E9-21503. 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 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: [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 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.