be evaluated for compliance in accordance with § 201.12(b) of the Standards.

(3) If the inspector cannot establish the built dates of all locomotives in a consist of locomotives measured under moving conditions, evaluation for compliance shall be made in accordance with § 201.12(a) of the Standards.

(b) Noise emission standards for rail cars operating under moving conditions are contained in § 201.13 of the Standards and are stated in Appendix A of this part. If speed measurement equipment used by the inspector at the time of the measurement is not operating within an accuracy of 5 miles per hour, evaluation for compliance shall be made in accordance with §201.13(2) of the Standards.

(c) Locomotives and rail cars tested pursuant to the procedures prescribed in this part and in the Standards shall be considered in noncompliance whenever the test measurement, minus the appropriate tolerance (§ 210.25), exceeds the noise emission levels prescribed in Appendix A of this part.

§ 210.31 Operation standards (stationary locomotives at 30 meters).

(a) For stationary locomotives at load cells:

(1) Each noise emission test shall begin after the engine of the locomotive has attained the normal cooling water operating temperature as prescribed by the locomotive manufactur

er.

(2) Noise emission testing in idle or maximum throttle setting shall start after a 40 second stabilization period in the throttle setting selected for the test.

(3) After the stabilization period as prescribed in paragraph (a)(2) of this section, the A-weighted sound level reading in decibels shall be observed for an additional 30-second period in the throttle setting selected for the test.

(4) The maximum A-weighted sound level reading in decibels that is observed during the 30-second period of time prescribed in paragraph (a)(3) of this section shall be used for test measurement purposes.

(b) The following data determined by any locomotive noise emission test conducted after December 31, 1976, shall be recorded in the "Remarks" section on the reverse side of Form F 6180.49:

(1) Location of test;
(2) Type of test;

(3) Date of test; and

(4) The A-weighted sound level reading in decibels obtained during the passby test, or the readings obtained at idle throttle setting and maximum throttle setting during a load cell test. (c) Any locomotive subject to this part that is found not to be in compliance with the Standards as a result of a passby test shall be subjected to a load cell test or another passby test prior to return to service, except that no such retest shall be required if the cause of the noise defect is readily apparent and is corrected by the replacement of defective components or by a normal maintenance or repair procedure.

(d) The last entry recorded on Form F 6180.49 as required in paragraph (b) of this section shall be transcribed to a new Form FRA F 6180.49 when it is posted in the locomotive cab.

(e) Locomotives tested pursuant to the procedures prescribed in this part and in the Standards shall be considered in noncompliance wherever the test measurement, minus the appropriate tolerance (§ 210.25), exceeds the noise emission levels precribed in Appendix A of this part.

§ 210.33 Operation standards (switcher locomotives, load cell test stands, car coupling operations, and retarders). (a) Measurement on receiving property of the noise emission levels from switcher locomotives, load cell test stands, car coupling operations, and retarders shall be performed in accordance with the requirements of 40 CFR Part 201 and § 210.25 of this part.

(b) These sources shall be considered in noncompliance whenever the test measurement, minus the appropriate tolerance (§ 210.25), exceeds the noise emission levels prescribed in Appendix A of this part.

APPENDIX B-SWITCHER LOCOMOTIVE ENFORCEMENT POLICY

The EPA standards require that the noise emissions from all switcher locomotives in a particular facility be less than prescribed levels measured at 30 meters, under all operating modes. This requirement is deemed to be met unless "receiving property" noise due to switcher locomotives exceeds 65 dB(A), when measured in accordance with Subpart C of 40 CFR Part 201. The 65 dB(A) receiving property standard is the "trigger" for requiring the 30-meter test of switcher locomotives.

The purpose underlying FRA's enforcement of the noise standards is to reduce the impact of rail operations noise on receiving properties. In some instances, measures

property

located more than 120 m from Load Cell.

max=Adjusted average

other than the 30-meter test approach may more effectively reduce the noise levels at receiving properties; therefore, FRA enforcement efforts will focus on abatement procedures that will achieve a reduction of receiving property noise levels to less than 65 dB(A).

