40640 Federal Register / Vol. 74, No. 154 / Wednesday, August 12, 2009 / Notices 

requested, and the petitioner’s 

arguments in favor of relief. 

City of Crystal Lake, Illinois 

[Waiver Petition Docket Number FRA–2009– 

0013] 

The City of Crystal Lake, Illinois 

(City) seeks a permanent waiver of 

compliance from a certain provision of 

the Use of Locomotive Horns at 

Highway-Rail Grade Crossings, Title 49 

CFR part 222. The City is seeking a 

waiver from the rule that requires active 

grade crossing warning devices at public 

crossings within a quiet zone be 

equipped with constant warning time 

devices. Specifically, the City is seeking 

a waiver from the provisions of 49 CFR 

222.35(b)(1), so that the active grade 

crossing warning devices at Prairie 

Street are not required to be equipped 

with constant warning time devices. 

49 CFR 222.35(b)(1) reads as follows: 

‘‘Each public highway-rail grade 

crossing in a New Quiet Zone 

established under this part must be 

equipped, no later than the quiet zone 

implementation date, with active grade 

crossing warning devices comprising 

both flashing lights and gates which 

control traffic over the crossing and that 

conform to the standards contained in 

the MUTCD. Such warning devices shall 

be equipped with constant warning time 

devices, if reasonably practical, and 

power-out indicators.’’ The purpose of 

constant warning time devices (CWT) is 

so that the crossing warning devices 

provide the same amount of warning 

time regardless of the speed of the 

approaching train. 

The City is in the process of 

establishing a new quiet zone along the 

Union Pacific Railroad’s (UP) McHenry 

Subdivision, which would extend from 

approximately Milepost (MP) 58.21 to 

MP 59.35. The quiet zone will consist of 

two public at-grade crossings, one of 

which is at IL Route 176 (DOT # 178 

803B) and the other is at Prairie Street 

(DOT #178 802 U). 

Prairie Street is a two lane, 40 foot 

wide, asphalt road with an average daily 

traffic of 1,450 and a posted speed limit 

of 30 miles per hour (mph). The 

crossing has two railroad tracks, one of 

which is the main track and the other 

is an industrial track. There are nine 

train movements per day (six on the 

main track and three on the industrial 

track) with a maximum timetable speed 

of 20 mph. The automatic warning 

devices at the crossing are standard 

flashing lights with gates. CWT is 

present for detecting trains on the main 

track and DC circuits are used on the 

industrial track. 

The lack of CWT on the industrial 

track was first raised at a diagnostic 

review meeting on February 22, 2008. 

Since that date, the City has attempted 

to resolve the question as to whether or 

not CWT was ‘‘reasonably practical’’ as 

used in the rule with the Railroad, FRA 

and the Illinois Commerce Commission 

(ICC) without success. An FRA 

representative indicated that it usually 

leaves the determination of this up to 

the State agency responsible for crossing 

safety, which is ICC in this case and the 

railroad. Neither party in this instance 

is willing to make a determination. 

The City cites the Manual on Uniform 

Traffic Control Devices Section 8D.06 

which states that CWT shall be used 

where the speed of trains on a given 

track vary considerably under normal 

operation. The City also refers to the 

Illinois Department of Transportation 

Bureau of Local Road’s manual chapter 

40–2.04, which provides in part that 

CWT should be considered where trains 

operate at variable speeds on the line. 

The City’s position is that CWT is not 

reasonably practical for a number of 

reasons. There are relatively few trains 

through the crossing and they travel at 

a low constant speed. Prairie Street is a 

low volume street which has not had a 

crossing collision within the last 5 

years. The City is working on removing 

the on-the-street bike route in the future 

which will enhance safety. It also states 

that a quiet zone can be established 

without making any improvements at 

Prairie Street and notes that UP did not 

raise the issue of the crossing not having 

CWT during the 60 day comment period 

on the Notice of Intent to establish a 

quiet zone. Lastly, the City points out 

that the money necessary to install CWT 

would be taking away funds that could 

be used to improve the City’s roadways 

which are in need of improvements. 

The City states that it attempted to 

reach an agreement with UP in regard to 

their requirement for CWT through 

numerous correspondence; however, no 

resolution was attained. Due to the 

unresolved issue, the City is not filing 

a joint waiver. It is the opinion of the 

City that the absence of a joint waiver 

that included UP would not 

significantly contribute to public safety 

as is described in its petition. 

