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###### Department of Transportation

###### Federal Railroad Administration

          - [Waiver Petition Docket Number FRA-2009-0013]

                    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                           ( print page 40640)                        requested, and the petitioner's arguments in favor of relief.                

## City of Crystal Lake, Illinois

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]

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