[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2024 Edition]
[From the U.S. Government Publishing Office]

[[Page i]]

Title 49

Transportation

________________________

Parts 1000 to 1199

Revised as of October 1, 2024

Containing a codification of documents of general
applicability and future effect

As of October 1, 2024
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register

[[Page ii]]

U.S. GOVERNMENT OFFICIAL EDITION NOTICE

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Table of Contents

Page
Explanation................................................. v

Title 49:
SUBTITLE B--Other Regulations Relating to Transportation
(Continued)
Chapter X--Surface Transportation Board 5
Finding Aids:
Table of CFR Titles and Chapters........................ 319
Alphabetical List of Agencies Appearing in the CFR...... 339
List of CFR Sections Affected........................... 349

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----------------------------

Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 49 CFR 1001.1 refers
to title 49, part 1001,
section 1.

----------------------------

[[Page v]]

EXPLANATION

The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

The appropriate revision date is printed on the cover of each
volume.

LEGAL STATUS

The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2024), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.

OMB CONTROL NUMBERS

The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.

PAST PROVISIONS OF THE CODE

Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.

``[RESERVED]'' TERMINOLOGY

The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.

[[Page vii]]

An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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in the Code of Federal Regulations.

INQUIRIES

For a legal interpretation or explanation of any regulation in this
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the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].

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The e-CFR is a regularly updated, unofficial editorial compilation
of CFR material and Federal Register amendments, produced by the Office
of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.

Oliver A. Potts,
Director,
Office of the Federal Register.
October 1, 2024.

[[Page ix]]

THIS TITLE

Title 49--Transportation is composed of nine volumes. The parts in
these volumes are arranged in the following order: Parts 1-99, parts
100-177, parts 178-199, parts 200-299, parts 300-399, parts 400-571,
parts 572-999, parts 1000-1199, and part 1200 to end. The first volume
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
177) and the third volume (parts 178-199) contain the current
regulations issued under chapter I--Pipeline and Hazardous Materials
Safety Administration (DOT); the fourth volume (parts 200-299) contains
the current regulations issued under chapter II--Federal Railroad
Administration (DOT); the fifth volume (parts 300-399) contains the
current regulations issued under chapter III--Federal Motor Carrier
Safety Administration (DOT); the sixth volume (parts 400-571) contains
the current regulations issued under chapter IV--Coast Guard (DHS), and
some of chapter V--National Highway Traffic Safety Administration (DOT);
the seventh volume (parts 572-999) contains the rest of the regulations
issued under chapter V--National Highway Traffic Safety Administration
(DOT), and the current regulations issued under chapter VI--Federal
Transit Administration (DOT), chapter VII--National Railroad Passenger
Corporation (AMTRAK), and chapter VIII--National Transportation Safety
Board; the eighth volume (parts 1000-1199) contains some of the current
regulations issued under chapter X--Surface Transportation Board and the
ninth volume (part 1200 to end) contains the rest of the current
regulations issued under chapter X--Surface Transportation Board,
chapter XI--Research and Innovative Technology Administration (DOT), and
chapter XII--Transportation Security Administration (DHS). The contents
of these volumes represent all current regulations codified under this
title of the CFR as of October 1, 2024.

In the volume containing parts 100-177, see Sec. 172.101 for the
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards
appear in part 571.

For this volume, Ann Worley was Chief Editor, aided by Tess Waroich.
The Code of Federal Regulations publication program is under the
direction of John Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]

TITLE 49--TRANSPORTATION

(This book contains parts 1000 to 1199)

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SUBTITLE B--Other Regulations Relating to Transportation (Continued)

Part

chapter x--Surface Transportation Board..................... 1001

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Subtitle B--Other Regulations Relating to Transportation (Continued)

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CHAPTER X--SURFACE TRANSPORTATION BOARD

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Editorial Note: Nomenclature changes to chapter X appear at 62 FR
42075, Aug. 5, 1997.

SUBCHAPTER A--GENERAL RULES AND REGULATIONS
PARTS 1000-1019--GENERAL PROVISIONS
Part Page
1000

[Reserved]

1001 Inspection of records....................... 9
1002 Fees........................................ 11
1003 Forms....................................... 23
1004 Interpretations and routing regulations..... 23
1005 Principles and practices for the
investigation and voluntary disposition
of loss and damage claims and processing
salvage................................. 24
1007 Records containing information about
individuals............................. 26
1011 Board organization; delegations of authority 33
1012 Meetings of the Board....................... 39
1013 Guidelines for the proper use of voting
trusts.................................. 43
1014 Enforcement of nondiscrimination on the
basis of handicap in programs or
activities conducted by the Surface
Transportation Board.................... 44
1016 Special procedures governing the recovery of
expenses by parties to Board
adjudicatory proceedings................ 50
1017 Debt collection--collection by offset from
indebted government and former
government employees.................... 55
1018 Debt collection............................. 61
1019 Regulations governing conduct of Surface
Transportation Board employees.......... 73
PARTS 1021-1029--ENFORCEMENT
1021 Administrative collection of enforcement
claims.................................. 74

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1022 Civil monetary penalty inflation adjustment. 74
PARTS 1030-1039--CARRIERS SUBJECT TO PART I, INTERSTATE COMMERCE ACT
1033 Car service................................. 77
1034 Routing of traffic.......................... 79
1035 Bills of lading............................. 80
1037 Bulk grain and grain products--loss and
damage claims........................... 85
1039 Exemptions.................................. 87
PARTS 1040-1089 [RESERVED]
PARTS 1090-1099--INTERMODAL TRANSPORTATION
1090 Practices of carriers involved in the
intermodal movement of containerized
freight................................. 92
SUBCHAPTER B--RULES OF PRACTICE
PARTS 1100-1129--RULES OF GENERAL APPLICABILITY
1100 General provisions.......................... 94
1101 Definitions and construction................ 94
1102 Communications.............................. 95
1103 Practitioners............................... 98
1104 Filing with the board-copies-verification-
service-pleadings, generally............ 107
1105 Procedures for implementation of
environmental laws...................... 112
1106 Procedures for Surface Transportation Board
consideration of safety integration
plans in cases involving railroad
consolidations, mergers, and
acquisitions of control................. 122
1107

[Reserved]

1108 Arbitration of certain disputes subject to
the statutory jurisdiction of the
Surface Transportation Board............ 124
1109 Use of mediation in board proceedings....... 143
1110 Procedures governing informal rulemaking
proceedings............................. 146
1111 Complaint and investigation procedures...... 148
1112 Modified procedures......................... 154
1113 Oral hearing................................ 156
1114 Evidence; discovery......................... 162
1115 Appellate procedures........................ 173
1116 Oral argument before the Board.............. 175
1117 Petitions (for relief) not otherwise covered 176
1119 Compliance with Board decisions............. 176

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1120 Use of 1977-1978 study of motor carrier
platform handling factors............... 176
1121 Rail exemption procedures................... 176
1122 Board-initiated investigations.............. 178
1123-1129

[Reserved]

PARTS 1130-1149--RATE PROCEDURES
1130 Informal complaints......................... 182
1132 Protests requesting suspension and
investigation of collective ratemaking
actions................................. 184
1133 Recovery of damages......................... 185
1135 Railroad cost recovery procedures........... 186
1141 Procedures to calculate interest rates...... 186
1144 Intramodal rail competition................. 187
1145 Reciprocal switching for inadequate service. 188
1146 Expedited relief for service emergencies.... 194
1147 Temporary relief under 49 U.S.C. 10705 and
11102 for service inadequacies.......... 197
1148-1149

[Reserved]

PARTS 1150-1176--LICENSING PROCEDURES
PARTS 1150-1159--RAIL LICENSING PROCEDURES
1150 Certificate to construct, acquire, or
operate railroad lines.................. 198
1151 Feeder railroad development program......... 211
1152 Abandonment and discontinuance of rail lines
and rail transportation under 49 U.S.C.
10903................................... 215
1155 Solid waste rail transfer facilities........ 270
1156-1176

[Reserved]

PARTS 1177-1199--FINANCE PROCEDURES
PARTS 1177-1179--SECURITIES, SECURITY INTERESTS, AND FINANCIAL
STRUCTURES
1177 Recordation of documents.................... 282
1178-1179

[Reserved]

PARTS 1180-1189--COMBINATIONS AND OWNERSHIP
1180 Railroad acquisition, control, merger,
consolidation project, trackage rights,
and lease procedures.................... 285
1182 Purchase, merger, and control of motor
passenger carriers...................... 309
1184 Motor carrier pooling operations............ 313
1185 Interlocking officers....................... 314
1187-1199

[Reserved]

[[Page 9]]

SUBCHAPTER A_GENERAL RULES AND REGULATIONS

Parts 1000 1019_General Provisions

PART 1000 [RESERVED]

PART 1001_INSPECTION OF RECORDS--Table of Contents

Sec.
1001.1 Records available from the Board.
1001.2 Certified copies of records.
1001.3 Requests to inspect other records not considered public under 5
U.S.C. 552.
1001.4 Predisclosure notification procedures for confidential commercial
information.

Authority: 5 U.S.C. 552, 49 U.S.C. 1302, and 49 U.S.C. 1321.

Source: 62 FR 48954, Sept. 18, 1997, unless otherwise noted.

Sec. 1001.1 Records available from the Board.

(a) The following specific files and records in the custody of the
Records Officer of the Surface Transportation Board are available to the
public and may be inspected at the Board's office upon reasonable
request during business hours (between 8:30 a.m. and 5 p.m., Monday
through Friday):
(1) Copies of tariffs and railroad transportation contract summaries
filed with the Board pursuant to 49 U.S.C. 13702(b) and 10709(d),
respectively.
(2) Annual and other periodic reports filed with the Board pursuant
to 49 U.S.C. 11145.
(3) All docket files, which include documents of record in a
proceeding.
(4) File and index of instruments or documents recorded pursuant to
49 U.S.C. 11301.
(5) Surface Transportation Board Administrative Issuances.
(b) The following records, so-called ``reading room'' documents, are
available for inspection and copying at the Board's office:
(1) Final decisions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(2) Those statements of policy and interpretations that have been
adopted by the agency and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public; and
(4) Copies of all records, regardless of form or format, that have
been released to any person under 5 U.S.C. 552(a)(3) and that, because
of the nature of their subject matter, the agency determines have become
or are likely to become the subject of subsequent requests for
substantially the same records.
(c) The Board maintains, and makes available for inspection and
copying, indexes of the documents described in paragraph (b) of this
section. Final decisions are indexed in the ``Surface Transportation
Board Daily Releases'', which is issued by the Board every working day.
This document also explains how copies of decisions can be purchased.
The remaining documents are indexed as they are made available.
(d) Documents described in paragraph (b) of this section that were
created on and after November 1, 1996, are indexed by service date or
date of issuance and are available for viewing and downloading from the
Board's Electronic Reading Room at www.stb.gov, the Board's website.
Final decisions are maintained in a database that is full text
searchable.

[64 FR 47711, Sept. 1, 1999, as amended at 74 FR 52902, Oct. 15, 2009;
83 FR 15077, Apr. 9, 2018]

Sec. 1001.2 Certified copies of records.

Copies of and extracts from public records will be certified by the
Records Officer. Persons requesting the Board to prepare such copies
should clearly state the material to be copied, and whether it shall be
certified. Charges will be made for certification and for the
preparation of copies as provided in part 1002 of this chapter.

[74 FR 52903, Oct. 15, 2009]

[[Page 10]]

Sec. 1001.3 Requests to inspect other records not considered public
under 5 U.S.C. 552.

(a) Request and determination. Requests to inspect records other
than those now deemed to be of a public nature shall be in writing and
addressed to the Freedom of Information Act Officer (FOIA Officer). The
FOIA Officer shall determine within 20 days of receipt of a request
(excepting Saturdays, Sundays, and legal public holidays) whether a
requested record will be made available. If the FOIA Officer determines
that a request cannot be honored, the FOIA Officer must inform the
requesting party in writing of this decision and such letter shall
contain a detailed explanation of why the requested material cannot be
made available and explain the requesting party's right of appeal.
(b) Appeal. If the FOIA Officer rules that such records cannot be
made available because they are exempt under the provisions of 5 U.S.C.
552(b), an appeal from such ruling may be addressed to the Chairman. The
Chairman's decision shall be administratively final and shall state the
specific exemption(s) contained in 5 U.S.C. 552(b) relied upon for any
denial. Such an appeal must be filed within 90 days of the date of the
FOIA Officer's letter. The Chairman shall act in writing on such appeals
within 20 days (excepting Saturdays, Sundays, and legal public holidays)
of receipt of any appeal. In unusual circumstances, as set forth in 5
U.S.C. 552(a)(6)(B), the time limit may be extended, by written notice
to the person making the particular request, setting forth the reasons
for such extension, for no more than 10 working days. If the appeal is
denied, the Chairman's order shall notify the requesting party of his or
her right to judicial review. Charges shall be made as provided for in
49 CFR 1002.1.
(c) Alternative dispute resolution services. Requesters may seek
dispute resolution services from:
(1) The Board's FOIA Public Liaison by Email at [email protected]
or by mail, telephone, or facsimile as provided on the Board's Web site
located at https://www.stb.gov/stb/foia.html; or
(2) The Office of Government Information Services (OGIS) by mail to
Office of Government Information Services, National Archives and Records
Administration, 8601 Adelphi Road--OGIS, College Park, Maryland, 20740-
6001, by facsimile at (202) 741-5769, or by Email at [email protected].

[81 FR 90750, Dec. 15, 2016]

Sec. 1001.4 Predisclosure notification procedures for confidential
commercial information.

(a) In general. Confidential commercial information provided to the
Interstate Commerce Commission or the Board shall not be disclosed
pursuant to a Freedom of Information Act (FOIA) request except in
accordance with this section. For such purposes, the following
definitions apply:
(1) Confidential commercial information means records provided to
the government by a submitter that arguably contain material exempt from
release under Exemption 4 of the Freedom of Information Act, 5 U.S.C.
552(b)(4), because disclosure could reasonably be expected to cause
substantial competitive harm.
(2) Submitter means any person or entity who provides confidential
commercial information to the government. The term ``submitter''
includes, but is not limited to, corporations, state governments, and
foreign governments.
(b) Notice to submitters. Except as provided in paragraph (g) of
this section, the Board, to the extent permitted by law, shall provide a
submitter with prompt written notice, in accordance with paragraph (c)
of this section, of receipt of an FOIA request encompassing its
submissions. This notice shall either describe the exact nature of the
information requested or provide copies of the records themselves.
(c) When notice is required. Notice shall be given to a submitter
whenever:
(1) The Board has reason to believe that disclosure of the
information could reasonably be expected to cause substantial
competitive harm; or
(2) The information has been designated, in good faith by the
submitter, as confidential commercial information at the time of
submission or within a reasonable time thereafter. Whenever possible,
the submitter's claim of confidentiality shall be supported by a
statement or certification by an officer

[[Page 11]]

or authorized representative of the company that the information in
question is in fact confidential commercial information and has not been
disclosed to the public.
(d) Opportunity to object to disclosure. (1) Through the notice
described in paragraph (b) of this section, the Board shall afford a
submitter a reasonable period of time in which to provide it with a
detailed statement of any objection to disclosure. Such statement shall
specify all grounds for withholding the requested information.
(2) When notice is given to a submitter under this section, the
Board also shall notify the requester that it has been provided.
(e) Notice of intent to disclose. (1) The Board shall consider
carefully a submitter's objections and specific grounds for
nondisclosure prior to its determination whether or not to disclose the
requested information. Whenever the Board decides to disclose the
information over a submitter's objection, it shall provide the submitter
with written notice containing the following:
(i) A description or copy of the information to be disclosed;
(ii) The reasons why the submitter's disclosure objections were not
sustained; and
(iii) A specific disclosure date, which shall be a reasonable number
of days after the notice of intent to disclose has been mailed to the
submitter.
(2) At the same time that notice of intent to disclose is given to a
submitter, the Board shall notify the requester accordingly.
(f) Notice of lawsuit. (1) Whenever an FOIA requester brings legal
action seeking to compel disclosure of confidential commercial
information, the Board shall promptly notify the submitter.
(2) Whenever a submitter brings legal action seeking to prevent
disclosure of confidential commercial information, the Board shall
promptly notify the requester.
(g) Exception to notice requirement. The notice requirements of this
section shall not apply if:
(1) The Board determines that the information requested should not
be disclosed; or
(2) The information already has been published or otherwise
officially made available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) Disclosure is required by a Board rule that:
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to the Board that
are to be released; and
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information is
submitted or within a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm; or
(5) The information requested was not designated by the submitter as
exempt from disclosure, when the submitter had an opportunity to do so
at the time of submission or within a reasonable time thereafter, unless
the Board has reason to believe that disclosure of the information could
reasonably be expected to cause substantial competitive harm; or
(6) The designation made by the submitter in accordance with these
regulations appears obviously frivolous; in such case, the Board must
provide the submitter only with written notice of any administrative
disclosure determination within a reasonable number of days prior to the
specified disclosure date.

PART 1002_FEES--Table of Contents

Sec.
1002.1 Fees for records search, review, copying, certification, and
related services.
1002.2 Filing fees.
1002.3 Updating user fees.

Authority: 5 U.S.C. 552(a)(4)(A), (a)(6)(B), and 553; 31 U.S.C.
9701; and 49 U.S.C. 1321. Section 1002.1(f)(11) is also issued under 5
U.S.C. 5514 and 31 U.S.C. 3717.

Sec. 1002.1 Fees for records search, review, copying, certification,
and related services.

Certifications and copies of such tariffs, reports and other public
records and documents on file with the Surface

[[Page 12]]

Transportation Board as may be practicable to furnish, as well as
searches and copying of records not considered public under the Freedom
of Information Act (5 U.S.C. 552), will be furnished on the following
basis:
(a) Certificate of the Records Officer, $22.00.
(b) Services involved in examination of tariffs or schedules for
preparation of certified copies of tariffs or schedules or extracts
therefrom at the rate of $51.00 per hour.
(c) Services involved in checking records to be certified to
determine authenticity, including clerical work, etc. incidental
thereto, at a rate of $35.00 per hour.
(d) Copies or computer printouts of tariffs, reports, and other
public documents, at the rate of $.25 per letter or legal size exposure,
only after the first 100 pages, with a minimum charge of $7.50. Copies
of electronic records, audiovisual materials, or other forms of data are
available at the actual cost of duplication or transcription.
(e) Fees for courier services to transport agency records to provide
on-site access to agency records stored off-site will be set at the
rates set forth in the Board's agreement with its courier service
provider. Rate information can be obtained from the Board's Records
Officer, Surface Transportation Board, Washington, DC 20423-0001.
(f) The fees for search, review and copying services for records not
considered public under the Freedom of Information Act are as follows:
(1) When records are sought for commercial use, requesters will be
assessed the full and reasonable direct costs of document search, review
and duplication. A ``commercial use'' request refers to a request from
or on behalf of one who seeks information for a use or purpose that
furthers the commercial, trade, or profit interests of the requester or
the person on whose behalf the request is made.
(2) When records are not sought for commercial use and a request is
made by an educational or noncommercial scientific institution,
requesters will be assessed only for the cost of duplication (excluding
charges for the first 100 pages). The term ``Educational Institution''
refers to a preschool, a public or private elementary or secondary
school, an institution of graduate higher education, an institution of
undergraduate higher education, an institution of professional
education, and an institution of vocational education, which operates a
program of scholarly research. The term ``noncommercial scientific
institution'' refers to an institution that is not operated on a
``commercial'' basis and that is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry. They must show that their
request is authorized by and under the auspices of a qualifying
institution and the records are not sought for a commercial use but,
instead, are in furtherance of scholarly or scientific research.
(3) Requesters who are representatives of the news media (persons
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public) will be assessed only for the
cost of duplication (excluding charges for the first 100 pages) if they
can show that their request is not made for a commercial use. A request
for records supporting the news dissemination function of the requester
shall not be considered a request for a commercial use.
(4) All other requesters will be assessed fees which recover the
full, reasonable direct cost of searching for and duplicating records
that are responsive to the request (excluding charges for the first 100
pages of duplication and the first two hours of search time).
(5) All requesters must reasonably describe the records sought.
(6) The search and review hourly fees will be based upon employee
grade levels in order to recoup the full, allowable direct costs
attributable to their performance of these functions. A listing of the
hourly fees by employee grade level is available on the Board's website,
http://www.stb.gov.
(7) The fee for copies or computer printouts shall be $.25 per
letter or legal size exposure, with a minimum charge of $7.50. Copies of
electronic records, audiovisual materials, or other forms of data are
available at the actual cost of duplication or transcription.

[[Page 13]]

(8) If the cost of collecting any fee would be equal to or greater
than the fee itself, it will not be assessed.
(9) A fee may be charged for searches which are not productive and
for searches for records or those parts of records which subsequently
are determined to be exempt from disclosure.
(10) Interest charges will be assessed on any unpaid bill starting
on the date specified in the bill, at the rate prescribed in 31 U.S.C.
3717 and will accrue from the date of the billing. The Debt Collection
Act, 5 U.S.C. 5514 (1982), including disclosure to the consumer
reporting agencies and the use of collection agencies, as prescribed in
the Board's Debt Collection Regulations in 49 CFR part 1018, will be
utilized to encourage payment where appropriate.
(11) If search charges are likely to exceed $25, the requester will
be notified of the estimated fees unless requester willingness to pay
whatever fee is assessed has been provided in advance. The
administrative time limits prescribed in 5 U.S.C. 552(a)(6) will not
begin until after the requester agrees in writing to accept the
prospective charges.
(12) An advance payment (before work is commenced or continued on a
request) may be required if the charges are likely to exceed $250.
Requesters who have previously failed to pay a fee charged in timely
fashion (i.e. within 30 days of the date of billing) may be required
first to pay this amount plus any applicable interest (or demonstrate
that the fee has been paid) and then make an advance payment of the full
amount of the estimated fee before the new or pending request is
processed. The administrative time limits prescribed in 5 U.S.C.
552(a)(6) also will not begin until after a requester has complied with
this provision.
(13) Documents shall be furnished without any charge or at a charge
reduced below the fees set forth above if disclosure of the information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government and is not primarily in the commercial interest of the
requester. The following six factors will be employed in determining
when such fees shall be waived or reduced:
(i) The subject of the request: Whether the subject of the requester
records concerns ``the operations or activities of the government'';
(ii) The informative value of the information to be disclosed:
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities;
(iii) The contribution to an understanding of the subject by the
general public likely to result from disclosure: Whether disclosure of
the requested information will contribute to ``public understanding'';
(iv) The significance of the contribution to public understanding:
Whether the disclosure is likely to contribute ``significantly'' to
public understanding of government operations or activities;
(v) The existence and magnitude of a commercial interest: Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(vi) The primary interest in disclosure: Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the requester.''
This fee waiver and reduction provision will be implemented in
accordance with guidelines issued by the U.S. Department of Justice on
April 2, 1987 and entitled ``New FOIA Fee Waiver Policy Guidance.'' A
copy of these guidelines may be inspected or obtained from the Surface
Transportation Board's Freedom of Information Office, Washington, DC
20423-0001.
(14) No fees will be assessed if the FOIA Officer fails to comply
with any time limit under the FOIA or these regulations, and has not
timely notified the requester, in writing, that an unusual circumstance
exists. If an unusual circumstance exists, and timely, written notice is
given to the requester, the failure to meet the time limit may be
excused an additional 10 working days before fees are automatically
waived under this paragraph (f)(14).
(15) If the FOIA Officer determines that unusual circumstances apply
and more than 5,000 pages are necessary to

[[Page 14]]

respond to a request, fees may be charged if timely, written notice to
the requester is provided and discussed with the requester via mail,
Email, or telephone (or if at least three good-faith attempts are made
to do so) regarding how the requester could effectively limit the scope
of the request.
(16) If a court has determined that exceptional circumstances exist,
a failure to comply with time limits imposed by these regulations or
FOIA shall be excused for the length of time provided by court order.
(17) Fees may not be avoided by filing multiple requests at the same
time. When the FOIA Officer reasonably believes that a requester, alone
or with others, is breaking down one request into a series of requests
to avoid fees, the requests will be combined, and the requester or
requesters will be charged accordingly.
(g) Fees for services described in paragraphs (a) through (f) of
this section may be paid by check, money order, or through the Board's
electronic payment system in accordance with Sec. 1002.2(a)(2).
(h) Transcript of testimony and of oral argument, or extracts
therefrom, may be purchased by the public from the Board's official
reporter. For information regarding the official reporter, contact the
Records Officer, Surface Transportation Board, Washington, DC 20423-
0001.

[32 FR 20010, Dec. 20, 1967]

Editorial Note: For Federal Register citations affecting Sec.
1002.1, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.

Effective Date Note: At 89 FR 76435, Sept. 18, 2024, Sec. 1002.1
was amended by revising paragraphs (a) through (c), effective Oct. 18,
2024. For the convenience of the user, the revised text is set forth as
follows:

Sec. 1002.1 Fees for records search, review, copying, certification,
and related services.

* * * * *

(a) Certificate of the Records Officer, $25.00.
(b) Services involved in examination of tariffs or schedules for
preparation of certified copies of tariffs or schedules or extracts
therefrom at the rate of $54.00 per hour.
(c) Services involved in checking records to be certified to
determine authenticity, including clerical work, etc. incidental
thereto, at a rate of $37.00 per hour.

* * * * *

Sec. 1002.2 Filing fees.

(a) Manner of payment. (1) Except as specified in this section, all
filing fees will be payable at the time and place the application,
petition, notice, tariff, contract summary, or other document is
tendered for filing.
(2) Filing fees for all e-filings must be paid via the Board's
electronic payment system found on the Board's website. Filing fees for
other filings may be paid via the electronic payment system, but will
also be accepted payable to the Surface Transportation Board, either by
check payable in United States currency drawn upon funds deposited in a
United States or foreign bank or other financial institution, or by
money order payable in United States currency.
(b) Nonpayment of fees. Any filing that is not accompanied by the
appropriate filing fee or a request for waiver of the fee is deficient.
If a filer requests a fee waiver but does not submit the appropriate
fee, the filing is held for processing until a determination has been
made on the fee waiver request. If the filer requests a fee waiver and
submits the appropriate fee, the filing is accepted and the Board
refunds the fee or a portion thereof if the fee waiver is ultimately
granted.
(c) Fees not refundable. Fees will be assessed for every filing in
the type of proceeding listed in the schedule of fees contained in
paragraph (f) of this section, subject to the exceptions contained in
paragraphs (d) and (e) of this section. After the application, petition,
notice, tariff, contract, or other document has been accepted for filing
by the Board, the filing fee will not be refunded, regardless of whether
the application, petition, notice, tariff, contract, or other document
is granted or approved, denied, rejected before docketing, dismissed, or
withdrawn. If an individual exemption proceeding becomes a matter of
general applicability and is handled through the rulemaking

[[Page 15]]

process, the Board will refund the filing fee.
(d) Related or consolidated proceedings. (1)(i) Except as provided
for in paragraph (d)(1)(ii) of this section, separate fees need not be
paid for related applications filed by the same applicant that would be
the subject of one proceeding.
(ii) In proceedings filed under the rail consolidation procedures at
49 CFR part 1180, the applicable filing fee must be paid for each
proceeding submitted concurrently with the primary application. The fee
for each type of proceeding is set forth in the fee schedule contained
in paragraph (f) of this section.
(2) A separate fee will be assessed for the filing of an application
for temporary authority to operate a motor carrier of passengers as
provided for in paragraph (f)(5) of this section regardless of whether
such application is related to a corresponding transfer proceeding as
provided for in paragraph (f)(2) of this section.
(3) The Board may reject concurrently filed applications, petitions,
notices, contracts, or other documents asserted to be related and refund
the filing fee if, in its judgment, they embrace two or more severable
matters which should be the subject of separate proceedings.
(e) Waiver or reduction of filing fees. It is the general policy of
the Board not to waive or reduce filing fees except as described below:
(1) Except as noted in this paragraph (e)(1), filing fees are waived
for an application, petition, notice, tariff, contract summary, or other
document that is filed by a federal government agency or a state or
local government entity. A fee waiver is not available under this
paragraph for a quasi-governmental entity or government-subsidized
transportation company. A fee waiver is also not available to any state
or local government entity that is acting in the capacity of a carrier
or shipper or that owns or proposes to own a carrier and is before the
agency in its proprietary role.
(i) When to request. At the time that a filing is submitted to the
Board, the fee waiver applicant may request a waiver of the fee
prescribed in this part. Such request should be addressed to the Chief,
Section of Administration, Office of Proceedings, Surface Transportation
Board.
(ii) Board action. The Board will either stamp the relevant filing
with the notation ``Filing Fee Waived,'' or the fee waiver applicant
will be notified of the decision to grant or deny the request for waiver
by the Chief, Section of Administration, Office of Proceedings.
(2) In extraordinary situations the Board will accept requests for
waivers or fee reductions in accordance with the following procedure:
(i) When to request. At the time that a filing is submitted to the
Board, the fee waiver applicant may request a waiver or reduction of the
fee prescribed in this part. Such request should be addressed to the
Chief, Section of Administration, Office of Proceedings.
(ii) Basis. The fee waiver applicant must show the waiver or
reduction of the fee is in the best interest of the public, or that
payment of the fee would impose an undue hardship on the fee waiver
applicant.
(iii) Board action. The Chief, Section of Administration, Office of
Proceedings will notify the fee waiver applicant of the decision to
grant or deny the request for waiver or reduction.
(3) Review. No third-party appeals of fee waiver or reduction
decisions are permitted.
(f) Schedule of filing fees.

