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[Code of Federal Regulations]
[Title 49, Volume 4]
[Revised as of October 1, 2003]
[CITE: 49CFR216]

[Page 186-190]
 

TITLE 49--TRANSPORTATION
CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF TRANSPORTATION
PART 216--SPECIAL NOTICE AND EMERGENCY ORDER PROCEDURES: RAILROAD TRACK, LOCOMOTIVE AND EQUIPMENT


                           Subpart A--General

Sec.
216.1 Application.
216.3 Definitions.
216.5 Delegation and general provisions.
216.7 Penalties.

                  Subpart B--Special Notice for Repairs

216.11 Special notice for repairs--railroad freight car.
216.13 Special notice for repairs--locomotive.
216.14 Special notice for repairs--passenger equipment.
216.15 Special notice for repairs--track class.
216.17 Appeals.

                    Subpart C--Emergency Order--Track

216.21 Notice of track conditions.
216.23 Consideration of recommendation.
216.25 Issuance and review of emergency order.
216.27 Reservation of authority and discretion.

    Authority: 49 U.S.C. 20102-20104, 20107, 20111, 20133, 20701-20702, 
21301-21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.49.

    Source: 41 FR 18657, May 6, 1976, unless otherwise noted.

                           Subpart A--General

Sec. 216.1  Application.

    (a) This part applies, according to its terms, to each railroad that 
uses or operates--
    (1) A railroad freight car subject to part 215 of this chapter;
    (2) A locomotive subject to 49 U.S.C. chapter 207 (49 U.S.C. 20701-
03); or
    (3) Railroad passenger equipment subject to part 238 of this 
chapter.

[[Page 187]]

    (b) This part applies, according to its terms, to each railroad 
owning track subject to part 213 of this chapter.

[41 FR 18657, May 6, 1976, as amended at 64 FR 25659, May 12, 1999]

Sec. 216.3  Definitions.

    As used in this part--
    (a) FRA means the Federal Railroad Administration.
    (b) State means a State participating in investigative and 
surveillance activities under 49 U.S.C. 20105.
    (c) Inspector includes FRA Regional Supervisors of Inspectors.

[41 FR 18657, May 6, 1976, as amended at 64 FR 25659, May 12, 1999]

Sec. 216.5  Delegation and general provisions.

    (a) The Administrator has delegated to the appropriate FRA and State 
personnel the authority to implement this part.
    (b) Communications to the Administrator relating to the operation of 
this part should be submitted in triplicate to the Docket Clerk, Office 
of Chief Counsel, Federal Railroad Administration, Washington, DC 20590.
    (c) The notices prescribed in Secs. 216.11, 216.13, 216.14, 216.15, 
and 216.21 of this part are issued on standard FRA forms indicating the 
particular subject matter. An inspector issues a notice by delivering it 
to an appropriate officer or agent immediately responsible for the 
affected locomotive, car, or track.

[41 FR 18657, May 6, 1976, as amended at 41 FR 43153, Sept. 30, 1976; 64 
FR 25659, May 12, 1999]

Sec. 216.7  Penalties.

    Any person (an entity of any type covered under 1 U.S.C. 1, 
including but not limited to the following: a railroad; a manager, 
supervisor, official, or other employee or agent of a railroad; any 
owner, manufacturer, lessor, or lessee of railroad equipment, track, or 
facilities; any independent contractor providing goods or services to a 
railroad; and any employee of such owner, manufacturer, lessor, lessee, 
or independent contractor) who violates any requirement of this part or 
causes the violation of any such requirement is subject to a civil 
penalty of at least $500 and not more than $11,000 per violation, except 
that: Penalties may be assessed against individuals only for willful 
violations, and, where a grossly negligent violation or a pattern of 
repeated violations has created an imminent hazard of death or injury to 
persons, or has caused death or injury, a penalty not to exceed $22,000 
per violation may be assessed. Each day a violation continues shall 
constitute a separate offense. See 49 CFR part 209, appendix A.

[53 FR 28599, July 28, 1988, as amended at 63 FR 11620, Mar. 10, 1998]

                  Subpart B--Special Notice for Repairs

    Editorial Note: Nomenclature changes to subpart B of part 216 appear 
at 64 FR 25659, May 12, 1999.

Sec. 216.11  Special notice for repairs--railroad freight car.

