
[Federal Register: August 12, 2009 (Volume 74, Number 154)]
[Notices]               
[Page 40640-40642]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au09-114]                         

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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

[[Page 40641]]

involved, the nature of the relief being requested, and the 
petitioner's arguments in favor of relief.

City of Pendleton, Oregon (Waiver Petition Docket Number FRA-2008-0120)

    The City of Pendleton, Oregon (City), seeks a permanent waiver of 
compliance from a certain provision of the Use of Locomotive Horns at 
Highway-Rail Grade Crossings, 49 CFR part 222. The City is seeking a 
waiver from the rule that requires a train-automobile collision that 
occurred on June 12, 2006, be counted as a ``relevant collision'' for 
the purpose of determining whether there has been a ``relevant 
collision'' pursuant to 49 CFR 222.41(a)(1)(iii). Specifically, the 
City is seeking a waiver from the provisions of 49 CFR 222.9, wherein 
``relevant collision'' is defined. The waiver petition requests that 
FRA stay any action to revoke the City's quiet zone until 120 days 
after the final decision on this waiver to allow the City to address 
supplemental safety measures that could be installed if the waiver is 
denied.
    49 CFR 222.9 defines a relevant collision as follows: Relevant 
collision means a collision at a highway-rail grade crossing between a 
train and a motor vehicle, excluding the following: a collision 
resulting from an activation failure of an active grade crossing 
warning system; a collision in which there is no driver in the motor 
vehicle; or a collision in which the highway vehicle struck the side of 
the train beyond the fourth locomotive unit or rail car. With respect 
to the Pre-Rule Partial Quiet Zones, a relevant collision shall not 
include collisions that occur during the time period within which the 
locomotive horn is routinely sounded.
    The City received a letter from FRA dated August 15, 2008, 
informing that the annual risk review required under 49 CFR 
222.51(b)(1) for its quiet zone had revealed that the Quiet Zone Risk 
Index (QZRI) was 20,454.05 and that the current value of the National 
Significant Risk Threshold (NSRT) was 17,610. Since the QZRI was less 
than twice the NSRT (35,220) and there had been a relevant collision on 
June 12, 2006, at the S.W. Frazier Avenue and 9th Street S.W. crossing 
(DOT Number 809 011 C), the quiet zone was no longer qualified per 49 
CFR 222.51(b)(2)(iii) and that the quiet zone would terminate in 6 
months unless the City took the steps required in 49 CFR 222.51(b)(4). 
In order to retain its quiet zone, the City would be required to 
provide FRA within 6 months a written commitment to lower the risk in 
the quiet zone and detail the specific steps that would be taken. The 
City would have to implement the steps to reduce the risk no later than 
August 15, 2011, or the quiet zone would be terminated. The quiet zone 
would have remained qualified if the collision of June 12, 2006, had 
not been deemed a relevant collision.
    The City claims that due to the unusual circumstances of this 
collision, it should not be classified as a relevant collision. If this 
was the case, then the quiet zone would still be in compliance and the 
City would not have to take the actions required in 49 CFR 
222.51(b)(4).
    The collision in question occurred at the S.W. Frazier Avenue and 
9th Street S.W. crossing. S.W. Frazier Avenue is a one-way street with 
traffic traveling east that has flashing lights and gates that 
completely block the street when the gates are lowered. The flashing 
lights and gates are located immediately west of the track. 9th Street 
S.W. is a two-way street that runs north and south and has flashing 
lights and a gate for northbound traffic only. The Union Pacific 
Railroad's (UP) track runs diagonally through the intersection of the 
two streets from the southeast to the northwest with a slight curve 
towards the north. The crossing is within the City's quiet zone.
    The vehicle that was involved in the collision was backing out of a 
driveway located on the north side of S.W. Frazier Avenue immediately 
east of the UP's tracks. According to a citizen witness, the conductor 
and engineer, the vehicle backed out of the driveway and stopped on the 
crossing immediately before the locomotive entered the crossing. The 
engineer and conductor stated that the train was traveling between 23 
and 25 miles per hour. The locomotive was approximately 20 feet from 
the crossing when the vehicle began to back out and the vehicle was 
traveling at a high rate of speed before stopping on the crossing. The 
engineer then sounded the locomotive's horn and initiated an emergency 
application of the train's brakes. The driver indicated that she had 
backed out farther than anticipated due to her foot slipping off the 
clutch. She stated that she tried to put the car into a forward gear 
and ``missed it.'' The vehicle was struck by the lead locomotive while 
the vehicle was stopped on the crossing. The automatic warning devices 
(flashing lights and gates) that were located on the west side of the 
tracks operated as intended.
    The City argues the presence or absence of additional safety 
measures on this, or any other crossing in the quiet zone, would not 
have affected this collision. According to the police report, the train 
horn did sound but the driver did not respond. The City feels that the 
presence of train horns at this or other crossings in the vicinity 
would not likely have changed the incident. The City states that where 
the collision is independent of the train horn or supplement safety 
measures, the collision should not be considered a ``relevant 
collision.''
    The City states that it made several efforts to obtain UP's support 
for the waiver but failed to reach an agreement and thus was not able 
to file a joint waiver. The City sent an e-mail on October 2, 2008, to 
UP's Manager of Industry and Public Projects that has responsibility in 
Oregon, to notify the railroad of its intent to file a waiver and 
asking for help in identifying the appropriate contact on the railroad 
to whom discussions could be directed. The request was resent on 
October 8, 2008, via fax along with a draft copy of the waiver. On 
October 9, 2008, the City had a conversation with the manager who 
stated that he could not state at that time whether the railroad would 
join in the application. The City tried to contact him again on October 
14, 2008, without success.
    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-
2008-0120) 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

[[Page 40642]]

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 6, 2009.
Grady C. Cothen, Jr.,
Deputy Associate Administrator for Safety Standards and Program 
Development.
[FR Doc. E9-19277 Filed 8-11-09; 8:45 am]

BILLING CODE 4910-06-P
