NOTE 1: Beginning January 1, 1992, FRA established certain "cardinal rules" making the following actions unlawful:

• Operating a locomotive or train past a signal indication which requires a complete stop.
• Operating a locomotive or train more than 10 miles per hour above authorized speed. (Incidents involving restricted speed violations also require revocation of certification if a reportable accident or incident occurs.)
• Operating a locomotive or train without adhering to requirements for transfer, initial or intermediate terminal air tests.
• Occupying main track without proper authority or permission.
• Tampering with locomotive mounted safety devices.

When the Carrier obtains reliable information that an Engineer has violated one of these requirements, it must immediately suspend the Engineer's certificate. The Engineer must be advised of the reason for suspension. Such advice may initially be given verbally, but must be confirmed in writing within 96 hours after the suspension. If the certificate is later revoked following a hearing or waiver of hearing, this period of suspension prior to revocation must be credited toward the prescribed revocation period.

NOTE 2: On BNSF, notice of the revocation hearing is usually combined with an investigation notice under the collective bargaining agreement, but this is not mandatory. If combined, a hearing that complies with the collective bargaining agreement is also deemed to meet FRA requirements. If not combined, the FRA decertification hearing must be held within 10 days after suspension of the certificate.

NOTE 3: A waiver of rights under FRA regulations and acceptance of the prescribed period of decertification does not necessarily require or constitute waiver of a discipline investigation under the collective bargaining agreement. In other words (provided the Carrier is agreeable), an Engineer may waive the disciplinary investigation and accept discipline, and still request the FRA hearing for decertification. Conversely, the Engineer may waive the FRA hearing and accept the decertification period, and still have the right to a disciplinary investigation under the collective bargaining agreement. Waivers of either hearing must be obtained separately. Waiver of the discipline investigation is governed solely by the collective bargaining agreement, while waiver of the FRA decertification hearing is governed solely by the FRA regulations. Waiver of Hearing must be in writing, reflect that Engineer understands and voluntarily surrenders rights, and be signed by Engineer.

NOTE 4: The revocation hearing must be conducted by an officer other than the officer who initially investigated the incident and suspended the certificate. The Carrier has the burden of proving that the Engineer's conduct warrants revocation. Separate from any findings in a discipline case, the conducting officer must advise the Engineer, in writing, if certification is being revoked.   

NOTE 5: A Petition for FRA review must be filed in triplicate, and sent to Docket Clerk, Federal Railroad Administration, 400 Seventh Street SW, Washington, DC 20590. The Locomotive Engineer Review Board consists of employees of the FRA appointed by the Federal Railroad Administrator. The Review Board must acknowledge the petition in writing, assign a docket number and provide the Railroad a copy. The Railroad has up to 60 days to respond, and must provide a copy of the response to the petitioning Engineer. The Review Board will then examine the record, and render a decision within 180 days after receipt of the Railroad's response.

NOTE 7: If either party wishes to challenge the Review Board's decision, a request for Administrative Hearing must be filed within 20 days after the Review Board decision is served. The request must be filed with the Docket Clerk, Federal Railroad Administration, 400 Seventh Street SW., Washington DC 20590. The request must contain the name, address and phone number of the party making the request and their designated representative, if any. It must also contain the FRA docket number of the case, and any specific facts that the party alleges the Board wrongly determined in making its decision.

NOTE 8: The Administrative Hearing is conducted by an Administrative Officer authorized by FRA, usually an administrative law judge. Normally, that Officer will issue an Initial Order, setting forth the specific requirements and deadlines for each party to provide information focusing on "truly contested and relevant factual issues" which would bear on the revocation decision. This is a "de novo" hearing, which simply means that the parties are "starting anew" in making their respective arguments to the Administrative Officer. Neither party is limited to the existing record if new evidence or information is available which might affect either the Carrier's revocation or the Review Board's decision. However, in this Administrative Hearing the party requesting the hearing has the burden of proof. For instance, if an Engineer requests Administrative Hearing after the Review Board upheld the Carrier's revocation decision, then the Engineer must carry the burden of proving that the Carrier and the Review Board were wrong. The Administrative Officer has full authority to set the time and place of the hearing, and to administer oaths and issue subpoenas as necessary to complete the evidentiary phase of the hearing. After the hearing, the Administrative Officer will render a written decision, including the findings of fact and conclusions of law concerning all material issues presented on the record.

NOTE 9: If either party wishes to challenge the decision of the Administrative Officer, an appeal must be filed within 35 days after service of that decision, to the Federal Railroad Administrator, 400 Seventh Street SW, Washington, DC 20590. A copy of the appeal must be furnished to the other party. The appeal must set forth the party's objections to the Administrative Officer's decision, supported by reference to applicable laws and regulations, and evidence contained in the record. The Federal Railroad Administrator will issue a decision, which constitutes final agency action.