[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR240.307]



[Page 756-758]

 

                        TITLE 49--TRANSPORTATION

 

       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 

                             TRANSPORTATION

 

PART 240_QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS--Table 

of Contents

 

         Subpart D_Administration of the Certification Programs

 

Sec. 240.307  Revocation of certification.



    (a) Except as provided for in Sec. 240.119(e), a railroad that 

certifies or recertifies a person as a qualified locomotive engineer 

and, during the period that certification is valid, acquires information 

which convinces the railroad that the person no longer meets the 

qualification requirements of this part, shall revoke the person's 

certificate as a qualified locomotive engineer.

    (b) Pending a revocation determination under this section, the 

railroad shall:

    (1) Upon receipt of reliable information indicating the person's 

lack of qualification under this part, immediately suspend the person's 

certificate;

    (2) Prior to or upon suspending the person's certificate, provide 

notice of the reason for the suspension, the pending revocation, and an 

opportunity for a hearing before a presiding officer other than the 

investigating officer. The notice may initially be given either orally 

or in writing. If given orally, it must be confirmed in writing and the 

written confirmation must be made promptly. Written confirmation which 

conforms to the notification provisions of an applicable collective 

bargaining agreement shall be deemed to satisfy



[[Page 757]]



the written confirmation requirements of this section. In the absence of 

an applicable collective bargaining agreement provision, the written 

confirmation must be made within 96 hours.

    (3) Convene the hearing within the deadline prescribed by either 

paragraph (c)(1) of this section or the applicable collective bargaining 

agreement as permitted under paragraph (d) of this section;

    (4) Determine, on the record of the hearing, whether the person no 

longer meets the qualification requirements of this part stating 

explicitly the basis for the conclusion reached;

    (5) When appropriate, impose the pertinent period of revocation 

provided for in Sec. 240.117 or Sec. 240.119; and

    (6) Retain the record of the hearing for 3 years after the date the 

decision is rendered.

    (c) Except as provided for in paragraphs (d), (f), (i) and (j) of 

this section, a hearing required by this section shall be conducted in 

accordance with the following procedures:

    (1) The hearing shall be convened within 10 days of the date the 

certificate is suspended unless the locomotive engineer requests or 

consents to delay in the start of the hearing.

    (2) The hearing shall be conducted by a presiding officer, who can 

be any qualified person authorized by the railroad other than the 

investigating officer.

    (3) The presiding officer will exercise the powers necessary to 

regulate the conduct of the hearing for the purpose of achieving a 

prompt and fair determination of all material issues in controversy.

    (4) The presiding officer shall convene and preside over the 

hearing.

    (5) Testimony by witnesses at the hearing shall be recorded 

verbatim.

    (6) All relevant and probative evidence shall be received unless the 

presiding officer determines the evidence to be unduly repetitive or so 

extensive and lacking in relevancy that its admission would impair the 

prompt, orderly, and fair resolution of the proceeding.

    (7) The presiding officer may:

    (i) Adopt any needed procedures for the submission of evidence in 

written form;

    (ii) Examine witnesses at the hearing;

    (iii) Convene, recess, adjourn or otherwise regulate the course of 

the hearing; and

    (iv) Take any other action authorized by or consistent with the 

provisions of this part and permitted by law that may expedite the 

hearing or aid in the disposition of the proceeding.

    (8) Parties may appear and be heard on their own behalf or through 

designated representatives. Parties may offer relevant evidence 

including testimony and may conduct such examination of witnesses as may 

be required for a full disclosure of the relevant facts.

    (9) The record in the proceeding shall be closed at conclusion of 

the hearing unless the presiding officer allows additional time for the 

submission of information. In such instances the record shall be left 

open for such time as the presiding officer grants for that purpose.

    (10) No later than 10 days after the close of the record, a railroad 

official, other than the investigating officer, shall prepare and sign a 

written decision in the proceeding.

    (11) The decision shall:

    (i) Contain the findings of fact as well as the basis therefor, 

concerning all material issues of fact presented on the record; and

    (ii) Be served on the employee.

    (12) The railroad shall have the burden of proving that the 

locomotive engineer's conduct was not in compliance with the applicable 

railroad operating rule or practice or part 219 of this chapter.

    (d) A hearing required by this section which is conducted in a 

manner that conforms procedurally to the applicable collective 

bargaining agreement shall be deemed to satisfy the procedural 

requirements of this section.

    (e) A hearing required under this section may be consolidated with 

any disciplinary or other hearing arising from the same facts, but in 

all instances a railroad official, other than the investigating officer, 

shall make separate findings as to the revocation required under this 

section.



[[Page 758]]



    (f) A person may waive the right to the hearing provided under this 

section. That waiver shall:

    (1) Be made in writing;

    (2) Reflect the fact that the person has knowledge and understanding 

of these rights and voluntarily surrenders them; and

    (3) Be signed by the person making the waiver.

    (g) A railroad that has relied on the certification by another 

railroad under the provisions of Sec. 240.227 or Sec. 240.229, shall 

revoke its certification if, during the period that certification is 

valid, the railroad acquires information which convinces it that another 

railroad has revoked its certification after determining, in accordance 

with the provisions of this section, that the person no longer meets the 

qualification requirements of this part. The requirement to provide a 

hearing under this section is satisfied when any single railroad holds a 

hearing and no additional hearing is required prior to a revocation by 

more than one railroad arising from the same facts.

    (h) The period of certificate suspension prior to the commencement 

of a hearing required under this section shall be credited towards 

satisfying any applicable revocation period imposed in accordance with 

the provisions of Sec. 240.117.

    (i) A railroad:

    (1) Shall not determine that the person failed to meet the 

qualification requirements of this part and shall not revoke the 

person's certification as provided for in paragraph (a) of this section 

if sufficient evidence exists to establish that an intervening cause 

prevented or materially impaired the locomotive engineer's ability to 

comply with the railroad operating rule or practice which constitutes a 

violation under Sec. 240.117(e)(1) through (e)(5) of this part; or

    (2) May determine that the person meets the qualification 

requirements of this part and decide not to revoke the person's 

certification as provided for in paragraph (a) of this section if 

sufficient evidence exists to establish that the violation of Sec. 

240.117(e)(1) through (e)(5) of this part was of a minimal nature and 

had no direct or potential effect on rail safety.

    (j) The railroad shall place the relevant information in the records 

maintained in compliance with Sec. 240.309 for Class I (including the 

National Railroad Passenger Corporation) and Class II railroads, and 

Sec. 240.15 for Class III railroads if sufficient evidence meeting the 

criteria provided in paragraph (i) of this section, becomes available 

either:

    (1) Prior to a railroad's action to suspend the certificate as 

provided for in paragraph (b)(1) of this section; or

    (2) Prior to the convening of the hearing provided for in this 

section;

    (k) Provided that the railroad makes a good faith determination 

after a reasonable inquiry that the course of conduct provided for in 

paragraph (i) of this section is appropriate, the railroad which does 

not suspend a locomotive engineer's certification, as provided for in 

paragraph (a) of this section, is not in violation of paragraph (a) of 

this section.



[58 FR 19004, Apr. 9, 1993, as amended at 60 FR 53137, Oct. 12, 1995; 64 

FR 60994, Nov. 8, 1999]