[Federal Register Volume 60, Number 197 (Thursday, October 12, 1995)]
[Rules and Regulations]
[Pages 53133-53139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25183]



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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Parts 209 and 240

[FRA Docket No. RSOR-9, Notice 9, FRA Docket No. RSEP-6, Notice 8]
RIN 2130-AA74


Qualifications for Locomotive Engineers; and, Railroad Safety 
Enforcement Procedures--Disqualification Procedures: Procedural Changes 
to Accommodate FRA Hearing Officers

AGENCY: Federal Railroad Administration (FRA), DOT.

ACTION: Interim final rule.

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SUMMARY: This interim final rule amends two different regulations to 
clarify the procedures that will be employed in hearings involving the 
determination of an individual's fitness for performing safety-
sensitive functions and those regarding certification of locomotive 
engineers.

DATES: (1) This interim final rule is effective November 13, 1995. This 
rule shall apply as of that date to all future hearings and to review 
of all hearings pending on that date.
    (2) Written comments concerning this rule must be filed no later 
than November 13, 1995. Comments received after that date will be 
considered to the extent practicable.

ADDRESSES: Written comments (three copies) concerning this rule should 
be submitted to the Docket Clerk, Office of Chief Counsel, FRA, 400 
Seventh Street SW, Washington, DC 20590. Persons desiring to be 
notified that their written comments have been received by FRA should 
submit a stamped, self addressed, postcard with their comments. The 
docket clerk will indicate on the postcard the date on which the 
comments were received and will return the card to the addressee. 
Written comments will be available for examination during normal 
business hours both before and after the closing date for comments in 
the public docket examination facility of the Nassif Building at the 
above address.

FOR FURTHER INFORMATION CONTACT: Alan H. Nagler, Trial Attorney, Office 
of Chief Counsel, FRA, 400 Seventh Street, SW, Washington, DC 20590 
(telephone: 202-366-0621).

SUPPLEMENTARY INFORMATION: This interim final rule amends two different 
regulations to clarify the procedures that will be employed in hearings 
regarding the determination of an individual's fitness for performing 
safety-sensitive functions and those involving denial or revocation of 
certification of locomotive engineers.

Disqualification Proceedings

    Section 3(a) of the Rail Safety Improvement Act of 1988 ``RSIA'' 
(recodified at 49 U.S.C.A. 20111 (c) (1995)) authorizes FRA to 
disqualify individuals who are shown to be unfit to perform safety-
sensitive functions based on the individual's violation of an FRA 
safety rule, regulation, order or standard. FRA's railroad safety 
enforcement regulations (49 CFR part 209, subpart D), prescribing 
procedures for disqualifying individuals from performing safety-
sensitive functions in the rail industry, were published in the Federal 
Register on October 18, 1989 (54 FR 42894). FRA is amending that 
regulation to permit agency employees to serve as hearing officers and 
preside over disqualification proceedings rather than limiting 
selection of persons permitted to perform that function to 
administrative law judges (ALJs). The change is intended to assure the 
prompt and efficient conduct of disqualification proceedings in a 
manner more cost effective for the agency than using only ALJs while 
still affording administrative due process to those against whom such 
proceedings are initiated.
    In the preamble to the disqualification final rule, FRA raised the 
preliminary question of whether the RSIA requires formal, trial-type 
``on the record'' hearings under 5 U.S.C. 554, 556, and 557. In short, 
the preamble explained that neither the RSIA nor the legislative 
history granted an individual a right to an ``on the record'' hearing. 
Despite this conclusion, FRA chose to afford individuals procedural due 
process by adopting procedures similar to those set forth for formal 
hearings under 5 U.S.C. 554, 556, and 557.
    As stated in the earlier rule, FRA continues to believe that ``it 
is essential to promulgate procedures that assure the prompt and 
efficient conduct of disqualification proceedings under the statute, 
afford administrative due process to those against whom such 
proceedings are initiated, and lead to the creation of a record in each 
individual proceeding that will form the basis for judicial review in 
the United States District Court without a trial de novo of the 
relevant facts. ``54 FR 42894'' (Oct. 18, 1989). Since this statement 
was written, review of FRA's final safety actions has been shifted to 
the federal courts of appeal, which is a further reason for ensuring 
that an adequate record is developed.
    FRA expects that an agency hearing officer will be able to provide 
the essential due process at the same professional level as an ALJ 
without the substantial costs to the agency incurred when using ALJs. 
This change will bring FRA's disqualification regulation into 
conformity with analogous provisions contained in FRA's locomotive 
engineer certification regulation (described below) and its rules on 
hazardous materials and compliance order hearings. Under all of these 
rules, FRA already has given itself flexibility to use hearing officers 
other than ALJs. Moreover, this new flexibility in selecting agency 
personnel to perform this function, in addition to possible continued 
use of ALJs, has the potential for improving the promptness and 
efficiency with which these proceedings are conducted.

