
[Federal Register: September 8, 2009 (Volume 74, Number 172)]
[Notices]               
[Page 46293-46294]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08se09-158]                         

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

City of Plano, Illinois

Waiver Petition Docket Number FRA-2009-0066

    The City of Plano, Illinois (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 intends to 
establish a New Quiet Zone under the provisions of 49 CFR Part 222.39. 
Specifically, the City is seeking a waiver from the provisions of 49 
CFR Part 222.9, definition of a non-traversable curb so that an 
existing public crossing that is equipped with flashing lights, gates 
and medians that complies with all of the requirements necessary to be 
a ``gates and medians'' supplemental safety measure (SSM) with non-
traversable curbs, except for the fact that the posted highway speed 
limit is 45 miles per hour (mph) instead of 40 mph as required in the 
definition, be deemed an acceptable SSM.
    49 CFR Part 222.9, the definition of Non-traversable curb reads as 
follows: ``Non-traversable curb means a highway curb designed to 
discourage a motor vehicle from leaving the roadway. Non-traversable 
curbs are used at locations where highway speeds do not exceed 40 miles 
per hour and are at least six inches high. Additional design 
specifications are determined by the standard traffic design 
specifications used by the governmental entity constructing the curb.''
    The City is in the process of establishing a new quiet zone along 
the BNSF Railway's (BNSF) Chicago Division, Mendota Subdivision, which

[[Page 46294]]

would extend from approximately Milepost 48.71 to Milepost 50.76. The 
new quiet zone will consist of two public at-grade crossings: Eldamain 
Road (DOT 079586F) and Needham (DOT 079588U). The 
City seeks a waiver from the requirement that medians with non-
traversable curbing may not be used where highway speeds exceed 40 mph. 
The Eldamain Road grade crossing is equipped with standard flashing 
lights, flashing lights on cantilevers, gates and medians that are 200 
feet in length. The curbing on the medians is at least 6 inches in 
height. The posted highway speed is 45 mph.
    The City provides several reasons why the 5 mph difference in speed 
limit would not diminish the effectiveness of the SSM, and thus the 
waiver should be granted. First, the existing median is much wider (12-
foot) than the typical medians used for this application. The median is 
also twice as long as the nominal required length (100-foot) as it is 
200 feet in length. The City points out that the median installation 
has performed properly and without incident since its installation, 
approximately 13 years ago.
    Secondly, the design used by the Kendall County Highway Department 
(the public authority responsible for roadway and has consented to the 
establishment of the proposed new quiet zone) follows the Illinois 
Department of Transportation standard which allows curbed medians on 
highways with speed limits of 40 or 45 mph. The City feels that this 
standard should be allowable under the clause ``Additional design 
specifications * * *'' in the definition.
    Lastly, the City states that the Kendall County Highway Department 
opposes the creation of a 40 mph speed zone in the vicinity of the 
crossing as it wants to avoid multiple speed zones on the same roadway. 
However, the County Engineer has expressed a willingness to post 
advisory 40 mph signs in advance of the crossing in each direction.
    The City's waiver petition did not directly address efforts made to 
have the BNSF join in the waiver request. However, attachments that 
were included with the waiver request indicated that communication 
between the two parties on the subject of a joint waiver request did 
occur. On June 15, 2009, a representative of the consulting firm 
utilized by the City to assist with the establishment of the new quiet 
zone sent an e-mail to the Manager of Public Projects for BNSF. The e-
mail specifically requested that BNSF participate in the process so 
that the waiver could be forwarded to FRA as a ``joint waiver request'' 
and to reconsider its interpretation of the definition of the non-
traversable curb. In a letter to the City dated June 22, 2009, BNSF 
acknowledged receipt of the joint waiver request but did not 
specifically address the issue. BNSF stated that the questions should 
be posed to FRA and that BNSF was going by FRA's regulation which 
provides that the highway speed must be 40 mph or less. The City did 
not provide any justification as to why the absence of BNSF's 
participation in the waiver would affect 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-
2009-0066) 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 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.
[FR Doc. E9-21503 Filed 9-4-09; 8:45 am]

BILLING CODE 4910-06-P
