§ 240.405 - Processing certification review petitions.

§ 240.405 Processing qualification certification review petitions.

Cross Reference

Link to an amendment published at 85 FR 81318, Dec. 15, 2020.

(a) Each petition shall be acknowledged in writing by FRA. The acknowledgment shall contain the docket number assigned to the petition and a statement of FRA's intention that the Board will attempt to render a decision on this petition within 180 days from the date that the railroad's response is received or from the date upon which the railroad's response period has lapsed pursuant to paragraph (c) of this section.

(b) Upon receipt of the petition, FRA will notify the railroad that it has received the petition and provide the railroad with a copy of the petitionwhere the petition may be accessed.

(c) The railroad will be given a period of not to exceed 60 days to Within 60 days from the date of the notification provided in paragraph (b) of this section, the railroad may submit to FRA any information that the railroad considers pertinent to the petition. Late filings will only be considered to the extent practicable.

(d) A railroad that submits such information shall:

(1) Identify the petitioner by name and the docket number of the review proceeding and provide the railroad's email address (if available);

(2) Provide Serve a copy of the information being submitted to FRA to the petitioner . and petitioner's representative, if any; and

(3) Submit File the information in triplicate to with the Docket Clerk, Federal Railroad Administration, U.S. Department of Transportation, Docket Operations (M-30), West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue , SE., Washington, DC 20590; . The form of such information may be in written or electronic form consistent with the standards and requirements established by the Federal Docket Management System and posted on its website at http://www.regulations.gov.

(e) Each petition will then be referred to the Locomotive Engineer Operating Crew Review Board for a decision.

(f) Based on the record, the Board shall have the authority to grant, deny, dismiss, or remand the petition.

(g) If the Board finds that there is insufficient basis for granting or denying the petition, the Board shall issue an order affording the parties an opportunity to provide additional information or argument consistent with its findings.

(h) When considering factual issues, the Board will determine whether there is substantial evidence to support the railroad's decision, and a negative finding is grounds for granting the petition.

(i) When considering procedural issues, the Board will determine whether the petitioner suffered substantial harm that was caused by the failure to adhere to the dictated procedures for making the railroad's decision. A finding of substantial harm is grounds for reversing the railroad's decision. To establish grounds upon which the Board may grant relief, Petitioner must show:

(1) That procedural error occurred; and

(2) The procedural error caused substantial harm.

(j) Pursuant to its reviewing role, the Board will consider whether the railroad's legal interpretations are correct based on a de novo review.

(k) The Board will determine whether the denial or revocation of certification or recertification was improper under this

regulation

part (i.e., based on an incorrect determination that the person failed to meet the

qualification

certification requirements of this

regulation

part) and grant or deny the petition accordingly. The Board will not otherwise consider the propriety of a railroad's decision, i.e., it will not consider whether the railroad properly applied its own more stringent requirements.

(

g) Notice of that decision will be provided in writing to both the petitioner

l) The Board's written decision shall be served on the petitioner, including the petitioner's representative, if any, and the railroad.

The decision will include findings of fact on which it is based.

[56 FR 28254, June 19, 1991, as amended at 64 FR 60995, Nov. 8, 1999; 74 FR 25175, May 27, 2009[85 FR 81318, Dec. 15, 2020]