28073.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE PETITION OF IDAHO TRANSPORTATION DEPARTMENT FOR AMENDMENT TO AN IPUC RAILROAD CLEARANCE RULE. )
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) CASE NO. 31-7101-9901

ORDER NO. 28073

On January 28, 1999, the Commission received a request from the Idaho Transportation Department (ITD) asking the Commission to amend one of its Railroad Clearance Rules. IPUC Rule 201.02 requires an overhead clearance of 23 feet 6 inches for structures over railroad tracks installed or constructed after September 1, 1980. IDAPA 31.71.01.201. According to ITD’s request, the Federal Highway Administration requires a clearance of 23 feet and the major railroad companies in Idaho require either a clearance of 22 feet 6 inches or 23 feet. The Department requested that the Commission change its rule to lower the 23 foot 6 inch requirement. ITD recommended that the rule allow for a “vertical clearance required by the owner of the railroad tracks or 22 feet 6 inches, whichever is greater.”
Idaho Code § 67-5230 allows a person or entity to petition for the adoption, amendment or repeal of a rule. When a request is received, the state agency must either deny the request or initiate a rulemaking proceeding. The Commission has determined to initiate an informal negotiated rulemaking, and on April 22, 1999, issued a Notice of Petition and Notice of Modified Procedure to request comments on ITD’s proposal. If no objections to the proposal are received and the Commission agrees with the Department’s request, a final order will be adopted proposing the requested rule change. This process qualifies as an “informal” negotiated rulemaking pursuant to Idaho Code § 67-5220 and IDAPA 04.11.01.800-810.
During the comment period provided in the Notice, written comments were filed only by the Burlington Northern and Santa Fe Railway Company (BNSF). BNSF stated that it supported ITD’s request to lower the minimum vertical clearance but requested that the minimum clearance be 23 feet rather than 22 feet 6 inches. BNSF stated that “a minimum clearance of 23 feet would allow railroads an additional 6 inches above the 22 feet 6 inches to allow for future grade changes as a part of normal construction.”
Following conversations between Staff and BNSF, it became clear to Staff that BNSF’s comments and recommendation resulted from a misunderstanding of the proposed rule change. Staff clarified the intent of the rule change for BNSF in a letter, and BNSF subsequently indicated it supports the rule change as proposed by ITD. Staff therefore recommended that Railroad Clearance Rule 201.02 be amended as proposed in the Notice of Petition and Notice of Modified Procedure.
Based on the record in this case, we find that IPUC Railroad Clearance Rule 201.02 should be amended as proposed by ITD. Accordingly, the Commission will initiate the formal rulemaking procedure by forwarding to the Idaho State Rules Coordinator this Order and information to amend Rule 201.02.
O R D E R
IT IS HEREBY ORDERED that IPUC Railroad Clearance Rule 201.02 shall be amended to eliminate the vertical clearance requirement of 23 feet 6 inches, and replace it with “the vertical clearance required by the owner of the railroad tracks or 22 feet 6 inches (22’ 6”), whichever is greater.”
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. 31-7101-9901 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this order or in interlocutory Orders previously issued in this Case No. 31-7101-9901. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61-626.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of June 1999.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Myrna J. Walters
Commission Secretary

vld/O:71019901_ws2

ORDER NO. 28073 1

Office of the Secretary
Service Date
June 23, 1999