E8-19434. 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.

Town of Ipswich, Massachusetts

[Waiver Petition Docket Number FRA-2008-0093]

The Town of Ipswich, Massachusetts (Town) seeks a permanent waiver of compliance from certain provisions of FRA's regulations on the Use of Locomotive Horns at Highway-Rail Grade Crossings, 49 CFR Part 222. The Town intends to establish a Pre-Rule Quiet Zone to formalize existing restrictions on routine sounding of the locomotive horn that were previously continued under the provisions of 49 CFR 222.41(c)(1). The Town is seeking a waiver to extend the filing date for a Detailed Plan, as provided in 49 CFR 222.41(c)(2)(i)(B), which indicates that the Detailed Plan must be filed with FRA by June 24, 2008. The waiver petition requests that the Detailed Plan filed by the Town on July 28, 2008 be accepted as a valid Detailed Plan even though it was filed after June 24, 2008.

Initially, the Town of Ipswich submitted a Detailed Plan dated June 23, 2008, which was not received by FRA until June 30, 2008. The original Detailed Plan stated that the Town intended to reassess the risk index for the Topsfield Road grade crossing after March 2009, 5 years after an accident that occurred at the Topsfield Road location, to determine if additional safety improvements at this grade crossing would be required. FRA rejected this Detailed Plan because it was not received by the agency until June 30, 2008, and it did not include a detailed explanation of, and timetable for, the safety improvements that would be implemented as required by 49 CFR 222.41(c)(2)(i)(B). The Town, after discussion with representatives of FRA and the Massachusetts Bay Transportation Authority (MBTA), resubmitted the Detailed Plan on July 28, 2008, outlining the intended supplemental safety measures for the Topsfield Road grade crossing.

The Town seeks the waiver in order to continue the restrictions on routine sounding of locomotive horns at the grade crossings identified in its Detailed Plan until June 24, 2010.

The Town of Ipswich, the public authority, is filing this waiver request without the support of the MBTA, which is the railroad providing service over the five grade crossings identified in the Detailed Plan. However, the petition contains an explanation of the steps that the Town has taken to reach an agreement with the MBTA, in accordance with 49 CFR 222.15(b). As stated in the petition, the Town has made a written request to the MBTA to support its waiver request and the Detailed Plan. The Town also conducted a meeting of its Board of Selectmen on August 1, 2008, where an MBTA official in attendance stated that it is the policy of the MBTA to neither support nor oppose requests by municipalities to maintain quiet zones or obtain waivers from FRA regulations.

The Town has also asserted in its waiver petition that the joint submission requirement contained in 49 CFR 222.15(a) would not be likely to contribute significantly to public safety in this instance, based on its plans to install a four-quadrant gate system with enhanced electronic monitoring at the Topsfield Road crossing, where an accident occurred in March 2004.

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-2008-0093) 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 20 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 18, 2008.

Grady C. Cothen, Jr.,

Deputy Associate Administrator for Safety Standards and Program Development.