Engineer Qualifications

    The initial final rule establishing qualification standards for 
locomotive engineers was published in the Federal Register on June 19, 
1991 (56 FR 28228). That final rule established the right to an 
administrative hearing in the event of an adverse Locomotive Engineer 
Review Board (LERB) decision. See 49 CFR 240.407. This regulation 
already provides that the presiding officer at 

[[Page 53134]]
this administrative hearing may be either an ALJ or any person 
authorized by the FRA Administrator. See 49 CFR 240.409. Therefore, the 
regulation originally anticipated the use of an FRA hearing officer.
    Although no regulatory change is necessary to allow an FRA hearing 
officer to preside over these administrative proceedings, FRA has 
identified several procedural issues that are necessary to clarify the 
process that is to be employed by the presiding officer regardless of 
whether that person is an agency hearing officer or an ALJ. FRA 
believes that there is a selected group of changes, which involve 
improvements to the existing rule's hearing procedures and review 
processes for revocation decisions regarding locomotive engineer 
certificates, that should occur immediately. Thus, FRA has decided to 
issue this interim final rule to make those changes immediately. Prompt 
adoption of these changes will reduce the confusion caused by wording 
of the current provisions.
    Since the publication of the final rule in June of 1991, a number 
of engineer qualification cases have been reviewed and several have 
proceeded to the administrative hearing stage. Based on these 
proceedings, FRA has identified improved procedures, identified below, 
to enhance the engineers' qualification program.
    This interim final rule contains minor modifications that clarify 
existing procedural rules applicable to the administrative hearing 
process; a series of changes made to provide for omitted procedures; 
and changes to correct typographical errors and minor ambiguities that 
have been detected since the rule's issuance. In order to make the rule 
more easily read, the full texts of sections that FRA is changing have 
been provided where substantial edits or additions have been made.

