[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: 49CFR240.409]



[Page 762-764]

 

                        TITLE 49--TRANSPORTATION

 

       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 

                             TRANSPORTATION

 

PART 240_QUALIFICATION AND CERTIFICATION OF LOCOMOTIVE ENGINEERS--Table 

of Contents

 

                 Subpart E_Dispute Resolution Procedures

 

Sec. 240.409  Hearings.



    (a) An administrative hearing for a locomotive engineer 

qualification petition shall be conducted by a presiding officer, who 

can be any person authorized by the Administrator, including an 

administrative law judge.

    (b) The presiding officer may exercise the powers of the 

Administrator to regulate the conduct of the hearing for the purpose of 

achieving a prompt and fair determination of all material issues in 

controversy.

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

hearing. The hearing shall be a de novo hearing to find the relevant 

facts and determine the correct application of this part to those facts. 

The presiding officer may determine that there is no genuine issue 

covering some or all material facts and limit evidentiary proceedings to 

any issues of material fact as to which there is a genuine dispute.

    (d) The presiding officer may authorize discovery of the types and 

quantities which in the presiding officer's discretion will contribute 

to a fair hearing without unduly burdening the parties. The presiding 

officer may impose appropriate non-monetary sanctions, including 

limitations as to the presentation of evidence and issues, for any 

party's willful failure or refusal to comply with approved discovery 

requests.

    (e) Every petition, motion, response, or other authorized or 

required document shall be signed by the party filing the same, or by a 

duly authorized officer or representative of record, or by any other 

person. If signed by such other person, the reason therefor must be 

stated and the power of attorney or other authority authorizing such 

other person to subscribe the document must be filed with the document. 

The signature of the person subscribing any document constitutes a 

certification that he or she has read the document; that to the best of 

his or her knowledge, information and belief every statement contained 

in the document is true and no such statements are misleading; and that 

it is not interposed for delay or to be vexatious.

    (f) After the request for a hearing is filed, all documents filed or 

served upon one party must be served upon all parties. Each party may 

designate a person upon whom service is to be made when not specified by 

law, regulation, or directive of the presiding officer. If a party does 

not designate a person upon whom service is to be made, then service may 

be made upon any person having subscribed to a submission of the party 

being served, unless otherwise specified by law, regulation, or 

directive of the presiding officer. Proof of service shall accompany all 

documents when they are tendered for filing.

    (g) If any document initiating, filed, or served in, a proceeding is 

not in substantial compliance with the applicable law, regulation, or 

directive of the presiding officer, the presiding officer may strike or 

dismiss all or part of such document, or require its amendment.

    (h) Any party to a proceeding may appear and be heard in person or 

by an authorized representative.

    (i) Any person testifying at a hearing or deposition may be 

accompanied, represented, and advised by an attorney or other 

representative, and may be examined by that person.

    (j) Any party may request to consolidate or separate the hearing of 

two or more petitions by motion to the presiding officer, when they 

arise from the same or similar facts or when the matters are for any 

reason deemed more efficiently heard together.

    (k) Except as provided in Sec. 240.407(c) of this part and 

paragraph (u)(4) of this section, whenever a party has the right or is 

required to take action within a period prescribed by this part, or by 

law, regulation, or directive of the presiding officer, the presiding 

officer may extend such period, with or without notice, for good cause, 

provided another party is not substantially prejudiced by such 

extension. A request to extend a period which has already expired may be 

denied as untimely.

    (l) An application to the presiding officer for an order or ruling 

not otherwise specifically provided for in this part shall be by motion. 

The motion shall be filed with the presiding officer and, if written, 

served upon all parties. All motions, unless made during the hearing, 

shall be written. Motions made during hearings may be made



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orally on the record, except that the presiding officer may direct that 

any oral motion be reduced to writing. Any motion shall state with 

particularity the grounds therefor and the relief or order sought, and 

shall be accompanied by any affidavits or other evidence desired to be 

relied upon which is not already part of the record. Any matter 

submitted in response to a written motion must be filed and served 

within fourteen (14) days of the motion, or within such other period as 

directed by the presiding officer.

    (m) Testimony by witnesses at the hearing shall be given under oath 

and the hearing shall be recorded verbatim. The presiding officer shall 

give the parties to the proceeding adequate opportunity during the 

course of the hearing for the presentation of arguments in support of or 

in opposition to motions, and objections and exceptions to rulings of 

the presiding officer. The presiding officer may permit oral argument on 

any issues for which the presiding officer deems it appropriate and 

beneficial. Any evidence or argument received or proffered orally shall 

be transcribed and made a part of the record. Any physical evidence or 

written argument received or proffered shall be made a part of the 

record, except that the presiding officer may authorize the substitution 

of copies, photographs, or descriptions, when deemed to be appropriate.

    (n) The presiding officer shall employ the Federal Rules of Evidence 

for United States Courts and Magistrates as general guidelines for the 

introduction of evidence. Notwithstanding paragraph (m) of this section, 

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.

    (o) The presiding officer may:

    (1) Administer oaths and affirmations;

    (2) Issue subpoenas as provided for in Sec. 209.7 of part 209 in 

this chapter;

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

written form;

    (4) Examine witnesses at the hearing;

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

hearing; and

    (6) 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.

    (p) The petitioner before the Locomotive Engineer Review Board, the 

railroad involved in taking the certification action, and FRA shall be 

parties at the hearing. All parties may participate in the hearing and 

may appear and be heard on their own behalf or through designated 

representatives. All parties may offer relevant evidence, including 

testimony, and may conduct such cross-examination of witnesses as may be 

required to make a record of the relevant facts.

    (q) The party requesting the administrative hearing shall be the 

``hearing petitioner.'' The hearing petitioner shall have the burden of 

proving its case by a preponderance of the evidence. Hence, if the 

hearing petitioner is the railroad involved in taking the certification 

action, that railroad will have the burden of proving that its decision 

to deny certification, deny recertification, or revoke certification was 

correct. Conversely, if the petitioner before the Locomotive Engineer 

Review Board is the hearing petitioner, that person will have the burden 

of proving that the railroad's decision to deny certification, deny 

recertification, or revoke certification was incorrect. Between the 

petitioner before the Locomotive Engineer Review Board and the railroad 

involved in taking the certification action, the party who is not the 

hearing petitioner will be a respondent.

    (r) FRA will be a mandatory party to the administrative hearing. At 

the start of each proceeding, FRA will be a respondent.

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

of the evidentiary hearing unless the presiding officer allows 

additional time for the submission of additional evidence. In such 

instances the record shall be left open for such time as the presiding 

officer grants for that purpose.



[[Page 764]]



    (t) At the close of the record, the presiding officer shall prepare 

a written decision in the proceeding.

    (u) The decision:

    (1) Shall contain the findings of fact and conclusions of law, as 

well as the basis for each concerning all material issues of fact or law 

presented on the record;

    (2) Shall be served on the hearing petitioner and all other parties 

to the proceeding;

    (3) Shall not become final for 35 days after issuance;

    (4) Constitutes final agency action unless an aggrieved party files 

an appeal within 35 days after issuance; and

    (5) Is not precedential.



[60 FR 53137, Oct. 12, 1995]