petition is granted, a notice is published in the FEDERAL REGISTER.

(c) The Administrator may consolidate petitions relating to the same rule.

Subpart C-Waivers

§211.41 Processing of petitions for waiver of safety rules.

(a) General. Each petition for a permanent or temporary waiver of a safety rule, regulation or standard filed as prescribed in §§ 211.7 and 211.9, is referred to the Railroad Safety Board for decision and decided not later than 9 months after receipt.

(b) Notice and hearing. If required by statute or the Administrator or the Railroad Safety Board deems it desirable, a notice is published in the FEDERAL REGISTER, an opportunity for public comment is provided, and a hearing is held in accordance with §211.25, before the petition is granted or denied.

(c) Grants. If the Railroad Safety Board determines that the petition complies with the requirements of §211.9 and that a waiver is justified, it grants the petition. Conditions may be imposed on the grant of waiver if the Board concludes they are necessary to assure safety or are in the public interest.

(d) Denials. If the Railroad Safety Board determines that the petition does not comply with the requirements of § 211.9 or that a waiver is not justified, it denies the petition.

(e) Notification. Whenever the Railroad Safety Board grants or denies a petition, a notice of that grant or denial is sent to the petitioner. When a petition has been decided, interested persons are also notified or a notice is published in the FEDERAL REGISTER.

(f) Petition for reconsideration. Any person may petition for reconsideration of the grant or denial of a waiver under procedures set forth in §211.57. Each petition shall be processed in accordance with § 211.59.

§211.43 Processing of other waiver petitions.

(a) General. Except as provided in § 211.41, each petition for a permanent or temporary waiver of a rule, regula

tion or standard shall be filed and processed as prescribed in §§ 211.7 and 211.9.

(b) Notice and hearing. If required by statute or the Administrator deems it desirable, a notice is published in the FEDERAL REGISTER, an opportunity for public comment is provided, and a hearing is held in accordance with § 211.25, before the petition is granted or denied.

(c) Grants. If the Administrator determines that the petition complies with the requirements of §211.9 and that a waiver is justified, he grants the waiver. Conditions may be imposed on the grant of waiver if the Administrator concludes they are necessary to achieve the purposes of programs affected by the grant of waiver or are otherwise in the public interest.

(d) Denials. If the Administrator determines that the petition does not comply with the requirements of §211.9 or that a waiver is not justified, he denies the waiver.

(e) Notification. Whenever the Administrator grants or denies a petition, a notice of the grant or denial is sent to the petitioner. When a petition has been decided, interested persons are also notified or a notice is published in the FEDERAL REGISTER.

(f) Petitions for reconsideration. Any person may petition for reconsideration of the grant or denial of a waiver under procedures set forth in §211.57. Each petition shall be processed in accordance with § 211.59.

Subpart D-Emergency Orders §211.47 Review procedures.

(a) As specified in section 203, Public Law 91-458, 84 Stat. 972 (45 U.S.C. 432), opportunity for review of Emergency orders issued under that section will be provided in accordance with section 554 of title 5 of the U.S.C.. Petitions for such review must be submitted in writing to the Office of Chief Counsel, Federal Railroad Administration, Washington, DC 20590. Upon receipt of a petition, FRA will immediately contact the petitioner and make the necessary arrangements for a conference to be held at the earliest date acceptable to the petitioner. At this conference, the petitioner will be afforded an opportunity to submit facts, arguments and proposals for modification or withdrawal of the Emergency order. If the controversy is not resolved at the conference and a hearing is desired, the petitioner must submit a written request for a hearing within 15 days after the conference. The hearing will commence within 14 calendar days of receipt of the request and will be conducted in accordance with sections 556 and 575, title 5, U.S.C. Each petition for review shall be decided not later than 3 months after receipt.

(b) Unless stayed or modified by the Administrator, the requirements of each Emergency order shall remain in effect and be observed pending decision on a petition for review.

Subpart E-Miscellaneous SafetyRelated Proceedings and Inquiries §211.51 Tests.

(a) Pursuant to the Department of Transportation Act (80 Stat. 931, 49 U.S.C. 1651 et seq.), the Federal Railroad Safety Act of 1970 (84 Stat. 971, 45 U.S.C. 421, 431-441), or both, the Administrator may temporarily suspend compliance with a substantive rule of the Federal Railroad Administration, if:

(1) The suspension is necessary to the conduct of a Federal Railroad Administration approved test program designed to evaluate the effectiveness of new technology or operational approaches or instituted in furtherance of present or proposed rulemaking proceeding;

a

(2) The suspension is limited in scope and application to such relief as may be necessary to facilitate the conduct of the test program; and

(3) The suspension is conditioned on the observance of standards sufficient to assure safety.