Analysis of Changes to Part 240

     Modification of Sec. 240.7. A definition of ``Administrator'' has 
been added to make it clear that whoever holds that title or the title 
of ``Deputy Administrator'' may designate someone to act in his or her 
stead whenever the regulation requires or empowers the 
``Administrator'' to act.
    A definition of ``Filing'' has been added to make it clear that any 
document that requires timely filing under this Part shall be deemed 
filed only upon receipt by the Docket Clerk.
    Modification of Sec. 240.119. Subsection (d)(4)(ii) is being 
corrected since a typographical error had listed Sec. 219.303(c), a 
non-existent subsection, as a cross-reference instead of Sec. 219.303.
    Modification of Sec. 240.203. Subsection (a) is being corrected 
since a typographical error had mistakenly listed Sec. 240.115 as 
Sec. 240.15.
    Modification of Sec. 240.205. The title of this section is being 
corrected because of a typographical error. The word ``base'' has been 
corrected to ``based.''
    Modification of Sec. 240.217. Subsection (c)(1) is being corrected 
because of a typographical error. The word ``that'' has been corrected 
to ``than.''
    Modification of Sec. 240.307. Subsection (a) is being corrected 
since a typographical error had listed Sec. 240.119(f), a non-existent 
subsection, as a cross-reference instead of Sec. 240.119(e). In 
addition, some minor non-substantive changes have been made to improve 
the clarity of the paragraph.
    Modification of Sec. 240.407. Four separate changes have been made 
to this section. First, the original wording of Sec. 240.407(a) gave 
rise to questions regarding the nature of the proceeding contemplated 
by the existing regulations. Section 240.407(a) initially gave parties 
adversely affected by a LERB decision ``a right to an administrative 
hearing concerning that (LERB) decision.'' That language has been 
replaced by the words ``a right to an administrative hearing as 
prescribed by Sec. 240.409.'' Although FRA has previously expressed its 
view as to the proper interpretation to be accorded this provision, 
confusion continues to exist. The modifications in wording will help 
clarify that the hearing's primary purpose is to determine anew the 
underlying facts and the correct application of part 240 to those 
facts, not to conduct an appellate review of the LERB's decision or the 
railroad's actions.
    FRA's intent in providing the opportunity for an FRA hearing was to 
permit the parties to have a de novo proceeding in which administrative 
procedural and evidentiary standards will apply.
    Second, Sec. 240.407(c) has been modified to clarify that a party 
that fails to request an administrative hearing in a timely fashion 
will lose the right to further administrative review due since the 
LERB's decision will constitute final agency action.
    Third, Sec. 240.407(d)(2) has been modified to clarify the 
petitioner's duty to specify what allegedly needs to be examined in 
connection with the certification decision in question. The amendment 
also removes a reference suggesting that the presiding officer is to 
review the LERB decision.
    Fourth, Sec. 240.407(e) has been modified to clarify that FRA does 
not schedule hearings or set an agenda for the proceeding. FRA merely 
arranges for the appointment of a presiding officer and it is the 
presiding officer's duty to schedule the hearing for the earliest 
practicable date. This modification recognizes that the presiding 
officer has the discretion to set the pace of the pre-hearing schedule 
and ultimately schedule the hearing.
    Modification of Sec. 240.409. A number of subsections have been 
changed to more clearly define the nature of the proceeding and a 
number have been added to provide better procedural guidelines for the 
conduct of hearings. The specific changes being made are described 
below.
    The proceeding provided by Sec. 240.409 affords an aggrieved party 
a de novo hearing at which the relevant facts can be adduced and the 
correct application of part 240 can be applied. Thus, a change has been 
made to Sec. 240.409 to eliminate any reference suggesting that an 
appellate review of the LERB's decision or a railroad's hearing was 
intended. This change reflects the intended nature of review of the 
original rule.
    FRA has also recognized that there may be instances when the issues 
are purely legal, or when only limited factual matters are necessary to 
determine issues. Therefore, Sec. 240.409(c) has been revised to 
address this possibility and provides that the presiding officer may 
determine the issues following an evidentiary hearing only on the 
disputed factual issues, if any. The presiding officer may therefore 
grant full or partial summary judgment.
    Sections 240.409 (d) through (t) contain a number of new provisions 
that more explicitly reflect the authority of the presiding officer and 
that were essentially implicit in the wording of former Sec. 240.409 
(b) through (j). For example, the subsections now explicitly authorize 
discovery and control details of service of filings by the parties in 
the proceeding. In addition, the subsections also have been amended to 
explicitly require that documents being submitted by any party must be 
appropriate matters for filing in the proceeding as well as be signed 
by the filing party.
    As the regulations previously stood, the presiding officer had 
certain explicit and implicit authority to regulate the conduct of a 
hearing including discovery. This authority has been used on a case-by-
case basis to direct discovery and the course of the separate 
proceedings. The rules of discovery and practice, which have been used 
by past presiding officers, have been relatively 