    (a) When an FRA Motive Power and Equipment Inspector or a State 
Equipment Inspector determines that a railroad freight car is not in 
conformity with the requirements of the FRA Freight Car Safety Standards 
set forth in part 215 of this chapter and that it is unsafe for further 
service, he notifies the railroad in writing that the car is not in 
serviceable condition. The Special Notice sets out and describes the 
defects that cause the car to be in unserviceable condition. After 
receipt of the Special Notice, the railroad shall remove the car from 
service until it is restored to serviceable condition. The car may not 
be deemed to be in serviceable condition until it complies with all 
applicable requirements of part 215 of this chapter.
    (b) The railroad shall notify the FRA Regional Administrator in 
writing when the equipment is returned to service, specifying the 
repairs completed.
    (c) A railroad freight car subject to the notice prescribed in 
paragraph (a) of this section may be moved from the place where it was 
found to be unsafe for further service to the nearest available point 
where the car can be repaired, if such movement is necessary to make 
such repairs. However, the

[[Page 188]]

movement is subject to the further restrictions of Sec. 215.9 of this 
chapter.

[41 FR 18657, May 6, 1976, as amended at 41 FR 43153, Sept. 30, 1976]

Sec. 216.13  Special notice for repairs--locomotive.

    (a) When an FRA Motive Power and Equipment Inspector or State 
Equipment Inspector determines a locomotive is not safe to operate in 
the service to which it is put, whether by reason of nonconformity with 
the FRA Railroad Locomotive Safety Standards set forth in part 229 of 
this chapter or the FRA Railroad Locomotive Inspection Regulations set 
forth in part 230 of this chapter or by reason of any other condition 
rendering the locomotive unsafe, he or she will notify the railroad in 
writing that the locomotive is not in serviceable condition. After 
receipt of the Special Notice, the railroad shall remove the locomotive 
from service until it is restored to serviceable condition. The 
locomotive may not be deemed to be in serviceable condition until it 
complies with all applicable requirements of parts 229 and 230 of this 
chapter and until all additional deficiencies identified in the Special 
Notice have been corrected.
    (b) The carrier shall notify the FRA Regional Administrator in 
writing when the locomotive is returned to service, specifying the 
repairs completed. The carrier officer or employee directly responsible 
for the repairs shall subscribe this writing under oath.

[41 FR 18657, May 6, 1976, as amended at 64 FR 25659, May 12, 1999]

Sec. 216.14  Special notice for repairs--passenger equipment.

    (a) When an FRA Motive Power and Equipment Inspector or a State 
Equipment Inspector determines that railroad passenger equipment is not 
in conformity with one or more of the requirements of the FRA Passenger 
Equipment Safety Standards set forth in part 238 of this chapter and 
that it is unsafe for further service, he or she will issue a written 
Special Notice to the railroad that the equipment is not in serviceable 
condition. The Special Notice describes the defect or defects that cause 
the equipment to be in unserviceable condition. After receipt of the 
Special Notice, the railroad shall remove the equipment from service 
until it is restored to serviceable condition. The equipment may not be 
deemed in serviceable condition until it complies with all applicable 
requirements of part 238 of this chapter.
    (b) The railroad shall notify in writing the FRA Regional 
Administrator for the FRA region in which the Special Notice was issued 
when the equipment is returned to service, specifying the repairs 
completed.
    (c) Railroad passenger equipment subject to a Special Notice may be 
moved from the place where it was found to be unsafe for further service 
to the nearest available point where the equipment can be repaired, if 
such movement is necessary to make the repairs. However, the movement is 
subject to the further restrictions of Secs. 238.15 and 238.17 of this 
chapter.

[64 FR 25659, May 12, 1999]

Sec. 216.15  Special notice for repairs--track class.

    (a) When an FRA Track Inspector or State Track Inspector determines 
that track does not comply with the requirements for the class at which 
the track is being operated, as defined in the Track Safety Standards 
(49 CFR part 213), he notifies the railroad in writing that the track is 
being lowered in class and that operations over that track must comply 
with the speed limitations prescribed in part 213 of this chapter. The 
notice describes the conditions requiring the track to be lowered in 
class, specifies the exact location of the affected track segment, and 
states the highest class and corresponding maximum speeds at which 
trains may be operated over that track. After receipt of such notice, 
the speeds at which trains operate over that track shall not exceed the 
stated maximum permissible speeds, until such time as the track conforms 
to applicable standards for a higher class.
    (b) The railroad shall notify the FRA Regional Administrator in 
writing when the track is restored to a condition permitting operations 
at speeds authorized for a higher class, specifying the repairs 
completed.

