The amendments to this rule are being made to clarify existing language, update forms, provide a five year expiration period for railroad opening permits, and clarify that crossing permits for Department-owned rail crossings will only be granted for ...

 

DEPARTMENT OF TRANSPORTATION

RULE NOS.:RULE TITLES:
14-57.010Definitions for Use in Part II
14-57.012 Public Railroad-Highway Grade Crossings - Opening and Closure
14-57.014Rail Corridor Crossing Management
PURPOSE AND EFFECT: The amendments to this rule are being made to clarify existing language, update forms, provide a five year expiration period for railroad opening permits, and clarify that crossing permits for Department-owned rail crossings will only be granted for inactive rail corridors.
SUMMARY: These amendments clarify criteria reviewed in the issuance of a permit to allow the opening or closing of a public railroad-highway crossing. Under these revisions, an opening permit will expire after five years if the opening has not been completed. The revisions also clarify that permits for crossing a Department-owned rail corridor will only be granted if the rail corridor is inactive and the applicant demonstrates a need for the crossing.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:
The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the agency.
The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The rule does not impose any cost upon the applicant. The revised forms do not impose a fee, but requests the applicant provide information, if available, to assist the Department in determining if the permit to open or close a highway-railroad crossing would serve the public interest. The forms are primarily submitted by railroads and local governments. Any small business requesting the opening or closure of a highway-railroad crossing could defer to the Department for the information requested.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 334.044(2) FS.
LAW IMPLEMENTED: 335.141, 334.044(14), 337.242(3) and (4), 341.302(10), 339.05 FS.
IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Susan Schwartz, Assistant General Counsel, Florida Department of Transportation, 605 Suwannee Street, MS 58, Tallahassee, Florida 32399-0458, [phone], [e-mail]

THE FULL TEXT OF THE PROPOSED RULE IS:

14-57.010 Definitions for Use in Part II.

The following definitions apply to this Part II:

(1) “Applicant” means any person or entity seeking permission to open or close a public railroad-highway grade crossing, group, railroad, governmental entity, or the Department.

(2) “Application” means a Railroad Grade Crossing Application, Form 725-090-66, Rev. 01/13 03/03, incorporated herein by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-02402 and available. Form 725-090-66 can be obtained from  http://www.dot.state.fl.us/rail/ or the Central Rail Office, Department of Transportation, 605 Suwannee Street, MS 25, Tallahassee, Florida 32399-0450.

(3) “Department” means the Florida Department of Transportation.

(4) “Governmental Entity” means as defined in Section 334.03(11) 11.45(1)(d), F.S.

(5) “Public Railroad-Highway Grade Crossing” or “Crossing” means as defined in Section 335.141(1)(b), F.S.

(6) “Railroad” means as defined in Section 341.301(12) 341.301(5), F.S.

(7) “State Highway System” means as defined in Section 334.03(24) 334.03(25), F.S.

(8) “Stipulation of Parties” means a voluntary agreement between the railroad(s), the governmental entity(ies), the Department, and the applicant, if different from the aforementioned.

Rulemaking Authority 334.044(2) FS. Law Implemented 335.141, 339.05 FS. History–New 3-16-03, Amended 10-9-11, ________.

14-57.012 Public Railroad-Highway Grade Crossings – Opening and Closure.

(1) No change.

