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###### Department of Transportation

###### Federal Railroad Administration

                    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                           ( print 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                           ( print 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