[[Page 16]]

(i) Significant amendment......... $6,000.
(ii) Minor amendment.............. $100.
(5) An application for temporary $650.
authority to operate a motor carrier
of passengers. 49 U.S.C. 14303(i).
(6) A notice of exemption for $2,100.
transaction within a motor passenger
corporate family that does not result
in adverse changes in service levels,
significant operational changes, or a
change in the competitive balance
with motor passenger carriers outside
the corporate family.
(7)-(10) [Reserved]...................
------------------------------------------------------------------------
PART II: Rail Licensing Proceedings Other Than Abandonment or
Discontinuance Proceedings
------------------------------------------------------------------------
(11)(i) An application for a $9,500.
certificate authorizing the
extension, acquisition, or operation
of lines of railroad. 49 U.S.C. 10901.
(ii) Notice of exemption under 49 $2,200.
CFR 1150.31 through 1150.35.
(iii) Petition for exemption under $16,600.
49 U.S.C. 10502.
(12)(i) An application involving the $98,900.
construction of a rail line.
(ii) A notice of exemption $2,200.
involving construction of a rail
line under 49 CFR 1150.36.
(iii) A petition for exemption $98,900.
under 49 U.S.C. 10502 involving
construction of a rail line.
(iv) A request for determination $350.
of a dispute involving a rail
construction that crosses the
line of another carrier under 49
U.S.C. 10902(d).
(13) A Feeder Line Development Program $2,600.
application filed under 49 U.S.C.
10907(b)(1)(A)(i) or
10907(b)(1)(A)(ii).
(14)(i) An application of a class II $8,100.
or class III carrier to acquire an
extended or additional rail line
under 49 U.S.C. 10902.
(ii) Notice of exemption under 49 $2,200.
CFR 1150.41 through 1150.45.
(iii) Petition for exemption under $8,700.
49 U.S.C. 10502 relating to an
exemption from theprovisions of
49 U.S.C. 10902.
(15) A notice of a modified $2,100.
certificate of public convenience and
necessity under 49 CFR 1150.21
through 1150.24.
(16) An application for a land-use- $7,900.
exemption permit for a facility
existing as of October 16, 2008 under
49 U.S.C. 10909.
(17) An application for a land-use- $28,000.
exemption permit for a facility not
existing as of October 16, 2008 under
49 U.S.C. 10909.
(18)-(20) [Reserved]..................
------------------------------------------------------------------------
PART III: Rail Abandonment or Discontinuance of Transportation Services
Proceedings
------------------------------------------------------------------------
(21)(i) An application for authority $29,300.
to abandon all or a portion of a line
of railroad or discontinue operation
thereof filed by a railroad (except
applications filed by Consolidated
Rail Corporation pursuant to the
Northeast Rail Service Act [Subtitle
E of Title XI of Pub. L. 97-35],
bankrupt railroads, or exempt
abandonments).
(ii) Notice of an exempt $4,700.
abandonment or discontinuance
under 49 CFR 1152.50.
(iii) A petition for exemption $8,300.
under 49 U.S.C. 10502.
(22) An application for authority to $600.
abandon all or a portion of a line of
a railroad or operation thereof filed
by Consolidated Rail Corporation
pursuant to Northeast Rail Service
Act.
(23) Abandonments filed by bankrupt $2,500.
railroads.
(24) A request for waiver of filing $2,400.
requirements for abandonment
application proceedings.
(25) An offer of financial assistance $2,000.
under 49 U.S.C. 10904 relating to the
purchase of or subsidy for a rail
line proposed for abandonment.
(26) A request to set terms and $30,000.
conditions for the sale of or subsidy
for a rail line proposed to be
abandoned.
(27)(i) Request for a trail use $350.
condition in an abandonment
proceeding under 16 U.S.C. 1247(d).
(ii) A request to extend the $600.
period to negotiate a trail use
agreement.
(28)-(35) [Reserved]..................
------------------------------------------------------------------------
PART IV: Rail Applications to Enter Into a Particular Financial
Transaction or Joint Arrangement
------------------------------------------------------------------------
(36) An application for use of $25,000.
terminal facilities or other
applications under 49 U.S.C. 11102.
(37) An application for the pooling or $13,500.
division of traffic. 49 U.S.C. 11322.
(38) An application for two or more
carriers to consolidate or merge
their properties or franchises (or a
part thereof) into one corporation
for ownership, management, and
operation of the properties
previously in separate ownership. 49
U.S.C. 11324:
(i) Major transaction............. $1,975,600.
(ii) Significant transaction...... $395,100.
(iii) Minor transaction........... $9,400.
(iv) Notice of an exempt $2,100.
transaction under 49 CFR
1180.2(d).
(v) Responsive application........ $9,400.
(vi) Petition for exemption under $12,300.
49 U.S.C. 10502.
(vii) A request for waiver or $7,300.
clarification of regulations
filed in a major financial
proceeding as defined at 49 CFR
1180.2(a).
(39) An application of a non-carrier
to acquire control of two or more
carriers through ownership of stock
or otherwise. 49 U.S.C. 11324:
(i) Major transaction............. $1,975,600.
(ii) Significant transaction...... $395,100.

[[Page 17]]

(iii) Minor transaction........... $9,400.
(iv) A notice of an exempt $1,600.
transaction under 49 CFR
1180.2(d).
(v) Responsive application........ $9,400.
(vi) Petition for exemption under $12,300.
49 U.S.C. 10502.
(vii) A request for waiver or $7,300.
clarification of regulations
filed in a major financial
proceeding as defined at 49 CFR
1180.2(a).
(40) An application to acquire
trackage rights over, joint ownership
in, or joint use of any railroad
lines owned and operated by any other
carrier and terminals incidental
thereto. 49 U.S.C. 11324:
(i) Major transaction............. $1,975,600.
(ii) Significant transaction...... $395,100.
(iii) Minor transaction........... $9,400.
(iv) Notice of an exempt $1,500.
transaction under 49 CFR
1180.2(d).
(v) Responsive application........ $9,400.
(vi) Petition for exemption under $12,300.
49 U.S.C. 10502.
(vii) A request for waiver or $7,300.
clarification of regulations
filed in a major financial
proceeding as defined at 49 CFR
1180.2(a).
(41) An application of a carrier or
carriers to purchase, lease, or
contract to operate the properties of
another, or to acquire control of
another by purchase of stock or
otherwise. 49 U.S.C. 11324:
(i) Major transaction............. $1,975,600.
(ii) Significant transaction...... $395,100.
(iii) Minor transaction........... 9,400.
(iv) Notice of an exempt $1,700.
transaction under 49 CFR
1180.2(d).
(v) Responsive application........ $9,400.
(vi) Petition for exemption under $8,700.
49 U.S.C. 10502.
(vii) A request for waiver or $7,300.
clarification of regulations
filed in a major financial
proceeding as defined at 49 CFR
1180.2(a).
(42) Notice of a joint project $3,000.
involving relocation of a rail line
under 49 CFR 1180.2(d)(5).
(43) An application for approval of a $92,500.
rail rate association agreement. 49
U.S.C. 10706.
(44) An application for approval of an
amendment to a rail rate association
agreement. 49 U.S.C. 10706:
(i) Significant amendment......... $17,100.
(ii) Minor amendment.............. $100.
(45) An application for authority to $1,000.
hold a position as officer or
director under 49 U.S.C. 11328.
(46) A petition for exemption under 49 $10,500.
U.S.C. 10502 (other than a
rulemaking) filed by rail carrier not
otherwise covered.
(47) National Railroad Passenger $350.
Corporation (Amtrak) conveyance
proceeding under 45 U.S.C. 562.
(48) National Railroad Passenger $350.
Corporation (Amtrak) compensation
proceeding under section 402(a) of
the Rail Passenger Service Act.
(49)-(55) [Reserved]..................
------------------------------------------------------------------------
PART V: Formal Proceedings
------------------------------------------------------------------------
(56) A formal complaint alleging
unlawful rates or practices of
carriers:
(i) A formal complaint filed under $350.
the coal rate guidelines (Stand-
Alone Cost Methodology) alleging
unlawful rates and/or practices
of rail carriers under 49 U.S.C.
10704(c)(1).
(ii) A formal complaint involving $350.
rail maximum rates filed under
the Simplified-SAC methodology.
(iii) A formal complaint involving $150.
rail maximum rates filed under
the Three Benchmark methodology.
(iv) A formal complaint involving $150.
rail maximum rates filed under
the Final Offer Rate Review
procedure.
(v) All other formal complaints $350.
(except competitive access
complaints).
(vi) Competitive access complaints $150.
(vii) A request for an order $350.
compelling a rail carrier to
establish a common carrier rate.
(57) A complaint seeking or a petition $11,700.
requesting institution of an
investigation seeking the
prescription or division of joint
rates or charges. 49 U.S.C. 10705.
(58) A petition for declaratory order:
(i) A petition for declaratory $1,000.
order involving a dispute over an
existing rate or practice which
is comparable to a complaint
proceeding.
(ii) All other petitions for $1,400.
declaratory order.
(59) An application for shipper $9,200.
antitrust immunity. 49 U.S.C.
10706(a)(5)(A).
(60) Labor arbitration proceedings.... $350.
(61)(i) An appeal of a Surface $350.
Transportation Board decision on the
merits or petition to revoke an
exemption pursuant to 49 U.S.C.
10502(d).
(ii) An appeal of a Surface $500.
Transportation Board decision on
procedural matters except
discovery rulings.
(62) Motor carrier undercharge $350.
proceedings.
(63)(i) Expedited relief for service $350.
inadequacies: A request for expedited
relief under 49 U.S.C. 11123 and 49
CFR part 1146 for service emergency.
(ii) Expedited relief for service $350.
inadequacies: A request for
temporary relief under 49 U.S.C.
10705 and 11102, and 49 CFR part
1147 for service inadequacy.

[[Page 18]]

(64) A request for waiver or $750.
clarification of regulations except
one filed in an abandonment or
discontinuance proceeding, or in a
major financial proceeding as defined
at 49 CFR 1180.2(a).
(65)-(75) [Reserved]..................
------------------------------------------------------------------------
PART VI: Informal Proceedings
------------------------------------------------------------------------
(76) An application for authority to $1,600.
establish released value rates or
ratings for motor carriers and
freight forwarders of household goods
under 49 U.S.C. 14706.
(77) An application for special $150.
permission for short notice or the
waiver of other tariff publishing
requirements.
(78)(i) The filing of tariffs, $1 per page ($32 min charge).
including supplements, or contract
summaries.
(ii) The filing of water carrier $32.
annual certifications.
(79) Special docket applications from
rail and water carriers:
(i) Applications involving $25,000 $75.
or less.
(ii) Applications involving over $200.
$25,000.
(80) Informal complaint about rail $800.
rate applications.
(81) Tariff reconciliation petitions
from motor common carriers:
(i) Petitions involving $25,000 or $75.
less.
(ii) Petitions involving over $200.
$25,000.
(82) Request for a determination of $300.
the applicability or reasonableness
of motor carrier rates under 49
U.S.C. 13710(a)(2) and (3).
(83) Filing of documents for $54 per document.
recordation. 49 U.S.C. 11301 and 49
CFR 1177.3(c)..
(84) Informal opinions about rate $350.
applications (all modes).
(85) A railroad accounting $1,500.
interpretation.
(86)(i) A request for an informal $1,900.
opinion not otherwise covered.
(ii) A proposal to use on a voting $6,800.
trust agreement pursuant to 49
CFR part 1013 and 49 CFR
1180.4(b)(4)(iv) in connection
with a major control proceeding
as defined at 49 CFR 1180.2(a).
(iii) A request for an informal $650.
opinion on a voting trust
agreement pursuant to 49 CFR
1013.3(a) not otherwise covered.
(87) Arbitration of certain disputes
subject to the statutory jurisdiction
of the Surface Transportation Board
under 49 CFR part 1108:
(i) Complaint..................... $75.
(ii) Answer (per defendant), $75.
Unless Declining to Submit to Any
Arbitration.
(iii) Third Party Complaint....... $75.
(iv) Third Party Answer (per $75.
defendant), Unless Declining to
Submit to Any Arbitration.
(v) Appeals of Arbitration $150.
Decisions or Petitions to Modify
or Vacate an Arbitration Award.
(88) Basic fee for STB adjudicatory $350.
services not otherwise covered.
(89)-(95) [Reserved]..................
------------------------------------------------------------------------
PART VII: Services
------------------------------------------------------------------------
(96) Messenger delivery of decision to $42 per delivery.
a railroad carrier's Washington, DC
agent.
(97) Request for service or pleading $32 per list.
list for proceedings.
(98) Processing the paperwork related
to a request for the Carload Waybill
Sample to be used in an STB or State
proceeding that:
(i) Annual request does not
require a Federal Register (FR)
notice:
(A) Set cost portion.......... $200.
(B) Sliding cost portion...... $62 per party.
(ii) Annual request does require a
FR notice:
(A) Set cost portion.......... $450.
(B) Sliding cost portion...... $62 per party.
(iii) Quarterly request does not
require a FR notice:
(A) Set cost portion.......... $54.
(B) Sliding cost portion...... $15 per party.
(iv) Quarterly request does
require a FR notice:
(A) Set cost portion.......... $236.
(B) Sliding cost portion...... $15 per party.
(v) Monthly request does not
require a FR notice:
(A) Set cost portion.......... $18.
(B) Sliding cost portion...... $5 per party.
(vi) Monthly request does require
a FR notice:
(A) Set cost portion.......... $179.
(B) Sliding cost portion...... $5 per party.
(99)(i) Application fee for the STB's $250.
Practitioners' Exam.
(ii) Practitioners' Exam $25.
Information Package.
(100) Carload Waybill Sample data:
(i) Requests for Public Use File $250 per year.
for all years prior to the most
current year Carload Waybill
Sample data available, provided
on CD-R.
(ii) Specialized programming for $141 per hour.
Waybill requests to the Board.
------------------------------------------------------------------------

[[Page 19]]

(g) Returned check policy. (1) If a check submitted to the Board for
a filing or service fee is dishonored by a bank or financial institution
on which it is drawn, the Board will notify the person who submitted the
check that:
(i) All work will be suspended on the filing or proceeding, other
than a tariff filing, until the check is made good;
(ii) A returned check charge of $20.00 and any bank charges incurred
by the Board as a result of the dishonored check must be submitted with
the filing fee which is outstanding; and
(iii) If payment is not made within the time specified by the Board,
the proceeding will be dismissed or the filing may be rejected.
(2) If a person repeatedly submits dishonored checks to the Board
for filing fees, the Board may notify the person that all future filing
fees must be submitted in the form of a certified or cashier's check or
a money order.

[49 FR 18492, May 1, 1984]

Editorial Note: For Federal Register citations affecting Sec.
1002.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.

Effective Date Note: At 89 FR 76435, Sept. 18, 2024, Sec. 1002.2
was amended by revising paragraph (f), effective Oct. 18, 2024. For the
convenience of the user, the revised text is set forth as follows:

Sec. 1002.2 Filing fees.

* * * * *

(f) Schedule of filing fees.

------------------------------------------------------------------------
Type of proceeding Fee
------------------------------------------------------------------------
PART I: Non-Rail Applications or Proceedings to Enter Into a Particular
Financial Transaction or Joint Arrangement
------------------------------------------------------------------------
(1) An application for the pooling or $6,500.
division of traffic.
(2)(i) An application involving the $2,900.
purchase, lease, consolidation,
merger, or acquisition of control of
a motor carrier of passengers under
49 U.S.C. 14303.
(ii) A petition for exemption $4,500.
under 49 U.S.C. 13541 (other than
a rulemaking) filed by a non-rail
carrier not otherwise covered.
(iii) A petition to revoke an $3,800.
exemption filed under 49 U.S.C.
13541(d).
(3) An application for approval of a $40,600.
non-rail rate association agreement.
49 U.S.C. 13703.
(4) An application for approval of an
amendment to a non-rail rate
association agreement:
(i) Significant amendment......... $6,700.
(ii) Minor amendment.............. $150.
(5) An application for temporary $700.
authority to operate a motor carrier
of passengers. 49 U.S.C. 14303(i).
(6) A notice of exemption for $2,300.
transaction within a motor passenger
corporate family that does not result
in adverse changes in service levels,
significant operational changes, or a
change in the competitive balance
with motor passenger carriers outside
the corporate family.
(7)-(10) [Reserved]
------------------------------------------------------------------------
PART II: Rail Licensing Proceedings other than Abandonment or
Discontinuance Proceedings
------------------------------------------------------------------------
(11)(i) An application for a $10,600.
certificate authorizing the
extension, acquisition, or operation
of lines of railroad. 49 U.S.C. 10901.
(ii) Notice of exemption under 49 $2,500.
CFR 1150.31 through 1150.35.
(iii) Petition for exemption under $18,400.
49 U.S.C. 10502.
(12)(i) An application involving the $109,900.
construction of a rail line.
(ii) A notice of exemption $2,500.
involving construction of a rail
line under 49 CFR 1150.36.
(iii) A petition for exemption $109,900.
under 49 U.S.C. 10502 involving
construction of a rail line.
(iv) A request for determination $350.
of a dispute involving a rail
construction that crosses the
line of another carrier under 49
U.S.C. 10902(d).
(13) A Feeder Line Development Program $2,600.
application filed under 49 U.S.C.
10907(b)(1)(A)(i) or
10907(b)(1)(A)(ii).
(14)(i) An application of a class II $9,000.
or class III carrier to acquire an
extended or additional rail line
under 49 U.S.C. 10902.
(ii) Notice of exemption under 49 $2,500.
CFR 1150.41 through 1150.45.
(iii) Petition for exemption under $9,600.
49 U.S.C. 10502 relating to an
exemption from the provisions of
49 U.S.C. 10902.
(15) A notice of a modified $2,400.
certificate of public convenience and
necessity under 49 CFR 1150.21
through 1150.24.
(16) An application for a land-use- $8,800.
exemption permit for a facility
existing as of October 16, 2008 under
49 U.S.C. 10909.
(17) An application for a land-use- $31,100.
exemption permit for a facility not
existing as of October 16, 2008 under
49 U.S.C. 10909.
(18)-(20) [Reserved]
------------------------------------------------------------------------

[[Page 20]]

PART III: Rail Abandonment or Discontinuance of Transportation Services
Proceedings
------------------------------------------------------------------------
(21)(i) An application for authority $32,600.
to abandon all or a portion of a line
of railroad or discontinue operation
thereof filed by a railroad (except
applications filed by Consolidated
Rail Corporation pursuant to the
Northeast Rail Service Act [Subtitle
E of Title XI of Pub. L. 97-35],
bankrupt railroads, or exempt
abandonments).
(ii) Notice of an exempt $5,200.
abandonment or discontinuance
under 49 CFR 1152.50.
(iii) A petition for exemption $9,200.
under 49 U.S.C. 10502.
(22) An application for authority to $700.
abandon all or a portion of a line of
a railroad or operation thereof filed
by Consolidated Rail Corporation
pursuant to Northeast Rail Service
Act.
(23) Abandonments filed by bankrupt $2,800.
railroads.
(24) A request for waiver of filing $2,600.
requirements for abandonment
application proceedings.
(25) An offer of financial assistance $2,300.
under 49 U.S.C. 10904 relating to the
purchase of or subsidy for a rail
line proposed for abandonment.
(26) A request to set terms and $33,400.
conditions for the sale of or subsidy
for a rail line proposed to be
abandoned.
(27) (i) Request for a trail use $350.
condition in an abandonment
proceeding under 16 U.S.C. 1247(d).
(ii) A request to extend the $650.
period to negotiate a trail use
agreement.
(28)-(35) [Reserved]
------------------------------------------------------------------------
PART IV: Rail Applications to Enter Into a Particular Financial
Transaction or Joint Arrangement
------------------------------------------------------------------------
(36) An application for use of $27,800.
terminal facilities or other
applications under 49 U.S.C. 11102.
(37) An application for the pooling or $15,000.
division of traffic. 49 U.S.C. 11322.
(38) An application for two or more
carriers to consolidate or merge
their properties or franchises (or a
part thereof) into one corporation
for ownership, management, and
operation of the properties
previously in separate ownership. 49
U.S.C. 11324:
(i) Major transaction............. $2,195,500.
(ii) Significant transaction...... $439,100.
(iii) Minor transaction........... $10,300.
(iv) Notice of an exempt $2,300.
transaction under 49 CFR
1180.2(d).
(v) Responsive application........ $10,300.
(vi) Petition for exemption under $13,700.
49 U.S.C. 10502.
(vii) A request for waiver or $8,100.
clarification of regulations
filed in a major financial
proceeding as defined at 49 CFR
1180.2(a).
(39) An application of a non-carrier
to acquire control of two or more
carriers through ownership of stock
or otherwise. 49 U.S.C. 11324:
(i) Major transaction............. $2,195,500.
(ii) Significant transaction...... $439,100.
(iii) Minor transaction........... $10,300.
(iv) A notice of an exempt $1,800.
transaction under 49 CFR
1180.2(d).
(v) Responsive application........ $10,300.
(vi) Petition for exemption under $13,700.
49 U.S.C. 10502.
(vii) A request for waiver or $8,100.
clarification of regulations
filed in a major financial
proceeding as defined at 49 CFR
1180.2(a).
(40) An application to acquire
trackage rights over, joint ownership
in, or joint use of any railroad
lines owned and operated by any other
carrier and terminals incidental
thereto. 49 U.S.C. 11324:
(i) Major transaction............. $2,195,500.
(ii) Significant transaction...... $439,100.
(iii) Minor transaction........... $10,300.
(iv) Notice of an exempt $1,600.
transaction under 49 CFR
1180.2(d).
(v) Responsive application........ $10,300.
(vi) Petition for exemption under $13,700.
49 U.S.C. 10502.
(vii) A request for waiver or $8,100.
clarification of regulations
filed in a major financial
proceeding as defined at 49 CFR
1180.2(a).
(41) An application of a carrier or
carriers to purchase, lease, or
contract to operate the properties of
another, or to acquire control of
another by purchase of stock or
otherwise. 49 U.S.C. 11324:
(i) Major transaction............. $2,195,500.
(ii) Significant transaction...... $439,100.
(iii) Minor transaction........... $10,300.
(iv) Notice of an exempt $1,900.
transaction under 49 CFR
1180.2(d).
(v) Responsive application........ $10,300.
(vi) Petition for exemption under $9,600.
49 U.S.C. 10502.
(vii) A request for waiver or $8,100.
clarification of regulations
filed in a major financial
proceeding as defined at 49 CFR
1180.2(a).
(42) Notice of a joint project $3,300.
involving relocation of a rail line
under 49 CFR 1180.2(d)(5).
(43) An application for approval of a $102,800.
rail rate association agreement. 49
U.S.C. 10706.
(44) An application for approval of an
amendment to a rail rate association
agreement. 49 U.S.C. 10706:
(i) Significant amendment......... $18,900.
(ii) Minor amendment.............. $150.
(45) An application for authority to $1,100.
hold a position as officer or
director under 49 U.S.C. 11328.
(46) A petition for exemption under 49 $11,700.
U.S.C. 10502 (other than a
rulemaking) filed by rail carrier not
otherwise covered.

[[Page 21]]

(47) National Railroad Passenger $350.
Corporation (Amtrak) conveyance
proceeding under 45 U.S.C. 562.
(48) National Railroad Passenger $350.
Corporation (Amtrak) compensation
proceeding under section 402(a) of
the Rail Passenger Service Act.
(49)-(55) [Reserved]
------------------------------------------------------------------------
PART V: Formal Proceedings
------------------------------------------------------------------------
(56) A formal complaint alleging
unlawful rates or practices of
carriers:
(i) A formal complaint filed under $350.
the coal rate guidelines (Stand-
Alone Cost Methodology) alleging
unlawful rates and/or practices
of rail carriers under 49 U.S.C.
10704(c)(1).
(ii) A formal complaint involving $350.
rail maximum rates filed under
the Simplified-SAC methodology.
(iii) A formal complaint involving $150.
rail maximum rates filed under
the Three Benchmark methodology.
(iv) A formal complaint involving $150.
rail maximum rates filed under
the Final Offer Rate Review
procedure.
(v) All other formal complaints $350.
(except competitive access
complaints).
(vi) Competitive access complaints $150.
(vii) A request for an order $350.
compelling a rail carrier to
establish a common carrier rate.
(57) A complaint seeking or a petition $13,000.
requesting institution of an
investigation seeking the
prescription or division of joint
rates or charges. 49 U.S.C. 10705.
(58) A petition for declaratory order:
(i) A petition for declaratory $1,000.
order involving a dispute over an
existing rate or practice which
is comparable to a complaint
proceeding.
(ii) All other petitions for $1,400.
declaratory order.
(59) An application for shipper $10,200.
antitrust immunity. 49 U.S.C.
10706(a)(5)(A).
(60) Labor arbitration proceedings.... $350.
(61)(i) An appeal of a Surface $350.
Transportation Board decision on the
merits or petition to revoke an
exemption pursuant to 49 U.S.C.
10502(d).
(ii) An appeal of a Surface $550.
Transportation Board decision on
procedural matters except
discovery rulings.
(62) Motor carrier undercharge $350.
proceedings.
(63)(i) Expedited relief for service $350.
inadequacies: A request for expedited
relief under 49 U.S.C. 11123 and 49
CFR part 1146 for service emergency.
(ii) Expedited relief for service $350.
inadequacies: A request for
temporary relief under 49 U.S.C.
10705 and 11102, and 49 CFR part
1147 for service inadequacy.
(64) A request for waiver or $850.
clarification of regulations except
one filed in an abandonment or
discontinuance proceeding, or in a
major financial proceeding as defined
at 49 CFR 1180.2(a).
(65)-(75) [Reserved]
------------------------------------------------------------------------
PART VI: Informal Proceedings
------------------------------------------------------------------------
(76) An application for authority to $1,800.
establish released value rates or
ratings for motor carriers and
freight forwarders of household goods
under 49 U.S.C. 14706.
(77) An application for special $150.
permission for short notice or the
waiver of other tariff publishing
requirements.
(78)(i) The filing of tariffs, $1. per page.
including supplements, or contract ($36. min. charge.)
summaries.
(ii) The filing of water carrier $36.
annual certifications.
(79) Special docket applications from
rail and water carriers:
(i) Applications involving $25,000 $75.
or less.
(ii) Applications involving over $200.
$25,000.
(80) Informal complaint about rail $900.
rate applications.
(81) Tariff reconciliation petitions
from motor common carriers:
(i) Petitions involving $25,000 or $75.
less.
(ii) Petitions involving over $200.
$25,000.
(82) Request for a determination of $350.
the applicability or reasonableness
of motor carrier rates under 49
U.S.C. 13710(a)(2) and (3).
(83) Filing of documents for $60. per document.
recordation. 49 U.S.C. 11301 and 49
CFR 1177.3(c)..
(84) Informal opinions about rate $350.
applications (all modes).
(85) A railroad accounting $1,600.
interpretation.
(86)(i) A request for an informal $2,200.
opinion not otherwise covered.
(ii) A proposal to use on a voting $7,500.
trust agreement pursuant to 49
CFR part 1013 and 49 CFR
1180.4(b)(4)(iv) in connection
with a major control proceeding
as defined at 49 CFR 1180.2(a).
(iii) A request for an informal $750.
opinion on a voting trust
agreement pursuant to 49 CFR
1013.3(a) not otherwise covered.
(87) Arbitration of certain disputes
subject to the statutory jurisdiction
of the Surface Transportation Board
under 49 CFR part 1108:
(i) Complaint..................... $75.
(ii) Answer (per defendant), $75.
Unless Declining to Submit to Any
Arbitration.
(iii) Third Party Complaint....... $75.

[[Page 22]]

(iv) Third Party Answer (per $75.
defendant), Unless Declining to
Submit to Any Arbitration.
(v) Appeals of Arbitration $150.
Decisions or Petitions to Modify
or Vacate an Arbitration Award.
(88) Basic fee for STB adjudicatory $350.
services not otherwise covered.
(89)-(95) [Reserved]
------------------------------------------------------------------------
PART VII: Services
------------------------------------------------------------------------
(96) Messenger delivery of decision to $47. per delivery.
a railroad carrier's Washington, DC
agent.
(97) Request for service or pleading $36. per list.
list for proceedings.
(98) Processing the paperwork related
to a request for the Carload Waybill
Sample to be used in an STB or State
proceeding that:
(i) Annual request does not
require a Federal Register (FR)
notice:
(A) Set cost portion.......... $200.
(B) Sliding cost portion...... $69. per party.
(ii) Annual request does require a
FR notice:
(A) Set cost portion.......... $500.
(B) Sliding cost portion...... $69. per party.
(iii) Quarterly request does not
require a FR notice:
(A) Set cost portion.......... $60.
(B) Sliding cost portion...... $17. per party.
(iv) Quarterly request does
require a FR notice:
(A) Set cost portion.......... $245.
(B) Sliding cost portion...... $17. per party.
(v) Monthly request does not
require a FR notice:
(A) Set cost portion.......... $20.
(B) Sliding cost portion...... $5. per party.
(vi) Monthly request does require
a FR notice:
(A) Set cost portion.......... $182.
(B) Sliding cost portion...... $5. per party.
(99)(i) Application fee for the STB's $250.
Practitioners' Exam.
(ii) Practitioners' Exam $25.
Information Package.
(100) Carload Waybill Sample data:
(i) Requests for Public Use File $250. per year.
for all years prior to the most
current year Carload Waybill
Sample data available, provided
on CD-R.
(ii) Specialized programming for $148. per hour.
Waybill requests to the Board.
------------------------------------------------------------------------

* * * * *

Sec. 1002.3 Updating user fees.

(a) Update. Each fee established in this part shall be updated in
accordance with this section at least once a year. However, any fee may
be updated more than once a year, if the Board finds that an additional
update is necessary.
(b) Publication and effective dates. Updated fees shall be published
in the Federal Register and shall become effective 30 days after
publication.
(c) Payment of fees. Any person submitting a filing for which a fee
is established shall pay the fee in effect at the time of the filing.
(d) Method of updating fees. Each fee shall be updated by updating
the cost components comprising the fee. Cost components shall be updated
as follows:
(1) Direct labor costs shall be updated by multiplying base level
direct labor costs by percentage changes in average wages and salaries
of Board employees. Base level direct labor costs are direct labor costs
determined by the cost study set forth in Revision of Fees For Services,
1 I.C.C.2d 60 (1984) or subsequent cost studies. The base period for
measuring changes shall be April 1984.
(2) Operations overhead shall be developed each year on the basis of
current relationships existing on a weighted basis, for indirect labor
applicable to the first supervisory work centers directly associated
with user fee activity. Actual updating of operations overhead will be
accomplished by applying the current percentage factor to updated direct
labor, including current governmental overhead costs.
(3)(i) Office general and administrative costs shall be developed
each year on the basis of current level costs, i.e., dividing actual
office general and administrative costs for the current fiscal year by
total office costs for the Offices directly associated with user fee
activity. Actual updating of office general and administrative costs
will be accomplished by applying the current percentage factor to
updated direct

[[Page 23]]

labor, including current governmental overhead and current operations
overhead costs.
(ii) Board general and administrative costs shall be developed each
year on the basis of current level costs; i.e., dividing actual Board
general and administrative costs for the current fiscal year by total
agency expenses for the current fiscal year. Actual updating of Board
general and administrative costs will be accomplished by applying the
current percentage factor to updated direct labor, including current
governmental overhead, operations overhead and office general and
administrative costs.
(4) Publication costs shall be adjusted on the basis of known
changes in the costs applicable to publication of material in the
Federal Register.
(e) All updated fees shall be rounded downward in the following
manner:
(1) Fees between $1-$30 will be rounded to the nearest $1;
(2) Fees between $30-$100 will be rounded to the nearest $10;
(3) Fees between $100-$999 will be rounded to the nearest $50; and
(4) Fees above $1,000 will be rounded to the nearest $100. (This
rounding procedure excludes copying, printing and search fees.)