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– 

0013) 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 6, 

2009. 

Grady C. Cothen, Jr., 

Deputy Associate Administrator for Safety 

Standards and Program Development. 

[FR Doc. E9–19276 Filed 8–11–09; 8:45 am] 

BILLING CODE 4910–06–P 

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 


jlentini on DSKJ8SOYB1PROD with NOTICES
Federal Register / Vol. 74, No. 154 / Wednesday, August 12, 2009 / Notices 40641 

involved, the nature of the relief being 

requested, and the petitioner’s 

arguments in favor of relief. 

City of Pendleton, Oregon (Waiver 

Petition Docket Number FRA–2008– 

0120) 

The City of Pendleton, Oregon (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 is seeking a waiver from the rule 

that requires a train-automobile 

collision that occurred on June 12, 2006, 

be counted as a ‘‘relevant collision’’ for 

the purpose of determining whether 

there has been a ‘‘relevant collision’’ 

pursuant to 49 CFR 222.41(a)(1)(iii). 

Specifically, the City is seeking a waiver 

from the provisions of 49 CFR 222.9, 

wherein ‘‘relevant collision’’ is defined. 

The waiver petition requests that FRA 

stay any action to revoke the City’s quiet 

zone until 120 days after the final 

decision on this waiver to allow the City 

to address supplemental safety 

measures that could be installed if the 

waiver is denied. 

49 CFR 222.9 defines a relevant 

collision as follows: Relevant collision 

means a collision at a highway-rail 

grade crossing between a train and a 

motor vehicle, excluding the following: 

a collision resulting from an activation 

failure of an active grade crossing 

warning system; a collision in which 

there is no driver in the motor vehicle; 

or a collision in which the highway 

vehicle struck the side of the train 

beyond the fourth locomotive unit or 

rail car. With respect to the Pre-Rule 

Partial Quiet Zones, a relevant collision 

shall not include collisions that occur 

during the time period within which the 

locomotive horn is routinely sounded. 

The City received a letter from FRA 

dated August 15, 2008, informing that 

the annual risk review required under 

49 CFR 222.51(b)(1) for its quiet zone 

had revealed that the Quiet Zone Risk 

Index (QZRI) was 20,454.05 and that the 

current value of the National Significant 

Risk Threshold (NSRT) was 17,610. 

Since the QZRI was less than twice the 

NSRT (35,220) and there had been a 

relevant collision on June 12, 2006, at 

the S.W. Frazier Avenue and 9th Street 

S.W. crossing (DOT Number 809 011 C), 

the quiet zone was no longer qualified 

per 49 CFR 222.51(b)(2)(iii) and that the 

quiet zone would terminate in 6 months 

unless the City took the steps required 

in 49 CFR 222.51(b)(4). In order to retain 

its quiet zone, the City would be 

required to provide FRA within 6 

months a written commitment to lower 

the risk in the quiet zone and detail the 

specific steps that would be taken. The 

City would have to implement the steps 

to reduce the risk no later than August 

15, 2011, or the quiet zone would be 

terminated. The quiet zone would have 

remained qualified if the collision of 

June 12, 2006, had not been deemed a 

relevant collision. 

The City claims that due to the 

unusual circumstances of this collision, 

it should not be classified as a relevant 

collision. If this was the case, then the 

quiet zone would still be in compliance 

and the City would not have to take the 

actions required in 49 CFR 222.51(b)(4). 

The collision in question occurred at 

the S.W. Frazier Avenue and 9th Street 

S.W. crossing. S.W. Frazier Avenue is a 

one-way street with traffic traveling east 

that has flashing lights and gates that 

completely block the street when the 

gates are lowered. The flashing lights 

and gates are located immediately west 

of the track. 9th Street S.W. is a two-way 

street that runs north and south and has 

flashing lights and a gate for northbound 

traffic only. The Union Pacific 

Railroad’s (UP) track runs diagonally 

through the intersection of the two 

streets from the southeast to the 

northwest with a slight curve towards 

the north. The crossing is within the 

City’s quiet zone. 