[[Page 53135]]
uniform and very much the same as the rules herein published in the 
revised Sec. 240.409. These rules are being published to guarantee 
greater uniformity and to make litigants aware of the applicable rules 
from the outset. The following is a discussion of a number of these 
provisions.
    The amended version of Sec. 240.409(d) is an addition which 
explicitly states that the presiding officer may authorize discovery. 
It also explicitly authorizes the presiding officer to sanction willful 
noncompliance with permissible discovery requests. Section 240.409(e) 
requires that documents in the nature of pleadings be signed. This 
signature constitutes a certification of factual and legal good faith. 
Section 240.409(f) states the requirement for service and for 
certificates of service. A presiding officer's authority to address 
noncompliance with a law or directive is made express in 
Sec. 240.409(g). This provision is intended to ensure that the 
presiding officer has the authority to control the proceeding so that 
an efficient and fair hearing will result.
    Section 240.409(h) states the right of each party to appear and be 
represented. Section 240.409(i) protects witnesses by ensuring their 
right of representation and their right to have their representative 
question them. Section 240.409(j) allows any party to request 
consolidation or separation of hearings of two or more petitions when 
to do so would be appropriate under established jurisprudential 
standards. This option is intended to allow more efficient 
determination of petitions in cases where a joint hearing would be 
advantageous. Under Sec. 240.409(k), the presiding officer can, with 
certain exceptions, extend periods for action required in the 
proceedings, provided substantial prejudice will not result to a party. 
The authority to deny a request for extension submitted after the 
expiration of the period involved shows the preference for use of this 
authority as a tool to alleviate unforeseen or unnecessary burdens, and 
not as a remedy for inexcusable neglect.
    Section 240.409(l) establishes that a motion is the appropriate 
method for requests for action made to the presiding officer. This 
subsection also provides for the form of motions and the response 
period for written motions. Section 240.409(m) provides rules for the 
mode of hearing and record maintenance, including requirements for 
sworn testimony, verbatim record (including oral testimony and 
argument), and inclusion of evidence or substitutes therefor in the 
record. Section 240.409(e) in the original regulation has been 
redesignated as Sec. 240.409(n). The original provisions of 
Secs. 240.409 (f), (g), (h), and (i) are now found in Secs. 240.409 
(o), (p), (s), and (t), respectively. Except for Sec. 240.409(p), the 
wording of these subsections has not been altered.
    In addition to moving the provisions of former Secs. 240.409(g) to 
240.409(p), the wording of this subsection has been revised to make 
party status mandatory. While railroads have chosen to participate in 
most of the part 240 hearings, we have experienced a few situations 
where a railroad opted not to be a party where its presence would have 
been helpful to illuminate certain issues. Hence, we are requiring that 
both the railroad and the petitioner to the LERB are mandatory parties 
so that a more logical hearing will take place.
    Furthermore, the new Sec. 240.409(p) reflects FRA's view that the 
railroad involved in each certification case clearly has an interest in 
the outcome of these proceedings. In most cases, the evidence being 
introduced at the hearing was initially gathered by the railroad, the 
railroad's own rules are at the heart of the case, and the railroad 
will be affected in a variety of ways by any decision rendered. Thus, 
the regulation provides that the railroad will be a party to the 
hearing. Given its interest in the outcome of the case, FRA expects 
that the railroad will be active parties in each case.
    The wording of the original Sec. 240.409(k) has been changed and 
now appears as Sec. 240.409(q) and (r). Experience has shown that the 
wording of the former provision and FRA's description of its role under 
that wording is a source of considerable confusion about the roles of 
various parties in the proceeding. The amended wording of this 
provision now reflects a refined view of the intended nature of the 
proceeding and the role of the parties.
    Section 240.409(q) reflects FRA's conclusion, based on over three 
years of experience, that it is more logical and efficient to have the 
party requesting the hearing carry the burden of proof than to have FRA 
bear the burden of proving that the LERB decision was correct. The 
actions at issue in the hearing are those of the engineer and the 
railroad--not the LERB. Thus, it is appropriate that the engineer and 
the railroad fill the roles of petitioner and respondent for the 
hearing. In addition, the burden each party would have if they were the 
hearing petitioner is articulated in the rule.
    Section 240.409(r) clarifies that FRA will continue to be a 
mandatory party in the proceeding. In all proceedings, FRA will 
initially be considered a respondent. If, based on evidence acquired 
after the filing of a petition for hearing, FRA were to conclude that 
the public interest in safety was more closely aligned with the 
position of the petitioner than the respondent, FRA could request that 
the hearing officer exercise his or her inherent authority to realign 
parties for good cause shown. However, FRA anticipates that such a 
situation would occur rarely, if ever. Since FRA can realign itself, we 
want to caution future parties that FRA represents the interests of the 
government; hence, parties and their representatives should be careful 
to avoid ethical dilemmas that might arise due to FRA's ability to 
realign itself.
    Modification of Sec. 240.411. Subsection (a) has been modified to 
provide explicitly that if no appeal is timely filed, the presiding 
officer's decision constitutes final agency action. This statement is 
implicit in the rule's construction but has been explicitly clarified 
so that the parties fully understand the implications of not filing a 
timely request for an appeal.
    Modification of Appendix A. Some minor revisions have been made to 
the penalty schedule references of Secs. 240.221 and 240.305 so that 
they accurately reflect the language of the regulation. A reference to 
Sec. 240.201(j) has been eliminated since the regulation does not 
contain such a subsection. Also, some typographical errors were 
corrected (i.e., the transposition of Secs. 240.307 and 240.309 in the 
original schedule).

