§ 245.405 Processing certification review petitions.

(a) Each petition shall be acknowledged in writing by FRA. The acknowledgment shall be sent to the petitioner (if an email address is provided), petitioner's representative (if any), and the railroad. The acknowledgment shall contain the docket number assigned to the petition and will notify the parties where the petition can be accessed. (b) Within 60 days from the date of the acknowledgment provided in paragraph (a) of this section, the railroad may submit to FRA any information that the railroad considers pertinent to the petition and shall supplement the record with any relevant documents in its possession, such as hearing transcripts and exhibits, that were not submitted by the petitioner. Late filings will only be considered to the extent practicable. A railroad that submits such information shall: (1) Identify the petitioner by name and the docket number for the petition; (2) Provide the railroad's email address; (3) Serve a copy of the information being submitted to the petitioner and petitioner's representative, if any; and (4) File such information on https://www.regulations.gov. (c) The petition will be referred to the Board for a decision after a railroad's response is received or 60 days from the date of the acknowledgment provided in paragraph (a) of this section, whichever is earlier. Based on the record, the Board shall have the authority to grant, deny, dismiss, or remand the petition. If the Board finds that there is insufficient basis for granting or denying the petition, the Board may issue an order affording the parties an opportunity to provide additional information or argument consistent with its findings. (d) When considering procedural issues, the Board will grant the petition if the petitioner shows: (1) That a procedural error occurred; and (2) The procedural error caused substantial harm to the petitioner. (e) When considering factual issues, the Board will grant the petition if the petitioner shows that the railroad did not provide substantial evidence to support its decision. (f) When considering legal issues, the Board will determine whether the railroad's legal interpretations are correct based on a de novo review. (g) The Board will only consider whether the denial or revocation of certification or recertification was improper under this part and will grant or deny the petition accordingly. The Board will not otherwise consider the propriety of a railroad's decision. For example, the Board will not consider whether the railroad properly applied its own more stringent requirements. (h) The Board's written decision shall be served on the petitioner and/or petitioner's representative (if any) and the railroad.