The vehicle that was involved in the 

collision was backing out of a driveway 

located on the north side of S.W. Frazier 

Avenue immediately east of the UP’s 

tracks. According to a citizen witness, 

the conductor and engineer, the vehicle 

backed out of the driveway and stopped 

on the crossing immediately before the 

locomotive entered the crossing. The 

engineer and conductor stated that the 

train was traveling between 23 and 25 

miles per hour. The locomotive was 

approximately 20 feet from the crossing 

when the vehicle began to back out and 

the vehicle was traveling at a high rate 

of speed before stopping on the 

crossing. The engineer then sounded the 

locomotive’s horn and initiated an 

emergency application of the train’s 

brakes. The driver indicated that she 

had backed out farther than anticipated 

due to her foot slipping off the clutch. 

She stated that she tried to put the car 

into a forward gear and ‘‘missed it.’’ The 

vehicle was struck by the lead 

locomotive while the vehicle was 

stopped on the crossing. The automatic 

warning devices (flashing lights and 

gates) that were located on the west side 

of the tracks operated as intended. 

The City argues the presence or 

absence of additional safety measures 

on this, or any other crossing in the 

quiet zone, would not have affected this 

collision. According to the police report, 

the train horn did sound but the driver 

did not respond. The City feels that the 

presence of train horns at this or other 

crossings in the vicinity would not 

likely have changed the incident. The 

City states that where the collision is 

independent of the train horn or 

supplement safety measures, the 

collision should not be considered a 

‘‘relevant collision.’’ 

The City states that it made several 

efforts to obtain UP’s support for the 

waiver but failed to reach an agreement 

and thus was not able to file a joint 

waiver. The City sent an e-mail on 

October 2, 2008, to UP’s Manager of 

Industry and Public Projects that has 

responsibility in Oregon, to notify the 

railroad of its intent to file a waiver and 

asking for help in identifying the 

appropriate contact on the railroad to 

whom discussions could be directed. 

The request was resent on October 8, 

2008, via fax along with a draft copy of 

the waiver. On October 9, 2008, the City 

had a conversation with the manager 

who stated that he could not state at that 

time whether the railroad would join in 

the application. The City tried to contact 

him again on October 14, 2008, without 

success. 

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–2008– 

0120) 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 


jlentini on DSKJ8SOYB1PROD with NOTICES
40642 Federal Register / Vol. 74, No. 154 / Wednesday, August 12, 2009 / Notices 

1A redacted version of the proposed trackage 

rights agreement between CSXT and CWRY was 

filed with the notice of exemption. The full version 

of the draft agreement was concurrently filed under 

seal along with a motion for protective order. The 

motion is being addressed in a separate decision. 

As required by 49 CFR 1180.6(a)(7)(ii), the parties 

must file a copy of the executed agreement within 

10 days of the date the agreement is executed. 

2On July 27, 2009, CSXT filed an amendment to 

its verified notice of exemption to comply with the 

information required by 49 CFR 1180.4(g)(4)(i), 

thereby making July 27, 2009, the official filing date 

for the notice. Parties are reminded that, when 

filing a notice of exemption for transactions that 

may limit future interchange with a third-party 

connecting carrier, parties must provide the 

following additional information: (1) Disclose the 

existence of the provision or agreement that limits 

or restricts interchange; (2) disclose the affected 

interchange points; and (3) file a confidential, 

complete version of the documents containing the 

provision or agreement that limits or restricts 

interchange. 

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 6, 

2009. 

Grady C. Cothen, Jr., 

Deputy Associate Administrator for Safety 

Standards and Program Development. 

[FR Doc. E9–19277 Filed 8–11–09; 8:45 am] 

BILLING CODE 4910–06–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Finance Docket No. 35281] 

CSX Transportation, Inc.—Trackage 

Rights Exemption—Commonwealth 

Railway Incorporated 

Pursuant to a written trackage rights 

agreement,1 Commonwealth Railway 

Incorporated (CWRY) has agreed to 

grant non-exclusive overhead trackage 

rights to CSX Transportation, Inc. 

(CSXT), over CWRY’s line of railroad 

between Suffolk, VA, milepost 16.50, 

and Churchland, VA, milepost 9.90, a 

distance of approximately 6.60 miles.2

The earliest this transaction may be 

consummated is August 26, 2009, the 

effective date of the exemption (30 days 

after the amendment to the notice of 

exemption was filed). The purpose of 

the trackage rights agreement is to 

improve CSXT’s access to the Maersk 

Terminal in the port of Norfolk and to 

provide competitive service for 

intermodal and other traffic originating 

at, and destined for, the port. 

Pursuant to 49 CFR 1180.4(g)(i), CSXT 

discloses that the agreement contains a 

provision prohibiting CSXT from using 

the line for interchange with any thirdparty carrier, wherever one may connect 

with, and create an interchange point 

on, the line. 