[49 FR 18494, May 1, 1984, as amended at 52 FR 46483, Dec. 8, 1987; 59
FR 44644, Aug. 30, 1994; 61 FR 42194, Aug. 14, 1996; 79 FR 41141, July
15, 2014]

PART 1003_FORMS--Table of Contents

Authority: 49 U.S.C. 1321, 13301(f).

Sec. 1003.1 General information.

(a) Printed forms are prescribed for various applications under the
Interstate Commerce Act and the Board's regulations contained in this
chapter.
(b) All prescribed forms include instructions for their completion.
(c) Copies of all prescribed forms except insurance forms are
available upon request from the Office of Public Assistance,
Governmental Affairs, and Compliance, Surface Transportation Board,
Washington, DC 20423.

[57 FR 41112, Sept. 9, 1992, as amended at 64 FR 53266, Oct. 1, 1999; 74
FR 52903, Oct. 15, 2009]

PART 1004_INTERPRETATIONS AND ROUTING REGULATIONS--Table of Contents

Sec.
1004.1 Gifts, donations, and hospitality by carriers.
1004.2 Misrouting, adjustment of claims.

Authority: 49 U.S.C. 1321.

Source: 64 FR 47711, Sept. 1, 1999, unless otherwise noted.

Sec. 1004.1 Gifts, donations, and hospitality by carriers.

It is unlawful for any common carrier engaged in interstate or
foreign commerce to offer, make, or cause any undue or unreasonable
preference or advantage to any person. Gifts or services or anything of
substantial value to particular shippers or their representatives are
considered violations of the law. Expenditures for such gifts may not
support requests to increase carrier rates. The Board shall take
appropriate enforcement action to redress such unlawful expenditures.

Sec. 1004.2 Misrouting, adjustment of claims.

Carriers should adjust claims for damages resulting from misrouting.
Where a carrier admits responsibility for billing, forwarding, or
diverting a shipment over a higher rated route than that directed by the
shipper or otherwise available, the misrouting carrier should refund the
difference to the shipper (or reimburse the delivering carrier, as the
case may be). Where the misrouting carrier alleges justification for
using the higher rated route, the Board may, at its discretion and upon
appropriate petition, determine or express an advisory opinion on the
lawfulness of such routing. This interpretation must not be used to
evade or defeat tariff rates or to meet the rate of a competing carrier
or route, nor to relieve a shipper from responsibility for routing
instruction. Damages caused by misrouting are not overcharges.

[[Page 24]]

PART 1005_PRINCIPLES AND PRACTICES FOR THE INVESTIGATION AND VOLUNTARY
DISPOSITION OF LOSS AND DAMAGE CLAIMS AND PROCESSING SALVAGE-
-Table of Contents

Sec.
1005.1 Applicability of regulations.
1005.2 Filing of claims.
1005.3 Acknowledgment of claims.
1005.4 Investigation of claims.
1005.5 Disposition of claims.
1005.6 Processing of salvage.
1005.7 Weight as a measure of loss.

Authority: 49 U.S.C. 1321, 11706, 14706, 15906.

Sec. 1005.1 Applicability of regulations.

The regulations set forth in this part shall govern the processing
of claims for loss, damage, injury, or delay to property transported or
accepted for transportation, in interstate or foreign commerce, by each
railroad, express company, motor carrier, water carrier, and freight
forwarder (hereinafter called carrier), subject to the Interstate
Commerce Act.

[46 FR 16224, Mar. 11, 1981]

Sec. 1005.2 Filing of claims.

(a) Compliance with regulations. A claim for loss or damage to
baggage or for loss, damage, injury, or delay to cargo, shall not be
voluntarily paid by a carrier unless filed, as provided in paragraph (b)
of this section, with the receiving or delivering carrier, or carrier
issuing the bill of lading, receipt, ticket, or baggage check, or
carrier on whose line the alleged loss, damage, injury, or delay
occurred, within the specified time limits applicable thereto and as
otherwise may be required by law, the terms of the bill of lading or
other contract of carriage, and all tariff provisions applicable
thereto.
(b) Minimum filing requirements. A written or electronic
communication (when agreed to by the carrier and shipper or receiver
involved) from a claimant, filed with a proper carrier within the time
limits specified in the bill of lading or contract of carriage or
transportation and: (1) Containing facts sufficient to identify the
baggage or shipment (or shipments) of property, (2) asserting liability
for alleged loss, damage, injury, or delay, and (3) making claim for the
payment of a specified or determinable amount of money, shall be
considered as sufficient compliance with the provisions for filing
claims embraced in the bill of lading or other contract of carriage;
Provided, however, That where claims are electronically handled,
procedures are established to ensure reasonable carrier access to
supporting documents.
(c) Documents not constituting claims. Bad order reports, appraisal
reports of damage, notations of shortage or damage, or both, on freight
bills, delivery receipts, or other documents, or inspection reports
issued by carriers or their inspection agencies, whether the extent of
loss or damage is indicated in dollars and cents or otherwise, shall,
standing alone, not be considered by carriers as sufficient to comply
with the minimum claim filing requirements specified in paragraph (b) of
this section.
(d) Claims filed for uncertain amounts. Whenever a claim is
presented against a proper carrier for an uncertain amount, such as
``$100 more or less,'' the carrier against whom such claim is filed
shall determine the condition of the baggage or shipment involved at the
time of delivery by it, if it was delivered, and shall ascertain as
nearly as possible the extent, if any, of the loss or damage for which
it may be responsible. It shall not, however, voluntarily pay a claim
under such circumstances unless and until a formal claim in writing for
a specified or determinable amount of money shall have been filed in
accordance with the provisions of paragraph (b) of this section.
(e) Other claims. If investigation of a claim develops that one or
more other carriers has been presented with a similar claim on the same
shipment, the carrier investigating such claim shall communicate with
each such other carrier and, prior to any agreement entered into between
or among them as to the proper disposition of such claim or claims,
shall notify all claimants of the receipt of conflicting or overlapping
claims and shall require further substantiation, on the part of

[[Page 25]]

each claimant of his title to the property involved or his right with
respect to such claim.

[37 FR 4258, Mar. 1, 1972, as amended at 47 FR 12803, Mar. 25, 1982]

Sec. 1005.3 Acknowledgment of claims.

(a) Each carrier shall, upon receipt in writing or by electronic
transmission of a proper claim in the manner and form described in the
regulations, acknowledge the receipt of such claim in writing or
electronically to the claimant within 30 days after the date of its
receipt by the carrier unless the carrier shall have paid or declined
such claim in writing or electronically within 30 days of the receipt
thereof. The carrier shall indicate in its acknowledgment to the
claimant what, if any, additional documentary evidence or other
pertinent information may be required by it further to process the claim
as its preliminary examination of the claim, as filed, may have
revealed.
(b) The carrier shall at the time each claim is received create a
separate file and assign thereto a successive claim file number and note
that number on all documents filed in support of the claim and all
records and correspondence with respect to the claim, including the
acknowledgment of receipt. At the time such claim is received the
carrier shall cause the date of receipt to be recorded on the face of
the claim document, and the date of receipt shall also appear in the
carrier's acknowledgment of receipt to the claimant. The carrier shall
also cause the claim file number to be noted on the shipping order, if
in its possession, and the delivery receipt, if any, covering such
shipment, unless the carrier has established an orderly and consistent
internal procedure for assuring: (1) That all information contained in
shipping orders, delivery receipts, tally sheets, and all other
pertinent records made with respect to the transportation of the
shipment on which claim is made, is available for examination upon
receipt of a claim; (2) that all such records and documents (or true and
complete reproductions thereof) are in fact examined in the course of
the investigation of the claim (and an appropriate record is made that
such examination has in fact taken place); and (3) that such procedures
prevent the duplicate or otherwise unlawful payment of claims.

[37 FR 4258, Mar. 1, 1972, as amended at 37 FR 20943, Oct. 10, 1972; 47
FR 12803, Mar. 25, 1982]

Sec. 1005.4 Investigation of claims.

(a) Prompt investigation required. Each claim filed against a
carrier in the manner prescribed herein shall be promptly and thoroughly
investigated if investigation has not already been made prior to receipt
of the claim.
(b) Supporting documents. When a necessary part of an investigation,
each claim shall be supported by the original bill of lading, evidence
of the freight charges, if any, and either the original invoice, a
photographic copy of the original invoice, or an exact copy thereof or
any extract made therefrom, certified by the claimant to be true and
correct with respect to the property and value involved in the claim; or
certification of prices or values, with trade or other discounts,
allowance, or deductions, of any nature whatsoever and the terms
thereof, or depreciation reflected thereon; Provided, however, That
where property involved in a claim has not been invoiced to the
consignee shown on the bill of lading or where an invoice does not show
price or value, or where the property involved has been sold, or where
the property has been transferred at bookkeeping values only, the
carrier shall, before voluntarily paying a claim, require the claimant
to establish the destination value in the quantity, shipped,
transported, or involved; Provided, further, That when supporting
documents are determined to be a necessary part of an investigation, the
supporting documents are retained by the carriers for possible Board
inspection.
(c) Verification of Loss. When an asserted claim for loss of an
entire package or an entire shipment cannot be otherwise authenticated
upon investigation, the carrier shall obtain from the consignee of the
shipment involved a certified statement in writing that the property for
which the claim is

[[Page 26]]

filed has not been received from any other source.

[37 FR 4258, Mar. 1, 1972, as amended at 37 FR 23909, Nov. 10, 1972; 47
FR 12803, Mar. 25, 1982]

Sec. 1005.5 Disposition of claims.

Each carrier subject to the Interstate Commerce Act which receives a
written or electronically transmitted claim for loss or damage to
baggage or for loss, damage, injury, or delay to property transported
shall pay, decline, or make a firm compromise settlement offer in
writing or electronically to the claimant within 120 days after receipt
of the claim by the carrier; provided, however, that, if the claim
cannot be processed and disposed of within 120 days after the receipt
thereof, the carrier shall at that time and at the expiration of each
succeeding 60-day period while the claim remains pending, advise the
claimant in writing or electronically of the status of the claim and the
reason for the delay in making the final disposition thereof, and it
shall retain a copy of such advice to the claimant in its claim file
thereon.

[81 FR 8850, Feb. 23, 2016]

Sec. 1005.6 Processing of salvage.

(a) Whenever baggage or material, goods, or other property
transported by a carrier subject to the provisions herein contained is
damaged or alleged to be damaged and is, as a consequence thereof, not
delivered or is rejected or refused upon tender thereof to the owner,
consignee, or person entitled to receive such property, the carrier,
after giving due notice, whenever practicable to do so, to the owner and
other parties that may have an interest therein, and unless advised to
the contrary after giving such notice, shall undertake to sell or
dispose of such property directly or by the employment of a competent
salvage agent. The carrier shall only dispose of the property in a
manner that will fairly and equally protect the best interests of all
persons having an interest therein. The carrier shall make an itemized
record sufficient to identify the property involved so as to be able to
correlate it to the shipment or transportation involved, and claim, if
any, filed thereon. The carrier also shall assign to each lot of such
property a successive lot number and note that lot number on its record
of shipment and claim, if any claim is filed thereon.
(b) Whenever disposition of salvage material or goods shall be made
directly to an agent or employee of a carrier or through a salvage agent
or company in which the carrier or one or more of its directors,
officers, or managers has any interest, financial or otherwise, that
carrier's salvage records shall fully reflect the particulars of each
such transaction or relationship, or both, as the case may be.
(c) Upon receipt of a claim on a shipment on which salvage has been
processed in the manner hereinbefore prescribed, the carrier shall
record in its claim file thereon the lot number assigned, the amount of
money recovered, if any, from the disposition of such property, and the
date of transmittal of such money to the person or persons lawfully
entitled to receive the same.

[37 FR 4258, Mar. 1, 1972]

Sec. 1005.7 Weight as a measure of loss.

Where weight is used as a measure of loss in rail transit of scrap
iron and steel and actual tare and gross weights are determined at
origin and destination, the settlement of claims shall be based upon a
comparison of net weights at origin and destination.

[41 FR 25908, June 23, 1976]

PART 1007_RECORDS CONTAINING INFORMATION ABOUT INDIVIDUALS-
-Table of Contents

Sec.
1007.1 Purpose and scope.
1007.2 Definitions.
1007.3 Requests by an individual for information or access.
1007.4 Procedures for identifying the individual making the request.
1007.5 Disclosure of requested information to individuals; fees for
copies of records.
1007.6 Disclosure to third parties.
1007.7 Content of systems of records.
1007.8 Amendment of a record.
1007.9 Appeals to the Chairman.
1007.10 Information supplied by the Board when collecting information
from an individual.
1007.11 Public notice of records systems.
1007.12 Exemptions.

[[Page 27]]

Authority: 5 U.S.C. 552, 49 U.S.C. 1321.

Source: 41 FR 3087, Jan. 21, 1976, unless otherwise noted.

Sec. 1007.1 Purpose and scope.

(a) This part contains the rules of the Surface Transportation Board
implementing the Privacy Act of 1974 (5 U.S.C. 552a). These rules apply
to all records maintained by this Board which are not excepted or
exempted as provided for in Sec. 1007.12, insofar as they contain
personal information concerning an individual, identify that individual
by name or other symbol and are contained in a system of records from
which information is retrieved by the individual's name or identifying
symbol. Among the primary purposes of these rules are to permit
individuals to determine whether information about them is contained in
Board files and, if so, to obtain access to that information; to
establish procedures whereby individuals may have inaccurate and
incomplete information corrected; and, to restrict access by
unauthorized persons to that information.
(b) In this part the Board is also exempting certain Board systems
of records from some of the provisions of the Privacy Act of 1974 that
would otherwise be applicable to those systems.

Sec. 1007.2 Definitions.

As used in this part:
Board means the Surface Transportation Board.
Chairman means the Presidentially appointed Board Member who is the
administrative head of the Surface Transportation Board.
Privacy Officer refers to the individual designated to process
requests and handle various other matters relating to the Board's
implementation of the Privacy Act of 1974.
Individual means a citizen of the United States or an alien lawfully
admitted for permanent residence.
Maintain means the maintenance, collection, use, or dissemination
(of records).
Record means any item, collection or grouping of information about
an individual that is maintained by an agency, including, but not
limited to, his education, financial transactions, medical history, and
criminal or employment history and that contains his name, or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph.
Statistical Record means a record in a system of records maintained
for statistical research or reporting purposes only and not used in
whole or in part in making any determination about an identifiable
individual, except as provided by section 8 of Title 13 of the United
States Code.
System of records means a group of any records under the control of
the Board retrieved by the name of the individual or by some identifying
number, symbol, or other identifying particular assigned to the
individual.
Routine use means, with respect to the disclosure of a record, the
use of such record for a purpose which is compatible with the purpose of
which the record was compiled.
Agency means any executive department, military department,
Government corporation, Government-controlled corporation or other
establishment in the Executive Branch of the Government or any
independent regulatory agency.

Sec. 1007.3 Requests by an individual for information or access.

(a) Any individual may request information on whether a system of
records maintained by the Board contains any information pertaining to
him or her, or may request access to his or her record or to any
information pertaining to him or her which is contained in a system of
records. All requests shall be directed to the Privacy Officer, Surface
Transportation Board, 395 E Street, SW., Washington, DC 20423-0001.
(b) A request for information or for access to records under this
part may be made by mail or in person. The request shall:
(1) Be in writing and signed by the individual making the request;
and,
(2) Include the full name of the individual seeking the information
or record, along with his or her home and business addresses and
telephone numbers.

[[Page 28]]

(c) For each system of records from which information is sought, the
request shall:
(1) Specify the title and identifying number as it appears in the
system notice published by the Board;
(2) Provide such additional identifying information, if any, as may
be required by the system notice;
(3) Describe the specific information or kind of information sought
within that system of records; and,
(4) Set forth any unusual arrangements sought concerning the time,
place, or form of access.
(d) The Board will respond in writing to a request made under this
section within ten days (excluding Saturdays, Sundays and legal public
holidays) after receipt of the request. If a definitive reply cannot be
given within ten days, the request will be acknowledged and an
explanation will be given of the status of the request.
(e) The individual either will be notified in writing of where and
when he or she may obtain access to the records requested or will be
given the name, address and telephone number of the member of the Board
staff with whom he or she should communicate to make further
arrangements for access.

[41 FR 3087, Jan. 21, 1976, as amended at 64 FR 53266, Oct. 1, 1999; 74
FR 52903, Oct. 15, 2009]

Sec. 1007.4 Procedures for identifying the individual making the request.

When a request for information or for access to records has been
made pursuant to Sec. 1007.3, before information is given or access is
granted pursuant to Sec. 1007.5 of these rules, the Board shall require
reasonable identification of the person making the request to insure
that information is given and records are disclosed only to the proper
person.
(a) An individual may establish his identity by:
(1) Submitting with his written request for information or for
access to photocopy, two pieces of identification bearing his or her
name and signature, one of which shall bear his or her current home or
business address; or
(2) Appearing at any office of the Board during the regular working
hours for that office and presenting either:
(i) One piece of identification containing a photograph and
signature, such as a driver's license or passport, or, in the case of a
Board employee, his or her STB identification card; or
(ii) Two pieces of identification bearing the individual's name and
signature, one of which shows the individual's current home or business
address; and
(3) Providing such other proof of identity as the Board deems
satisfactory in the circumstances of a particular request.
(b) Nothing in this section shall preclude the Board from requiring
additional identification before granting access to the records if there
is reason to believe that the person making the request may not be the
individual to whom the record pertains, or where the sensitivity of the
data may warrant.
(c) The requirements of this subsection shall not apply if the
records involved would be available to any person under the Freedom of
Information Act.

Sec. 1007.5 Disclosure of requested information to individuals; fees
for copies of records.

(a) Any individual who has requested access to his or her record or
to any information pertaining to that individual in the manner
prescribed in Sec. 1007.3 and has identified himself or herself as
prescribed in Sec. 1007.4 shall be permitted to review the record and
have a copy made of all or any portion thereof in a form comprehensible
to the individual, subject to fees for copying services set forth in
paragraph (f) of this section. Upon request, persons of the individual's
own choosing may accompany the individual, provided that the individual
has furnished a written statement authorizing discussion of his or her
record in the accompanying person's presence.
(b) Access will generally be granted in the office of the Board
where the records are maintained during normal business hours, but for
good cause shown the Board may grant access at another office of the
Board or at different times for the convenience of the individual making
the request. When a request for access is from a Board employee, this
request may be granted by

[[Page 29]]

forwarding the information desired through registered mail, return
receipt requested.
(c) Where a document containing information about an individual also
contains information not pertaining to him or her, the portion not
pertaining to the individual shall not be disclosed except to the extent
the information is available to any person under the Freedom of
Information Act. If the records sought cannot be provided for review and
copying in a meaningful form, the Board shall provide to the individual
a summary of the information concerning the individual contained in the
record or records which shall be complete and accurate in all material
aspects.
(d) Where the disclosure involves medical records, the Privacy
Officer may determine that such information will be provided only to a
physician designated by the individual.
(e) Requests for copies of documents may be directed to the Privacy
Officer or to the member of the Board's staff through whom arrangements
for access were made.
(f) Fees for copies of records shall be charged at the rate set
forth in 49 CFR 1002.1(d). Fees for requests requiring the use of a
computer shall be charged at the actual cost for machine time. Payment
should be made by check or money order payable to the Treasury of the
United States. When it is determined to be in the best interest of the
public, the Privacy Officer may waive the fee provision.
(g) Nothing in this subsection or in Sec. 1007.3 shall:
(1) Require the disclosure of records exempted under Sec. 1007.12
of these rules, including the exemption relating to investigative
records;
(2) Allow an individual access to any information compiled in
reasonable anticipation of a civil action or proceeding or a criminal
proceeding; or,
(3) Require the furnishing of information or records which in the
regular course of business cannot be retrieved by the name or other
identifier of the individual making the request.

[41 FR 3087, Jan. 21, 1976, as amended at 53 FR 46483, Dec. 8, 1987]

Sec. 1007.6 Disclosure to third parties.

(a) The Board shall not disclose to any agency or to any person by
any means of communication a record pertaining to an individual which is
contained in a system of records, except under the following
circumstances:
(1) The individual to whom the record pertains has given his written
consent to the disclosure;
(2) The disclosure is to officers and employees of the Board who
need it in the performance of their duties;
(3) Disclosure is required under the Freedom of Information Act (5
U.S.C. 552).
(4) Disclosure is for a routine use as defined in Sec. 1007.2 of
these rules and described in the system notice for that system of
records;
(5) The disclosure is made to the Bureau of the Census for the
purposes of planning or carrying out a census or survey or related
activity;
(6) The disclosure is made to a recipient who has provided the
agency with advance adequate written assurance that the record will be
used solely as a statistical research or reporting record, and the
record is to be transferred in a form that is not individually
identifiable;
(7) The disclosure is made to another agency or to an
instrumentality of any Governmental jurisdiction within or under the
control of the United States for a civil or criminal law enforcement
activity if the activity is authorized by law and if the head of the
agency or instrumentality has made a written request to the Board
specifying the particular portion desired and the law enforcement
activity for which the record is sought;
(8) The disclosure is made to the National Archives and Records
Administration as a record which has sufficient historical or other
value to warrant its continued preservation by the United States
Government, or for evaluation by the Archivist of the United States or
his designee to determine whether the record has such value.
(9) The disclosure is made to a person pursuant to a showing of
compelling circumstances affecting the health or safety of an individual
if upon such disclosure notification is transmitted to

[[Page 30]]

the last known address of such individual;
(10) The disclosure is made to either House of Congress, or, to the
extent of matter(s) within its jurisdiction, any committee or
subcommittee thereof, any joint committee of Congress or subcommittee of
any such joint committee;
(11) The disclosure is made to the Comptroller General, or any of
his authorized representatives, in the course of the performance of the
duties of the Government Accountability Office; or,
(12) Pursuant to the order of a court of competent jurisdiction.
(b) The Board, with respect to each system of records under its
control, shall keep for at least five years an accurate accounting of
certain disclosures:
(1) A record shall be kept of all disclosures made under paragraph
(a) of this section, except disclosures made with the consent of the
individual to whom the record pertains (paragraph (a)(1) of this
section), disclosures to authorized employees (paragraph (a)(2) of this
section), and disclosures required under the Freedom of Information Act
(paragraph (a)(3) of this section).
(2) The record shall include:
(i) The date, nature, and purpose of each disclosure of a record
made to any person or to another agency;
(ii) The name and address of the person or agency to whom the
disclosure was made.
(c) The accounting described in paragraph (b) of this section will
be made available to the individual named in the record upon his written
request, directed to the Privacy Officer, Surface Transportation Board,
395 E Street, SW., Washington, DC 20423-0001, except that the accounting
will not be revealed with respect to disclosures made under paragraph
(a)(7) of this section 1107.6 pertaining to law enforcement activity,
and will not be maintained as to disclosures involving systems of
records exempted under section 1007.12.
(d) Whenever an amendment or correction of a record or a notation of
dispute concerning the accuracy of records is made by the Board in
accordance with Sec. Sec. 1007.8 and 1007.9, the Board will inform any
person or other agency to whom the record was previously disclosed, if
an accounting of the disclosure was made pursuant to the requirements of
paragraph (b) of this section.

[41 FR 3087, Jan. 21, 1976, as amended at 64 FR 53266, Oct. 1, 1999; 74
FR 52903, Oct. 15, 2009; 81 FR 8850, Feb. 23, 2016]

Sec. 1007.7 Content of systems of records.

(a) The Board will maintain in its records only such information
about an individual as is relevant and necessary to accomplish the
purposes of the Interstate Commerce Act and other purposes required to
be accomplished by statute or by Executive Order of the President.
(b) The Board will maintain no record describing how any individual
exercises rights guaranteed by the First Amendment of the United States
Constitution unless expressly authorized by statute or by the individual
about whom the record is maintained or unless pertinent to and within
the scope of an authorized law enforcement activity.
(c) The Board will collect information to the greatest extent
practicable directly from the subject individual when the information
may result in adverse determinations about an individual's rights,
benefits, and privileges under Federal programs.
(d) The Board will maintain all records which are used by the Board
in making any determination about any individual with such accuracy,
relevance, timeliness, and completeness as is reasonably necessary to
assure fairness to the individual in the determination.

Sec. 1007.8 Amendment of a record.

(a) Any individual may request amendment of information pertaining
to him which is contained in a system of records maintained by the Board
and which is filed under his name or other individual identifier if he
believes the information is not accurate, relevant, timely or complete.
A request for amendment shall be directed to the Privacy Officer.
(b) A request for amendment may be made by mail or in person and
shall: (1) Be in writing and signed by the person making the request;
(2) describe the particular record to be amended with sufficient
specificity to permit the

[[Page 31]]

record to be located among those maintained by the Board; and (3)
specify the nature of the amendment sought and the justification for the
requested change. The person making the request may be required to
provide the information specified in Sec. Sec. 1007.3 and 1007.4 in
order to simplify identification of the record and permit verification
of the identity of the person making the request for amendment.
(c) Receipt of a request for amendment will be acknowledged in
writing within ten days (excluding Saturdays, Sundays and legal public
holidays); except that if the individual is given notice within the ten-
day period that his or her request will or will not be complied with, no
acknowledgment is required.
(d) Assistance in preparing a request to amend a record may be
obtained from the Privacy Officer, Surface Transportation Board, 1925 K
Street, NW, Washington, DC 20423.
(e) Upon receipt of a request for amendment the Privacy Officer or a
person designated by him shall promptly determine whether the record is
materially inaccurate, incomplete, misleading, or is irrelevant or not
timely, as claimed by the individual, and, if so, shall cause the record
to be amended in accordance with the individual's request.
(f) If the Privacy Officer or designee grants the request to amend
the record, the individual shall promptly be advised of the decision and
of the action taken, and notice shall be given of the correction and its
substance to each person or agency to whom the record had previously
been disclosed, as shown on the record of disclosures maintained in
accordance with Sec. 1007.6(b).
(g) If the Privacy Officer or designee disagrees in whole or in part
with a request for amendment of a record, the individual shall promptly
be notified of the complete or partial denial of his request and the
reasons for the refusal. The individual shall also be notified of the
procedures for administrative review by the Chairman of any complete or
partial denial of a request for amendment, which are set forth in Sec.
1007.9.
(h) If a request is received for amendment of a record prepared by
another agency which is in the possession or control of the Board, the
request for amendment will be forwarded to that agency. If that agency
determines that the correction should be made, the Board will amend its
records accordingly and notify the individual making the request for
amendment of the change. If the other agency declines to make the
amendment, the Privacy Officer or designee will independently determine
whether the amendment will be made to the record in the Board's
possession or control, considering any explanation given by the other
agency for its decision.

[41 FR 3087, Jan. 21, 1976, as amended at 64 FR 53266, Oct. 1, 1999]

Sec. 1007.9 Appeals to the Chairman.

(a) Any individual may petition the Chairman:
(1) To review a refusal to comply with an individual request for
access to records pursuant to the Privacy Act (5 U.S.C. 552a(d)(1)), and
Sec. Sec. 1007.3 and 1007.5 in this part;
(2) To review denial of a request for amendment made pursuant to
Sec. 1007.8;
(3) To correct any determination that may have been made adverse to
the individual based in whole or in part upon inaccurate, irrelevant,
untimely or incomplete information; and,
(4) To correct a failure to comply with any other provision of the
Privacy Act and the rules of this part 1007, which has had an adverse
effect on the individual.
(b) The petition to the Chairman shall be in writing and shall: (1)
State in what manner it is claimed the Board or any Board employee has
failed or refused to comply with provisions of the Privacy Act or of the
rules contained in this part 1007, and (2) set forth the corrective
action the petitioner wishes the Board to take. The petitioner may, if
he or she wishes, state such facts and cite such legal or other
authorities as are considered appropriate.
(c) The Chairman will make a determination of any petition filed
pursuant to this subsection within thirty days (excluding Saturdays,
Sundays and legal public holidays) after receipt of the petition, unless
for good cause

[[Page 32]]

shown, the Chairman extends the 30-day period. If a petition is denied,
the petitioner will be notified in writing of the reasons for such
denial, and the provisions for judicial review of that determination
which are set forth in section 552a(g) (1)(A) and (2)(A), of Title 5 of
the United States Code and the provisions for disputed records set forth
in paragraph (d) of this section.
(d) If, after review, the Chairman declines to amend the records as
the individual has requested, the individual may file with the Privacy
Officer a concise statement setting forth why he or she disagrees with
the Chairman's denial of the request. Any subsequent disclosure
containing information about which a statement of disagreement has been
filed shall clearly note the portion which is disputed and include a
copy of a concise statement explaining its reasons for not making the
amendments requested. Prior recipients of the disputed record will be
provided a copy of any statement of dispute to the extent that an
accounting of disclosures was maintained.

Sec. 1007.10 Information supplied by the Board when collecting
information from an individual.

The Board will inform each individual whom it asks to supply
information, on the form which it uses to collect the information or on
a separate form that can be retained by the individual, of:
(a) The authority which authorizes the solicitation of the
information and whether disclosure of such information is mandatory or
voluntary;
(b) The principal purpose or purposes for which the information is
intended to be used;
(c) The routine uses which may be made of the information, as
published in the Federal Register; and,
(d) The effects on the individual of not providing all or any part
of the requested information.