(2) Opening and Closing Public Railroad-Highway Grade Crossings. The Department will accept applications for the opening and closing of public railroad-highway grade crossings from the governmental entity that has jurisdiction over the public street or highway; any railroad operating trains through the crossing; or any other applicant that has for a public railroad-highway grade crossing provided there is in existence an agreement with a between the applicant and governmental entity to assume jurisdiction as a public crossing. The Department, on behalf of the State of Florida, will also open or close public railroad-highway grade crossings in accordance with the criteria set forth herein. Closure applications will also be accepted from individual citizens or groups, such as neighborhood associations. Opening and closure of public railroad-highway grade crossings shall be based upon Notices of Intent issued by the Department, Final Orders of the Department following administrative hearings conducted pursuant to Chapter 120, F.S., or upon a Stipulation of Parties executed by any applicant, governmental entity, the appropriate railroad, and the Department. The burden of proof for the opening or closing of a crossing is on the applicant.  A Final Order or a Stipulation of Parties concludes the application process. Acceptance of any application for processing by the Department shall not be construed as indicating the Department’s position regarding the application.  If the preliminary review of the application does not support the crossing opening or closure, or the application does not demonstrate a material change of circumstances has occurred at the crossing since the execution of a Final Order or a Stipulation of Parties, the applicant will be advised of these findings. The applicant may choose to withdraw the application or continue the process. If withdrawn, the process is concluded. An applicant may suspend an application at any time. If the applicant chooses to pursue the opening or closure of the public railroad-highway crossing, the railroad and governmental entity having jurisdiction at the location will be are notified and provided a copy of the application. The governmental entity should provide a public forum for community involvement and contact affected individuals or groups to obtain input on impacts to the community. The expense of crossing closures or openings, which shall include installation, maintenance, and replacement of grade crossing traffic control devices and grade crossing surfaces, will be the responsibility of the applicant, unless otherwise negotiated and accepted by all parties.  Unless otherwise provided in the Stipulation of Parties or Final Order, if a permitted public railroad-highway grade crossing has not been installed, inspected, approved, and opened for transportation within five (5) years of the date of execution of the Stipulation of Parties or issuance of the Final Order, the permit will be deemed expired.  The expiration of the permit to open a new public crossing does not restrict the applicant from submitting future applications for the subject public railroad-highway grade crossing or other public railroad-highway grade crossing openings or closures.

(a) Opening of Public Railroad-Highway Grade Crossings. In considering an application to open a public railroad-highway grade crossing, the following criteria will apply:

1. through 7. No change.

8. When the estimated highway traffic is 30,000 vehicles or more a day across main line tracks, an engineering and benefit-cost analysis must be performed by the applicant to determine if a grade separation is warranted.

(b) Conversion of Crossings. Conversion of private railroad-highway grade crossings to public use constitutes opening a new public crossing, and shall meet the same requirements.

(c) Active grade crossing traffic control devices meeting the criteria set forth in Rule 14-57.013 subsection 14-57.012(3), F.A.C., are required at all new public railroad-highway grade crossings. 

(d)(c) Closure of Public Railroad-Highway Grade Crossings. In considering an application to close a public railroad-highway grade crossing, the following criteria will apply:

1. through 7. No change.

(e)(d) Closure of Public Railroad-Highway Grade Crossings by the Department. The Department will initiate and maintain a crossing consolidation and closure program based on analysis of engineering and safety factors, and impact on operating efficiency to vehicle and rail traffic. Governmental entities will be notified provided the listing of potential closures for review and recommendation. Closures by the Department will be considered based upon following:

1. through 3. No change.

4. Individual Recommendations: Recommendations for closure may be submitted by federal or state Safety Inspectors, Operation Lifesaver volunteers, Railroad Safety Committees, engineers involved in “near misses,” neighborhood associations, or other persons.

(e) Grade Separation. When estimated highway traffic has 30,000 vehicles a day across main line tracks, an engineering and benefit-cost analysis must be performed by the applicant to determine if a grade separation is warranted.

Rulemaking Authority 334.044(2) FS. Law Implemented 335.141, 341.302(10) FS. History–New 3-16-03, Amended 11-13-06, 10-9-11,               .

14-57.014 Rail Corridor Crossing Management of Department–Owned Active and Inactive Rail Corridors

(1) Definitions for Use in Part III.

(a) “Applicant” means any person or local governmental entity requesting a rail corridor opening or closure on a Department-owned inactive rail corridor.

(b) “Application” means the Rail Corridor Crossing Permit Application for Department-Owned Inactive Rail Corridor, DOT Form 725-080-86, Rev. 01/13 01/06, incorporated herein by reference https://www.flrules.org/Gateway/reference.asp?No=Ref-02403 and available . DOT Form 725-080-86 can be obtained from http://www.dot.state.fl.us/rail/ or the Central Rail Office, Department of Transportation, 605 Suwannee Street, MS 25, Tallahassee, Florida 32399-0450.

