2010-22005. 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 St. Matthews, Kentucky

(Waiver Petition Docket Number FRA-2010-0135)

The City of St. Matthews, KY (City), and CSX Transportation, Inc. (CSX) 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 September 1, 2011. In addition, the City, CSX and the City of Richlawn, KY (Richlawn), seek a temporary waiver from provisions of 49 CFR 222.41(c) so that a single public highway-rail grade crossing in Richlawn, that meets the definition of a Pre-Rule Quiet Zone, but the required notices or other actions have not been submitted, could be included in St. Matthews' Pre-Rule Quiet Zone.

There are 5 crossings in the existing City's Pre-Rule Quiet Zone extending from Chenoweth Lane (MP T5.43) to Thierman Lane (MP T6.12) on the CSX Louisville Division, Louisville-Cincinnati Subdivision. All of the crossings are equipped with flashing lights and gates, constant warning time train detection circuitry and power-out indicators. Two of these crossings will be treated with Supplementary Safety Measures (SSM) as follows: 1 crossing with gates and non-traversable curb medians and 1 crossing with four-quadrant gates. One of the SSMs has been installed (gates and non-traversable curb medians on Thierman Lane) and the other (four-quadrant gates on Chenoweth Lane) will be completed within the October 2011 to April 2012 timeframe and hopefully sooner.

The City notes that there is a pre-existing Alternative Safety Measure (ASM) consisting of an 80-foot non-traversable curb median on the southern approach of Chenoweth Lane. The City has committed to implement several interim measures to improve crossing safety until the installation of the four-quadrant gate system at Chenoweth Lane is completed. The City will install 30 feet of non-traversable curb median on the north approach of the Chenoweth Lane crossing. Law enforcement officers will be present during the morning and evening rush hours at varying times and locations to issue citations to motorists and pedestrians that illegally cross the tracks. The City will also include crossing safety information in its quarterly newsletter. The City requests that the existing Pre-Rule Quiet Zone be allowed to continue until September 1, 2011, by which time it is hoped that the four-quadrant gate system 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. 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 CSX have worked diligently and cooperatively to implement this project. The City and CSX entered into a Preliminary Engineering agreement during the summer of 2008, for the design and cost estimate of the four-quadrant gate system at Chenoweth Lane.

CSX requested that the City provide the necessary exit gate timing for the system and recommended that it be obtained from the Kentucky Transportation Cabinet. Unfortunately, confusion on how to obtain this information resulted in CSX not receiving the timing information in sufficient time to enable the installation of the system prior to June 24, 2010. The City terminated its Pre-Rule Quiet Zone on June 1, 2010, as it was not able to complete the necessary improvements prior to the deadline date. It since has learned that it could have asked for a waiver to have the deadline extended and is now asking that the Pre-Rule Quiet Zone be reinstated pending completion of the improvements necessary for the establishment of the quiet zone. The City and CSX are requesting that the June 24, 2010 deadline be extended to September 1, 2011, so that the Pre-Rule Quiet Zone can remain active.

The City, CSX and Richlawn also petition that the public highway-rail grade crossing on Hubbards Lane (MP T6.38) in Richlawn be included in the City's Pre-Rule Quiet Zone. Train horns have not been routinely sounded by trains approaching Hubbards Lane crossing for more than 30 years and therefore meets the definition of a Pre-Rule Quiet Zone in 49 CFR 222.9. However, due to either a clerical or administrative error, this crossing was never included in the City's Pre-Rule Quiet Zone or in a separate Pre-Rule Quiet Zone. A SSM consisting of gates with a non-traversable curb median will be installed by September 15, 2010. The City states that its calculation indicates that the addition of Hubbards Lane with its SSM, results in a Quiet Zone Risk Index (QZRI) for the 6 crossing quiet zones (the 5 existing crossings in the City's Pre-Rule Quiet Zone plus Hubbards Lane) that would be less than the Risk Index With Horns (RIWH). Even though this would enable the Pre-Rule Quiet Zone to be established without the planned installation of the four-quadrant gate system at Chenoweth, the City is committed to its installation. The City, CSX and Richlawn request that the pre-existing restrictions on the routine sounding of the train horn by trains that are approaching the public crossings on the CSX rail line from Chenoweth Lane to Hubbards Lane be re-instated.

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-2010-0135) 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 30 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 30, 2010.

Robert C. Lauby,

Deputy Associate Administrator for Regulatory and Legislative Operations.