Sec. 1007.11 Public notice of records systems.

(a) The Board will publish in the Federal Register, at least
annually, a notice of the existence and character of each of its system
of records, which notice shall include:
(1) The name and location of the system;
(2) The categories of individuals on whom records are maintained in
the system;
(3) The categories of records maintained in the system;
(4) Each routine use of the records contained in the system,
including the categories of users and purpose of such use;
(5) The policies and practices of the Board regarding storage,
retrieval, access controls, retention, and disposal of the records;
(6) The title and business address of the Board official who is
responsible for the system of records;
(7) The procedures whereby an individual can be notified at his or
her request if the system of records contains a record pertaining to
that individual;
(8) The procedures whereby an individual can be notified at his or
her request how he or she can gain access to any record pertaining to
that individual contained in the system of records, and how the content
of the record can be contested; and,
(9) The categories of sources of records in the system.
(b) Copies of the notices as printed in the Federal Register will be
available in each office of the Board. Mail requests should be directed
to the Privacy Officer, Surface Transportation Board, 1925 K Street, NW,
Washington, DC 20423. The first copy will be provided free of charge;
additional copies are subject to charge provided for in paragraph (e) of
this Sec. 1007.5.

[41 FR 3087, Jan. 21, 1976, as amended at 64 FR 53266, Oct. 1, 1999]

Sec. 1007.12 Exemptions.

(a) Investigatory materials compiled for law enforcement purposes
are exempt from portions of the Privacy Act of 1974 and of these rules
on the basis and to the extent that individual access to these files
could impair the effectiveness and orderly conduct of the Board's
enforcement program. Provided, however, That if any individual is denied
any right, privilege, or benefit to which he or she would otherwise be
entitled by Federal law, or for which he or she would otherwise be
eligible, as a

[[Page 33]]

result of the maintenance of such material, such materials shall be
provided to the individual; except to the extent that the disclosure of
such material would reveal the identity of a source who furnished
information to the Government under an express promise that the identity
of the source would be held in confidence, or, prior to the effective
date of this section, under an implied promise that the identity of the
source would be held in confidence.
(b) Investigatory material compiled solely for the purpose of
determining suitability, eligibility, or qualifications for employment
with or contracts with the Board are exempt from portions of the Privacy
Act of 1974 and of these rules to the extent that it identifies a
confidential source. This is done in order to encourage persons from
whom information is sought to provide information to the Board which,
absent assurances of confidentiality, they might otherwise be unwilling
to give. However, if practicable, material identifying a confidential
source shall be extracted or summarized in a manner which protects the
source, and the summary or extract shall be provided to the requesting
individual.
(c) Complaints and investigatory materials compiled by the Board's
Office of Inspector General are exempt from the provisions of 5 U.S.C.
552a and the regulations in this part, pursuant to 5 U.S.C. 552a(j)(2),
except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6),
(7), (9), (10), and (11) and (i) to the extent that the system of
records pertains to the enforcement of criminal laws. Complaint and
investigatory materials compiled by the Board's Office of Inspector
General for law enforcement purposes also are exempt from the provisions
of 5 U.S.C. 552a and the regulations of this part, pursuant to 5 U.S.C.
552a(k)(2).

[41 FR 3087, Jan. 21, 1976, as amended at 58 FR 15291, Mar. 22, 1993; 58
FR 28520, May 14, 1993]

PART 1011_BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY--Table of Contents

Sec.
1011.1 General.
1011.2 The Board.
1011.3 The Chairman, Vice Chairman, and Board Members.
1011.4 Delegations to individual Board Members.
1011.5 Employee boards.
1011.6 Delegations of authority by the Chairman.
1011.7 Delegations of authority by the Board to specific offices of the
Board.

Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 1301, 1321,
11123, 11124, 11144, 14122, and 15722.

Source: 67 FR 60167, Sept. 25, 2002, unless otherwise noted.

Sec. 1011.1 General.

(a) This part describes the organization of the Board, and the
assignment of jurisdiction and the responsibilities to the Board,
individual Board Members or employees, and employee boards.
(b) As used in this part, matter includes any case, proceeding,
question, or other matter within the Board's jurisdiction; and decision
includes any decision, ruling, order, or requirement of the Board, an
individual Board Member or employee, or an employee board.

Sec. 1011.2 The Board.

(a) The Board reserves to itself for consideration and disposition:
(1) All rulemaking and similar proceedings involving the
promulgation of rules or the issuance of statements of general policy.
(2) All investigations and other proceedings instituted by the
Board, except as may be ordered in individual situations.
(3) All administrative appeals in a matter previously considered by
the Board.
(4) All other matters submitted for decision except those assigned
to an individual Board Member or employee or an employee board.
(5) Except for matters assigned to the Chairman of the Board under
Sec. 1011.4(a)(6):
(i) The determination of whether to reconsider a decision being
challenged in court;
(ii) The disposition of matters that have been the subject of an
adverse decision by a court; and

[[Page 34]]

(iii) The determination of whether to file any memorandum or brief
or otherwise participate on behalf of the Board in any court.
(6) The disposition of all matters involving issues of general
transportation importance, and the determination whether issues of
general transportation importance are involved in any matter.
(7) All appeals of initial decisions issued by the Director of the
Office of Proceedings under the authority delegated by Sec. 1011.7(a),
and all appeals of initial decisions issued by the Office of Public
Assistance, Governmental Affairs, and Compliance under the authority
delegated by Sec. 1011.7(b). Appeals must be filed within 10 days after
service of the Director decision or publication of the notice, and
replies must be filed within 10 days after the due date for appeals or
any extension thereof.
(b) The Board may bring before it any matter assigned to an
individual Board Member or employee or employee board.

[67 FR 60167, Sept. 25, 2002, as amended at 81 FR 8850, Feb. 23, 2016]

Sec. 1011.3 The Chairman, Vice Chairman, and Board Members.

(a)(1) The Chairman of the Board is appointed by the President as
provided by 49 U.S.C. 1301(c)(1). The Chairman has authority, duties,
and responsibilities assigned under 49 U.S.C. 1301(c)(2) and described
in this part.
(2) The Vice Chairman is elected by the Board for the term of 1
calendar year.
(3) In the Chairman's absence, the Vice Chairman is acting Chairman,
and has the authority and responsibilities of the Chairman. In the Vice
Chairman's absence, the Chairman, if present, has the authority and
responsibilities of the Vice Chairman. In the absence of both the
Chairman and the Vice Chairman, the Board may temporarily designate one
of its members to act as Chairman and to have the authority and
responsibilities of the Chairman and Vice Chairman.
(b)(1) The Chairman is the executive head of the Board and has
general responsibilities for:
(i) The overall management and functioning of the Board;
(ii) The formulation of plans and policies designed to assure the
effective administration of the Interstate Commerce Act and related
Acts;
(iii) Prompt identification and early resolution, at the appropriate
level, of major substantive regulatory problems; and
(iv) The development and use of effective staff support to carry out
the duties and functions of the Board.
(2) The Chairman of the Board exercises the executive and
administrative functions of the Board, including:
(i) The appointment, supervision, and removal of Board employees,
except those in the immediate offices of Board Members other than the
Chairman;
(ii) The distribution of business among such personnel and among
administrative units of the Board; and
(iii) The use and expenditures of funds.
(3) In carrying out his or her functions, the Chairman is governed
by general policies of the Board and by such regulatory decisions,
findings, and determinations as the Board by law is authorized to make.
(4) The appointment by the Chairman of the heads of offices is
subject to the approval of the Board. All heads of offices report to the
Chairman.
(c)(1) The Chairman presides at all sessions of the Board and sees
that every vote and official act of the Board required by law to be
recorded is accurately and promptly recorded by the Clearance Clerk or
the person designated by the Board for that purpose.
(2) Regular sessions of the Board are provided for by Board
regulations. The Chairman may call the Board into special session to
consider any matter or business of the Board. The Chairman shall convene
a special session to consider any matter or business on request of a
member of the Board unless a majority of the Board votes either not to
hold a special session or to delay conference consideration of that
item, or unless the Chairman finds that special circumstances warrant a
delay. Notwithstanding the two immediately preceding sentences of this
paragraph, on the written request of any member of the Board, the
Chairman shall schedule a Board conference to discuss and vote

[[Page 35]]

on significant Board proceedings involving major transportation issues,
and such conference shall be held within a reasonable time following the
close of the record in the involved proceeding.
(3) The Chairman exercises general control over the Board's argument
calendar and conference agenda.
(4) The Chairman acts as correspondent and speaks for the Board in
all matters where an official expression of the Board is required.
(5) The Chairman brings any delay or failure in the work to the
attention of the supervising Board Member, employee, or board, and
initiates ways of correcting or preventing avoidable delays in the
performance of any work or the disposition of any matter.
(6) The Chairman may appoint such standing or ad hoc committees of
the Board as he or she considers necessary.
(7) The Chairman may reassign related proceedings to a board of
employees and may remove a matter from an individual Board Member or
employee or employee board for consideration and disposition by the
Board.
(8) The Chairman may authorize any officer, employee, or
administrative unit of the Board to perform a function vested in or
delegated to the Chairman.
(9) The Chairman authorizes the institution of investigations on the
Board's own motion, and their discontinuance at any time before hearing.
(10) The Chairman approves for publication all publicly issued
documents by an office, except:
(i) Those authorized or adopted by the Board or an individual Board
Member that involve decisions in formal proceedings;
(ii) Decisions or informal opinions of an office; and
(iii) Documents prepared for court cases or for introduction into
evidence in a formal proceeding.

[67 FR 60167, Sept. 25, 2002, as amended at 74 FR 52903, Oct. 15, 2009;
83 FR 15077, Apr. 9, 2018]

Sec. 1011.4 Delegations to individual Board Members.

(a) The following matters are referred to the Chairman of the Board:
(1) Entry of reparation orders responsive to findings authorizing
the filing of statements of claimed damages as provided at 49 CFR part
1133.
(2) Extensions of time for compliance with orders and procedural
matters in any formal case or pending matter, except appeals taken from
the decision of a hearing officer on requests for discovery.
(3) Postponement of the effective date of orders in proceedings that
are the subject of suits brought in a court to enjoin, suspend, or set
aside the decision.
(4) Dismissal of complaints and applications on the unopposed motion
of any party.
(5) Requests for access to waybills and to statistics reported under
orders of the Board.
(6) Exercise of control over litigation arising under the Freedom of
Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a),
except for determinations whether to seek further judicial review of:
(i) A decision in which a court finds under 5 U.S.C. 552(a)(4)(F)
that Board personnel may have acted arbitrarily or capriciously in
improperly withholding records from disclosure; or
(ii) A decision in which a court finds under 5 U.S.C. 552a(g)(4)
that Board personnel acted intentionally or willfully in violating the
Privacy Act.
(7) Issuance of certificates and decisions authorizing Consolidated
Rail Corporation to abandon or discontinue service over lines for which
an application under section 308 of the Regional Rail Reorganization Act
of 1973, 45 U.S.C. 748, has been filed.
(8) Designation in writing of employees authorized to inspect and
copy records and to inspect and examine lands, buildings, and equipment
pursuant to 49 U.S.C. 11144, 14122, and 15722.
(9) Authority to act alone to take necessary actions in emergency
situations when the Chairman is the only Board member reasonably
available.
(b) The following matters are referred to the Vice Chairman of the
Board:
(1) Matters within the jurisdiction of the Accounting Board if
certified to the Vice Chairman by the Accounting

[[Page 36]]

Board or if removed from the Accounting Board by the Vice Chairman.
(2) Matters involving the admission, disbarment, or discipline of
practitioners before the Board under 49 CFR part 1103.
(c) The Chairman, Vice Chairman, or other Board Member to whom a
matter is assigned under this part may certify such matter to the Board.
(d) The Chairman shall notify all Board Members that a petition for
a stay has been referred to the Chairman for disposition under
paragraphs (a)(2) or (3) of this section. The Chairman shall also inform
all Board Members of the decision on that petition before service of
such decision. At the request of a Board Member, made at any time before
the Chairman's decision is served, the petition will be referred to the
Board for decision.

[67 FR 60167, Sept. 25, 2002, as amended at 68 FR 8726, Feb. 25, 2003;
81 FR 8850, Feb. 23, 2016]

Sec. 1011.5 Employee boards.

This section covers matters assigned to the Accounting Board, a
board of employees of the Board.
(a) The Accounting Board has authority:
(1) To permit departure from general rules prescribing uniform
systems of accounts for carriers and other persons under the Interstate
Commerce Act, and from the regulations governing accounting and
reporting forms;
(2) To prescribe rates of depreciation to be used by railroad and
water carriers;
(3) To issue special authorizations permitted by the regulations
governing the destruction of records of carriers subject to the
Interstate Commerce Act; and
(4) To grant extensions of time for filing annual, periodic, and
special reports in matters that do not involve taking testimony at a
public hearing or the submission of evidence by opposing parties in the
form of affidavits.
(b) The board may certify any matter assigned to it to the Board.

Sec. 1011.6 Delegations of authority by the Chairman.

(a)(1) This section provides for delegations of authority by the
Chairman of the Surface Transportation Board to individual Board
employees.
(2) The Chairman of the Board may remove for disposition any matter
delegated under this section, and any matter delegated under this
section may be referred by the Board employee to the Chairman for
disposition.
(b) The Board will decide appeals from decisions of employees acting
under authority delegated under this section. Appeals must be filed
within 10 days after the date of the employee's action, and replies must
be filed within 10 days after the due date for appeals. Appeals are not
favored and will be granted only in exceptional circumstances to correct
a clear error of judgment or to prevent manifest injustice.
(c)(1) As used in this paragraph, procedural matter includes, but is
not limited to, the assignment of the time and place for hearing; the
assignment of proceedings to administrative law judges; the issuance of
decisions directing special hearing procedures; the establishment of
dates for filing statements in cases assigned for hearing under modified
(non-oral hearing) procedure; the consolidation of proceedings for
hearing or disposition; the postponement of hearings and procedural
dates; the waiver of formal specifications for pleadings; and extensions
of time for filing pleadings. It does not include interlocutory appeals
from the rulings of hearing officers; nor does it include postponement
of the effective date of:
(i) Decisions pending judicial review,
(ii) Decisions of the entire Board,
(iii) Cease and desist orders, or
(iv) Final decisions where petitions for discretionary review have
been filed under 49 CFR 1115.3.
(2) Unless otherwise ordered by the Board in individual proceedings,
authority to dispose of procedural matters is delegated to
administrative law judges or Board Members in proceedings assigned to
them.
(3) Unless otherwise ordered by the Board in individual proceedings,
authority to dispose of routine procedural matters in proceedings
assigned for handling under modified procedure, other than those
assigned to an administrative law judge or a Board Member,

[[Page 37]]

is assigned to the Director of the Office of Proceedings. The Director
of the Office of Proceedings shall also have authority, unless otherwise
ordered by the Chairman or by a majority of the Board in individual
proceedings, to decide whether complaint proceedings shall be handled
under the modified procedure or be assigned for oral hearings. In
carrying out these duties, the Director of the Office of Proceedings
shall consult, as necessary, with the General Counsel and the Director
of any Board office to which an individual proceeding has been assigned.
(d) Except as provided at 49 CFR 1113.3(b)(1), authority to dismiss
a complaint on complainant's request, or an application on applicant's
request, is delegated to the Director of the Office of Proceedings.
(e) Authority to grant or deny access to waybills and to statistics
reported under orders of the Board is delegated to the Director of the
Office of Economics.
(f) Certain accounts in the Uniform Systems of Accounts, 49 CFR
parts 1200 through 1207, require Board approval to use. Authority to
grant or deny requests for use of these accounts is delegated to the
Director of the Office of Economics.
(g) The Director of the Office of Proceedings is delegated
authority, under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
to:
(1) Sign and transmit to the Small Business Administration
certifications of no significant economic effect for proposed rules,
that if adopted by the Board, will not have a significant economic
impact on a substantial number of small entities; and
(2) Sign and transmit findings regarding waiver or delay of an
initial regulatory flexibility analysis or delay of a final regulatory
flexibility analysis.
(h) Issuance of certificates and decisions authorizing Consolidated
Rail Corporation to abandon or discontinue service over lines for which
an application under section 308 of the Regional Rail Reorganization Act
of 1973, 45 U.S.C. 748, has been filed is delegated to the Director of
the Office of Proceedings.
(i) In matters involving the streamlined market dominance approach,
authority to hold a telephonic evidentiary hearing on market dominance
issues is delegated to administrative law judges, as described in Sec.
1111.12(d) of this chapter.

[67 FR 60167, Sept. 25, 2002, as amended at 74 FR 52904, Oct. 15, 2009;
81 FR 8851, Feb. 23, 2016; 83 FR 17299, Apr. 19, 2018; 85 FR 47696, Aug.
6, 2020]

Sec. 1011.7 Delegations of authority by the Board to specific offices
of the Board.

(a) Office of Proceedings. (1) The Director of the Office of
Proceedings is delegated the authority to determine (in consultation
with involved Offices) whether to waive filing fees set forth at 49 CFR
1002.2(f).
(2) In addition to the authority delegated at 49 CFR 1011.6(c)(3),
(d), (g), and (h), the Director of the Office of Proceedings shall have
authority initially to determine the following:
(i) Whether to designate abandonment proceedings for oral hearings
on request.
(ii) Whether offers of financial assistance satisfy the statutory
standards of 49 U.S.C. 10904(d) for purposes of negotiations or, in
exemption proceedings, for purposes of partial revocation and
negotiations.
(iii) Whether:
(A) To impose, modify, or remove environmental or historic
preservation conditions; and
(B) In abandonment proceedings, to impose public use conditions
under 49 U.S.C. 10905 and the implementing regulations at 49 CFR
1152.28.
(iv) In abandonment proceedings, when a request for interim trail
use/rail banking is filed under 49 CFR 1152.29, to determine whether the
National Trails System Act, 16 U.S.C. 1247(d), is applicable and, where
appropriate, to issue Certificates of Interim Trail Use or Abandonment
(in application proceedings) or Notices of Interim Trail Use or
Abandonment (in exemption proceedings).
(v) In any abandonment proceeding where interim trail use/rail
banking is an issue, to make such findings and issue decisions as may be
necessary for the orderly administration of the National Trails System
Act, 16 U.S.C. 1247(d).

[[Page 38]]

(vi) Whether to institute requested declaratory order proceedings
under 5 U.S.C. 554(e).
(vii) To issue decisions, after 60 days' notice by any person
discontinuing a subsidy established under 49 U.S.C. 10904 and at the
railroad's request:
(A) In application proceedings, immediately issuing decisions
authorizing abandonment or discontinuance; and
(B) In exemption proceedings, immediately vacating the decision that
postponed the effective date of the exemption.
(viii) In proceedings under the Feeder Railroad Development Program
under 49 U.S.C. 10907 and the implementing regulations at 49 CFR part
1151:
(A) Whether to accept or reject primary applications under 49 CFR
1151.2(b); competing applications under section 1151.2(c); and
incomplete applications under 49 CFR 1151.2(d).
(B) Whether to grant waivers from specific provisions of 49 CFR part
1151.
(ix) In exemption proceedings subject to environmental or historic
preservation reporting requirements, to issue a decision, under 49 CFR
1105.10(g), making a finding of no significant impact where no
environmental or historic preservation issues have been raised by any
party or identified by the Board's Office of Environmental Analysis.
(x) Whether to issue notices of exemption under 49 U.S.C. 10502:
(A) For acquisition, lease, and operation transactions under 49
U.S.C. 10901 and 10902 and the implementing regulations at 49 CFR part
1150, subparts D and E;
(B) For connecting track constructions under 49 U.S.C. 10901 and the
implementing regulations at 49 CFR 1150.36;
(C) For rail transactions under 49 U.S.C. 11323 and the implementing
regulations at 49 CFR 1180.2(d); and
(D) For abandonments and discontinuances under 49 U.S.C. 10903 and
the implementing regulations at 49 CFR 1152.50.
(xi) When an application or a petition for exemption for abandonment
is filed, the Director will issue a notice of that filing pursuant to 49
CFR 1152.24(e)(2) and 49 CFR 1152.60, respectively.
(xii) Whether to issue a notice of exemption under 49 U.S.C. 13541
for a transaction under 49 U.S.C. 14303 within a motor passenger carrier
corporate family that does not result in adverse changes in service
levels, significant operational changes, or a change in the competitive
balance with motor passenger carriers outside the corporate family.
(xiii) Whether to issue rail modified certificates of public
convenience and necessity under 49 CFR part 1150, subpart C.
(xiv) Whether to waive the regulations at 49 CFR part 1152, subpart
C, on appropriate petition.
(xv) To reject applications, petitions for exemption, and verified
notices (filed in class exemption proceedings) for noncompliance with
the environmental rules at 49 CFR part 1105.
(xvi) To reject applications by BNSF Railway Company to abandon rail
lines in North Dakota exceeding the 350-mile cap of section 402 of
Public Law 97-102, 95 Stat. 1465 (1981), as amended by The Department of
Transportation and Related Agencies Appropriations Act, 1992, Public Law
102-143, section 343 (Oct. 28, 1991).
(xvii) To authorize parties to a proceeding before the Board, upon
mutual request, to participate in mediation with a Board-appointed
mediator, for a period of up to 30 days and to extend the mediation
period at the mutual request of the parties.
(xviii) To authorize a proceeding to be held in abeyance while
mediation procedures are pursued, pursuant to the mutual request of the
parties to the matter.
(xix) To order arbitration of program-eligible matters under the
Board's regulations at 49 CFR part 1108, subpart A, or upon the mutual
request of parties to a proceeding before the Board.
(xx) To delegate to Board staff any necessary parties for purposes
of accelerated emergency service proceedings at Sec. 1146.2 of this
chapter.
(b) Office of Public Assistance, Governmental Affairs, and
Compliance. The Office of Public Assistance, Governmental Affairs, and
Compliance is delegated the authority to:
(1) Reject tariffs and railroad transportation contract summaries
filed with the Board that violate applicable

[[Page 39]]

statutes, rules, or regulations. Any rejection of a tariff or contract
summary may be by letter signed by or for the Director, Office of Public
Assistance, Governmental Affairs, and Compliance.
(2) Issue, on written request, informal opinions and interpretations
on carrier tariff provisions, which are not binding on the Board.
(3) Grant or withhold special tariff authority granting relief from
the provisions of 49 CFR part 1312. Any grant or withholding of such
relief may be by letter signed by or for the Director, Office of Public
Assistance, Governmental Affairs, and Compliance.
(4) Resolve any disputes that may arise concerning the applicability
of motor common carrier rates under 49 U.S.C. 13710(a)(2).
(5) Issue orders by the Director in an emergency under 49 U.S.C.
11123 and 11124 if no Board Member is reasonably available.
(6) Issue, on written request, informal opinions and interpretations
which are not binding on the Board. In issuing informal opinions or
interpretations, the Director of the Office of Public Assistance,
Governmental Affairs, and Compliance shall consult with the Directors of
the appropriate Board offices. Such requests must be directed to the
Director of the Office of Public Assistance, Governmental Affairs, and
Compliance, Surface Transportation Board, Washington, DC.
(7) Perform any arbitration duties specifically assigned to the
Office of Public Assistance, Governmental Affairs, and Compliance or its
Director in 49 CFR part 1108, subpart B.

[75 FR 30711, June 2, 2010, as amended at 78 FR 29079, May 17, 2013; 81
FR 8851, Feb. 23, 2016; 83 FR 15077, Apr. 9, 2018; 88 FR 729, Jan. 4,
2023; 89 FR 4578, Jan. 24, 2024]

PART 1012_MEETINGS OF THE BOARD--Table of Contents

Sec.
1012.1 General provisions.
1012.2 Time and place of meetings.
1012.3 Public notice.
1012.4 Public participation.
1012.5 Transcripts; minutes.
1012.6 Petitions seeking to open or close a meeting.
1012.7 Meetings which may be closed to the public.

Authority: 5 U.S.C. 552b(g), 49 U.S.C. 1301, 1321.

Source: 42 FR 13796, Mar. 11, 1977, unless otherwise noted.

Sec. 1012.1 General provisions.

(a) The regulations contained in this part are issued pursuant to
the provisions of 5 U.S.C. 552b(g), added by section 3(a) of the
Government in the Sunshine Act, Pub. L. 94-409 (Act), and section 17(3)
of the Interstate Commerce Act. They establish procedures under which
meetings of the Surface Transportation Board (Board) are held. They
apply to oral arguments as well as to deliberative conferences. They
apply to meetings of the Board. They include provisions for giving
advance public notice of meetings, for holding meetings which may
lawfully be closed to the public, and for issuing minutes and
transcripts of meetings.
(b) The words meeting and conference are used interchangeably in
this part to mean the deliberations of at least a majority of the
members of the Board, where such deliberations determine or result in
the joint conduct or disposition of official Board business. They do not
include meetings held to determine whether some future meeting should be
open or closed to the public. They do not include the deliberations of
members of boards of employees of the Board.
(c) These regulations are not intended to govern situations in which
members of the Board consider individually and vote by notation upon
matters which are circulated to them in writing. Copies of the votes or
statements of position of all Board Members eligible to participate in
action taken by notation voting will be made available, as soon as
possible after the date upon which the action taken is made public or
any decision or order adopted is served, in a public reading room or
other easily accessible place within the Board, or upon written request
to the Records Officer.

[42 FR 13796, Mar. 11, 1977, as amended at 64 FR 53266, 53267, Oct. 1,
1999; 74 FR 52905, Oct. 15, 2009]

Sec. 1012.2 Time and place of meetings.

(a) Conferences, oral arguments, and other meetings are held at the
Board's

[[Page 40]]

offices, unless advance notice of an alternative site is given. Room
assignments will be posted at the Board on the day of the meeting.
(b) Regular Board conferences are held on the first and third
Tuesdays of each month, or on the following day if the regular
conference day is a holiday. Oral arguments before the Board are
normally scheduled on the first or third Wednesday of each month.
Regular Board conferences and oral arguments before the Board normally
begin at 9:30 a.m. A luncheon recess is taken at approximately noon, and
other recesses may be called by the presiding officer. Times for
reconvening following a recess, or on subsequent days if a conference or
oral argument lasts more than one day, are set by the presiding officer
at the time the recess is announced.
(c) Special Board conferences or oral arguments are scheduled by the
Chairman of the Board.
(d) If one or more portions of the same meeting are open to the
public while another portion or other portions are closed, all those
portions of the meeting which are open to the public are scheduled at
the beginning of the meeting agenda, and are followed by those portions
which are closed.

[42 FR 13796, Mar. 11, 1977, as amended at 64 FR 53267, Oct. 1, 1999; 84
FR 12943, Apr. 3, 2019]

Sec. 1012.3 Public notice.

(a) Unless a majority of the Board determines that such information
is exempt from disclosure under the Act, public notice of the scheduling
of a meeting will be given by filing a copy of the notice with the
Clearance Clerk of the Board for posting and for service on all parties
of record in any proceeding which is the subject of the meeting or any
other person who has requested notice with respect to meetings of the
Board, and by submitting a copy of the notice for publication in the
Federal Register.
(b) Public notice of a scheduled meeting will contain:
(1) The date, time, place, and subject matter of the meeting.
(2) Whether it is open to the public.
(3) If the meeting or any portion of the meeting is not open to the
public, an explanation of the action taken in closing the meeting or
portion of the meeting, together with a list of those expected to attend
the meeting and their affiliations.
(4) If a vote is taken on the question of whether to close a meeting
or a portion of a meeting to the public, a statement of the vote or
position of each Board Member eligible to participate in that vote. If
such a vote is taken, public notice of its result will be posted within
one working day following completion of the voting. If the result of the
vote is to close the meeting or a portion of the meeting, an explanation
of that action will be included in the notice to be issued within one
working day following completion of the voting. The public notice
otherwise required by this subparagraph may be withheld if the Board
finds that such information is exempt from disclosure under the Act.
(5) The name and telephone number of the Board official designated
to respond to requests for information about the meeting.
(c) Except as provided in paragraphs (d) of this section, public
notice will be given at least one week before the date upon which a
meeting is scheduled.
(d) If a majority of the Board Members eligible to participate in
the conduct or disposition of the matter which is the subject of a
meeting determines, by recorded vote, that Board business requires that
a meeting be called on less than one week's notice, the meeting may be
called on short notice, and public notice will be posted and published
at the earliest practicable time.
(e) Changes in the scheduling of a meeting which has been the
subject of a public notice will also be made the subject of a public
notice, which will be posted at the earliest practicable time. Changes
in, or additions to a conference agenda or in the open or closed status
of a meeting will be made only if a majority of the Board Members
eligible to participate in the conduct or disposition of the matter
which is the subject of the meeting determines, by recorded vote, that
the Board's business requires such change and that no earlier
announcement of the change was possible. In such a case, the public
notice of the change, will show the

[[Page 41]]

vote of each Board Member on the change.

[42 FR 13796, Mar. 11, 1977, as amended at 64 FR 53267, Oct. 1, 1999; 74
FR 52905, Oct. 15, 2009; 81 FR 8851, Feb. 23, 2016; 84 FR 12943, Apr. 3,
2019]

Sec. 1012.4 Public participation.

(a) In the case of Board or Division conferences or meetings of
committees of the public, members of the public will be admitted as
observers only. Active participation, as by asking questions or
attempting to participate in the discussion, will not be permitted, and
anyone violating this proscription may be required to leave the meeting
by the presiding officer.
(b) Oral arguments are always open to the public. The scheduling of
participants in the arguments and the allotment of time is governed by
49 CFR part 1116.

[42 FR 13796, Mar. 11, 1977, as amended at 47 FR 49596, 49597, Nov. 1,
1982; 47 FR 54083, Dec. 1, 1982; 47 FR 55686, Dec. 13, 1982; 57 FR
44135, Sept. 24, 1992]

Sec. 1012.5 Transcripts; minutes.