                  (c) "Active Rail Corridor" or “Rail Corridor" means Department-owned lineal property acquired from a railroad that is operational for the use of rail transportation not incorporated into the state highway system.

(d)  “Inactive Rail Corridor” means Department-owned lineal property acquired from a railroad that is not incorporated into the state highway system and is abandoned or does not currently operate rail transportation service.  Inactive rail corridors may be unused property, kept intact for future state highway expansion, or used by local governmental entities for recreational or other purposes.
  (e)(d) “Department” means the Florida Department of Transportation.

(f)(e) “Local Governmental Entity” means as defined in Section 334.03 11.45(1)(e), F.S.

(g)(f) “Rail Corridor Crossing” means either a public or private travel way intended to be used for vehicular ingress and egress to and from a state, county, city, or private roadway highway across a Department-owned active or inactive rail corridor.

(h)(g) “State Highway” means a component of the State Highway System as defined in Section 334.03(25), F.S.

(2) Existing Rail Corridor Crossings. The Department recognizes existing public and private rail corridor crossings identified and described by a railroad at the time an active or inactive a rail corridor is transferred from a railroad to the Department. All other rail corridor crossings shall be closed if rail corridor crossing permits are not obtained by an applicant consistent with this rule chapter within twelve six months following completion of acquisition of the rail corridor by the Department.

(3) Rail Corridor Crossing Permits. New rail corridor crossing permits for public or private roadways are prohibited on active rail corridors. The issuance of a rail corridor crossing permit on a Department-owned inactive rail corridor, does not create a property right or vested interest in a rail corridor crossing and such permit is revocable in accordance with the provisions of this rule chapter. Prior to submitting an application, Ppotential applicants are encouraged to contact the Department Central Rail Office to inquire as to the feasibility of a proposed rail corridor crossing before submitting an application.

(a) Public Crossing. An application by a local governmental entity for a rail corridor crossing permit for an inactive rail a corridor where rail service has been abandoned will be evaluated and conditioned upon the following criteria:

1. The local governmental entity’s  jJurisdiction over the county road or city street at the proposed rail corridor crossing and acceptance of maintenance responsibility for the county road or city street, including the rail corridor crossing area by the local governmental entity is required.

2. A demonstrated transportation need on the part of the public for the rail corridor crossing.

3. Consistency with the any applicable Metropolitan Planning Organization (MPO) long range plans and local governmental entity comprehensive plans.

4. Closure of an existing public rail corridor crossing for each new public rail corridor crossing.

5. Construction of the crossing in a way that is compatible with the present and future planned use of the rail corridor.

6. Payment of construction costs and responsibility for maintenance costs for the new public rail corridor crossing, as well as any additional costs to modify the corridor to accommodate its planned use.

(b) Private Crossing. An application for a rail corridor crossing permit by a person who owns property abutting an inactive a rail corridor where rail service has been abandoned will be evaluated and conditioned upon the following criteria:

1. The private property must have no other legal access, including no access to frontage roads that exist or that could be cost-effectively constructed.

2. The new private rail corridor crossing will be must be consistent with applicable MPO long range plans and local governmental entity comprehensive plans.

3. The new private rail corridor crossing will must be constructed in a way that is compatible with the present and future planned use of the rail corridor, and the design plans for of the new private rail corridor crossing shall be signed and sealed by a professional engineer registered in the State of Florida.

4. A private rail corridor crossing permit is revocable, without compensation, upon a Department determination that the private rail corridor crossing is incompatible with the Department’s use of the corridor, and with written notice of not less than 30 days.

5. The owner must indemnify, defend, and hold the Department harmless from any and all claims arising out of the use of the new private rail corridor crossing.

(4) Installation of a Rail Corridor Crossing on Inactive Rail Corridors

When authorized by permit to install a rail corridor crossing, a local governmental entity or private crossing applicant must comply with the following, in addition to any terms specifically stated on the permit.