Public Proceedings

    The Administrative Procedure Act, specifically 5 U.S.C. 553(b)(3), 
provides that no notice and comment period is required when an agency 
modifies rules of internal procedure and practice. Accordingly, this 
regulation is issued without provision of such a period of comment 
prior to its adoption.
    Although not required to provide notice and opportunity for comment 
in such a proceeding, FRA frequently does provide notice and 
opportunity for comment even on its procedural rules. FRA has not 
chosen that course of action here because it concludes that such notice 
and comment would be impracticable, unnecessary, and contrary to the 
public interest. A number of these changes are critical to the 
effective implementation of these rules and the delay that notice and 
comment would cause would be contrary to the public interest in 
railroad safety. The beginning of a new fiscal year on October 1, 1995, 
provides some urgency because budgetary constraints will require the 
use of 

[[Page 53136]]
internal hearing officers on all but emergency matters at the 
conclusion of Fiscal Year 1995. Moreover, the orderly implementation of 
part 240 requires prompt revision of its hearing procedures.
    Despite the need for prompt action, FRA is soliciting comments on 
this rule and will consider those comments in determining whether there 
is a need to take further action to improve these regulations. For this 
reason, FRA has issued this as an interim final rule so that it can 
take effect while any comments are being considered. If comments 
persuade FRA that amendments are necessary, it will address them in a 
subsequent notice. Written comments must be submitted no later than 
November 13, 1995.

Regulatory Impact

E.O. 12866 and DOT Regulatory Policies and Procedures

    This interim final rule has been evaluated in accordance with 
existing regulatory policies and is considered to be nonsignificant 
under Executive Order 12866 and is not significant under the DOT 
policies and procedures (44 FR 11034; February 26, 1979).

Regulatory Flexibility Act

    FRA certifies that this rule will not have a significant economic 
impact on a substantial number of small entities. These rules will 
apply to railroads. Although a substantial number of small railroads 
are subject to this regulation, the economic impact of this amendment 
to the rule will not be significant since it only clarifies existing 
provisions and makes technical changes to procedural rules which 
should, to the extent of change, result in more efficient and more 
economical proceedings.
    These amendments to the basic rule will have no direct impact on 
small units of government, businesses, or other organizations. State 
rail agencies are not required to participate in this program. This 
amendment's changes do not involve any part of the program in which 
state rail agencies would participate, if they chose to participate in 
the program as a whole.

Paperwork Reduction Act

    There are no new collection of information requirements contained 
in this rule and, in accordance with the Paperwork Reduction Act of 
1980, the record keeping and reporting requirements already contained 
in this rule have been approved by the Office of Management and Budget. 
The OMB approval number was published in a previous amendment to part 
240. The information collection requirements of this rule became 
effective when they were approved by OMB.

Environmental Impact

    FRA has evaluated this regulation in accordance with its procedure 
for ensuring full consideration of the environmental impacts of FRA 
actions as required by the National Environmental Policy Act (42 U.S.C. 
4321 et seq.), other environmental statutes, Executive Orders, and 
related directives. This regulation meets the criteria that establish 
this as a non-major action for environmental purposes.