(a) A verbatim transcript, sound recording or minutes will be made
of all meetings closed to the public under these regulation, and will be
retained by the Board for two years following the date upon which the
meeting ended, or until one year after the conclusion of any proceeding
with respect to which the meeting was held, whichever occurs later. In
the case of meetings closed to the public under Sec. 1012.7(d) (1)
through (7) and (9) of this part, a transcript or recording rather than
minutes will be made and retained.
(b) The Board will make available free of charge, upon request, in a
public reading room or some other easily accessible place, the minutes,
transcript or recording of all portions of any meeting which was closed
to the public except those portions which it finds to be properly exempt
from disclosure under the Act. A copy of such minutes, transcript or
recording will be provided, upon request, upon payment of fees as
provided in part 1002 of this chapter.
(c) In the case of all meetings closed to the public, the presiding
officer shall cause to be made, and the Board shall retain, a statement
setting forth:
(1) The date, time, and place of the meeting.
(2) The names and affiliations of those attending.
(3) The subject matter.
(4) The action taken.
(5) A copy of the certification issued by the General Counsel that,
in his or her opinion, the meeting was one that might properly be closed
to the public.

Sec. 1012.6 Petitions seeking to open or close a meeting.

(a) The Board will entertain petitions requesting either the opening
of a meeting proposed to be closed to the public or the closing of a
meeting proposed to be open to the public. In the case of a meeting of
the Board, or a Division or committee of the Board, a petition shall be
filed.
(b) A petition to open a meeting proposed to be closed, filed by any
interested person, will be entertained.
(c) A petition to close a meeting proposed to be open will be
entertained only in cases in which the subject at the meeting would:
(1) Involve accusing a person of a crime or formally censuring a
person.
(2) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy.
(3) Disclose trade secrets or commercial or financial information
obtained on a privileged or confidential basis.
(4) Disclose investigatory records or information, compiled for law
enforcement purposes, to the extent that the production of such records
or information would (i) interfere with enforcement proceedings being
conducted or under consideration by an agency other than the Board; (ii)
deprive a person of a right to a fair trial or an impartial
adjudication; (iii) constitute an unwarranted invasion of personal
privacy; (iv) disclose the identity of a confidential investigation
agency or a national security intelligence agency; (v) disclose
investigative techniques and procedures of an agency other than the
Board; or (vi) endanger the life or physical safety of law enforcement
personnel.

[[Page 42]]

(5) Disclose information the premature disclosure of which could
lead to significant financial speculation in securities.
(d) Every effort will be made to dispose of petitions to open or
close a meeting in advance of the meeting date. However, if such a
petition is received less than three working days prior to the date of
the meeting, it may be disposed of as the first order of business at the
meeting, in which case the decision will be communicated to the
petitioner orally through the Board's Public Information Officer or
other spokesperson.

[42 FR 13796, Mar. 11, 1977, as amended at 84 FR 12943, Apr. 3, 2019]

Sec. 1012.7 Meetings which may be closed to the public.

(a) A meeting may be closed pursuant to this section only if a
majority of the Board Members eligible to participate in the conduct or
disposition of the matter which is the subject of the meeting votes to
close the meeting.
(b) A single vote may be taken to close a series of meetings on the
same particular matters held within 30 days of the initial meeting in
the series.
(c) With respect to any meeting closed to the public under this
section, the General Counsel of the Board will issue his or her
certification that, in his opinion, the meeting is one which may
properly be closed pursuant to one or more of the provisions of
paragraph (d) of this section.
(d) Meetings or portions of meetings may be closed to the public if
the meeting or portion thereof is likely to:
(1) Disclose matters (i) specifically authorized under criteria
established by an Executive order to be kept secret in the interests of
national defense or foreign policy and (ii) in fact properly classified
pursuant to such Executive order.
(2) Relate solely to the internal personnel rules and practices of
the Board.
(3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552); Provided, That such statute (A)
requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of matters to be
withheld.
(4) Disclose trade secrets or commercial information obtained from a
person and privileged or confidential.
(5) Involve accusing any person of a crime, or formally censuring
any person.
(6) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy.
(7) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would (i) interfere with enforcement proceedings, (ii)
deprive a person of a right to a fair trial or an impartial
adjudication, (iii) constitute an unwarranted invasion of personal
privacy, (iv) disclose the identity of a confidential source and (in the
case of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation) disclose confidential
information furnished only by the confidential source, (v) disclose
investigative techniques and procedures, or (vi) endanger the life or
physical safety of law enforcement personnel.
(8) Disclose information the premature disclosure of which could (i)
lead to significant financial speculation in currencies, securities, or
commodities, or (ii) significantly endanger the stability of any
financial institution.
(9) Disclose information, the premature disclosure of which would be
likely significantly to frustrate implementation of a proposed Board
action, except that this subparagraph shall not apply in any instance
after the content or nature of the proposed Board action has already
been disclosed to the public by the Board, or where the Board is
required by law to make such disclosure prior to the taking of final
Board action on such proposal.
(10) Specifically concern the issuance of a subpoena.
(11) Specifically concern the Board's participation in a civil
action or proceeding or an arbitration.

[[Page 43]]

(12) Specifically concern the initiation, conduct, or disposition of
a particular case or formal adjudication conducted pursuant to the
procedures in 5 U.S.C. 554 or otherwise involving a determination on the
record after an opportunity for hearing.

PART 1013_GUIDELINES FOR THE PROPER USE OF VOTING TRUSTS-
-Table of Contents

Sec.
1013.1 The independence of the trustee of a voting trust.
1013.2 The irrevocability of the trust.
1013.3 Review and reporting requirements for regulated carriers.

Authority: 49 U.S.C. 1321, 13301(f).

Source: 44 FR 59909, Oct. 17, 1979, unless otherwise noted.

Sec. 1013.1 The independence of the trustee of a voting trust.

(a) In order to avoid an unlawful control violation, the independent
voting trust should be established before a controlling block of voting
securities is purchased.
(b) In voting the trusteed stock, the trustee should maintain
complete independence from the creator of the trust (the settlor).
(c) Neither the trustee, the settlor, nor their respective
affiliates should have any officers or board members in common or direct
business arrangements, other than the voting trust, that could be
construed as creating an indicium of control by the settlor over the
trustee.
(d) The trustee should not use the voting power of the trust in any
way which would create any dependence or intercorporate relationship
between the settlor and the carrier whose corporate securities
constitute the corpus of the trust.
(e) The trustee should be entitled to receive cash dividends
declared and paid upon the trusteed voting stock and turn them over to
the settlor. Dividends other than cash should be received and held by
the trustee upon the same terms and conditions as the stock which
constitutes the corpus of the trust.
(f) If the trustee becomes disqualified because of a violation of
the trust agreement or if the trustee resigns, the settlor should
appoint a successor trustee within 15 days.

Sec. 1013.2 The irrevocability of the trust.

(a) The trust and the nomination of the trustee during the term of
the trust should be irrevocable.
(b) The trust should remain in effect until certain events,
specified in the trust, occur. For example, the trust might remain in
effect until (1) all the deposited stock is sold to a person not
affiliated with the settlor or (2) the trustee receives a Board decision
authorizing the settlor to acquire control of the carrier or authorizing
the release of the securities for any reason.
(c) The settlor should not be able to control the events terminating
the trust except by filing with this Board an application to control the
carrier whose stock is held in trust.
(d) The trust agreement should contain provisions to ensure that no
violations of 49 U.S.C. 11323 will result from termination of the trust.

[44 FR 59909, Oct. 17, 1979, as amended at 81 FR 8851, Feb. 23, 2016]

Sec. 1013.3 Review and reporting requirements for regulated carriers.

(a) Any carrier choosing to utilize a voting trust may voluntarily
submit a copy of the voting trust to the Board for review. The Board's
staff will give an informal, nonbinding opinion as to whether the voting
trust effectively insulates the settlor from any violation of Board
policy against unauthorized acquisition of control of a regulated
carrier.
(b) Any person who establishes an independent trust for the receipt
of the voting stock of carrier must file a copy of the trust, along with
any auxiliary or modifying documents, with the Board.
(c) Any carrier required to file a Schedule 13D with the Securities
and Exchange Commission (17 CFR 240.13d-1) which reports the purchase of
5 percent or more of the registered securities of another Board
regulated carrier (or the listed shares of a company controlling 10
percent or more of the stock of a Board regulated carrier), must
simultaneously file a copy of that schedule with the Board, along with
any supplements to that schedule.

[[Page 44]]

(d) Failure to comply with the reporting requirements in paragraphs
(b) or (c) of this section will result in denial of the application in
which acquisition of control, through the acquisition of the voting
stock of another carrier, is sought, unless the applicant shows, by
clear and convincing evidence, and the Board finds, that the failure to
comply was unintentional and that denial of the application will
substantially and adversely affect the public interest and the national
transportation policy.

[44 FR 59909, Oct. 17, 1979, as amended at 81 FR 8851, Feb. 23, 2016]

PART 1014_ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN
PROGRAMS OR ACTIVITIES CONDUCTED BY THE SURFACE TRANSPORTATION BOARD-
-Table of Contents

Sec.
1014.101 Purpose.
1014.102 Application.
1014.103 Definitions.
1014.104-1014.110 [Reserved]
1014.111 Notice.
1014.112-1014.129 [Reserved]
1014.130 General prohibitions against discrimination.
1014.131-1014.139 [Reserved]
1014.140 Employment.
1014.141-1014.148 [Reserved]
1014.149 Program accessibility: Discrimination prohibited.
1014.150 Program accessibility: Existing facilities.
1014.151 Program accessibility: New construction and alterations.
1014.152-1014.159 [Reserved]
1014.160 Communications.
1014.161-1014.169 [Reserved]
1014.170 Compliance procedures.
1014.171-1014.999 [Reserved]

Authority: 29 U.S.C. 794.

Source: 51 FR 22896, June 23, 1986, unless otherwise noted.

Sec. 1014.101 Purpose.

This part effectuates section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the Rehabilitation Act of 1973 to
prohibit discrimination on the basis of handicap in programs or
activities conducted by Executive agencies or the United States Postal
Service.

Sec. 1014.102 Application.

This part applies to all programs or activities conducted by the
agency.

Sec. 1014.103 Definitions.

For purposes of this part, the term--
Assistant Attorney General means the Assistant Attorney General,
Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with
impaired sensory, manual, or speaking skills to have an equal
opportunity to participate in, and enjoy the benefits of, programs or
activities conducted by the agency. For example, auxiliary aids useful
for persons with impaired vision include readers, brailled materials,
audio recordings, telecommunications devices and other similar services
and devices. Auxiliary aids useful for persons with impaired hearing
include telephone handset amplifiers, telephones compatible with hearing
aids, telecommunication devices for deaf persons (TDD's), interpreters,
notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the
complainant's name and address and describes the agency's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of section 504. It shall be
signed by the complainant or by someone authorized to do so on his or
her behalf. Complaints filed on behalf of classes or third parties shall
describe or identify (by name, if possible) the alleged victims of
discrimination.
Facility means all or any portion of buildings, structures,
equipment, roads, walks, parking lots, rolling stock or other
conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental
impairment that substantially limits one or more major life activities,
has a record of such an impairment, or is regarded as having such an
impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes--

[[Page 45]]

(i) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental illness, and
specific learning disabilities. The term ``physical or mental
impairment'' includes, but is not limited to, such diseases and
conditions as orthopedic, visual, speech, and hearing impairments,
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental retardation, emotional illness,
and drug addiction and alcoholism.
(2) Major life activities includes functions such as caring for
one's self performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Qualified handicapped person means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, a handicapped person who is a member of
a class of persons otherwise entitled by statute, regulation, or agency
policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can achieve the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by Sec. 1014.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.

Sec. Sec. 1014.104-1014.110 [Reserved]

Sec. 1014.111 Notice.

The agency shall make available to employees, applicants,
participants, beneficiaries, and other interested persons such
information regarding the

[[Page 46]]

provisions of this part and its applicability to the programs or
activities conducted by the agency, and make such information available
to them in such manner as the head of the agency finds necessary to
apprise such persons of the protections against discrimination assured
them by section 504 and this regulation.

Sec. Sec. 1014.112-1014.129 [Reserved]

Sec. 1014.130 General prohibitions against discrimination.

(a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified handicapped persons to
discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified handicapped persons to discrimination on
the basis of handicap. However, the programs or activities of entities
that are licensed or certified by the agency are not, themselves,
covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a
program limited by Federal statute or Executive order to handicapped
persons or the exclusion of a specific class of handicapped persons from
a program

[[Page 47]]

limited by Federal statute or Executive order to a different class of
handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most
integrated setting appropriate to the needs of qualified handicapped
persons.

Sec. Sec. 1014.131-1014.139 [Reserved]

Sec. 1014.140 Employment.

No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613, shall apply to employment in federally conducted programs or
activities.

Sec. Sec. 1014.141-1014.148 [Reserved]

Sec. 1014.149 Program accessibility: Discrimination prohibited.

Except as otherwise provided in Sec. 1014.150, no qualified
handicapped person shall, because the agency's facilities are
inaccessible to or unusable by handicapped persons, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.

Sec. 1014.150 Program accessibility: Existing facilities.

(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1014.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by handicapped persons. The agency is not
required to make structural changes in existing facilities where other
methods are effective in achieving compliance with this section. The
agency, in making alterations to existing buildings, shall meet
accessibility requirements to the extent compelled by the Architectural
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any
regulations implementing it. In choosing among available methods for
meeting the requirements of this section, the agency shall give priority
to those methods that offer programs and activities to qualified
handicapped persons in the most integrated setting appropriate.

[[Page 48]]

(2) Historic preservation programs. In meeting the requirements of
Sec. 1014.150(a) in historic preservation programs, the agency shall
give priority to methods that provide physical access to handicapped
persons. In cases where a physical alteration to an historic property is
not required because of Sec. 1014.150(a)(2) or (a)(3), alternative
methods of achieving program accessibility include--
(i) Using audio-visual materials and devices to depict those
portions of an historic property that cannot otherwise be made
accessible;
(ii) Assigning persons to guide handicapped persons into or through
portions of historic properties that cannot otherwise be made
accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the
obligations established under this section by October 21, 1986, except
that where structural changes in facilities are undertaken, such changes
shall be made by August 22, 1989, but in any event as expeditiously as
possible.
(d) Transition plan. In the event that structural changes to
facilities will be undertaken to achieve program accessibility, the
agency shall develop, by February 23, 1987, a transition plan setting
forth the steps necessary to complete such changes. The agency shall
provide an opportunity to interested persons, including handicapped
persons or organizations representing handicapped persons, to
participate in the development of the transition plan by submitting
comments (both oral and written). A copy of the transition plan shall be
made available for public inspection. The plan shall, at a minimum--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to handicapped
persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.

Sec. 1014.151 Program accessibility: New construction and alterations.

Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of the
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41
CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.

Sec. Sec. 1014.152-1014.159 [Reserved]

Sec. 1014.160 Communications.

(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf person (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to
the existence and location of accessible services, activities, and
facilities.
(c) The agency shall provide signage at a primary entrance to each
of its inaccessible facilities, directing users to a location at which
they can obtain information about accessible facilities.

[[Page 49]]

The international symbol for accessibility shall be used at each primary
entrance of an accessible facility.
(d) This section does not require the agency to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of a program or activity or in undue financial and administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1014.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, handicapped persons receive the benefits and services
of the program or activity.

Sec. Sec. 1014.161-1014.169 [Reserved]

Sec. 1014.170 Compliance procedures.

(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Equal Opportunity Officer shall be responsible for
coordinating implementation of this section. Complaints may be sent to
the Section of Personnel Services, Surface Transportation Board,
Washington, DC 20423.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 1014.170(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the date of
receipt of the additional information to make his or her determination
on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section
may be extended with the permission of the Assistant Attorney General.

[[Page 50]]

(l) The agency may delegate its authority for conducting complaint
investigations to other Federal agencies, except that the authority for
making the final determination may not be delegated to another agency.

[51 FR 22896, June 23, 1986, as amended at 51 FR 22896, June 23, 1986;
64 FR 53267, Oct. 1, 1999]

Sec. Sec. 1014.171-1014.999 [Reserved]

PART 1016_SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY
PARTIES TO BOARD ADJUDICATORY PROCEEDINGS--Table of Contents

Subpart A_General Provisions

Sec.
1016.101 Purpose of these rules.
1016.102 When the Act applies.
1016.103 Proceedings covered.
1016.104 Decisionmaking authority.
1016.105 Eligibility of applicants.
1016.106 Standards for awards.
1016.107 Allowable fees and expenses.
1016.109 Awards against other agencies.

Subpart B_Information Required From Applicants

1016.201 Contents of application.
1016.202 Net worth exhibit.
1016.203 Documentation of fees and expenses.

Subpart C_Procedures for Considering Applications

1016.301 When an application may be filed.
1016.302 Filing and service of documents.
1016.303 Answer to application.
1016.304 Reply.
1016.305 Comments by other parties.
1016.306 Settlement.
1016.307 Further proceedings.
1016.308 Decision.
1016.309 Agency review.
1016.310 Judicial review.
1016.311 General provisions.

Authority: 5 U.S.C. 504(c)(1), 49 U.S.C. 1321.

Source: 46 FR 61660, Dec. 18, 1981, unless otherwise noted.

Subpart A_General Provisions

Sec. 1016.101 Purpose of these rules.

The Equal Access to Justice Act (5 U.S.C. 504) (called the ``Act''
in this part), provides for the award of attorney fees and other
expenses to eligible individuals and entities who are parties to certain
administrative proceedings (called ``adversary adjudications'') before
the Surface Transportation Board. An eligible party may receive an award
when it prevails over the Board or another agency of the United States
participating in the Board proceeding, unless the Board's position in
the proceeding, or that of the other agency, was substantially justified
or special circumstances make an award unjust. The rules in this part
describe the parties eligible for awards and the proceedings that are
covered. They also explain how to apply for awards, and the procedures
and standards that the Board will use to make them.

Sec. 1016.102 When the Act applies.

The Act applies to any adversary adjudication pending before the
Board after October 1, 1981. This includes proceedings begun before
October 1, 1981, if final Board action has not been taken before that
date, regardless of when they were initiated or when final Board action
occurs. These rules incorporate the changes made in Pub. L. No. 99-80,
99 Stat. 183, which applies generally to cases instituted after October
1, 1984. If awards are sought for cases pending on October 1, 1981 or
filed between that date and September 30, 1984, the prior statutory
provisions (to the extent they differ from the existing ones, and our
implementing rules) apply.

[54 FR 26379, June 23, 1989]

Sec. 1016.103 Proceedings covered.

(a) The Act applies to adversary adjudications conducted by the
Board under 5 U.S.C. 554 in which the position of this or any other
agency of the United States, or any component of an agency, is presented
by an attorney or other representative (hereinafter ``agency counsel'')
who enters an appearance and participates in the proceeding. Proceedings
for the purpose of establishing or fixing a rate are not covered by the
Act. Proceedings to grant or renew licenses are also excluded, but
proceedings to modify, suspend, or revoke licenses are covered if they
are otherwise ``adversary adjudications.'' Generally, the types of Board
proceedings covered by the Act

[[Page 51]]

include, but are not limited to, investigation proceedings instituted
under 49 U.S.C. 11701 and 49 U.S.C. 13905 and disciplinary proceedings
conducted pursuant to 49 CFR 1103.5.
(b) The Board may also designate a proceeding not listed in
paragraph (a) of this section as an adversary adjudication for purposes
of the Act by so stating in an order initiating the proceeding,
designating the matter for hearing or at any other time during the
proceeding. The Board's failure to designate a proceeding as an
adversary adjudication shall not preclude the filing of an application
by a party who believes the proceeding is covered by the Act; whether
the proceeding is covered will then be an issue for resolution in
proceedings on the application.
(c) If a proceeding includes both matters covered by the Act and
matters specifically excluded from coverage, any award made will include
only fees and expenses related to covered issues.

[46 FR 61660, Dec. 18, 1981, as amended at 81 FR 8851, Feb. 23, 2016]

Sec. 1016.104 Decisionmaking authority.

Unless otherwise ordered by the Board in a particular proceeding,
each application for an award under this part shall be assigned for
decision to the official or decisionmaking body that entered the
decision in the adversary adjudication. That official or decisionmaking
body is referred to in this part as the ``adjudicative officer.''

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989]

Sec. 1016.105 Eligibility of applicants.

(a) To be eligible for an award of attorney fees and other expenses
under the Act, the applicant must be a party to the adversary
adjudication for which it seeks an award, it must have stood in an
adversary relationship to the position taken by agency counsel, and it
must have prevailed on one or more of the issues raised by agency
counsel. The term ``party'' is defined in 5 U.S.C. 504(b)(1)(B). The
applicant must show that it meets all conditions of eligibility set out
in this subpart and in Subpart B.
(b) The types of eligible applicants are as follows:
(1) An individual whose net worth did not exceed $2 million at the
time the adversary adjudication was initiated;
(2) Any owner of an unincorporated business, or any partnership,
corporation, association, unit of local government, or organization
whose net worth does not exceed $7 million and which had no more than
500 employees at the time the adversary adjudication was initiated;
(3) Any organization described in section 501(c)(3) of the Internal
Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under
section 501(a) of such Code, or a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)),
may be a party regardless of the net worth of such organization or
cooperative association.
(c) For the purpose of eligibility, the net worth and number of
employees of an applicant shall be determined as of the date the
proceeding was initiated.
(d) The employees of an applicant include all persons who regularly
perform services for remuneration for the applicant, under the
applicant's direction and control. Part-time employees shall be included
on a proportional basis. Independent contractors under lease to motor
carriers are not employees of the carriers under these rules. Also,
agents for motor common carriers of household goods are not employees of
their respective principal carriers.
(e) The net worth and number of employees of the applicant and all
of its affiliates shall be aggregated to determine eligibility. Any
individual, corporation or other entity that directly or indirectly
controls or owns a majority of the voting shares or other interest of
the applicant or any corporation or other entity of which the applicant
directly or indirectly owns or controls a majority of the voting shares
or other interest, will be considered an affiliate for purposes of this
part, unless the adjudicative officer determines that such treatment
would be unjust and contrary to the purposes of the Act in light of the
actual relationship between the affiliated entities. In addition, the
adjudicative officer may determine that financial relationships of

[[Page 52]]

the applicant other than those described in this paragraph constitute
special circumstances that would make an award unjust.
(f) An applicant that participates in a proceeding primarily on
behalf of one or more other persons or entities that would be ineligible
is not itself eligible for an award.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989;
81 FR 8851, Feb. 23, 2016]

Sec. 1016.106 Standards for awards.

(a) A prevailing applicant may receive an award for fees and
expenses incurred in connection with a proceeding, or in a significant
and discrete substantive portion of the proceeding, unless the position
of the agency over which the applicant has prevailed was substantially
justified. Whether or not the position of the agency was substantially
justified shall be determined on the basis of the administrative record
made in the adversary adjudication for which fees and other expenses are
sought. The burden of proof that an award should not be made to an
eligible prevailing applicant is on the agency counsel, which may avoid
an award by showing that its position was reasonable in law and fact.
(b) An award will be reduced or denied if the applicant has unduly
or unreasonably protracted the proceeding or if special circumstances
make the award sought unjust.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989]

Sec. 1016.107 Allowable fees and expenses.

(a) Awards will be based on rates customarily charged by persons
engaged in the business of acting as attorneys, agents and expert
witnesses, even if the services were made available without charge or at
a reduced rate to the applicant.
(b) No award for the fee of an attorney or agent under these rules
may exceed the amount specified by 5 U.S.C. 504(b)(1)(A), unless a
higher fee is justified. 5 U.S.C. 504(b)(1)(A). However, an award may
also include the reasonable expenses of the attorney, agent, or witness
as a separate item, if the attorney, agent, or witness ordinarily
charges clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an
attorney, agent or expert witness, the adjudicative officer shall
consider the following:
(1) If the attorney, agent or witness is in private practice, his or
her customary fee for similar services, or, if an employee of the
applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in
which the attorney, agent, or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) The time reasonably spent in light of the difficulty or
complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services
provided.
(d) The reasonable cost of any study, analysis, engineering report,
test, project or similar matter prepared on behalf of a party may be
awarded, to the extent that the charge for the service does not exceed
the prevailing rate for similar services, and the study or other matter
was necessary for preparation of the applicant's case.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989;
81 FR 8851, Feb. 23, 2016]

Sec. 1016.109 Awards against other agencies.

If an applicant is entitled to an award because it prevails over
another agency of the United States that participates in a proceeding
before this agency and takes a position that is not substantially
justified, the award or an appropriate portion of the award shall be
made against that agency.

Subpart B_Information Required From Applicants

Sec. 1016.201 Contents of application.

(a) An application for an award of fees and expenses under the Act
shall identify the applicant and the proceeding for which an award is
sought. The application shall show that the applicant has prevailed and
identify the position of the Board or other agencies in the proceeding
that the applicant alleges was not substantially justified.

[[Page 53]]

Unless the applicant is an individual, the application shall also state
the number of employees of the applicant and describe briefly the type
and purpose of its organization or business.
(b) The application shall also include a statement that the
applicant's net worth does not exceed $2 million (if an individual) or
$7 million (for all other applicants, including their affiliates).
However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service
that it qualifies as an organization described in section 501(c)(3) of
the Internal Revenue Code (26 U.S.C. 501(c)(3)) exempt from taxation
under section 501(a) of such Code; or
(2) It states that it is a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for
which an award is sought.
(d) The application may also include any other matters that the
applicant wishes the Board to consider in determining whether and in
what amount an award should be made.
(e) The application shall be signed by the applicant or an
authorized officer or attorney of the applicant. It shall also contain
or be accompanied by a written verification under oath or under penalty
of perjury that the information provided in the application is true and
correct.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]

Sec. 1016.202 Net worth exhibit.

(a) Each applicant must provide with its application a detailed
exhibit showing the net worth of the applicant and any affiliates (as
defined in Sec. 1016.105(e) of this part) when the proceeding was
initiated. The exhibit may be in any form convenient to the applicant
that provides full disclosure of the applicant's and its affiliates'
assets and liabilities and is sufficient to determine whether the
applicant qualifies under the standards in this part. The adjudicative
officer may require an applicant to file additional information to
determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public
record of the proceeding. However, an applicant that objects to public
disclosure of information in any portion of the exhibit and believes
that there are legal grounds for withholding it from disclosure may file
a motion to withhold the information from public disclosure. The burden
is on the moving party to justify the confidentiality of the
information.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989;
81 FR 8851, Feb. 23, 2016]

Sec. 1016.203 Documentation of fees and expenses.

The application shall be accompanied by full documentation of the
fees and expenses, including the cost of any study, analysis,
engineering report, test, project or similar matter, for which an award
is sought. A separate itemized statement shall be submitted for each
professional firm or individual whose services are covered by the
application, showing the hours spent in connection with the proceeding
by each individual, a description of the specific services performed,
the rate at which each fee has been computed, any expenses for which
reimbursement is sought, the total amount claimed, and the total amount
paid or payable by the applicant or by another person or entity for the
services provided. The adjudicative officer may require the applicant to
provide vouchers, receipts, or other substantiation for any expenses
claimed.

Subpart C_Procedures for Considering Applications

Sec. 1016.301 When an application may be filed.

(a) An application may be filed whenever the applicant has prevailed
in the proceeding or in a significant and discrete substantive portion
of the proceeding, but in no case later than 30 days after an
administratively final disposition of the proceeding.
(b) If review or reconsideration is sought or taken of a decision as
to which an applicant believes it has prevailed, proceedings for the
award of

[[Page 54]]

fees shall be stayed pending final disposition of the underlying
controversy.
(c) For purposes of this rule, see the Board's rules governing
appellate procedures at Sec. Sec. 1115.2 and 1115.3 to determine when a
decision becomes administratively final.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]

Sec. 1016.302 Filing and service of documents.

Any application for an award or other pleading or document related
to an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding,
except as provided in Sec. 1016.202(b) for confidential financial
information.

Sec. 1016.303 Answer to application.

(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought may file an
answer to the application. Unless agency counsel requests an extension
of time for filing or files a statement of intent to negotiate under
paragraph (b) of this section, failure to file an answer within the 30-
day period may be treated as a consent to the award requested.
(b) If agency counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted as justified.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of agency
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, agency counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under Sec. 1016.307.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]

Sec. 1016.304 Reply.

Within 15 days after service of an answer, the applicant may file a
reply. If the reply is based on any alleged facts not already in the
record of the proceeding, the applicant shall include with the reply
either supporting affidavits or a request for further proceedings under
Sec. 1016.307.

Sec. 1016.305 Comments by other parties.

Any party to a proceeding other than the applicant and agency
counsel may file comments on an application within 30 days after it is
served or on an answer within 15 days after it is served. A commenting
party may not broaden the issues.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]

Sec. 1016.306 Settlement.

The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded. If a prevailing party and
agency counsel agree on a proposed settlement of an award before an
application has been filed, the application shall be filed with the
proposed settlement.

Sec. 1016.307 Further proceedings.

(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the applicant
or agency counsel or on his or her own initiative, the adjudicative
officer may order further proceedings when necessary.
(b) A request that the adjudicative officer order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]

Sec. 1016.308 Decision.

The adjudicative officer shall issue a decision on the application
within 50 days after completion of proceedings on the application. The
decision shall include written findings and conclusions on the
applicant's eligibility and

[[Page 55]]

status as a prevailing party, and an explanation of the reasons for any
difference between the amount requested and the amount awarded. The
decision shall also include, if at issue, findings on whether the
Board's or other agency's position was substantially justified, whether
the applicant unduly protracted the proceedings, or whether special
circumstances make an award unjust. If the applicant has sought an award
against more than one agency, the decision shall allocate responsibility
for payment of any award made among the agencies, and shall explain the
reasons for the allocation made.

[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]

Sec. 1016.309 Agency review.

In the event the adjudicative officer is not the entire Board, the
applicant or agency counsel may seek review of the initial decision on
the fee application, or the Board may review the decision on its own
initiative, in accordance with Sec. 1115.2. If no appeal is taken, the
initial decision becomes the action of the Board 20 days after it is
issued. If the adjudicative officer is the entire Board, Sec. 1115.3
applies.

[54 FR 26380, June 23, 1989]

Sec. 1016.310 Judicial review.

Judicial review of final Board decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).

