety glass which does not comply with Title 49 CFR 223.13 glazing requirements. However, the installed glass remains in good condition with no discoloration.

BTRC states that they operate in a primarily agricultural area, which is a very benign environment. In 8 years, they have not experienced any rock throwing or shooting damage to the equipment. BTRC's maximum operating speed is 10 mph, and their trains average five cars in length. BTRC further states that the expense of retrofitting the subject locomotive and caboose to comply with FRA Safety Glazing Standards would impose an undue financial burden on their small company to protect against situations they do not encounter.

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-2009-0029) 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 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 September 14, 2009.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.