FREQUENTLY ASKED QUESTIONS REGARDING
HOW TO COMMENCE FRA REVIEW OF A RAILROAD’S
CERTIFICATION DECISION AND UNDERSTANDING
THE LOCOMOTIVE ENGINEER REVIEW BOARD PROCESS
(49 CFR §§ 240.7, 240.401, 240.403 AND 240.405)
NOTE:
This document is meant only as an aid in understanding the initial stage of FRA’s dispute resolution process, i.e., the Locomotive Engineer Review Board.
For complete information as to the regulatory requirements, please refer to 49 CFR Part 240.
PETITIONING THE LOCOMOTIVE ENGINEER REVIEW BOARD
Who are the Board members who will make the decision?
C
The Board is composed of at least three employees of the FRA selected by the Administrator.
49 CFR 240.401(c).
The Board members are individuals from FRA’s Office of Safety staff with background, knowledge and experience relevant to the work of the Board.
Who may request Board review?
C
Any person who has been denied certification, denied recertification, or has had his or her certification revoked and believes that a railroad incorrectly determined that he or she failed to meet the qualification requirements of 49 CFR Part 240 when making the decision to deny or revoke certification, may petition the Board to review the railroad’s decision.
49 CFR 240.401.
A person who petitions the Board is referred to as the petitioner.
What is the difference among the terms denial of certification, denial of recertification and revocation?
C
Denial of certification refers to the situation in which a person who is not a certified locomotive engineer receives notification from a railroad that it will not grant the person initial certification.
A railroad might choose to deny a person certification if the railroad decides that the person, despite having finished a railroad approved training program, cannot pass all of the minimum requirements. For example, the person may not have passed the skills performance or knowledge tests, or the person did not meet the minimum hearing and vision requirements.
The rule provides a person with a reasonable opportunity to explore and respond with the railroad to the negative information that might serve as the basis for being denied certification.
See
49 CFR 240.219.
C
Denial of recertification refers to the situation in which a person who is a certified locomotive engineer receives notification from a railroad that it will not be renewing the person’s certificate when it is due to expire.
The regulations require that railroads renew a locomotive engineer’s certificate at least every three (3) years.
49 CFR 240.217(c).
Like a denial of certification, a denial of recertification may be based on a person’s inability to meet any of the minimum requirements and the rule provides a person with a reasonable opportunity to explore and respond with the railroad to the negative information that might serve as the basis for being denied recertification.
See
49 CFR 240.219.
C
Certificate revocation refers to the situation in which the railroad determines that a certified locomotive engineer either (1) has violated a cardinal operating rule or practice [as specified in 49 CFR 240.117(e)] or
(2) is ineligible to hold a certificate due to a substance abuse disorder or violations of FRA’s alcohol and drug regulations.
See
49 CFR 240.119.
Prior to revoking an engineer’s certificate, the regulations require a railroad to provide a certified engineer with “the opportunity for a hearing;” however, that opportunity can be waived.
See
49 CFR 240.307.
How much time do I have to file a petition to the Board
?
C
DENIAL OF CERTIFICATION OR RECERTIFICATION:
A person who has been denied certification or recertification has 180 days from the date of the railroad’s denial decision to file a petition.
See
49 CFR 240.403(c).
C
CERTIFICATE REVOCATION: A person has 120 days from the date of the railroad’s revocation decision to file a petition.
See
49 CFR 240.403(d).
C
In computing the 180th
or 120th
day, please do not count the date the railroad’s decision was issued.
Also, please be advised that the date the railroad issued its decision may be earlier than the date you received or were served with a copy of that decision.
C
If the 180th
or 120th
day falls on a day that the Docket Clerk’s office is closed [i.e., a Saturday, a Sunday or Federal holiday] you must file your request before the end of the next day in which the Docket Clerk’s office is open and accessible. (It is advisable to provide a written explanation with your submission if the deadline falls on a day on which weather or other conditions have made the office of the Docket Clerk arguably inaccessible.)
What if I don’t think I can file by the deadline or have already missed the deadline for filing petitions to the Board?
C
Late petitions will be denied as untimely except that the Board for cause shown may extend the petition filing period at any time in its discretion:
C
(1) Provided the request for extension is filed before the deadline; or
C
(2) Provided that the failure to timely file was the result of excusable neglect.
49 CFR 240.403(d).
C
Thus, a person who has not missed the deadline can file a request for an extension knowing that the Board has wide discretion to grant the request. 64 Fed. Reg. 60966, 60983 (Nov. 8, 1999).
Such a petitioner needs to demonstrate some justification for the Board to grant the extension as the regulation requires cause to be shown.
Moreover, it is recommended that a petitioner specify how much additional time will be needed to file the petition keeping in mind that only reasonable requests will be granted.
C
If the deadline has already passed, the petitioner must allege the facts constituting “excusable neglect” and the mere assertion of excusable neglect unsupported by facts is insufficient.
Excusable neglect requires a demonstration of good faith on the part of the party seeking an extension of time and some reasonable basis for noncompliance with the time specified in the rules.
In most cases, demonstrating justification requires sending the Board evidence substantiating the reason an extension is needed along with any explanation.
Absent a showing along these lines, relief will likely be denied.
Where do I file my petition to the Board?
C
Petitions must be submitted to the Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW, Stop-10, Washington, D.C. 20590.
49 CFR 240.403(b)(2).
What are the acceptable forms for petitioning the Board?
C
The two (2) acceptable forms for petitioning the Board include hand delivery and mailing.
Hand delivery requires physically delivering your written request to the FRA Docket Clerk at 1120 Vermont Avenue, NW, in Washington, D.C.
Mailing requires sending your written request by United States Postal Service or private delivery service to the address listed above.
C
FRA does not accept petitions, or requests for extensions of time, that are filed by fax.
In addition, FRA has not instituted any procedures for filing petitions to the Board electronically and thus electronic submission is also not currently an option.
C
No matter which acceptable form you use, FRA recommends that you retain a receipt or other proof of the date you filed your request.
Other information for properly filing a petition to the Board.
C
In response to acts of terrorism beginning on September 11, 2001, FRA amended the definition of “filing” so that delays in mail delivery would not unfairly result in the rejection of what would likely have been timely filed requests for further FRA review.
67 Fed. Reg. 22 (Jan. 2, 2002).
The amended definition states that “[f]ile, filed and filing mean submission of a document under this part on the date when the Docket Clerk receives it, or if sent by mail on or after September 4, 2001, the date mailing was completed.”
C
Pursuant to this definition, if you file by hand delivery then you must make sure that the FRA Docket Clerk receives it no later than the date it is due.
If you file by USPS or other mail services, you must make sure that the postmark or your receipt reflect that your request was mailed no later than the date it is due.
What do I need to provide in my petition to the Board?