Sec. 1016.311 General provisions.

An applicant seeking payment of an award shall submit to the
appropriate official of the paying agency a copy of the Board's final
decision granting the award, accompanied by a statement that the
applicant will not seek review of the decision in the United States
courts. Where the award is granted against the Surface Transportation
Board the applicant shall make its submission to the Chief, Section of
Financial Services, Surface Transportation Board, Washington, DC 20423-
0001. The Board will pay the amount awarded to the applicant within 60
days of the applicant's submission unless the judicial review of the
award or of the underlying decision of the adversary adjudication has
been sought by the applicant or any other party to the proceeding.

[74 FR 52905, Oct. 15, 2009]

PART 1017_DEBT COLLECTION_COLLECTION BY OFFSET FROM INDEBTED GOVERNMENT
AND FORMER GOVERNMENT EMPLOYEES--Table of Contents

Sec.
1017.1 Purpose and scope.
1017.2 Definitions.
1017.3 Applicability.
1017.4 Notice requirements.
1017.5 Hearing procedures.
1017.6 Result if employee fails to meet deadlines.
1017.7 Written decision following hearing.
1017.8 Exception to entitlement to notice, hearing, written responses
and final decisions.
1017.9 Coordinating offset with another Federal agency.
1017.10 Procedures for administrative offset.
1017.11 Refunds.
1017.12 Statute of limitations.
1017.13 Nonwaiver of rights.
1017.14 Interest, penalties, and administrative costs.

Authority: 31 U.S.C. 3716, 5 U.S.C. 5514; Pub. L. 97-365; 31 CFR
parts 900-904; 5 CFR part 550.

Source: 56 FR 32333, July 16, 1991, unless otherwise noted.

Sec. 1017.1 Purpose and scope.

(a) These regulations set forth guidelines for implementing the Debt
Collection Act of 1982 at the Surface Transportation Board (STB). The
purpose of the Act is to give agencies the ability to more aggressively
pursue debts owed the Federal Government and to increase the efficiency
of governmentwide efforts to collect debts owed the United States. The
authority for these regulations is found in the Debt Collection Act of
1982 (Pub. L. 97-365 and 4 CFR 101.1 et seq.), Collection by Offset From
Indebted Government Employees (5 CFR 550.1101 et seq.), Federal Claims
Collection Standards (4 CFR 101.1 et seq.), and Administrative Offset
(31 U.S.C. 3716).
(b) These regulations provide procedures for administrative offset
of a Federal employee's salary without his/her consent to satisfy
certain debts owed to the Federal Government. The

[[Page 56]]

regulations covered in this part apply to all current and former Federal
employees who owe debts to the Board and to current Board employees who
owe debts to other Federal agencies. The regulations set forth herein do
not apply when the employee consents to recovery from his/her current
pay account.
(c) These regulations do not apply to debts or claims arising under:
(1) The Social Security Act;
(2) The Internal Revenue Code of 1954;
(3) The tariff laws of the United States; or
(4) Any case where a collection of a debt by salary offset is
explicitly provided for or prohibited by another statute.
(d) These regulations also do not preclude the compromise,
suspension, or termination of collection action, where appropriate,
under the standards implementing the Federal Claims Collection Act (31
U.S.C. 3711 et seq., 4 CFR 101.1 et seq.). These regulations do not
preclude an employee's requesting a waiver of a salary overpayment
(i.e., alleged indebtedness) under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32
U.S.C. 716, or in any way questioning the amount or validity of a debt
by submitting a claim to the General Accounting Office (GAO), or
requesting a waiver under statutory provisions pertaining to the
particular debt.
(e) The Board's regulations governing debt collection for entities
and individuals who are not current or former government employees are
contained in 49 CFR part 1018.

[56 FR 32333, July 16, 1991, as amended at 58 FR 7749, Feb. 9, 1993]

Sec. 1017.2 Definitions.

For the purposes of these regulations, the following definitions
will apply:
(a) Agency. An executive agency as defined at 5 U.S.C. 105,
including the U.S. Postal Service; the U.S. Postal Rate Board; a
military department as defined at 5 U.S.C. 102; an agency or court in
the Judicial Branch; an agency of the Legislative Branch, including the
U.S. Senate and House of Representatives; and other independent
establishments that are entities of the Federal Government.
(b) Creditor agency. The agency to which the debt is owed.
(c) Debt. An amount of money or property which has been determined
by an appropriate agency official to be owed to the United States from
any person.
(d) Disposable pay. The amount that remains from an employee's
Federal pay after required deductions for social security; Federal,
State, or local income taxes; health insurance premiums; retirement
contributions; life insurance premiums; Federal employment taxes; and
any other deductions that are required to be withheld by law.
(e) FCCS. The Federal Claims Collection Standards jointly published
by the Justice Department and the General Accounting Office at 4 CFR
101.1 et seq.
(f) Hearing official. The official responsible for conducting a
hearing which is properly and timely requested by the debtor. An
Administrative Law Judge shall be responsible for conducting the hearing
and the Chief Administrative Law Judge shall determine which judicial
official will be assigned the hearing.
(g) Paying agency. The agency that employs the individual who owes
the debt and authorizes the payment of his/her current pay.
(h) Administrative offset. The withholding of monies payable by the
United States to or held by the United States on behalf of an employee
to satisfy a debt owed the United States by that employee.
(i) Waiver. A cancellation, forgiveness, or non-recovery of a debt
allegedly owed by an employee or former employee to the agency as
permitted or required by law.

Sec. 1017.3 Applicability.

These regulations are to be followed when:
(a) The Board is owed a debt by a current employee;
(b) The Board is owed a debt by an individual currently employed by
another Federal agency;
(c) The Board employs an individual who owes a debt to another
Federal agency; and
(d) The Board is owed a debt by an employee who separates from
Federal

[[Page 57]]

Government service. The authority to collect debts owed by former
Federal employees is found in the FCCS and 31 U.S.C. 3716.

Sec. 1017.4 Notice requirements.

(a) Deductions shall not be made unless the employee is provided
with written notice, signed by the debt collection official (Chief,
Section of Financial Services), of the debt at least 30 days before
administrative offset commences.
(b) The written notice to current Federal employees shall be hand
delivered if at headquarters or sent certified mail, return receipt
requested, if located in a field office and shall contain:
(1) A statement that the debt is owed and an explanation of its
nature and amount;
(2) The agency's intention to collect the debt by means of deduction
from the employee's current disposable pay account;
(3) The amount, frequency, proposed beginning date, and duration of
the intended deduction(s);
(4) An explanation of interest, penalties, and administrative
charges, including a statement that such charges will be assessed unless
excused in accordance with the FCCS (4 CFR 101.1 et seq.);
(5) The employee's right to inspect, request, and copy Government
records relating to the debt (if an employee is unable to physically
inspect the Government records, the agency will reproduce copies of the
records and may charge for those copies);
(6) If not previously provided, the opportunity (under terms
agreeable to the creditor agency) to establish a schedule for the
voluntary repayment of the debt or to enter into a written agreement
with the agency to establish a schedule for the voluntary repayment of
the debt in lieu of offset. The agreement must be in writing, signed by
both the employee and the creditor agency, and documented in the
creditor agency's files (4 CFR 102.2(e));
(7) The right to a hearing conducted by an impartial hearing
official concerning the existence or amount of the debt and the
repayment schedule, if it was not established by a written agreement
between the employee and the creditor agency;
(8) The method and time period for petitioning for a hearing;
(9) A statement that the timely filing of a petition for a hearing
(on or before the 15th day following receipt of the written notice) will
stay the commencement of collection proceedings, together with
instructions on how and where to file a petition;
(10) A statement that a final decision on the hearing (if one is
requested) will be issued not later than 60 days after the filing of the
petition requesting the hearing unless the employee requests, and the
hearing official grants, a delay in the proceedings;
(11) A statement that knowingly false or frivolous statements,
representations, or evidence may subject the employee to appropriate
disciplinary procedures and criminal penalties (i.e., for false
certification, etc.);
(12) A statement of other rights and remedies available to the
employee under statutes or regulations governing the program for which
the collection is being made; and
(13) Unless there are contractual or statutory provisions to the
contrary, a statement that amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee.
(c) The written notice to former Federal employees shall be sent
certified mail, return receipt requested, and shall contain:
(1) A statement that the debt is owed and an explanation of its
nature and amount;
(2) The agency's intention to collect the debt by administrative
offset against amounts due and payable to the debtor from the Civil
Service Retirement and Disability Fund or by use of a collection service
to recover the delinquent debt;
(3) An explanation of interest, penalties, and administrative
charges, including a statement that such charges will be assessed unless
excused in accordance with 4 CFR 101.1 et seq.;
(4) The former employee's rights to inspect, request, and copy
Government records relating to the debt (if the

[[Page 58]]

former employee is unable to physically inspect the Government records,
the agency will reproduce copies of the records and may charge for those
copies);
(5) The opportunity to enter into a written agreement with the
agency to establish a schedule for the voluntary repayment of the debt;
(6) The right to a hearing conducted by an impartial hearing
official concerning the existence or amount of the debt and the
repayment schedule, if it was not established by a written agreement
between the former employee and the creditor agency;
(7) The method and time period for petitioning for a hearing;
(8) A statement that the timely filing of a petition for a hearing
(on or before the 15th day following receipt of the written notice) will
stay the commencement of collection proceedings, together with
instructions on how and where to file a petition;
(9) A statement that a final decision on the hearing will be issued
not later than 60 days after the filing of the petition requesting the
hearing unless the former employee requests, and the hearing official
grants, a delay in the proceedings;
(10) A statement that knowingly false or frivolous statements,
representations, or evidence may subject the former employee to
appropriate criminal penalties (i.e., for false certification, etc.);
(11) A statement of other rights and remedies available to the
former employee under statutes or regulations governing the program for
which the collection is being made; and
(12) Unless there are contractual or statutory provisions to the
contrary, a statement that amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the former employee.

[56 FR 32333, July 16, 1991, as amended at 64 FR 53267, Oct. 1, 1999]

Sec. 1017.5 Hearing procedures.

(a) Upon the Administrative Law Judge's determination of an
employee's compliance withSec. 1017.4(b)(8) or Sec. 1017.4(c)(7) of
this part, whichever is applicable, he/she shall set the time, date, and
location for the hearing, paying due consideration to convenience to the
employee.
(b) All significant matters discussed at the hearing shall be
documented, although a verbatim transcript of the hearing shall not be
made.
(c) The Administrative Law Judge may exclude any evidence he/she
deems irrelevant, immaterial, or unduly repetitious.
(d) Any party to a hearing under these regulations is entitled to
present his or her case or defense by oral or documentary evidence, and
to conduct such cross-examination as may be required for a full and true
disclosure of the facts.
(e) The Board has the initial burden of proof as to the existence
and amount of the debt.
(f) The employee requesting the hearing shall bear the ultimate
burden of proof.
(g) The evidence presented by the employee must prove that no debt
exists or cast sufficient doubt that reasonable minds could differ as to
the existence or amount of the debt.
(h) Where the employee files a petition for a hearing contesting the
offset schedule imposed by the Board, the Administrative Law Judge shall
take into consideration all relevant factors as to the employee's
financial situation in determining whether said offset schedule should
be altered.
(i) Any party to a hearing under these regulations is entitled to be
accompanied, represented, and advised by counsel, as well as to appear
in person or by or with counsel.
(j) The Administrative Law Judge shall issue a final written
decision at the earliest practicable date, but not later than 60 days
after the filing of the petition requesting the hearing, as stated in
Sec. 1017.4(b)(10) or Sec. 1017.4(c)(9) of this part, whichever is
applicable.

Sec. 1017.6 Result if employee fails to meet deadlines.

An employee will not be granted a hearing and will have his/her
disposable pay offset in accordance with the Board's offset schedule if
the employee:
(a) Fails to file a petition for a hearing in conformity with the
requirements of Sec. 1017.4(b)(8) or Sec. 1017.4(c)(9) of

[[Page 59]]

this part, whichever is applicable. However, failure to file within the
requisite time period set out in Sec. 1017.4(b)(8) or Sec.
1017.4(c)(9) of this part whichever is applicable, will not result in
denial of a hearing or in immediate offset, if the Administrative Law
Judge excuses the late filing if the employee can show that the delay
was because of circumstances beyond his/her control or because of
failure to receive notice of the filing deadline.
(b) Is scheduled to appear and fails to appear at the hearing
without good cause.

Sec. 1017.7 Written decision following hearing.

(a) Written decisions provided after a request for a hearing will
include:
(1) A statement of the facts presented to support the nature and
origin of the alleged debt;
(2) The Administrative Law Judge's analysis, findings, and
conclusions, in light of the hearing, concerning the employee's or the
Board's grounds;
(3) The amount and validity of the alleged debt; and
(4) The repayment schedule (including percentage), if applicable.
(b) The Administrative Law Judge's decision does not preclude an
employee from requesting a waiver of a salary payment under 5 U.S.C.
5584, 10 U.S.C. 2774, or 32 U.S.C. 716, or in any way questioning the
amount or validity of a debt by submitting a subsequent claim to GAO in
accordance with procedures prescribed by GAO.

Sec. 1017.8 Exception to entitlement to notice, hearing, written
responses and final decisions.

The Board shall except from the provisions of Sec. Sec. 1017.4
through 1017.7 any adjustment to pay arising out of an employee's
election of coverage or a change in coverage under a Federal benefits
program, requiring periodic deductions from pay, if the amount to be
recovered was accumulated over four pay periods or less.

Sec. 1017.9 Coordinating offset with another Federal agency.

(a) The Board as creditor agency. When the Chief, Section of
Financial Services, determines that an employee of another Federal
agency owes a delinquent debt to the Board, he/she shall:
(1) Arrange for a hearing upon proper petitioning by the employee;
(2) Certify in writing to the other Federal agency that the employee
owes the debt, the amount and basis of the debt, the date on which
payment is due, the date the Government's right to collect the debt
accrued, that the Board's regulations for administrative offset have
been approved by the Office of Personnel Management, and that the
provisions of 4 CFR 102.3(f) have been fully complied with;
(3) If collection must be made in installments, advise the paying
agency of the amount or percentage of disposable pay to be collected in
each installment;
(4) Advise the paying agency of any action taken under 5 U.S.C.
5514(a);
(5) If the employee is in the process of separating, the Board must
submit its debt claim to the paying agency as provided in this part. The
paying agency must certify any amounts already collected, notify the
employee, and send a copy of the certification and notice of the
employee's separation to the creditor agency--if the paying agency is
aware that the employee is entitled to money from the Civil Service
Retirement and Disability Fund, it must certify to the Office of
Personnel Management (OPM) that:
(i) The debtor owes the U.S. a debt, including the amount of that
debt;
(ii) The Board has complied with the applicable statutes,
regulations, and procedures of OPM; and
(iii) The Board has complied with the requirements of 4 CFR 102.3,
including any hearing or review; and
(6) If the employee has already separated and all payments due from
the paying agency have been paid, the Chief, Section of Financial
Services, may request from OPM, unless otherwise prohibited, that money
payable to the employee from the Civil Service Retirement and Disability
Fund or other similar funds be collected by administrative offset and
provide the certification described in paragraph (a)(5) of this section.
(b) The Board as paying agency. (1) Upon receipt of a properly
certified debt claim from another agency, deductions will be scheduled
to begin at

[[Page 60]]

the next established pay interval. The employee must receive written
notice that the Board has received a certified debt claim from the
creditor agency, the amount of the debt, the date administrative offset
will begin, and the amount of the deduction(s). The Board shall not
review the merits of the creditor agency's determination of the validity
or the amount of the certified claim.
(2) When the Board receives an incomplete debt from another
(creditor) agency, the Board must return the debt claim with a notice
that procedures under 5 U.S.C. 5514 and 5 CFR 550.1109 must be followed
and a properly certified debt claim received before action will be taken
to collect from the employee's current pay account.
(3) If the employee transfers to another agency after the creditor
agency has submitted its debt claim to the Board and before the debt is
fully collected, the Board must certify the total amount collected to
the creditor agency, along with notice of the transfer, and furnish a
copy of same to the employee.

[56 FR 32333, July 16, 1991, as amended at 64 FR 53267, Oct. 1, 1999; 81
FR 8851, Feb. 23, 2016]

Sec. 1017.10 Procedures for administrative offset.

(a) Debts will be collected in one lump sum where possible. If the
employee is financially unable to pay in one lump sum, collection shall
be made in installments.
(b) Debts shall be collected by deduction at officially established
pay intervals from an employee's current pay account, unless alternative
arrangements for repayment are made.
(c) Installment deductions will be made over a period not greater
than the anticipated period of employment. The size of installment
deductions must bear a reasonable relationship to the size of the debt
and the employee's ability to pay. The deduction for the pay intervals
for any period shall not exceed 15 percent of disposable pay, unless the
employee has agreed in writing to a deduction of a greater amount.
(d) Unliquidated debts may be offset against any financial payment
due to a separated employee (including, but not limited to, final salary
payment or lump-sum payment for leave).

Sec. 1017.11 Refunds.

(a) The Board shall promptly refund any amounts deducted to satisfy
debts owed to it when the debt is waived, found not owed to the Board,
or when directed by an administrative or judicial order.
(b) A creditor agency will promptly return any amounts deducted by
the Board to satisfy debts owed to a creditor agency when the debt is
waived, found not owed, or when directed by an administrative or
judicial order.
(c) Unless required by law, refunds under this subsection shall not
bear interest.

Sec. 1017.12 Statute of limitations.

If a debt has been outstanding for more than 10 years after the
agency's right to collect the debt first accrued, the agency may not
collect by salary offset unless facts material to the Government's right
to collect were not known and could not reasonably have been known by
the official or officials who were charged with the responsibility for
discovery and collection of such debts.

Sec. 1017.13 Nonwaiver of rights.

An employee's involuntary payment of all or any part of a debt
collected under these regulations will not be construed as a waiver of
any rights that employee may have under 5 U.S.C. 5514 or any other
provision of law.

Sec. 1017.14 Interest, penalties, and administrative costs.

(a) The rate of interest assessed shall be the rate of the current
value of funds to the U.S. Treasury (i.e., the Treasury tax and loan
account rate), as prescribed and published by the Secretary of the
Treasury in the Federal Register and the Treasury Financial Manual
Bulletins. A higher rate of interest can be assessed if the Board can
reasonably determine that a higher rate is necessary to protect the
interests of the United States. The rate of interest, as initially
assessed, shall remain fixed for the duration of the indebtedness,
except where a debtor has defaulted on a repayment agreement

[[Page 61]]

and seeks to enter into a new agreement. The Board may set a new
interest rate which reflects the current value of funds to the Treasury
at the time the new agreement is executed. The Board shall waive the
collection of interest on the debt or any portion of the debt which is
paid within 30 days after the date on which interest began to accrue.
(b) The Board shall assess a penalty charge not to exceed 6 percent
a year on any portion of a debt that is delinquent as defined in 4 CFR
101.2(b) for more than 90 days. This charge need not be calculated until
the 91st day of delinquency, but shall accrue from the date that the
debt became delinquent.
(c) The Board shall assess against a debtor charges to cover
administrative costs incurred as a result of a delinquent debt--that is,
the additional costs incurred in processing and handling the debt
because it became delinquent as defined in 4 CFR 101.2(b).
(d) When a debt is paid in partial or installment payments, amounts
received by the agency shall be applied first to outstanding penalty and
administrative cost charges, second to accrued interest, and third to
outstanding principal.

PART 1018_DEBT COLLECTION--Table of Contents

Subpart A_Application and Coverage

Sec.
1018.1 Application.
1018.2 Definitions.
1018.3 Communications.
1018.4 Claims that are covered.
1018.5 Monetary limitation on Board authority.
1018.6 Omissions not a defense.
1018.7 Conversion claims.
1018.8 Subdivision of claims.

Subpart B_Administrative Collection of Claims

1018.20 Written demand for payment.
1018.21 Telephone inquiries and investigations.
1018.22 Personal interviews.
1018.23 Use of consumer reporting agencies.
1018.24 Contact with the debtor's employing agency.
1018.25 Sanctions.
1018.26 Disputed debts.
1018.27 Contracting for collection services.
1018.28 Collection by administrative offset.
1018.29 Payments.
1018.30 Interest, penalties, and administrative costs.
1018.31 Use of credit reports.
1018.32 Bankruptcy claims.
1018.33 Use and disclosure of mailing addresses.
1018.34 Additional administrative collection action.

Subpart C_Compromise of a Claim

1018.50 When a claim may be compromised.
1018.51 Reasons for compromising of a claim.
1018.52 Restrictions on the compromise of a claim.
1018.53 Finality of a compromise.

Subpart D_Suspension or Termination of Collection Action

1018.60 When collection action may be suspended or terminated.
1018.61 Reasons for suspending collection action.
1018.62 Reasons for terminating collection action.
1018.63 Termination of collection action.
1018.64 Transfer of a claim.

Subpart E_Referral of a Claim

1018.70 Prompt referral.
1018.71 Referral of a compromise offer.
1018.72 Referral to the Department of Justice.

Subpart F_Internal Revenue Service Procedure

1018.80 Reporting discharged debts to the Internal Revenue Service.

Subpart G_Tax Refund Offset

1018.90 Purpose.
1018.91 Applicability and scope.
1018.92 Administrative charges.
1018.93 Notice requirement before offset.
1018.94 Review within the Board.
1018.95 Board determination.
1018.96 Stay of offset.

Authority: 31 U.S.C. 3701, 31 U.S.C. 3711 et seq., 49 U.S.C. 1321,
31 CFR parts 900-904.

Source: 58 FR 7749, Feb. 9, 1993, unless otherwise noted.

Subpart A_Application and Coverage

Sec. 1018.1 Application.

(a) This part applies to claims for the payment of debts owed to the
United States Government in the form of

[[Page 62]]

money or property and unless a different procedure is specified in a
statute, regulation, or a contractual agreement with the Board,
prescribes procedures by which the Board:
(1) Collects, compromises, suspends, and terminates collection
actions for claims;
(2) Determines and collects interest and other charges on these
claims; and
(3) Refers unpaid claims to the General Accounting Office (GAO) and
the Department of Justice (DOJ) for litigation.
(b) The following are examples of the kinds of debts to which
special statutory and administrative procedures apply:
(1) A claim against an employee for erroneous payment of pay and
allowances subject to waiver under 5 U.S.C. 5584 and other claims
against employees which are handled under 49 CFR part 1017.
(2) A claim involving the payment of civil penalties or forfeitures
which may arise under provisions of the Interstate Commerce Act or
legislation supplemental thereto. Those claims are handled under
procedures set forth in 49 CFR part 1021.
(3) A claim involved in a case pending before any Federal Contract
Appeals Board or Grant Appeals Board. However, nothing in this part
prevents negotiation and settlement of a claim pending before a Board.

Sec. 1018.2 Definitions.

(a) Administrative offset means withholding money payable by the
United States to, or held by the Government for, a person to satisfy a
debt the person owes the Government.
(b) Claim and debt are used synonymously and interchangeably for
purposes of this part. These terms refer to an amount of money or
property which has been determined by an appropriate agency official to
be owed to the United States by any person, organization, or entity
except another Federal agency.
(c) Delinquent. A debt is considered delinquent if it has not been
paid by the date specified in the initial written demand for payment or
applicable contractual agreement with the Board, unless other
satisfactory payment arrangements have been made by that date. If the
debtor fails to satisfy an obligation under a payment agreement with the
Board after other payment arrangements have been made, the debt becomes
a delinquent debt.
(d) Payment in full means payment of the total debt due the United
States, including any interest, penalty, and administrative costs of
collection assessed against the debtor.

Sec. 1018.3 Communications.

Unless otherwise specified, all communications concerning the
regulations in this part should be addressed to the Chief, Section of
Financial Services, Surface Transportation Board, Washington, DC.

[81 FR 8851, Feb. 23, 2016]

Sec. 1018.4 Claims that are covered.

(a) These procedures generally apply to any claim for payment of a
debt which:
(1) Results from activities of the Board including fees imposed
under 49 CFR part 1002; or
(2) Is referred to the Board for collection.
(b) These procedures do not apply to:
(1) A claim based on a civil monetary penalty for violation of a
requirement of the Interstate Commerce Act or an order or regulation of
the Board unless 49 CFR part 1021 provides otherwise;
(2) A claim as to which there is an indication of fraud, the
presentation of a false claim, or misrepresentation on the part of the
debtor, or any other party having an interest in the claim;
(3) A claim between Federal agencies; and
(4) A claim once it becomes subject to salary offset which is
governed by 5 U.S.C. 5514.

Sec. 1018.5 Monetary limitation on Board authority.

The Board's authority to compromise a claim or to terminate or
suspend collection action on a claim covered by these procedures is
limited by 31 U.S.C. 3711(a) to claims that:
(a) Have not been referred to another Federal agency, including the
GAO, for further collection action; and

[[Page 63]]

(b) Do not exceed $100,000, exclusive of interest, penalties, and
administrative costs (the monetary limitation).

Sec. 1018.6 Omissions not a defense.

(a) The failure of the Board to include in this part any provision
of the Federal Claims Collection Standards, 31 CFR parts 900 through
904, does not prevent the Board from applying these provisions.
(b) A debtor may not use the failure of the Board to comply with any
provision of this part or the Federal Claims Collection Standards as a
defense to the debt.

[58 FR 7749, Feb. 9, 1993, as amended at 81 FR 8851, Feb. 23, 2016]

Sec. 1018.7 Conversion claims.

These procedures are directed primarily to the recovery of money on
behalf of the Government. The Board may demand:
(a) The return of specific property; or
(b) Either the return of property or the payment of its value.

Sec. 1018.8 Subdivision of claims.

The Board shall consider a debtor's liability arising from a
particular transaction or contract as a single claim in determining
whether the claim is less than the monetary limitation for the purpose
of compromising, suspending, or terminating action. A claim may not be
subdivided to avoid the monetary limitation established by 31 U.S.C.
3711(a)(2) and Sec. 1018.5 of this part.

[58 FR 7749, Feb. 9, 1993, as amended at 81 FR 8851, Feb. 23, 2016]

Subpart B_Administrative Collection of Claims

Sec. 1018.20 Written demand for payment.

(a) The Board shall make appropriate written demand upon the debtor
for payment of money in terms which specify:
(1) The basis for the indebtedness and the right of the debtor to
request review within the Board;
(2) The amount claimed;
(3) The date by which payment is to be made, which normally should
not be more than 30 days from the date that the initial demand letter
statement was mailed, unless otherwise specified by contractual
agreement, established by Federal statute or regulation, or agreed to
under a payment agreement;
(4) The applicable standards for assessing interest, penalties, and
administrative costs (31 CFR 901.9 and 49 CFR 1018.30); and
(5) The applicable policy for reporting the delinquent debt to
consumer reporting agencies.
(b) The Board normally shall send three progressively stronger
written demands at not more than 30-day intervals, unless circumstances
indicate that alternative remedies better protect the Government's
interest, that the debtor has explicitly refused to pay, or that sending
a further demand is futile. Depending upon the circumstances of the
particular case, the second and third demands may:
(1) Offer or seek to confer with the debtor;
(2) State the amount of the interest and penalties that will be
added on a daily basis, as well as the administrative costs that will be
added to the debt until the debt is paid; and
(3) State that the authorized collection procedures include any
procedure authorized in this part including:
(i) Contacts with the debtor's employer when the debtor is employed
by the Federal Government or is a member of the military establishment
or the Coast Guard;
(ii) Possible referral of the debt to a private agency for
collection;
(iii) Possible reporting of the delinquent debt to consumer
reporting agencies in accordance with the guidelines and standards
contained in 31 CFR 901.4 and the Board's procedures set forth in Sec.
1018.23 of this part;
(iv) The suspension or revocation of a license or other remedy under
Sec. 1018.25 of this part;
(v) Installment payments possibly requiring security; and
(vi) The right to refer claims to GAO or DOJ for litigation.
(c) The failure to state in a letter of demand a matter described in
Sec. 1018.20 is not a defense for a debtor and does

[[Page 64]]

not prevent the Board from proceeding with respect to that matter.

[58 FR 7749, Feb. 9, 1993; 58 FR 11099, Feb. 23, 1993, as amended at 81
FR 8851, Feb. 23, 2016]

Sec. 1018.21 Telephone inquiries and investigations.

(a) If a debtor has not responded to one or more written demands,
the Board shall make reasonable efforts by telephone to determine the
debtor's intentions. If the debtor cannot be reached by telephone at the
debtor's place of employment, the Board may telephone the debtor at his
or her residence between 8 a.m. and 9 p.m.
(b) The Board may undertake an investigation to locate a debtor, if
the whereabouts of a debtor is a problem, or if a debtor cannot be
contacted by telephone. The Board may also send a representative to a
debtor's place of employment if the debtor cannot be contacted by phone
or the debtor does not respond to written demands by the Board for
payment of claims.
(c) The Board under 15 U.S.C. 1681(f) may obtain consumer credit
information from private firms, including name, address, former address,
place of employment, and former place of employment of a debtor.

Sec. 1018.22 Personal interviews.

(a) The Board may seek an interview with the debtor at the offices
of the Board when:
(1) A matter involved in the claim needs clarification;
(2) Information is needed concerning the debtor's circumstances; or
(3) An agreement of payment might be negotiated.
(b) The Board shall grant an interview with a debtor upon the
debtor's request. The Board will not reimburse a debtor's interview
expenses.

Sec. 1018.23 Use of consumer reporting agencies.