For example, a parked, idling locomotive, even if equipped with exhaust silencing that meets the stationary locomotive standard (30-meter test), may cause the receiving property standard to be exceeded if located on trackage adjacent to the receiving property. In that case, application of the 30meter test to other switcher locomotives at the facility may not serve to reduce the receiving property noise level. On the other hand, operational changes by the railroad could significantly reduce receiving proper

211.77 Appeal to the Administrator.

AUTHORITY: Secs. 6, 9, Pub. L. 89-670, 80 Stat. 937, 944 (49 U.S.C. 1655, 1657); the statutes referred to in sec. 6(e) (1), (2), (3), (6) (A) of Pub. L. 89-670, 80 Stat. 939 (49 U.S.C. 1655); sec. 202 of Pub. L. 91-458, 84 Stat. 971 as amended by sec. 5(a) of Pub. L. 94-348 (45 U.S.C. 431); and 49 CFR 1.49, unless otherwise noted.

SOURCE: 41 FR 54181, Dec. 13, 1976, unless otherwise noted.

(a) This part prescribes rules of practice that apply to rulemaking and waiver proceedings, review of emergency orders issued under 45 U.S.C. 432, and miscellaneous safety-related proceedings and informal safety inquiries. The specific time limits for disposition of proceedings apply only to proceedings initiated after December 31, 1976, under the Federal Railroad Safety Act of 1970 (45 U.S.C. 421 et seq.). When warranted, FRA will extend these time limits in individual proceedings. However, each proceeding under the Federal Railroad Safety Act shall be disposed of within 12 months after the date it is initiated. A proceeding shall be deemed to be initiated and the time period for its disposition shall begin on the date a petition or application that complies with the requirements of this chapter is received by the person designated in § 211.7.

(b) As used in this part

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

(2) "Waiver" includes exemption. (3) "Safety Act" means the Federal Railroad Safety Act of 1970, as amended (45 U.S.C. 421 et seq.).

(c) Records relating to proceedings and inquiries subject to this part are available for inspection as provided in Part 7 of this title.

§ 211.3 Participation by interested per

sons.

Any person may participate in proceedings and inquiries subject to this part by submitting written information or views. The Administrator may also permit any person to participate in additional proceedings, such as informal appearances, conferences, or hearings at which a transcript or minutes are kept, to assure informed administrative action and protect the public interest.

§ 211.5 Regulatory docket.

(a) Except as provided in paragraph (b) of this section, records of the Federal Railroad Administration concerning each proceeding subject to this part are maintained in current docket form by the Docket Clerk. These records include rulemaking and waiver petitions, emergency orders, notices, comments received in response to notices, hearing transcripts, final rules, denials of rulemaking petitions, grants and denials of waiver and other petitions.

(b) Records pertaining to applications for special approval under § 211.55, signal applications under Parts 235 and 236 of this chapter and informal safety inquiries under § 211.61, are maintained in a current docket form by the Secretary of the Railroad Safety Board.

(c) Any person may examine docketed material in the office where it is maintained. Copies of docketed material other than commercially prepared transcripts may be obtained upon payment of the fees prescribed in Part 7 of this title.

§ 211.7 Filing requirements.

(a) Any person may petition the Administrator for issuance, amendment repeal or permanent or temporary waiver of any rule or regulation. In the case of a petition for waiver, it must be submitted at least 3 months before the proposed effective date, unless good cause is shown for not doing so.

(b) Except as provided in paragraph (c) of this section, all petitions, applications, comments submitted in response to a notice, and other material pertaining to proceedings subject to this part, shall be submitted in triplicate to the Docket Clerk. Each petition received shall be acknowledged in writing. The acknowledgement shall contain the FRA docket number assigned to the petition and state the date the petition was received. Within 60 days following receipt, FRA will advise the petitioner or applicant of any deficiencies in its petition or application.