[41 FR 43153, Sept. 30, 1976]

[[Page 189]]

Sec. 216.17  Appeals.

    (a) Upon receipt of a Special Notice prescribed in Secs. 216.11, 
216.13, 216.14, or 216.15, a railroad may appeal the decision of the 
Inspector to the FRA Regional Administrator for the region in which the 
notice was given. The appeal shall be made by letter or telegram. The 
FRA Regional Administrator assigns an inspector, other than the 
inspector from whose decision the appeal is being taken, to reinspect 
the railroad freight car, locomotive, railroad passenger equipment, or 
track. The reinspection will be made immediately. If upon reinspection, 
the railroad freight car, locomotive, or passenger equipment is found to 
be in serviceable condition, or the track is found to comply with the 
requirements for the class at which it was previously operated by the 
railroad, the FRA Regional Administrator or his or her agent will 
immediately notify the railroad, whereupon the restrictions of the 
Special Notice cease to be effective. If on reinspection the decision of 
the original inspector is sustained, the FRA Regional Administrator 
notifies the railroad that the appeal has been denied.
    (b) A railroad whose appeal to the FRA Regional Administrator has 
been denied may, within thirty (30) days from the denial, appeal to the 
Administrator. After affording an opportunity for informal oral hearing, 
the Administrator may affirm, set aside, or modify, in whole or in part, 
the action of the FRA Regional Administrator.
    (c) The requirements of a Special Notice issued under this subpart 
shall remain in effect and be observed by a railroad pending appeal to 
the FRA Regional Administrator or to the Administrator.

[67 FR 19989, Apr. 23, 2002]

                    Subpart C--Emergency Order--Track

Sec. 216.21  Notice of track conditions.

    (a) When an FRA Track Inspector or State Track Inspector finds track 
conditions which may require the issuance of an Emergency order removing 
the track from service under section 203, Public Law No. 91-458, 84 
Stat. 972 (45 U.S.C. 432), the Inspector may issue a notice to the 
railroad owning the track. The notice sets out and describes the 
conditions found by the Inspector and specifies the location of defects 
on the affected track segment. The Inspector provides a copy to the FRA 
Regional Track Engineer and the FRA Regional Administrator.
    (b) In the event the railroad immediately commences repairs on the 
affected track and so advises the FRA Regional Track Engineer, the 
Regional Track Engineer assigns an Inspector to reinspect the track 
immediately on the completion of repairs. If upon reinspection the 
Inspector determines that necessary repairs have been completed, he 
withdraws the Notice of Track Conditions.

Sec. 216.23  Consideration of recommendation.

    Upon receipt of a Notice of Track Conditions issued under 
Sec. 216.21, the FRA Regional Administrator prepares a recommendation to 
the Administrator concerning the issuance of an Emergency order removing 
the affected track from service. In preparing this recommendation, the 
FRA Regional Administrator considers all written or other material 
bearing on the condition of the track received from the railroad within 
three (3) calendar days of the issuance of the Notice of Track 
Conditions and also considers the report of the FRA Regional Track 
Engineer.

[67 FR 19989, Apr. 23, 2002]

Sec. 216.25  Issuance and review of emergency order.

    (a) Upon recommendation of the FRA Regional Administrator, the 
Administrator may issue an Emergency order removing from service track 
identified in the notice issued under Sec. 216.21.
    (b) As specified in section 203, Public Law No. 91-458, 84 Stat. 972 
(45 U.S.C. 432), opportunity for review of the Emergency order is 
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

[[Page 190]]

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 
this conference and a hearing is desired, the petitioner must submit a 
written request for a hearing within fifteen (15) days after the 
conference. The hearing will commence within fourteen (14) calendar days 
of receipt of the request and will be conducted in accordance with 
sections 556 and 575, title 5, U.S.C.
    (c) Unless stayed or modified by the Administrator, the requirements 
of each Emergency order issued under this subpart shall remain in effect 
and be observed pending decision on a petition for review.

Sec. 216.27  Reservation of authority and discretion.

    The FRA may issue Emergency orders concerning track without regard 
to the procedures prescribed in this subpart whenever the Administrator 
determines that immediate action is required to assure the public 
safety.