(a) In addition to assessing interest, penalties, and administrative
costs under Sec. 1018.30 of this part, the Board may report a debt that
has been delinquent for 90 days to a consumer reporting agency, if all
the conditions of this paragraph are met.
(1) The debtor has not:
(i) Paid or agreed to pay the debt under a written payment plan that
has been signed by the debtor and agreed to by the Board; or
(ii) Filed for review of the debt under Sec. 1018.23(a)(2)(iv) of
this section.
(2) The Board has included a notification in the third written
demand (see Sec. 1018.20(b)) to the debtor stating:
(i) That the account has been reviewed and payment of the debt is
delinquent;
(ii) That, within not less than 60 days after the date of
notification, the Board intends to disclose to a consumer reporting
agency that the individual is responsible for the debt;
(iii) The specific information to be disclosed to the consumer
reporting agency; and
(iv) That the debtor has the right to a complete explanation of the
debt (if that has not already been given), to dispute information on
Board records about the debt, and to request reconsideration of the debt
by administrative appeal or review of the debt.
(3) The Board has sent at least one written demand by either
registered or certified mail with the notification described in
paragraph (a)(2) of this section.
(4) The Board has reconsidered its initial decision on the debt when
the debtor has requested a review under Sec. 1018.23(a)(2)(iv).
(5) The Board has taken reasonable action to locate a debtor for
whom the Board does not have a current address to send the notifications
provided for in paragraph (a)(2) of this section.
(b) If there is a substantial change in the condition or amount of
the debt, the Board shall:
(1) Promptly disclose that fact(s) to each consumer reporting agency
to which the original disclosure was made;
(2) Promptly verify or correct information about the debt, on
request of a consumer reporting agency for verification of any or all
information so disclosed by the Board; and
(3) Obtain satisfactory assurances from each consumer reporting
agency that they are complying with all applicable Federal, state, and
local laws relating to its use of consumer credit information.

[[Page 65]]

(c) The information the Board discloses to the consumer reporting
agency is limited to:
(1) Information necessary to establish the identity of the
individual debtor, including name, address, and taxpayer identification
number;
(2) The amount, status, and history of the debt; and
(3) The Board activity under which the claim arose.

Sec. 1018.24 Contact with the debtor's employing agency.

If a debtor is employed by the Federal government or is a member of
the military establishment or the Coast Guard, and collection by offset
cannot be accomplished in accordance with 5 U.S.C. 5514, the Board shall
contact the employing agency to arrange with the debtor for payment of
the indebtedness by allotment or otherwise.

Sec. 1018.25 Sanctions.

(a) Closure of accounts. If a tariff filing fee account is past due
more than 90 days, the Board will freeze the account until the account
is made current. The Board will notify the account holder that the
account has been frozen and that until the account balance including any
applicable interest, penalties, and administrative costs are paid, all
future filings, must be accompanied by a certified check, cashier's
check, or money order. The Board reserves the right to refuse to
maintain an account which is repeatedly delinquent.
(b) Suspension or revocation of tariff filing privileges. If the
account holder fails to satisfy all claims for tariff filing fees
including applicable interest, penalties, and the administrative costs
of collection of the debt, the Board may suspend or prohibit a tariff
filing fee account holder from submitting tariff filings in its own name
or on behalf of others.
(c) Suspension or revocation of certificates, licenses, or permits
granted by the Board. The Board may suspend or revoke any certificates,
permits, or licenses which the Board has granted to an account holder or
other debtor for any inexcusable, prolonged, or repeated failure or
refusal to pay a delinquent debt.
(d) Procedures for suspension or revocation of filing privileges,
certificates, licenses, or permits for failure to pay tariff filing
fees. Before suspending or revoking an account holder's privilege to
submit tariff filings or suspending or revoking any certificate,
license, or permit which the Board has granted to any account holder,
the Board shall issue to the account holder an order to show cause why
the tariff filing privilege or any certificate, license, or permit
should not be suspended or revoked. The Board shall allow the debtor no
more than 30 days to pay the debt in full including applicable interest,
penalties, and administrative costs of collection of the delinquent
debt. The Board may suspend or revoke any certificate, license, permit,
approval or filing privilege at the end of this period upon a finding of
willful noncompliance with the Board's order. If any certificate,
license, permit, or filing privilege is revoked under this authority of
this part, a new application with appropriate fees must be made to the
Board, and all previous delinquent debts of the debtor to the Board must
be paid before the Board will consider such application.
(e) Other sanctions. The remedies and sanctions available to the
Board in this area are not exclusive. The Board may impose other
sanctions, where permitted by law for any inexcusable, prolonged, or
repeated failure of a debtor to pay such claim. In such cases, the Board
will provide notice and a hearing, as required by law, to the debtor
prior to the imposition of any such sanctions.

[58 FR 7749, Feb. 9, 1993, as amended at 81 FR 8852, Feb. 23, 2016]

Sec. 1018.26 Disputed debts.

(a) A debtor who disputes a debt shall explain why the debt is
incorrect in fact or law within 30 days from the date that the initial
demand letter was mailed. The debtor may support the explanation by
submitting affidavits, statements certified under penalty of perjury,
canceled checks, or other relevant evidence.
(b) The Board may extend the interest waiver period as described in

[[Page 66]]

Sec. 1018.30(j) pending a final determination of the existence or
amount of the debt.
(c) The Board may investigate the facts involved in the dispute and
if necessary, the Board may arrange for a conference at which the debtor
may present evidence and arguments in support of the debtor's positions.

Sec. 1018.27 Contracting for collection services.

The Board may contract for collection services in order to recover
delinquent debts. However, the Board retains the authority to resolve
disputes, compromise claims, suspend or terminate collection action, and
initiate enforced collection through litigation. When appropriate, the
Board shall contract in accordance with 4 CFR 102.6.

Sec. 1018.28 Collection by administrative offset.

(a) The Board may administratively undertake collection by offset on
each claim which is liquidated or certain in amount in accordance with
the guidelines and the standards contained in 31 CFR 901.2 and 901.3 and
5 U.S.C. 5514, as applicable. The Board may not initiate administrative
offset to collect a debt more than 10 years after the Government's right
to the debt first accrued, unless facts material to the Government's
right to collect the debt were not known and could not reasonably have
been known to the Board.
(b) Collection by administrative offset of amounts payable from the
Civil Service Retirement and Disability Fund, the Federal Employees
Retirement System, or other similar fund is made pursuant to 31 CFR
901.3(e) and the provisions of paragraph (d) of this section.
(c) Salary offset is governed by 5 U.S.C. 5514.
(d) The following procedures apply when the Board seeks to collect a
debt by offset against any payment to be made to a debtor or against the
assets of a holder of a certificate, permit, license, or authorization
issued by the Board.
(1) Before the offset is made, the Board shall provide the debtor
written notice of the nature and amount of the debt and:
(i) Notice of the Board's intent to collect the debt by offset;
(ii) An opportunity to inspect and copy Board records pertaining to
the debt;
(iii) An opportunity to request reconsideration of the debt by the
Board, or if provided for by statute, waiver of the debt;
(iv) An opportunity to enter into a written agreement with the Board
to repay or pay the debt, as the case may be;
(v) An explanation of the debtor's rights under this subpart; and
(vi) An opportunity for a hearing when required under the provisions
of 31 CFR 901.3(e).
(2) If the Board learns that other agencies of the Government are
holding funds payable to the debtor, the Board shall provide the other
agencies with written certification that the debt is owed to the Board
and that the Board has complied with the provisions of 4 CFR 102.3. The
Board shall request that funds which are due the debtor and which are
necessary to offset the debt to the Board be transferred to the Board.
(3) The Board may accept a repayment or payment agreement, as
appropriate, in lieu of offset, but will do so only after balancing the
Government's interest in collecting the debts against fairness to the
debtor. If the debt is delinquent and the debtor has not disputed its
existence or amount, the Board may accept a repayment or payment
agreement in lieu of offset only if the debtor is able to establish
under sworn affidavit or statement certified under penalty of perjury
that offset would result in financial hardship or would result in undue
financial hardship or would be against equity and good conscience.
(4) Administrative offset is not authorized with respect to:
(i) Debts owed by any State or local government;
(ii) Debts once they become subject to the salary offset provisions
of 5 U.S.C. 5514; or
(iii) Any case in which collection of the type of debt involved by
administrative offset is explicitly provided for or prohibited by
another statute.

[[Page 67]]

(5) The Board reserves the right to take any other action in respect
to offset as is permitted under 4 CFR 102.3.
(e) The Board shall make appropriate use of the cooperative efforts
of other agencies including the Army Holdup List in effecting
collections by offset. The Army Holdup List is a list of contractors
indebted to the United States.

[58 FR 7749, Feb. 9, 1993, as amended at 81 FR 8852, Feb. 23, 2016]

Sec. 1018.29 Payments.

(a) Payment in full. The Board shall make every effort to collect a
claim in full before it becomes delinquent. The Board shall impose
charges for interest, penalties, and administrative costs as specified
in Sec. 1018.30.
(b) Payment in installments. If a debtor furnishes satisfactory
evidence of inability to pay a claim in one lump sum, payment in regular
installments may be arranged. Evidence may consist of a financial
statement or a signed statement certified under penalty of perjury to be
true and correct that application for a loan to enable the debtor to pay
the claim in full was rejected. Except for a claim described at 5 U.S.C.
5514, all installment payment arrangements must be in writing and
require the payment of interest and administrative charges.
(1) Installment note forms including confess-judgement notes may be
used. The written installment agreement must contain a provision
accelerating the debt payment in the event the debtor defaults. If the
debtor's financial statement discloses the ownership of assets which are
free and clear of liens or security interests, or assets in which the
debtor owns equity, the debtor may be asked to secure the payment of an
installment note by executing a Security Agreement and Financial
Statement transferring to the United States a security interest in the
assets until the debt is discharged.
(2) If the debtor owes more than one debt and designates how a
voluntary installment payment is to be applied among those debts, the
Board shall follow that designation. If the debtor does not designate
the application of the payment, the Board shall apply the payment to the
various debts in accordance with the best interest of the United States
as determined by the facts and circumstances of the particular case.
(c) To whom payment is made. Payment of a debt is made by check,
money order, or credit card payable to the Surface Transportation Board
and mailed or delivered to the Section of Financial Services, Surface
Transportation Board, Washington, DC 20423, unless payment is:
(1) Made pursuant to arrangements with the GAO or DOJ;
(2) Ordered by a Court of the United States; or
(3) Otherwise directed in any other part of this chapter.

[58 FR 7749, Feb. 9, 1993, as amended at 64 FR 53267, Oct. 1, 1999]

Sec. 1018.30 Interest, penalties, and administrative costs.

(a) The Board shall assess interest, penalties, and administrative
costs on debts owed to the United States Government in accordance with
the guidance provided under the Federal Claims Collection Standards, 31
CFR 901.9 unless otherwise directed by statute, regulation, or contract.
(b) Before assessing any charges on delinquent debts, the Board
shall mail a written notice to debtor explaining its requirements
concerning these charges under 31 CFR 901.2 and 901.9.
(c) Interest begins to accrue from the date on which the initial
invoice is first mailed to the debtor unless a different date is
specified on a statute, regulation, or contract.
(d) The Board shall assess interest based upon the rate of the
current value of funds to the United States Treasury (the Treasury tax
and loan account rate) prescribed by statute, regulation, or contract.
(e) Interest is computed only on the principal of the debt, and the
interest rate remains fixed for the duration of the indebtedness, unless
the debtor defaults on a repayment agreement and seeks to enter into a
new agreement.
(f) The Board shall assess against a debtor charges to cover
administrative costs incurred as a result of a delinquent debt.
Administrative costs may include costs incurred in obtaining a credit
report or in using a private debt

[[Page 68]]

collector, to the extent they are attributable to the delinquency.
(g) The Board shall assess a penalty charge of six percent a year on
any portion of a debt that is delinquent for more than 90 days. The
charge accrues retroactively to the date that the debt became
delinquent.
(h) Amounts received by the Board as partial or installment payments
are applied first to outstanding penalty and administrative cost
charges, second to accrued interest, and third to outstanding principal.
(i) The Board shall waive collection of interest on the debt or any
portion of the debt which is paid in full within 30 days after the date
on which interest began to accrue.
(j) The Board may waive interest during the periods a debt disputed
under Sec. 1018.26 is under investigation or review before the Board.
This additional waiver is not automatic and must be requested before the
expiration of the initial 30-day waiver period. The Board may grant the
additional waiver only when it finds merit in the explanation the debtor
has submitted under Sec. 1018.26.
(k) The Board may waive the collection of interest, penalties, and
administrative costs if it finds that one or more of the following
conditions exists:
(1) The debtor is unable to pay any significant sum toward the debt
within a reasonable time;
(2) Collection of interest, penalties, and administrative costs will
jeopardize collection of the principal of the debt;
(3) The Board is unable to enforce collection in full within a
reasonable time by enforced collection proceedings; or
(4) Collection would be against equity and good conscience or not in
the best interest of the United States, including the situation in which
an administrative offset or installment payment agreement is in effect.

[58 FR 7749, Feb. 9, 1993, as amended at 81 FR 8852, Feb. 23, 2016]

Sec. 1018.31 Use of credit reports.

The Board may institute a credit investigation of the debtor at any
time following receipt of knowledge of the debt in order to aid the
Board in making appropriate determinations as to:
(a) The collection and compromise of a debt;
(b) The collection of interest, penalties, and administrative costs;
(c) The use of administrative offset;
(d) The use of other collection methods; and
(e) The likelihood of collecting the debt.

Sec. 1018.32 Bankruptcy claims.

When the Board receives information that a debtor has filed a
petition in bankruptcy or is the subject of a bankruptcy proceeding, it
shall suspend all collection actions against the debtor in accordance
with 11 U.S.C. 362 and shall furnish information concerning the debt
owed the United States to the Department of Justice's Nationwide Central
Intake Facility to permit the filing of a claim.

Sec. 1018.33 Use and disclosure of mailing addresses.

(a) When attempting to locate a debtor in order to collect or
compromise a debt under this part, the Board may send a written request
to the Secretary of the Treasury (or designee) in order to obtain a
debtor's mailing address from the records of the Internal Revenue
Service.
(b) The Board may disclose a mailing address obtained under
paragraph (a) of this section to other agents, including collection
service contractors, in order to facilitate the collection or compromise
of debts under this part, except that a mailing address may be disclosed
to a consumer reporting agency only for the limited purpose of obtaining
a commercial credit report on the particular taxpayer.
(c) The Board and its agents, including consumer reporting agencies
and collection services, must comply with the provisions of 26 U.S.C.
6103(p)(4) and applicable regulations of the Internal Revenue Service.

Sec. 1018.34 Additional administrative collection action.

Nothing contained in this part is intended to preclude any other
administrative remedy which may be available.

[[Page 69]]

Subpart C_Compromise of a Claim

Sec. 1018.50 When a claim may be compromised.

The Board may compromise a claim not in excess of the monetary
limitation if it has not been referred to GAO or DOJ for litigation.
Only the Comptroller General of the United States or designee may effect
the compromise of a claim that arises out of the exceptions made by the
GAO in that account of an accountable officer, including a claim against
the payee, prior to its referral by GAO for litigation.

[58 FR 7749, Feb. 9, 1993; 58 FR 11099, Feb. 23, 1993]

Sec. 1018.51 Reasons for compromising a claim.

(a) A claim may be compromised for one or more reasons set forth
below:
(1) The full amount cannot be collected because:
(i) The debtor is unable to pay the full amount within a reasonable
time; or
(ii) The debtor refuses to pay the claim in full, and the Government
is unable to enforce collection in full within a reasonable time; or
(2) There is a real doubt concerning the Government's ability to
prove its case in Court for the full amount claimed, either because of
the legal issues involved or a bona fide dispute as to the facts; or
(3) The costs of collecting the claim do not justify the enforced
collection of the full amount. The Board shall apply this reason for
compromise in accordance with the guidelines in 31 CFR 902.2.
(b) The Board shall determine the debtor's inability to pay, the
Government's ability to enforce collection, and the amounts which are
acceptable in compromise in accordance with the Federal Claims
Collection Standards, 31 CFR part 902.
(c) Compromises payable in installments are discouraged, but, if
necessary, must be in the form of a legally enforceable agreement for
the reinstatement of the prior indebtedness less sums paid thereon. The
agreement also must provide that in the event of default:
(1) The entire balance of the debt becomes immediately due and
payable; and
(2) The Government has the right to enforce any security agreement.

[58 FR 7749, Feb. 9, 1993, as amended at 81 FR 8852, Feb. 23, 2016]

Sec. 1018.52 Restrictions on the compromise of a claim.

(a) The Board may not accept a percentage of a debtor's profits or
stock in a debtor's corporation in compromise of a claim. In negotiating
a compromise with a business concern, consideration is given to
requiring a waiver of the tax-loss-carry-forward and tax-loss-carry-back
rights of the debtor.
(b) If two or more debtors are jointly or severally liable,
collection action is not withheld against one debtor until the other or
others pay their share. The amount of a compromise with one debtor is
not considered a precedent or binding in determining the amount which
will be required from other debtors jointly and severally liable on the
claim.

Sec. 1018.53 Finality of a compromise.

An offer of compromise must be in writing and signed by the debtor.
An offer of compromise which is accepted by the Board is final and
conclusive on the debtor and on all officials, agencies and courts of
the United States, unless obtained by fraud, misrepresentation, the
presentation of a false claim, or mutual mistake of fact.

Subpart D_Suspension or Termination of Collection Action

Sec. 1018.60 When collection action may be suspended or terminated.

The Board may suspend or terminate collection action on a claim not
in excess of the monetary limitation, exclusive of interest, penalties,
and administrative costs, after deducting the amount of partial
payments, if any, if it has not been referred to GAO or DOJ for
litigation.

[[Page 70]]

Sec. 1018.61 Reasons for suspending collection action.

Collection action may be suspended temporarily:
(a) When the debtor cannot be located after diligent efforts, and
there is reason to believe that future collection action may be
sufficiently productive to justify periodic review and action on the
claim considering the size of the claim and the amount which may be
realized on it; or
(b) When the debtor owns no substantial equity in realty and is
unable to make payments on the Government's claim or effect a compromise
on it at the time, but the debtor's future prospects justify retention
of the claim for periodic review and action:
(1) The applicable statute of limitations has been tolled or started
anew; or
(2) Future collection can be effected by offset notwithstanding the
statute of limitations.

Sec. 1018.62 Reasons for terminating collection action.

Collection action may be terminated:
(a) When it becomes clear that the Government cannot collect or
enforce collection of any significant sum from the debtor having due
regard for the judicial remedies available to the Government, the
debtor's future financial prospects, and the exemptions available to the
debtor under State and Federal law;
(b) When the debtor cannot be located, there is no security
remaining to be liquidated, the applicable statute of limitations has
run, and the prospects of collecting by offset, notwithstanding the bar
of the statute of limitations, are too remote to justify retention of
the claim; or
(c) When it is likely that the cost of the collection action will
exceed the amount recoverable.

Sec. 1018.63 Termination of collection action.

Collection action shall be terminated:
(a) Whenever it is determined that the claim is legally without
merit; or
(b) When it is determined that the evidence necessary to prove the
claim cannot be produced, or necessary witnesses are unavailable, and
efforts to induce voluntary payments have been unavailing.

Sec. 1018.64 Transfer of a claim.

The Board may refer a claim to GAO when there is doubt as to whether
or not a collection action should be suspended or terminated.

Subpart E_Referral of a Claim

Sec. 1018.70 Prompt referral.

(a) A claim which requires enforced collection is referred to GAO or
DOJ for litigation. A referral is made as early as possible consistent
with aggressive collection action and, in, any event, well within the
time required to bring a timely suit against the debtor. Ordinarily,
referrals are made within 1 year of the Board's final determination of
the fact and the amount of the debt.
(b) When the merits of the Board's claim, the amount owed on the
claim, or the propriety of acceptance of a proposed compromise,
suspension, or termination of collection actions is in doubt, the Board
shall refer the matter to GAO for resolution and instruction prior to
proceeding with collection actions and/or referral to DOJ for
litigation.
(c) The Board may refer a claim to GAO or DOJ even though the
termination of collection activity might otherwise be given
consideration under Sec. 1018.63 if:
(1) A significant enforcement policy is involved in reducing a
statutory penalty or forfeiture to judgment; or
(2) Recovery of a judgment is a prerequisite to the imposition of
administrative sanctions, such as suspension or revocation of a license
or privilege of participating in a Government sponsored program.
(d) Once a claim has been referred to GAO or DOJ under this subpart,
the Board shall refrain from any contact with the debtor and shall
direct the debtor to GAO or DOJ as appropriate, when questions
concerning the claim are raised by the debtor. The Board shall
immediately advise GAO or DOJ, as appropriate, of any payments by the
debtor.

[[Page 71]]

Sec. 1018.71 Referral of a compromise offer.

The Board may refer a debtor's firm written offer of compromise
which is substantial in amount to GAO or to DOJ if the Board is
uncertain whether the offer should be accepted.

Sec. 1018.72 Referral to the Department of Justice.

(a) Claims for which the gross original amount is over $500,000 must
be referred to the Commercial Litigation Branch, Civil Division,
Department of Justice, Washington, DC 20530. Claims for which the gross
original amount is $500,000 or less must be referred to the Department
of Justice's Nationwide Central Intake Facility.
(b) A claim of less than $600, exclusive of interest, is not
referred for litigation unless:
(1) Referral is important to a significant enforcement policy; or
(2) The debtor has the clear ability to pay the claim, and the
government can effectively enforce payment.
(c) A claim on which the Board holds a judgment is referred to DOJ
for further action if renewal of the judgment lien or enforced
collection proceedings are justified under the criteria discussed in
this part.
(d) Claims must be referred to the Department of Justice in the
manner prescribed by 31 CFR 904.2. Care must be taken to preserve all
files, records, and exhibits on claims referred under paragraphs (a) and
(b) of this section.

[58 FR 7749, Feb. 9, 1993, as amended at 81 FR 8852, Feb. 23, 2016]

Subpart F_Internal Revenue Service Procedure

Sec. 1018.80 Reporting discharged debts to the Internal Revenue Service.

When the Board discharges a debt for less than the full value of the
indebtedness, it will report the outstanding balance discharged, not
including interest to the Internal Revenue Service, using IRS Form 1099-
G or any other form prescribed by the IRS, when:
(a) The principal amount of the debt not in dispute is $600 or more;
(b) The obligation has not been discharged in a bankruptcy
proceeding; and
(c) The obligation is no longer collectible either because the time
limit in the applicable statute for enforcing collection expired during
the tax year, or because during the tax year a formal compromise
agreement was reached in which the debtor was legally discharged of all
or a portion of the obligation.

Subpart G_Tax Refund Offset

Sec. 1018.90 Purpose.

This subpart establishes procedures for the Board to refer past-due
debts to the Internal Revenue Service (IRS) for the offset against the
income tax refunds of persons owing debts to the Board. It specifies the
Board's procedures and the rights of the debtor applicable to claims for
the payment of debts owed to the Board.

Sec. 1018.91 Applicability and scope.

(a) These regulations implement 31 U.S.C. 3720A which authorizes the
IRS to reduce a tax refund by the amount of a past-due legally
enforceable debt owed to the Government of the United States.
(b) For purposes of this section, a past-due legally enforceable
debt referable to the IRS is a debt which is owed to the Government of
the United States and:
(1) Except in the case of a judgment debt, has been delinquent for
at least 3 months but has not been delinquent for more than 10 years at
the time the offset is made;
(2) Cannot be currently collected pursuant to the salary offset
provisions of 5 U.S.C. 5514(a)(1);
(3) Is ineligible for administrative offset under 31 U.S.C. 3716(a)
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by
administrative offset under 31 U.S.C. 3716(a) by the Board against
amounts payable to or on behalf of the debtor by or on behalf of the
Board;
(4) With respect to which the Board has given the taxpayer at least
60 days from the date of notification to present evidence that all or
part of the debt is not past-due or legally enforceable, has considered
evidence presented by such

[[Page 72]]

taxpayer, and has determined that an amount of such debt is past-due and
legally enforceable;
(5) Has been disclosed by the Board to a consumer reporting agency
as authorized by 31 U.S.C. 3711(f), unless a consumer reporting agency
would be prohibited from using such information by 15 U.S.C. 1681c, or
unless the amount of the debt does not exceed $100.00;
(6) With respect to which the Board has notified or has made a
reasonable attempt to notify the taxpayer that the debt is past-due and,
unless repaid within 60 days thereafter, the debt will be referred to
the IRS for offset against any overpayment of tax;
(7) Is at least $25.00; and
(8) All other requirements of 31 U.S.C. 3720A and the Department of
the Treasury regulations codified at 26 CFR 301.6402-6 relating to the
eligibility of a debt for tax return offset have been satisfied.

[58 FR 7749, Feb. 9, 1993, as amended at 81 FR 8852, Feb. 23, 2016]

Sec. 1018.92 Administrative charges.

In accordance with 49 CFR 1018.30, all administrative charges
incurred in connection with the referral of the debts to the IRS shall
be assessed on the debt and thus increase the amount of the offset.

Sec. 1018.93 Notice requirement before offset.

A request for reduction of an IRS tax refund will be made only after
the Board makes a determination that an amount is owed and past-due and
provides the debtor with 60 days written notice. The Board's notice of
intention to collect by IRS tax refund offset (Notice of intent) will
state:
(a) The amount of the debt;
(b) That unless the debt is repaid within 60 days from the date of
the Board's Notice of Intent, the Board intends to collect the debt by
requesting that the IRS reduce any amount payable to the debtor as
Federal Income tax refunds an amount equal to amount of the debt
including all accumulated interest and other charges;
(c) That the debtor has the right to present evidence that all or
part of the debt is not past-due or legally enforceable; and
(d) A mailing address for forwarding any written correspondence and
a contact name and phone number for any questions.

Sec. 1018.94 Review within the Board.

(a) Notification by Debtor. A debtor who receives a Notice of Intent
has the right to present evidence that all or part of the debt is not
past-due or not legally enforceable. To exercise this right, the debtor
must:
(1) Send a written request for a review of the evidence to the
address provided in the notice.
(2) State in the request the amount disputed and the reasons why the
debtor believes that the debt is not past-due or is not legally
enforceable.
(3) Include in the request any documents which the debtor wishes to
be considered or state that additional information will be submitted
within the 60-day period.
(b) Submission of evidence. The debtor may submit evidence showing
that all or part of the debt is not past-due or not legally enforceable
along with the notification required by paragraph (a) of this section.
Failure to submit the notification and evidence within 60 days will
result in an automatic referral of the debt to the IRS without further
action by the Board.
(c) Review of the evidence. The Board will consider all available
evidence related to the debt. Within 30 days, if feasible, the Board
will notify the debtor whether the Board has sustained, amended, or
canceled its determination that the debt is past-due and legally
enforceable.

Sec. 1018.95 Board determination.

(a) Following review of the evidence, the Board will issue a written
decision which will include the supporting rationale for the decision.
(b) If the Board either sustains or amends its determination, it
shall notify the debtor of its intent to refer the debt to the IRS for
offset against the debtor's Federal income tax refund. If the Board
cancels its original determination, the debt will not be referred to
IRS.

[[Page 73]]

Sec. 1018.96 Stay of offset.

If the debtor timely notifies the Board that the debtor is
exercising the right described in Sec. 1018.94(a) of this subpart, any
notice to the IRS will be stayed until the issuance of a written
decision which sustains or amends its original determination.

PART 1019_REGULATIONS GOVERNING CONDUCT OF SURFACE TRANSPORTATION BOARD
EMPLOYEES--Table of Contents

Sec.
1019.1 Cross-reference to employee ethical conduct standards and
financial disclosure regulations.
1019.2 Interpretation and advisory service.
1019.3 Ex parte communications.
1019.4 Use of intoxicants.
1019.5 Sexual harassment.
1019.6 Disciplinary and other remedial action.

Authority: 49 U.S.C. 1321.

Source: 58 FR 42027, Aug. 6, 1993, unless otherwise noted.

Sec. 1019.1 Cross-reference to employee ethical conduct standards and
financial disclosure regulations.

Members and employees of the Surface Transportation Board also
should refer to the executive branch Standards of Ethical Conduct at 5
CFR part 2635, the STB regulations at 5 CFR part 5001 which supplement
the executive branch standards, and the executive branch financial
disclosure regulations at 5 CFR part 2634.

Sec. 1019.2 Interpretation and advisory service.

(a) The Board's General Counsel shall be the Board's Designated
Agency Ethics Official (DAEO).
(b) By June 30 of each year, the DAEO shall report to the Board on
the operation of the Board's ethics program with any recommendations
that the DAEO deems advisable.

[58 FR 42027, Aug. 6, 1993, as amended at 64 FR 53267, Oct. 1, 1999; 81
FR 8852, Feb. 23, 2016]

Sec. 1019.3 Ex parte communications.

Members and employees of the Board must conform to the standards
adopted by the Board in 49 CFR 1102.2.

Sec. 1019.4 Use of intoxicants.

Members and employees of the Board shall not use alcohol, drugs, or
other intoxicants so as to impede the discharge of their official
duties.

Sec. 1019.5 Sexual harassment.

(a) Members and employees shall not engage in harassment on the
basis of sex. Unwelcome sexual advances, requests for sexual favors, and
other verbal or physical conduct of a sexual nature constitute sexual
harassment when:
(1) Submission to such conduct is made either explicitly or
implicitly a term or condition of an individual's employment;
(2) Submission to or rejection of such conduct by an individual is
used as the basis for employment decisions affecting such individual; or
(3) Such conduct has the purpose or effect of interfering with an
individual's work performance or creating an intimidating, hostile,
offensive, or unpleasant working environment.
(b) Employees and applicants may follow the standard Equal
Employment Opportunity Board complaint process if they believe they have
a work-related sexual harassment problem. This requires that the
employee or applicant contact an EEO Counselor within 45 days of the
alleged harassment or, if a personnel action is involved, within 45 days
of its effective date.
(c) The regulations in this section apply also to harassment based
on race, color, religion, or national origin.

Sec. 1019.6 Disciplinary and other remedial action.

Any violation of the regulations in this part by an employee shall
be cause for appropriate disciplinary or other remedial action as
provided in the STB's Manual of Administration 22-751, which may be in
addition to any penalty prescribed by law. The manual is available from
the Section of Personnel Services, Surface Transportation Board,
Washington, DC 20423.

[58 FR 42027, Aug. 6, 1993, as amended at 64 FR 53267, Oct. 1, 1999]

Parts 1021 1029_Enforcement

[[Page 74]]

PART 1021_ADMINISTRATIVE COLLECTION OF ENFORCEMENT CLAIMS-
-Table of Contents

Sec.
1021.1 Standards.
1021.2 Enforcement claims and debtors.
1021.3 Enforcement collection designee.
1021.4 Notice of claim and demand.
1021.5 Agreement and release.
1021.6 Method of claim payment.

