E8-17293. 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 Menasha, Wisconsin

The City of Menasha, Wisconsin (City), seeks a permanent 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 Pre-Rule Quiet Zones that it had previously continued under the provisions of 49 CFR Part 222.41(c)(1). The City is seeking a waiver to extend: (1) The mailing date for a Notice of Intent as provided in 49 CFR Part 222.41(c)(2)(i)(a) which states that the Notice of Intent must be mailed by February 24, 2008 and (2) the filing date for a Detailed Plan as provided in 49 CFR Part 222.41(c)(2)(i)(b) which states that the Detailed Plan must be filed with FRA by June 24, 2008. The waiver petition requests that the City be allowed an unspecified amount of additional time to submit its Notice of Intent and Detailed Plan due to confusion regarding its five existing pre-rule quiet zones which the City is trying to consolidate into two quiet zones.

The City states that when it started to review the requirements for continuation of its Pre-Rule Quiet Zones, it discovered that the descriptions and locations of the five quiet zones were somewhat confusing. For example, there was a single crossing quiet zone on a mainline that was between two other crossings identified in a separate quiet zone. Two other quiet zones included crossings that were not contiguous with each other and, in some cases, were very remote from the remainder of the crossings in that particular quiet zone. Upon consultation with one of FRA's Regional Crossing Managers who also spoke with the Canadian National Railroad Company (CN) about the situation, it was determined that consolidating the five pre-rule quiet zones into two was appropriate. Because of the confusion regarding its five existing quiet zone and objectives to consolidate those into two quiet zones, the City was unable to confidently and timely prepare its Notice of Intent and Detailed Plan by the required dates.

The City states that it is committed to promptly submitting its Notice of Intent and Detailed Plan. The commitment extends further to the goal of reaching compliance with the FRA safety level established for Pre-Rule Quiet Zones, realizing there may be significant costs required to implement necessary improvements.

The City seeks the waiver in order to continue the restrictions on routine sounding of locomotive horns along its five quiet zone corridors, with the possibility that these five quiet zones might be combined into two quiet zones in the future with the CN's approval.

The City states that it made a good faith effort to obtain CN's support for the waiver but failed to reach an agreement and thus was unable to file a joint waiver. The City had several good faith discussions with CN but was unable to reach an accord due to CN's requirement that the Appleton Street Crossing be closed as a condition of its support. The City offered several alternatives to the closing of Appleton Street including the permanent closure of another street, a commitment to install future supplemental safety measures (most likely a four quadrant gate system) at two major crossings (Racine Street and Plank Road), and closing Appleton Street to vehicular traffic but allowing pedestrian and bicycle traffic. The City does not feel that the closure of Appleton Street would contribute significantly to public safety. A church and school that is on the street would still need to be accessed, and it is believed that pedestrians would still attempt to cross at the location and expose themselves to train traffic. Additionally, traffic would be diverted to adjacent crossings that are approximately 850 feet from Appleton Street. Both adjacent streets are high volume arterial streets, and users would be subjected to higher traffic volumes and fewer traffic gaps.

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-2008-0082) and may be submitted by any of the following methods:

1. Web site: http://www.regulations.gov. Follow the online instructions for submitting comments.

2. Fax: [phone].

3. Mail: Docket Operations Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., W12-140, Washington, DC 20590.

4. 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 July 23, 2008.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.