(b) When required by statute, a notice is published in the FEDERAL REGISTER, an opportunity is provided for public comment, and a hearing is held in accordance with §211.25, before the FRA approved test program is implemented.

(c) When the Administrator approves suspension of compliance with any rule in connection with a test program, a description of the test program containing an explanatory statement responsive to paragraph (a) of this sec

tion is published in the FEDERAL REG

ISTER.

§211.53 Signal applications.

Applications for approval of discontinuance or material modification of a signal system authorized by part 235 or waiver of a requirement of part 236 of this chapter must be submitted in triplicate to the Secretary, Railroad Safety Board, handled in accordance with procedures set forth in part 235 or 236, respectively, and decided not later than 9 months after receipt. When a decision is issued, the applicant and other interested parties are notified or a notice is published in the FEDERAL REGISTER.

§211.55 Special approvals.

Requests for special approval pertaining to safety not otherwise provided for in this chapter, must be submitted in triplicate to the Secretary, Railroad Safety Board; specifying the action requested. These requests shall be considered by the Board and appropriate action shall be taken not later than 9 months after receipt. When a decision is issued, the requestor and other interested parties are notified or a notice is published in the FEDERAL REGISTER.

§211.57 Petitions for reconsideration.

(a) Any person may petition the Administrator for reconsideration of final action taken in proceedings subject to subpart C or E of this part.

(b) The petition must specify with particularity the grounds for modification or revocation of the action in question.

(c) The Administrator does not consider repetitious petitions.

(d) Unless the Administrator specifically provides otherwise, and gives notice to interested parties or publishes notice in the FEDERAL REGISTER, the filing of a petition under this section does not stay the effectiveness of the action sought to be reconsidered.

§211.59 Proceedings on petitions for reconsideration.

(a) The Administrator may invite public comment or seek a response from the party at whose request the final action was taken before deciding a petition for reconsideration submitted under § 211.57.

(b) The Administrator may reaffirm, modify, or revoke the final action without further proceedings and shall issue notification of his decision to the petitioner and other interested parties or publish a notice in the FEDERAL REGISTER. Each petition for reconsideration shall be decided not later than 4 months after receipt. Petitions for reconsideration relating to the same rule may be consolidated for decision. In the event the Administrator determines to reconsider a final action, and appropriate notice is published in the FEDERAL REGISTER.

§211.61 Informal safety inquiries.

The Administrator may conduct informal safety inquiries to collect information on selected topics relating to railroad safety. A notice of each such inquiry will be published in the FEDERAL REGISTER outlining the area of inquiry and inviting interested persons to assist by submitting written material or participating in informal public conferences and discussions. Upon completion of the inquiry, the Administrator will review the information obtained and may, on his own motion, initiate a rulemaking proceeding under §211.13 or take whatever other action he deems appropriate.

Subpart F-Interim Procedures for the Review of Emergency Orders

AUTHORITY: Secs. 203 and 208(a), 84 Stat. 972, 974-975 (45 U.S.C. 432, 437(a)) and 5 U.S.C. 554-559.

SOURCE: 44 FR 13029, Mar. 9, 1979, unless otherwise noted.

§211.71 General.

(a) This subpart consists of interim procedures for the review of emergency orders issued under section 203 of the Federal Railroad Safety Act of 1970, supplementing § 211.47 of this part.

(b) Proceedings under this subpart are subject to the requirements of 5 U.S.C. 554-559.

(c) Notwithstanding §211.1 of this part, as used in this subpart Administrator means the Federal Railroad Administrator or Deputy Administrator.

§211.73 Presiding officer; powers.

(a) An administrative hearing for the review of an emergency order is presided over by the Administrator or by an administrative law judge designated at the request of FRA pursuant to 5 CFR 930.213.

(b) The presiding officer may exercise the powers of the FRA to regulate the conduct of the hearing and associated proceedings for the purpose of achieving a prompt and fair determination of all material issues in controversy.

(c) The final decision of the presiding officer shall set forth findings and conclusions based on the administrative record. That decision may set aside, modify or affirm the requirements of the emergency order under review.

(d) Except as provided in §211.77, the decision of the presiding officer is administratively final.

§211.75 Evidence.

(a) The Federal Rules of Evidence for United States Courts and Magistrates shall be employed as general guidelines for the introduction of evidence in proceedings under this subpart. However, except as provided in paragraph (b) of this section, all relevant and probative evidence offered by a party shall be received in evidence.

(b) The presiding officer may deny the admission of evidence which is determined to be

(1) Unduly repetitive; or (2) So extensive and lacking in relevance or probative effect that its admission would impair the prompt, orderly, and fair resolution of the proceeding.

§211.77 Appeal to the Administrator.

