E9-21504. 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-2009-0053

The City of Vancouver, Washington (City) seeks a temporary waiver of compliance from certain provisions of the Use of Locomotive Horns at Highway-Rail Grade Crossings, 49 CFR Part 222. The City intends to establish a New Partial Quiet Zone under the provisions of 49 CFR 222.39. Specifically, the City is seeking a waiver from: (1) The provisions of 49 CFR 222.9, definition of a New Partial Quiet Zone so that the hours of the new partial quiet zone will be from 10 p.m. to 6 a.m.; and (2) the provisions of 49 CFR 222.35(b)(1) so that the active grade crossing warning devices at Jefferson Street are not required to be equipped with constant warning time devices.

49 CFR 222.9, definition of New Partial Quiet Zone reads as follows: “New Partial Quiet Zone means a segment of a rail line within which is situated one or a number of consecutive public highway-rail crossings at which locomotive horns are not routinely sounded between the hours of 10 p.m. and 7 a.m., but are routinely sounded during the remaining portion of the day, and which does not qualify as a Pre-Rule Partial Quiet Zone or an Intermediate Partial Quiet Zone.”

49 CFR 222.35(b)(1) reads as follows: “Each public highway-rail grade crossing in a New Quiet Zone established under this part must be equipped, no later than the quiet zone implementation date, with active grade crossing warning devices comprising both flashing lights and gates which control traffic over the crossing and that conform to the standards contained in the MUTCD. Such warning devices shall be equipped with constant warning time devices, if reasonably practical, and power-out indicators.” The purpose of constant warning time devices (CWT) is so that the crossing warning devices provide the same amount of warning time regardless of the speed of the approaching train.

The City is in the process of establishing a new partial quiet zone along the BNSF Railway's (BNSF) Northwest Division, Fallbridge Subdivision, which would extend from approximately Milepost 9.95 to Milepost 10.51. The new partial quiet zone will consist of three public at-grade crossings: West 11th Street (DOT #092276S), Jefferson Street (DOT #090249N), and West 8th Street (DOT #090248G). The City seeks a waiver from the defined hours for a new partial quiet zone (10 p.m. to 7 a.m.) in order to have the new partial quiet zone's hours to be from 10 p.m. to 6 a.m. The City states that the change is sought to provide noise relief during the downtown residents and convention visitors prime sleeping periods while minimizing the effect on peak commercial traffic movements or safety. The City plans to utilize a temporary closure supplementary safety measure at the West 8th Street crossing and that there would be virtually no adverse impact on highway traffic if the street was open to traffic from 6 a.m. to 10 p.m.

The City's new partial quiet zone plan includes the use of medians at the Jefferson Street grade crossing. The medians will be alternative safety measures as the southern median will only extend 50 feet from the gate. Jefferson Street is currently equipped with automatic warning devices consisting of standard flashing lights with gates. However, the warning devices are not equipped with CWT. The City states that the use of CWT at this crossing is not reasonably practical at this location since the crossing will be closed by December 31, 2011, as part of the City's Waterfront Access project.

The City is requesting a temporary waiver through the end of 2011, at which time the crossings will be closed as part of the City's Waterfront Access project.

The City states that it works closely with BNSF on a variety of projects and believes that it has a good working relationship with the railroad. The City contacted BNSF immediately concerning the proposed waivers and that the BNSF did not express any reservation with the proposed new partial quiet zone hours of 10 p.m. to 6 a.m. The City requested input from BNSF on the quiet zone improvements proposed for Jefferson Street but had not received a response. The City does not anticipate BNSF support for the portion of the waiver concerning CWT and decided to file the waiver petition alone in order to expedite the process. It also states that the lack of a joint submission will not compromise public safety or will applying the requirement of a joint submission be likely to significantly contribute 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-2009-0053) 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 August 31, 2009.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.