2010-17026. 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) has received a request for a waiver of compliance from 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 Mishawaka, Indiana

The City of Mishawaka, IN (City), and the Norfolk Southern Corporation (NS) jointly seek a temporary waiver of compliance from certain provisions of the Use of Locomotive Horns at Highway-Rail Grade Crossings, 49 CFR part 222. The City intends to establish a Pre-Rule Quiet Zone that it had previously continued under the provisions of 49 CFR 222.41(c)(1). The City is seeking a waiver for the requirement to construct and complete a Pre-Rule Quiet Zone by June 24, 2010, as required by 49 CFR 222.41(c)(2), and for an extension of such date to October 31, 2010.

There are 19 crossings in the existing Pre-Rule Quiet Zone extending from Elder Road (MP 429.21) to Russell Avenue (MP 434.21) on the NS Dearborn Division, Chicago Line Subdivision. 3 of these crossings will be treated with Supplementary Safety Measures (SSM) and Alternative Safety Measures (ASM) as follows: 1 crossing closure (SSM), 1 crossing with gates and traffic channelization devices (SSM), and 1 crossing with a modified SSM consisting of gates and channelization (ASM). The 2 SSMs will be completed by June 24, 2010, and the ASM will be completed within 45 working days of receipt of the ASM approval from FRA. In the future, 2 other crossings will be modified as part of an Indiana Department of Transportation project resulting in 1 grade separation and 1 closure. The City requests that the existing Pre-Rule Quiet Zone be allowed to continue until October 31, 2010, by which time the 2 SSMs and 1 ASM improvements will have been completed.

The City states that it has had its pre-rule quiet zone since 1974, and that its residents and others have become accustomed to its existence. It asserts that the proposed extension would not pose any additional risk to public health or safety. There have been only 2 crossing collisions involving property damage at the Russell Avenue crossing over the past 11 years. The City also notes that it has worked diligently since the final rule was released in 2005, to take the necessary steps to retain its pre-rule quiet zone. This includes the retaining of a consulting firm to assist with the project and to ensure compliance with all regulatory requirements. Throughout the process, the City and NS have worked diligently and cooperatively to implement this project. The City and NS are requesting that the June 24, 2010, deadline be extended to October 31, 2010, so that the Pre-Rule Quiet Zone can remain consistently active.

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-2010-0110) and may be submitted by any of the following methods:

• Web site: http://www.regulations.gov. Follow the online instructions for submitting comments.
• Fax: [phone].
• 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 document (or signing the document, 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; Page 19477) or at http://www.dot.gov/​privacy.html.

Issued in Washington, DC, on July 7, 2010.

Robert C. Lauby,

Deputy Associate Administrator for Regulatory and Legislative Operations.