(c) Applications for special approval under § 211.55 and signal applications under Parts 235 and 236 of this chapter, and protests or comments and all other material pertaining to them shall be submitted in triplicate to the Secretary of the Railroad Safety Board.

or

(a) Set forth the text or substance of the rule, regulation, standard amendment proposed, or specify the rule, regulation or standard that the petitioner seeks to have repealed or waived, as the case may be;

(b) Explain the interest of the petitioner, and the need for the action requested; in the case of a petition for waiver, explain the nature and extent of the relief sought, and identify and describe the persons, equipment, installations and locations to be covered by the waiver;

(c) Contain sufficient information to support the action sought including an evaluation of anticipated impacts of the action sought; each evaluation shall include an estimate of resulting costs to the private sector, to consumers, and to Federal, State and local governments as well as an evaluation of resulting benefits, quantified to the extent practicable. Each petition pertaining to safety regulations must also contain relevant safety data.

Subpart B-Rulemaking Procedures

§ 211.11 Processing of petitions for rulemaking.

(a) General. Each petition for rulemaking filed as prescribed in §§ 211.7 and 211.9 is referred to the head of the office responsible for the subject matter of the petition to review and recommend appropriate action to the Administrator. No public hearing or oral argument is held before the Administrator decides whether the petition should be granted. However, a notice may be published in the FEDERAL REGISTER inviting written comments concerning the petition. Each petition shall be granted or denied not later than six months after its receipt by the Docket Clerk.

(b) Grants. If the Administrator determines that a rulemaking petition complies with the requirements of § 211.9 and that rulemaking is justified, he initiates a rulemaking proceeding by publishing an advance notice or notice of proposed rulemaking in the FEDERAL REGISTER.

(c) Denials. If the Administrator determines that a rulemaking petition does not comply with the requirements of § 211.9 or that rulemaking is not justified, he denies the petition. If the petition pertains to railroad safety, the Administrator may also initiate an informal safety inquiry under § 211.61.

(d) Notification; closing of docket. Whenever the Administrator grants or denies a rulemaking petition, a notice of the grant or denial is mailed to the petitioner. If the petition is denied, the proceeding is terminated and the docket for that petition is closed.

§ 211.13 Initiation and completion of rulemaking proceedings.

The Administrator initiates all rulemaking proceedings on his own motion by publishing an advance notice of proposed rulemaking or a notice of proposed rulemaking in the FEDERAL REGISTER. However, he may consider the recommendations of interested persons or other agencies of the United States. A separate docket is established and maintained for each rulemaking proceeding. Each rulemaking proceeding shall be completed not

later than 12 months after the initial notice in that proceeding is published in the FEDERAL REGISTER. However, if it was initiated as the result of the granting of a rulemaking petition, the rulemaking proceeding shall be completed not later than 12 months after the petition was filed as prescribed in §§ 211.7 and 211.9.

§ 211.15 Notice and participation.

(a) Except as provided in paragraph (c) of this section, or when the Administrator finds for good cause that notice is impractical, unnecessary, or contrary to the public interest (and incorporates the findings and a brief statement of the reasons therefore in the rules issued), an advance notice or notice of proposed rulemaking is published in the FEDERAL REGISTER and interested persons are invited to participate in the rulemaking proceedings with respect to each substantive rule.

(b) Unless the Administrator determines that notice and public rulemaking proceedings are necessary or desirable, interpretive rules, general statements of policy, and rules relating to organization, procedure, or practice, including those relating to agency management or personnel, are prescribed as final without notice or other public rulemaking proceedings.

(c) An advance notice or notice of proposed rulemaking is issued and interested persons are invited to participate in rulemaking proceedings with respect only to those procedural and substantive rules of general applicability relating to public property, loans, grants, benefits, or contracts which the Administrator has determined to be of substantial public interest.

§ 211.17 Publication and contents of notices.

Each advance notice or notice of proposed rulemaking is published in the FEDERAL REGISTER and includes

(a) A statement of the time, place and nature of the proposed rulemaking proceeding;

(b) A reference to the authority under which it is issued;

(c) A description of the subjects or issues involved or the substance or terms of the proposed rule;