Federalism Implications

    This rule will not have a substantial effect on the states, on the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government. Thus in accordance with Executive Order 12612, preparation 
of a Federalism Assessment is not warranted.

List of Subjects

49 CFR Part 209

    Railroad safety, Disqualification procedures.

49 CFR Part 240

    Railroad safety, Railroad operating procedures.

The Part 209 Rule

    Therefore, in consideration of the foregoing, FRA amends part 209, 
Title 49, Code of Federal Regulations to read as follows:

PART 209--[AMENDED]

    1. The authority citation for Part 209, Disqualification 
Procedures, is revised to read as follows:

    Authority: 49 U.S.C. Chs. 51, 57, and 201-213; 49 CFR 1.49.

    2. Section 209.321 is amended by revising paragraph (a) to read as 
follows:


Sec. 209.321  Hearing.

    (a) Upon receipt of a hearing request complying with Sec. 209.311, 
an administrative hearing for review of a notice of proposed 
disqualification shall be conducted by a presiding officer, who can be 
any person authorized by the FRA Administrator, including an 
administrative law judge. The hearing shall begin within 180 days from 
receipt of respondent's hearing request. Notice of the time and place 
of the hearing shall be given to the parties at least 20 days before 
the hearing. Testimony by witnesses shall be given under oath and the 
hearing shall be recorded verbatim. The hearing shall be open to the 
public, unless the presiding official determines that it would be in 
the best interests of the respondent, a witness, or other affected 
persons, to close all or any part of it. If the presiding official 
makes such a determination, an appropriate order, which sets forth the 
reasons therefor, shall be entered.
* * * * *

The Part 240 Rule

    Therefore, in consideration of the foregoing, FRA amends part 240, 
title 49, Code of Federal Regulations to read as follows:

PART 240--[AMENDED]

    1. The authority citation for Part 240 is revised to read as 
follows:

    Authority: 49 U.S.C. Chs. 201-213; 49 CFR 1.49.

    2. Section 240.7 is amended to add the following definitions:


Sec. 240.7  Definitions.

    Administrator means the Administrator of FRA, the Deputy 
Administrator of FRA, or the delegate of either.
* * * * *
    Filing means that a document to be filed under this Part shall be 
deemed filed only upon receipt by the Docket Clerk.
* * * * *
    3. Section 240.119 is amended by revising the first sentence of 
paragraph (d)(4)(ii) to read as follows:


Sec. 240.119  Criteria for consideration of data on substance abuse 
disorders and alcohol drug rules compliance.

* * * * *
    (d) * * *
    (4) * * *
    (ii) Analysis of a blood specimen for alcohol in the same manner as 
prescribed in Sec. 219.303 of this chapter.***
* * * * *
    4. Section 240.203 is amended by revising paragraph (a)(1) to read 
as follows:


Sec. 240.203  Determinations required as a prerequisite to 
certification.

    (a) * * *
    (1) The individual meets the eligibility requirements of 
Secs. 240.115, 240.117 and 240.119; and
* * * * *
    5. Section 240.205 is amended by revising the section heading:


Sec. 240.205  Procedures for determining eligibility based on prior 
safety conduct.

* * * * * 

[[Page 53137]]

    6. Section 240.217 is amended by revising paragraph (c)(1) to read 
as follows:


Sec. 240.217  Time limitations for making determinations.

* * * * *
    (c) * * *
    (1) Certify a person as a qualified locomotive engineer for an 
interval of more than 36 months; or
* * * * *
    7. Section 240.307 is amended by revising paragraph (a) to read as 
follows:


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.
* * * * *
    8. Section 240.407 is revised to read as follows:


Sec. 240.407  Request for a hearing.