(a) Traffic Signals and Other Traffic Control Devices. Traffic signals and other traffic control devices, installed by an applicant, shall conform to the Manual on Uniform Traffic Control Devices as incorporated in Rule 14-15.010 MUTCD and the Manual of Uniform Minimum Standards for Design, Construction and Maintenance for Streets and Highways as incorporated in Rule 14-15.002, F.A.C Department design and construction standards referenced herein.

(b)(a) Disruption of Traffic. For safety and operational purposes, the Department will require or restrict hours of construction if construction will cause disruption of traffic on a the sState hHighway System. When construction activity on a rail corridor crossing causes undue disruption of traffic, or creates safety hazards on a state highway, the permittee will be advised of the need for immediate corrective action by a specified time and a stop work order will be issued if the permittee does not comply.

(c)(b) Rail Corridor Crossing Completion Time Limit. Installation of a rail corridor crossing on an inactive rail corridor Construction shall be completed within one year of the date of issuance of the rail corridor crossing permit. Failure to comply with the one year time limit shall result in an automatic expiration of the rail corridor crossing permit. A stop work order will be issued by the Department if work exceeds the imposed time restrictions. For any rail corridor crossing permit which expires for failure to construct the rail corridor crossing within the one year limit, a new application will be required unless the permit is extended in writing  by the Department. The corridor right of way shall be returned to the condition existing prior to the rail corridor crossing permit being issued, at the permittee’s expense, unless a new permit is obtained or extended pursuant to this rule.

(d)(c) Assurance of Performance. Assurance of performance conforming to Section 334.187, F.S., and Rule 14-116.002, will be required if the rail corridor crossing permit requires extensive work within the right of way, such as relocation of structures or traffic signals.

1. No change.

2. No change.

3. Security Instrument Receipt, Form 850-040-20, Rev. 04/93, must be used, and is incorporated herein by reference and available.  DOT Form 850-040-20 can be obtained from http://www.dot.state.fl.us/rail/ or the Central Rail Office, Department of Transportation, 605 Suwannee Street, MS 25, Tallahassee, Florida 32399-0450 must be submitted by the applicant.

4. No change.

5. A The Department will waive the security instrument will not be required requirement when there is an agreement with the local governmental entity to withhold a certificate of occupancy until any problems are corrected and there is no indication that the requirements of this rule will be violated.

6. Upon completion, the applicant must provide documentation by a professional engineer registered in the State of Florida that construction was accomplished in accordance with the requirements set out in the corridor crossing permit.  The security instrument will be returned to the applicant when final inspection by the Department shows that the work has been completed as permitted.

(e)(d) Posting of rail corridor crossing permit. The approved rail corridor crossing permit shall be displayed in a prominent location in the vicinity of the crossing construction.

(f)(e) Governmental entity permits or approval. The applicant is responsible for securing any additional permit or local governmental entity approval needed for traffic signalization and regulatory signing and marking.

(f) Professional Engineer Statement of Construction for Extensive Roadway Construction or Large Developments. If the rail corridor crossing permit requires extensive work within the right of way, such as relocation of structures or traffic signals, a statement from the project’s professional engineer will be necessary. The applicant will provide documentation by a professional engineer registered in the State of Florida that construction was accomplished in accordance with the requirements set out in the corridor crossing permit.

(g) Utility and Right of Way User Notification. The applicant has the responsibility to determine, and notify, the users of the right of way of the permitted construction. The applicant shall also resolve any conflicts within the right of way. Before a rail corridor crossing permit is issued, the applicant shall provide show documentation of this notification and resolution of conflicts.

(h) Access Permitting. A rail corridor crossing permit for a crossing that is intended to be used for vehicular ingress and egress to and from a sState hHighway System is not a permit for a connection to the state highway under Section 335.182(3)(a), F.S., and a separate access connection permit must be obtained pursuant to Rule Chapter 14-96, F.A.C., prior to the construction of an access connection.

Rulemaking Authority 334.044(2) FS. Law Implemented 334.044(14), 337.242(3) and (4), 341.302(10) FS. History–New 8-14-06, Amended 10-9-11, _______   .

NAME OF PERSON ORIGINATING PROPOSED RULE: Janice Bordelon, Rail Program Specialist
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Ananth Prasad, P.E., Secretary
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: March 05, 2013
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: January 18. 2013