(a) Any party aggrieved by the final decision of a presiding officer (other than the Administrator) may appeal to the Administrator. The appeal must be filed within twenty (20) days from issuance of the presiding officer's decision and must set forth the specific exceptions of the party to the decision, making reference to the portions of the administrative record which are believed to support the exceptions. The notice of appeal and any supporting papers shall be accompanied by a certificate stating that they have been served on all parties to the proceeding. (b) [Reserved]

investigative and surveillance activities under the Federal railroad safety laws and regulations.

§212.3 Definitions.

As used in this part:

(a) Administrator means the Federal Railroad Administrator or the Deputy Administrator or the delegate of either of them.

(b) Associate Administrator means the Associate Administrator for Safety, Federal Railroad Administration (FRA), or the Deputy Associate Administrator for Safety, FRA.

(c) FRA means the Federal Railroad Administration.

(d) Federal railroad safety laws means the following enactments, together with regulations and orders issued under their authority:

(1) The Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 421, 431441);

(2) The Safety Appliance Acts, as amended (45 U.S.C. 1–16);

(3) The Locomotive Inspection Act,

as amended (45 U.S.C. 22-34);

(4) The Signal Inspection Act, as amended (49 U.S.C. 26);

(5) The Accident Reports Act, as amended (45 U.S.C. 38-42);

(6) The Hours of Service Act, as amended (45 U.S.C. 61-64(b); and

(7) The Hazardous Materials Transportation Act (49 app. U.S.C. 1801 et seq.), as it pertains to shipment or transportation by railroad.

(e) Manufacturer means a person that manufactures, fabricates, marks, maintains, reconditions, repairs, or tests containers which are represented, marked, certified, or sold for use in the bulk transportation of hazardous materials by railroad.

(f) Shipper means a person that offers a hazardous material for transportation or otherwise causes it to be transported.

(g) Planned compliance inspections means investigative and surveillance activities described in the annual work plan required by §212.109 of this part that provide basic surveillance of railroad facilities, equipment and/or operations for the purpose of determining the level of compliance with relevant Federal safety requirements.

[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]

§212.5 Filing.

Each State agency desiring to conduct investigative and surveillance activities must submit to the Associate Administrator for Safety, Federal Railroad Administration, 400 Seventh Street, SW., Washington, DC 20590, the documentation which contains the information prescribed by §§ 212.105 and 212.107.

Subpart B-State/Federal Roles §212.101 Program principles.

(a) The purpose of the national railroad safety program is to promote safety in all areas of railroad operations in order to reduce deaths, injuries and damage to property resulting from railroad accidents.

(b)(1) The national railroad safety program is carried out in part through the issuance of mandatory Federal safety requirements and through inspection efforts designed to monitor compliance with those requirements. FRA and State inspections determine the extent to which the railroads, shippers, and manufacturers have fulfilled their obligations with respect to inspection, maintenance, training, and supervision. The FRA and participating States do not conduct inspections of track, equipment, signal systems, operating practices, and hazardous materials handling for the railroads, shippers, and manufacturers.

(2) The national railroad safety program is also carried out through routine inspections, accident investigations, formal and informal educational efforts, complaint investigations, safety assessments, special inquiries, regulatory development, research and similar initiatives.

(c) It is the policy of the FRA to maintain direct oversight of railroad, shipper, and manufacturer conditions and practices relevant to safety by conducting inspections and investigations

in concert with participating State agencies.

(d) The principal role of the State Safety Participation Program in the national railroad safety effort is to provide an enhanced investigative and surveillance capability through assumption, by participating State agencies, of responsibility for planned routine compliance inspections. The FRA encourages further State contributions to the national railroad safety program consistent with overall program needs, individual State capabilities, and the willingness of the States to undertake additional investigative and surveillance activities.

(e) It is the policy of the FRA to promote the growth and vitality of the State Safety Participation Program through liaison with State government, coordination of Federal and State investigative and surveillance activities, and training of inspection personnel.

[47 FR 41051, Sept. 16, 1982, as amended at 57 FR 28115, June 24, 1992]

§212.103 Investigative and surveillance authority.

(a) Subject to the requirements of this part, a State agency with jurisdiction under State law may participate in investigative and surveillance activities concerning Federal railroad safety laws and regulations by entering into an agreement under §212.105 for the exercise of specified authority.

(b) Subject to requirements of this part, a State agency with jurisdiction under State law may participate in investigative and surveillance activities with respect to particular rules, regulations, orders or standards issued under the regulatory authority of the Federal Railroad Safety Act of 1970 by filing an annual certification under § 212.107.

§212.105 Agreements.

(a) Scope. The principal method by which States may participate in investigative and surveillance activities is by agreement with FRA. An agreement may delegate investigative and surveillance authority with respect to all or any part of the Federal railroad safety laws.