    (a) If adversely affected by the Locomotive Engineer Review Board 
decision, either the petitioner before the Board or the railroad 
involved shall have a right to an administrative proceeding as 
prescribed by Sec. 240.409.
    (b) To exercise that right, the adversely affected party shall file 
with the Docket Clerk a written request within 20 days of service of 
the Board's decision on that party.
    (c) The result of a failure to request a hearing within the period 
provided in paragraph (b) of this section is that the Locomotive 
Engineer Review Board's decision will constitute final agency action.
    (d) If a party elects to request a hearing, that person shall 
submit a written request to the Docket Clerk containing the following:
    (1) The name, address, and telephone number of the respondent and 
the requesting party's designated representative, if any;
    (2) The specific factual issues, industry rules, regulations, or 
laws that the requesting party alleges need to be examined in 
connection with the certification decision in question; and
    (3) The signature of the requesting party or the requesting party's 
representative, if any.
    (e) Upon receipt of a hearing request complying with paragraph (d) 
of this section, FRA shall arrange for the appointment of a presiding 
officer who shall schedule the hearing for the earliest practicable 
date.
    9. Section 240.409 is revised to read as follows:


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 
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. 

[[Page 53138]]

    (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.
    (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.
    10. Section 240.411 is amended by revising paragraph (a) to read as 
follows:


Sec. 240.411  Appeals.

    (a) Any party aggrieved by the presiding officer's decision may 
file an appeal. The appeal must be filed within 35 days of issuance of 
the decision with the Federal Railroad Administrator, 400 Seventh 
Street SW., Washington, DC 20590. A copy of the appeal shall be served 
on each party. The appeal shall set forth objections to the presiding 
officer's decision, supported by reference to applicable laws and 
regulations and with specific reference to the record. If no appeal is 
timely filed, the presiding officer's decision constitutes final agency 
action.
* * * * *
    11. Appendix A to Part 240 is amended by revising the penalty 
entries for Secs. 240.201, 240.221, 240.305, 240.307, and 240.309 to 
read as follows:

          Appendix A to Part 240.--Schedule of Civil Penalties          
------------------------------------------------------------------------
                                                               Willful  
                    Section                      Violation    violation 
------------------------------------------------------------------------
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
240.201--Schedule for implementation:                                   
    (a) Failure to select supervisors by                                
     specified date...........................        1,000        2,000
    (b) Failure to identify grandfathered                               
     engineers................................        2,000        4,000
    (c) Failure to issue certificate to                                 
     engineer.................................        1,000        2,000
    (d) Allowing uncertified person to operate        5,000       10,000
    (e-g) Certifying without complying with                             
     subpart C................................        2,500        5,000
    (h-i) Failure to issue certificate to                               
     engineer.................................        1,000        2,000
                                                                        
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
240.221-Identification of persons:                                      
    (a-c) Failure to have a record............        2,000        4,000
    (d) Failure to update a record............        2,000        4,000
    (e-f) Failure to make a record available..        1,000        2,000
                                                                        
                                                                        

[[Page 53139]]
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
240.305--Prohibited conduct:                                            
    (a) Unlawful:                                                       
        (1) control of speed..................        2,500        5,000
        (2) passing of stop signal............        2,500        5,000
        (3) occupancy of main track without                             
         authority............................        2,500        5,000
    (b) Failure of engineer to:                                         
        (1) carry certificate.................        1,000        2,000
        (2) display certificate when requested        1,000        2,000
    (c) Failure of engineer to notify railroad                          
     of limitations or railroad requiring                               
     engineer to exceed limitations...........        4,000        8,000
    (d) Failure of engineer to notify railroad                          
     of denial or revocation..................        4,000        8,000
                                                                        
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
240.307--Revocation of certification:                                   
    (a) Failure to withdraw person from                                 
     service..................................        2,500        5,000
    (b) Failure to notify, provide hearing                              
     opportunity; or untimely procedures......        2,000        4,000
240.309--Oversight responsibility report                                
    (a) Failure to report or to report on time          500        1,000
    (b-f) Incomplete or inaccurate report.....        2,000        4,000
                                                                        
                                                                        
*                  *                  *                  *              
                  *                  *                  *               
------------------------------------------------------------------------


* * * * * *
    Issued in Washington, DC, on September 29, 1995.
Jolene M. Molitoris,
Administrator.
[FR Doc. 95-25183 Filed 10-11-95; 8:45 am]
BILLING CODE 4910-06-P