§236.911. Exclusions. — Inbound Citations

(3) Products designed in accordance with subparts A through D of this part, which are not in service but are in the developmental stage prior to December 5, 2005 (or for which a request for exclusion was submitted prior to June 6, 2005 pursuant to § 236.911 of this chapter), may be excluded from the requirements of part 236, subpart H of this chapter upon notification to FRA by March 6, 2006, if placed in service by December 5, 2008 (or March 7, 2008 for those products for which a request for exclusion was submitted to FRA prior to June 6, 2005). Railroads may continue to implement and use these products and components from these existing products. A railroad may at any time elect to have products that are excluded made subject to 49 CFR part 236, subpart H, by submitting a Product Safety Plan as prescribed in § 236.913 of this chapter and otherwise complying with part 236, subpart H of this chapter.

(4) In the case review of a PSP that has been consolidated with a proceeding pursuant to part 235 of this subchapter (see § 236.911(b)), the base case shall be determined as follows:

(i) If FRA determines that discontinuance or modification of the system should be granted without regard to whether the product is installed on the territory, then the base case shall be the conditions that would obtain on the territory following the discontinuance or modification.

(ii) If FRA determines that discontinuance or modification of the system should be denied without regard to whether the product is installed on the territory, then the base case shall remain the previous condition (unadjusted).

(iii) If, after consideration of the application and review of the PSP, FRA determines that neither paragraph (e)(4)(i) nor paragraph (e)(4)(ii) of this section should apply, FRA will establish a base case that is consistent with safety and in the public interest.