Pursuant to the Consolidated 

Appropriations Act, 2008, Public Law 

110–161, § 193, 121 Stat. 1844 (2007), 

nothing in this decision authorizes the 

following activities at any solid waste 

rail transfer facility: collecting, storing, 

or transferring solid waste outside of its 

original shipping container; or 

separating or processing solid waste 

(including baling, crushing, compacting, 

and shredding). The term ‘‘solid waste’’ 

is defined in section 1004 of the Solid 

Waste Disposal Act, 42 U.S.C. 6903. 

As a condition to this exemption, any 

employees affected by the trackage 

rights will be protected by the 

conditions imposed in Norfolk and 

Western Ry. Co.—Trackage Rights—BN, 

354 I.C.C. 605 (1978), as modified in 

Mendocino Coast Ry., Inc.—Lease and 

Operate, 360 I.C.C. 653 (1980). 

This notice is filed under 49 CFR 

1180.2(d)(7). If the notice contains false 

or misleading information, the 

exemption is void ab initio. Petitions to 

revoke the exemption under 49 U.S.C. 

10502(d) may be filed at any time. The 

filing of a petition to revoke will not 

automatically stay the effectiveness of 

the exemption. Stay petitions must be 

filed at least 7 days before the 

exemption becomes effective. 

An original and 10 copies of all 

pleadings, referring to STB Finance 

Docket No. 35281, must be filed with 

the Surface Transportation Board, 395 E 

Street, SW., Washington, DC 20423– 

0001. In addition, a copy of each 

pleading must be served on Steven C. 

Armbrust, CSX Transportation, Inc., 500 

Water Street, J–150, Jacksonville, FL 

32202 and Louis E. Gitomer, Law 

Offices of Louis E. Gitomer, LLC, 600 

Baltimore Avenue, Suite 301, Towson, 

MD 21204. 

Board decisions and notices are 

available on our Web site at http:// 

www.stb.dot.gov. 

Decided: August 6, 2009. 

By the Board, 

Rachel D. Campbell, 

Director, Office of Proceedings. 

Kulunie L. Cannon, 

Clearance Clerk. 

[FR Doc. E9–19258 Filed 8–11–09; 8:45 am] 

BILLING CODE 4915–01–P 

DEPARTMENT OF THE TREASURY 

Internal Revenue Service 

Proposed Collection; Comment 

Request for Form 23 and Form 23–EP 

AGENCY: Internal Revenue Service (IRS), 

Treasury. 

ACTION: Notice and request for 

comments. 

SUMMARY: The Department of the 

Treasury, as part of its continuing effort 

to reduce paperwork and respondent 

burden, invites the general public and 

other Federal agencies to take this 

opportunity to comment on proposed 

and/or continuing information 

collections, as required by the 

Paperwork Reduction Act of 1995, 

Public Law 104–13(44 U.S.C. 

3506(c)(2)(A)). Currently, the IRS is 

soliciting comments concerning Form 

23, Application for Enrollment to 

Practice Before the Internal Revenue 

Service, and Form 23–EP, Application 

for Enrollment to Practice Before the 

Internal Revenue Service as an Enrolled 

Retirement Plan Agent (ERPA). 

DATES: Written comments should be 

received on or before October 13, 2009 

to be assured of consideration. 

ADDRESSES: Direct all written comments 

to R. Joseph Durbala, Internal Revenue 

Service, room 6129, 1111 Constitution 

Avenue NW., Washington, DC 20224. 

FOR FURTHER INFORMATION CONTACT: 

Requests for additional information or 

copies of the form and instructions 

should be directed to Allan Hopkins at 

Internal Revenue Service, room 6129, 

1111 Constitution Avenue, NW., 

Washington, DC 20224, or at (202) 622– 

6665, or through the internet at 

Allan.M.Hopkins@irs.gov. 

SUPPLEMENTARY INFORMATION: 

Title: Application for Enrollment to 

Practice Before the Internal Revenue 

Service. Application for Enrollment to 

Practice Before the Internal Revenue 

Service as an Enrolled Retirement Plan 

Agent (ERPA). 

OMB Number: 1545–0950. 

Form Number: Form 23 and Form 23– 

EP. 

Abstract: Form 23 must be completed 

by those who desire to be enrolled to 

practice before the Internal Revenue 


jlentini on DSKJ8SOYB1PROD with NOTICES