Authority: 31 U.S.C. 3701, 3711, 3717, 3718.

Source: 32 FR 20015, Dec. 20, 1967, unless otherwise noted.

Sec. 1021.1 Standards.

The regulations issued jointly by the Comptroller General of the
United States and the Attorney General of the United States under
section 3 of the Federal Claims Collection Act of 1966, as amended, (31
U.S.C. 3701 et seq.) and published in 31 CFR parts 900 through 904 are
hereby adopted by the Surface Transportation Board for the
administrative collection of enforcement claims.

[81 FR 8852, Feb. 23, 2016]

Sec. 1021.2 Enforcement claims and debtors.

(a) Enforcement claims are all separate civil penalty or forfeiture
claims not exceeding $20,000 which may arise under the provisions of the
Interstate Commerce Act or legislation supplementary thereto.
(b) Debtor is any person or corporation subject to civil penalties
or forfeitures for violation of the provisions of the Interstate
Commerce Act or legislation supplementary thereto.

Sec. 1021.3 Enforcement collection designee.

The Director, Office of Compliance and Enforcement, Surface
Transportation Board, is the Board's designee to take all necessary
action administratively to settle by collection, compromise, suspension
or termination, enforcement claims within the contemplation of the
Federal Claims Collection Act of 1966.

[45 FR 31374, May 13, 1980, as amended at 64 FR 53267, Oct. 1, 1999]

Sec. 1021.4 Notice of claim and demand.

Initiation of administrative collection of enforcement claims will
be commenced by the enforcement collection designee mailing a letter of
notice of claim and demand to the debtor. Such letter will state the
statutory basis for the claim, a brief resume of the factual basis for
the claim, the amount of the claim, and indicate the availability of the
designee or his personal agent for discussion of the claim should the
debtor so desire.

Sec. 1021.5 Agreement and release.

Upon the debtor's agreement to settle a claim, an Agreement and
Release Form will be provided to the debtor in duplicate. This form,
after reciting the statutory basis for the claim, will contain a
statement to be signed in duplicate by the debtor evidencing his
agreement to settlement of the claim for the amount stated in the
agreement. Both copies of the signed agreement shall be returned to the
collection designee. Upon final collection of the claim, one copy of the
agreement and release shall be returned to the debtor with the release
thereon signed by the enforcement collection designee.

Sec. 1021.6 Method of claim payment.

(a) Debtors: Debtors shall be required to settle claims by:
(1) Payment by bank cashier check or other instrument acceptable to
designee.
(2) Installment payments by check after the execution of a
promissory note containing an agreement for judgment.
(b) All checks or other instruments will be made out to ``Surface
Transportation Board,'' and after receipt will be forwarded to U.S.
Treasury.

PART 1022_CIVIL MONETARY PENALTY INFLATION ADJUSTMENT--Table of Contents

Sec.
1022.1 Scope and purpose.
1022.2 Definitions.
1022.3 Civil monetary penalty inflation adjustment.
1022.4 Cost-of-living adjustments of civil monetary penalties.

[[Page 75]]

Authority: 5 U.S.C. 551-557; 28 U.S.C. 2461 note; 49 U.S.C. 11901,
14901, 14903, 14904, 14905, 14906, 14907, 14908, 14910, 14915, 14916,
16101, 16103.

Source: 77 FR 64432, Oct. 22, 2012, unless otherwise noted.

Sec. 1022.1 Scope and purpose.

The purpose of this part is to establish a method to adjust for
inflation the civil monetary penalties provided by law within the
jurisdiction of the Board, in conformity with the Federal Civil
Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 104
Stat. 890 (codified as amended at 28 U.S.C. 2461 note), as amended by
the Debt Collection Improvement Act of 1996, Public Law 104-134, 110
Stat. 1321, and further amended by the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015, Public Law 114-74, 129 Stat.
599. These penalties shall be subject to review and adjustment annually
using the method specified in this part.

[81 FR 72543, Oct. 20, 2016]

Sec. 1022.2 Definitions.

As used in this part:
(a) Board means the Surface Transportation Board.
(b) Civil monetary penalty means any penalty, fine, or other
sanction that:
(1)(i) Is for a specific monetary amount as provided by federal law;
or
(ii) Has a maximum amount provided by federal law;
(2) Is assessed or enforced by the Board pursuant to federal law;
and
(3) Is assessed or enforced pursuant to an administrative proceeding
or a civil action in the federal courts.
(c) Consumer Price Index means the Consumer Price Index for all
urban consumers published by the Department of Labor.
(d) Cost-of-Living Adjustment means the percentage (if any) by which
the Consumer Price Index for the month of October preceding the
adjustment exceeds the Consumer Price Index for the month of October one
year before the month of October preceding date of the adjustment.
(e) Initial Cost-of-Living Adjustment means, for each civil monetary
penalty, the percentage (if any) by which the Consumer Price Index for
the month of October 2015 exceeds the Consumer Price Index of the month
of October of the calendar year during which the amount of such civil
monetary penalty was established or adjusted under a provision of law.

[77 FR 64432, Oct. 22, 2012, as amended at 81 FR 72543, Oct. 20, 2016]

Sec. 1022.3 Civil monetary penalty inflation adjustment.

The Board shall, immediately, and at least every year thereafter--
(a) By regulation adjust each civil monetary penalty provided by law
within the jurisdiction of the Board by the inflation adjustment
described in Sec. 1022.4; and
(b) Publish each such adjustment in the Federal Register.

[77 FR 64432, Oct. 22, 2012, as amended at 81 FR 72543, Oct. 20, 2016]

Sec. 1022.4 Cost-of living adjustments of civil monetary penalties.

(a) The inflation adjustment under Sec. 1022.3 will initially be
determined by increasing each maximum civil monetary penalty by the
initial cost-of-living adjustment. Not later than January 15 of every
year thereafter, the inflation adjustment will subsequently be
determined by increasing the maximum civil monetary penalty for each
civil monetary penalty by the cost-of-living adjustment. Any increase
determined under this section shall be rounded to the nearest dollar.
(b) The cost-of-living adjustment required by the statute results in
the following adjustments to the civil monetary penalties within the
jurisdiction of the Board:

[[Page 76]]

Table 1 to Paragraph (b)
----------------------------------------------------------------------------------------------------------------
2023-- Penalty 2024-- Adjusted
Civil monetary penalty amount penalty amount
U.S. Code citation description -----------------------------------
EP 716_8 (2023) EP 716_9 (2024)
----------------------------------------------------------------------------------------------------------------
Rail Carrier
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 11901(a)............................... Unless otherwise $9,413 $9,718
specified, maximum
penalty for each knowing
violation under this
part, and for each day.
49 U.S.C. 11901(b)............................... For each violation under 942 973
Sec. 11124(a)(2) or
(b).
49 U.S.C. 11901(b)............................... For each day violation 48 50
continues.
49 U.S.C. 11901(c)............................... Maximum penalty for each 9,413 9,718
knowing violation under
Sec. Sec. 10901-10906.
49 U.S.C. 11901(d)............................... For each violation under 187-942 193-973
Sec. Sec. 11123 or
11124(a)(1).
49 U.S.C. 11901(d)............................... For each day violation 94 97
continues.
49 U.S.C. 11901(e)(1), (4)....................... For each violation under 942 973
Sec. Sec. 11141-
11145, for each day.
49 U.S.C. 11901(e)(2), (4)....................... For each violation under 187 193
Sec. 11144(b)(1), for
each day.
49 U.S.C. 11901(e)(3)-(4)........................ For each violation of 187 193
reporting requirements,
for each day.
----------------------------------------------------------------------------------------------------------------
Motor and Water Carrier
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 14901(a)............................... Minimum penalty for each 1,288 1,330
violation and for each
day.
49 U.S.C. 14901(a)............................... For each violation under 12,883 13,301
Sec. Sec. 13901 or
13902(c).
49 U.S.C. 14901(a)............................... For each violation 32,208 33,252
related to
transportation of
passengers.
49 U.S.C. 14901(b)............................... For each violation of the 25,767-51,534 26,602-53,204
hazardous waste rules
under Sec. 3001 of the
Solid Waste Disposal Act.
49 U.S.C. 14901(d)(1)............................ Minimum penalty for each 1,881 1,942
violation of household
good regulations, and
for each day.
49 U.S.C. 14901(d)(2)............................ Minimum penalty for each 18,826 19,436
instance of
transportation of
household goods if
broker provides estimate
without carrier
agreement.
49 U.S.C. 14901(d)(3)............................ Minimum penalty for each 47,061 48,586
instance of
transportation of
household goods without
being registered.
49 U.S.C. 14901(e)............................... Minimum penalty for each 3,765 3,887
violation of a
transportation rule.
49 U.S.C. 14901(e)............................... Minimum penalty for each 9,413 9,718
additional violation.
49 U.S.C. 14903(a)............................... Maximum penalty for 188,257 194,359
undercharge or
overcharge of tariff
rate, for each violation.
49 U.S.C. 14904(a)............................... For first violation, 376 388
rebates at less than the
rate in effect.
49 U.S.C. 14904(a)............................... For all subsequent 472 487
violations.
49 U.S.C. 14904(b)(1)............................ Maximum penalty for first 942 973
violation for
undercharges by freight
forwarders.
49 U.S.C. 14904(b)(1)............................ Maximum penalty for 3,765 3,887
subsequent violations.
49 U.S.C. 14904(b)(2)............................ Maximum penalty for other 942 973
first violations under
Sec. 13702.
49 U.S.C. 14904(b)(2)............................ Maximum penalty for 3,765 3,887
subsequent violations.
49 U.S.C. 14905(a)............................... Maximum penalty for each 18,826 19,436
knowing violation of
Sec. 14103(a), and
knowingly authorizing,
consenting to, or
permitting a violation
of Sec. 14103(a) or
(b).
49 U.S.C. 14906.................................. Minimum penalty for first 2,577 2,661
attempt to evade
regulation.
49 U.S.C. 14906.................................. Minimum amount for each 6,441 6,650
subsequent attempt to
evade regulation.
49 U.S.C. 14907.................................. Maximum penalty for 9,413 9,718
recordkeeping/reporting
violations.
49 U.S.C. 14908(a)(2)............................ Maximum penalty for 3,765 3,887
violation of Sec.
14908(a)(1).

[[Page 77]]

49 U.S.C. 14910.................................. When another civil 942 973
penalty is not specified
under this part, for
each violation, for each
day.
49 U.S.C. 14915(a)(1)-(2)........................ Minimum penalty for 14,960 15,445
holding a household
goods shipment hostage,
for each day.
49 U.S.C. 14916(c)(1)............................ Maximum penalty for each 12,883 13,301
knowing violation under
Sec. 14916(a) for
unlawful brokerage
activities.
----------------------------------------------------------------------------------------------------------------
Pipeline Carrier
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 16101(a)............................... Maximum penalty for 9,413 9,718
violation of this part,
for each day.
49 U.S.C. 16101(b)(1), (4)....................... For each recordkeeping 942 973
violation under Sec.
15722, each day.
49 U.S.C. 16101(b)(2), (4)....................... For each inspection 187 193
violation liable under
Sec. 15722, each day.
49 U.S.C. 16101(b)(3)-(4)........................ For each reporting 187 193
violation under Sec.
15723, each day.
49 U.S.C. 16103(a)............................... Maximum penalty for 1,881 1,942
improper disclosure of
information.
----------------------------------------------------------------------------------------------------------------

[81 FR 72543, Oct. 20, 2016, as amended at 82 FR 4797, Jan. 17, 2017; 83
FR 993, Jan. 9, 2018; 83 FR 67699, Dec. 31, 2018; 85 FR 839, Jan. 8,
2019; 86 FR 3027, Jan. 14, 2021; 87 FR 2354, Jan. 14, 2022; 88 FR 2269,
Jan. 13, 2022; 89 FR 2175, Jan. 12, 2024]

Parts 1030 1039_Carriers Subject to Part I, Interstate Commerce Act

PART 1033_CAR SERVICE--Table of Contents

Sec.
1033.1 Car hire rates.
1033.2 Car service orders.

Authority: 49 U.S.C. 1321, 11121, 11122.

Sec. 1033.1 Car hire rates.

(a) Definitions applicable to this section:
(1) Car. A freight car bearing railroad reporting marks, other than
an excluded boxcar as defined in Sec. 1039.14(c)(2) of this chapter
whenever it is owned or leased by any class III carrier and bears a
class III carrier's reporting marks.
(2) Car hire. Compensation to be paid by a user to an owner for use
of a car. Such compensation may include, but need not be limited to,
hourly and mileage rates.
(3) Fixed rate car. Any car placed in service or rebuilt prior to
January 1, 1993 or for which there was a written and binding contract to
purchase, build, or rebuild prior to July 1, 1992, regardless of whether
such car bore railroad reporting marks prior to January 1, 1993,
provided, however, that until December 31, 1993, all cars shall be
deemed to be fixed rate cars.
(4) Market rate car. Any car that is not a fixed rate car.
(5) Owner. A rail carrier entitled to receive car hire on cars
bearing its reporting marks.
(6) Prescribed rates. The hourly and mileage rates in effect on
December 31, 1990, as published in Association of American Railroads
Circular No. OT-10 found in the information section of tariff STB RER
6411-U known as the Official Railway Equipment Register. This
information can be obtained at the Association of American Railroads or
the Board. Prescribed rates will be enhanced to reflect OT-37 surcharges
and Rule 88 rebuilds for work undertaken and completed during 1991 and
1992, and for rebuilding work for which there was a written and binding
contract prior to July 1, 1992.
(7) User. A rail carrier in possession of a car of which it is not
the owner.

[[Page 78]]

(b) Fixed rate cars. Car hire for fixed rate cars shall be
determined as follows:
(1) Except as provided in paragraph (b)(3) of this section, for a
10-year period beginning January 1, 1993, the prescribed rates shall
continue to apply to fixed rate cars without regard to the aging of such
cars subsequent to December 31, 1990. Prescribed car hire rates shall
not be increased for any additions and betterments performed on such
cars after December 31, 1990. Any OT-37 surcharge to prescribed rates
for work performed prior to January 1, 1993 shall expire upon the
earlier of:
(i) The car becoming a market rate car; or
(ii) The expiration date provided in Association of American
Railroads Circular No. OT-37.
(2) Upon termination of the 10-year period specified in paragraph
(b)(1) of this section, all fixed rate cars shall be deemed to be market
rate cars and shall be governed by paragraph (c) of this section.
(3) (i) During each calendar year beginning January 1, 1994, a rail
carrier may voluntarily elect to designate up to 10% of the cars in its
fleet as of January 1, 1993 to be treated as market rate cars for the
purposes of this section. The 10% limitation shall apply each calendar
year and shall be noncumulative. Cars designated to be treated as market
rate cars shall be governed by paragraph (c) of this section. Such
election shall be effective only in accordance with the following
provisions:
(A) An election shall be irrevocable and binding as to the rail
carrier making the election and all users and subsequent owners if:
(1) The rail carrier making the election has legal title to the car;
or
(2) The rail carrier making the election does not have legal title
to the car but obtains written consent for such election from the party
holding legal title; or
(3) The transaction pursuant to which the party holding legal title
to the car has furnished the car to the rail carrier making the election
was entered into after January 1, 1991.
(B) An election shall be irrevocable and binding only for the term
of the transaction pursuant to which the car was furnished to the rail
carrier making the election as to that rail carrier and all users and
subsequent owners if:
(1) That rail carrier does not have legal title to the car and does
not obtain written consent or such election from the party holding legal
title;
(2) The transaction was entered into prior to January 1, 1991; and
(3) The transaction does not provide that the compensation to be
paid to the party furnishing the car is to be based in whole or in part
directly on the car hire earnings of the car; provided, however, that if
the rail carrier making the election subsequently obtains legal title to
the car, such election shall then be irrevocable and binding as to the
rail carrier and all users and subsequent owners.
(C) The party holding legal title to the car may revoke an election
subject to the provisions of paragraph (b)(3)(i)(B) of this section
only:
(1) At the time the transaction pursuant to which the car was
furnished to the rail carrier making the election is first extended or
renewed after January 1, 1991; or
(2) If such transaction is not extended or renewed, at the time such
transaction terminates.

If such election is so revoked, a rail carrier may make a new election
only with the written consent of the party holding legal title to the
car, and such election shall be irrevocable and binding as to the rail
carrier making the election and all users and subsequent owners.
(ii) Nothing in paragraph (b)(3)(i) of this section shall be
construed to limit the rights of parties to any transaction to provide
for the consent of any party to an election made pursuant to paragraph
(b)(3)(i) of this section.
(c) Market rate cars. (1) Market rate cars shall not be subject to
prescribed rates or to the provisions of 49 CFR 1039.14(c)(1) (i) and
(ii) and (c)(4).
(2) (i) The Board shall not prescribe car hire for market rate cars.
(ii) The Code of Car Hire Rules referenced in the Association of
American Railroads Car Service and Car Hire Agreement provides that
owners and users party to that agreement shall resolve car hire disputes
thereunder. The

[[Page 79]]

Board may review allegations of abuse of the car hire dispute resolution
process established under those rules.
(iii) Car hire disputes involving an owner or user not a party to
that agreement may be resolved by the Board.
(d) Car hire agreements. Rail carriers are authorized to negotiate
and enter into agreements governing car hire.
(e) Effective date. This part shall take effect on January 1, 1994.

[58 FR 60144, Nov. 15, 1993]

Sec. 1033.2 Car service orders.

Emergency and temporary service orders are issued under this part
but are not carried in the Code of Federal Regulations.

[58 FR 60145, Nov. 15, 1993]

PART 1034_ROUTING OF TRAFFIC--Table of Contents

Authority: 49 U.S.C. 1321, 11123.

Sec. 1034.1 Temporary authority.

(a) Authority. Any railroad subject to regulation under 49 U.S.C.
10501 may reasonably divert or reroute traffic to other carriers, if it
is unable due to circumstances beyond its control promptly to transport
traffic over a portion of its lines. Traffic necessarily diverted under
this authority shall be rerouted to preserve as much as possible the
participation and revenues of other carriers provided in the original
routing. This authority may be exercised for no more than 30 days
following the day on which the rerouting begins. If a carrier needs more
than 30 days before its disability or the disability of a receiving
carrier is cured, it may automatically extend its rerouting for
additional 30-day periods. To extend the period, it must submit a
written or electronic notice to the Association of American Railroads
and the Board's Office of Public Assistance, Governmental Affairs, and
Compliance explaining why the rerouting is necessary, when it began,
when the disability occurred, why an extension is necessary, the
specific lines disabled, the rerouting to be continued, which shippers
are affected, and any other important facts.
(b) Concurrence by carriers. A railroad rerouting traffic must
receive the concurrence of other railroads to which the traffic will be
diverted or rerouted, before the rerouting or diversion begins. A
rerouting carrier must also confirm the inability of a disabled
receiving carrier to handle the traffic before rerouting that traffic.
If the receiving carrier is no longer disabled, it must accept the
traffic according to the routing originally designated.
(c) Notice by rerouting carrier. A rerouting carrier must notify the
Board's Office of Public Assistance, Governmental Affairs, and
Compliance, the Association of American Railroads, Car Service Division,
as agent of all railroads subscribing to car service and car hire
agreements, and the American Short Line Railroad Association before the
rerouting or diversion begins. The originating carrier must notify each
shipper at the time each shipment is rerouted or diverted and furnish to
each shipper the rerouting, except when the disability requiring the
rerouting occurs after the movement has begun. When a rerouting carrier
submits to the Board a notice and explanation for an extension of the
rerouting period, it must immediately also submit a copy of that notice
and explanation to the AAR, the ASLRA and all shippers that have been
affected or that the carrier believes will be affected or that request a
copy.
(d) Notice by AAR. The AAR shall notify all carriers affected by
rerouting or by an extension of a rerouting period, in a manner similar
to that used for embargoes.
(e) Applicable rates. The rates applicable on shipments rerouted or
diverted will be the rates applicable over the route originally
designated at the time the shipments are tendered.
(f) Divisions. The carriers involved in the rerouting or diversion
shall proceed even though no contracts, agreements, or arrangements
exist between them at the time concerning the divisions of the rates
applicable to the traffic. Divisions shall be, during the time the
rerouting is in effect, those voluntarily agreed upon by the carriers.

[46 FR 21782, Apr. 14, 1981, as amended at 46 FR 26064, May 11, 1981; 64
FR 53267, Oct. 1, 1999; 81 FR 8852, Feb. 23, 2016]

[[Page 80]]

PART 1035_BILLS OF LADING--Table of Contents

Sec.
1035.1 Requirement for certain forms of bills of lading.
1035.2 Modification of front of uniform bill of lading.

Appendix A to Part 1035--Uniform Straight Bill of Lading
Appendix B to Part 1035--Contract Terms and Conditions

Authority: 49 U.S.C. 1321, 11706, 14706.

Source: 58 FR 60797, Nov. 18, 1993, unless otherwise noted.

Cross References: For interstate transportation of livestock, see 9
CFR parts 71-77. For lading and unlading of vessels, see 19 CFR part 4.

Sec. 1035.1 Requirement for certain forms of bills of lading.

(a) All common carriers, except express companies, engaged in the
transportation of property other than livestock and wild animals, by
rail or by water subject to the Interstate Commerce Act are required to
use straight bills of lading as prescribed in Appendix A and B to this
part, or order bills of lading as prescribed in Appendix A and B to this
Part, except that order bills of lading shall:
(1) Be entitled ``Uniform Order Bill of Lading'' and be designated
as ``Negotiable'' on the front (appendix A to this part);
(2) Indicate consignment ``to the order of * * * '' on the front
(appendix A to this part); and
(3) Provide for endorsement on the back portion (appendix B to this
part).
(b) All such bills of lading:
(1) May be either documented on paper or issued electronically;
(2) May be a copy, reprographic or otherwise, of a printed bill of
lading, free from erasure and interlineation;
(3) May vary in the arrangement and spacing of the printed matter on
the face of the form.

Sec. 1035.2 Modification of front of uniform bill of lading.

Notwithstanding any other provision of Sec. 1035.1(a), with respect
to the information called for, the front portion only (appendix A to
this part) of a bill of lading may deviate from the language prescribed
in this part so long as the deviation conforms with approved national
standards for the electronic data interchange or other commercial
requirements for bill of lading information; provided that no such
deviation in the language shall affect the obligations of any shipper to
provide information absent the consent of such shipper nor shall such
deviation be deemed to alter any rights or obligations conferred by
statute or regulation on either carriers or shippers with respect to the
preparation or issuance of bills of lading.

Sec. Appendix A to Part 1035--Uniform Straight Bill of Lading

Uniform Straight Bill of Lading

Original--Not Negotiable

Shipper's No____________________________________________________________

Agent's No______________________________________________________________

Company_________________________________________________________________

Received, subject to the classifications and tariffs in effect on
the date of this Bill of Lading:

at_____________, 20__

from____________________________________________________________________

the property described below, in apparent good order, except as noted
(contents and condition of contents of packages unknown), marked,
consigned, and destined as indicated below, which said company (the word
company being understood throughout this contract as meaning any person
or corporation in possession of the property under the contract) agrees
to carry to its usual place of delivery at said destination, if on its
own road or its own water line, otherwise to deliver to another carrier
on the route to said destination. It is mutually agreed, as to each
carrier of all or any of said property over all or any portion of said
route to destination, and as to each party at any time interested in all
or any of said property, that every service to be performed hereunder
shall be subject to all the conditions not prohibited by law, whether
printed or written, herein contained, including the conditions on back
hereof, which are hereby agreed to by the shipper and accepted for
himself and his assigns.
[Mail or street address of consignee--For purposes of notification
only.]
Consigned to____________________________________________________________

Destination_____________________________________________________________

State of________________________________________________________________

County of_______________________________________________________________

Route___________________________________________________________________

Delivering Carrier______________________________________________________

Car Initial_____________________________________________________________

[[Page 81]]

________________________________________________________________________
Car No__________________________________________________________________

Trailer Initials/Number_________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Container Initials/Number_______________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

----------------------------------------------------------------------------------------------------------------
Description of
articles, special *Weight Class or Check
No. packages marks, and (subject to rate column
exceptions correction)
----------------------------------------------------------------------------------------------------------------
................. ........... ........... ........... Subject to Section 7 of
conditions, if this shipment
is to be delivered to the
consignee without recourse
on the consignor, the
consignor shall sign the
following statement:
................. ........... ........... ........... ..........................
................. ........... ........... ........... The carrier shall not make
delivery of this shipment
without payment of freight
and all other lawful
charges.
................. ........... ........... ........... .............................
................. ........... ........... ........... .............................
................. ........... ........... ........... .............................
.....................
(Signature of consignor)
................. ........... ........... ........... .............................
==============================
................. ........... ........... ........... If charges are to be prepaid,
write or stamp here,
................. ........... ........... ........... ``To be Prepaid.''
................. ........... ........... ........... .............................
................. ........... ........... ........... Received $___ to apply in
prepayment of the charges on
the property described
hereon.
................. ........... ........... ........... .............................
................. ........... ........... ........... .............................
.....................
Agent or Cashier
................. ........... ........... ........... Per________
................. ........... ........... ........... (The signature here
acknowledges only the amount
prepaid.)
................. ........... ........... ........... .............................
==============================

----------------------------------------------------------------------------------------------------------------
*If the shipment moves between two ports by a carrier by water, the law requires that the bill of lading shall
state whether it is ``carrier's or shipper's weight.''
Note. Where the rate is dependent on value, shippers are required to state specifically in writing the agreed or
declared value of the property.
The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding--
____________________ per____________________

Charges advanced: ____________________

Shipper

Agent

Per

Permanent post office address of shipper

[58 FR 60797, Nov. 18, 1993, as amended at 81 FR 8852, Feb. 23, 2016]

Sec. Appendix B to Part 1035--Contract Terms and Conditions

Contract Terms and Conditions

Sec. 1. (a) The carrier or party in possession of any of the
property herein described shall be liable as at common law for any loss
thereof or damage thereto, except as hereinafter provided.
(b) No carrier or party in possession of all or any of the property
herein described shall be liable for any loss thereof or damage thereto
or delay caused by the act of God, the public enemy, the authority of
law, or the act or default of the shipper or owner, or for natural
shrinkage. The carrier's liability shall be that of warehouseman, only,
for loss, damage, or delay caused by fire occurring after the expiration
of the free time allowed by tariffs lawfully on file (such free time to
be computed as therein provided) after notice of the arrival of the
property at destination or at the port of export (if intended for
export) has been duly sent or given, and after placement of the property

[[Page 82]]

for delivery at destination, or tender of delivery of the property to
the party entitled to receive it, has been made. Except in case of
negligence of the carrier or party in possession (and the burden to
prove freedom from such negligence shall be on the carrier or party in
possession), the carrier or party in possession shall not be liable for
loss, damage, or delay occurring while the property is stopped and held
in transit upon the request of the shipper, owner, or party entitled to
make such request, or resulting from a defect or vice in the property,
or for country damage to cotton, or from riots or strikes.
(c) In case of quarantine the property may be discharged at risk and
expense of owners into quarantine depot or elsewhere, as required by
quarantine regulations or authorities, or for the carrier's dispatch at
nearest available point in carrier's judgment, and in any such case
carrier's responsibility shall cease when property is so discharged, or
property may be returned by carrier at owner's expense to shipping
point, earning freight both ways. Quarantine expenses of whatever nature
or kind upon or in respect to property shall be borne by the owners of
the property or be a lien thereon. The carrier shall not be liable for
loss or damage occasioned by fumigation or disinfection or other acts
required or done by quarantine regulations or authorities even though
the same may have been done by carrier's officers, agents, or employees,
nor for detention, loss, or damage of any kind occasioned by quarantine
or the enforcement thereof. No carrier shall be liable, except in case
of negligence, for any mistake or inaccuracy in any information
furnished by the carrier, its agents, or officers, as to quarantine laws
or regulations. The shipper shall hold the carriers harmless from any
expense they may incur, or damages they may be required to pay, by
reason of the introduction of the property covered by this contract into
any place against the quarantine laws or regulations in effect at such
place.
Sec. 2. (a) No carrier is bound to transport said property by any
particular train or vessel, or in time for any particular market or
otherwise than with reasonable dispatch. Every carrier shall have the
right in case of physical necessity to forward said property by any
carrier or route between the point of shipment and the point of
destination. In all cases not prohibited by law, where a lower value
than actual value has been represented in writing by the shipper or has
been agreed upon in writing as the released value of the property as
determined by the classification or tariffs upon which the rate is
based, such lower value plus freight charges if paid shall be the
maximum amount to be recovered, whether or not such loss or damage
occurs from negligence.
(b) As a condition precedent to recovery, claims must be filed in
writing with the receiving or delivering carrier, or carrier issuing
this bill of lading, or carrier on whose line the loss, damage, injury
or delay occurred, within nine months after delivery of the property
(or, in case of export traffic, within nine months after delivery at
port of export) or, in case of failure to make delivery, then within
nine months after a reasonable time for delivery has elapsed; and suits
shall be instituted against any carrier only within two years and one
day from the day when notice in writing is given by the carrier to the
claimant that the carrier has disallowed the claim or any part or parts
thereof specified in the notice. Where claims are not filed or suits are
not instituted thereon in accordance with the foregoing provisions, no
carrier hereunder shall be liable, and such claims will not be paid.
(c) Any carrier or party liable on account of loss of or damage to
any of said property shall have the full benefit of any insurance that
may have been effected upon or on account of said property, so far as
this shall not avoid the policies or contracts of insurance: Provided,
That the carrier reimburse the claimant for the premium paid thereon.
Sec. 3. Except where such service is required as the result of
carrier's negligence, all property shall be subject to necessary
cooperage and baling at owner's cost. Each carrier over whose route
cotton or cotton linters is to be transported hereunder shall have the
privilege, at its own cost and risk, of compressing the same for greater
convenience in handling or forwarding, and shall not be held responsible
for deviation or unavoidable delays in procuring such compression. Grain
in bulk consigned to a point where there is a railroad, public or
licensed elevator, may (unless otherwise expressly noted herein, and
then if it is not promptly unloaded) be there delivered and placed with
other grain of the same kind and grade without respect to ownership (and
prompt notice thereof shall be given to the consignor), and if so
delivered shall be subject to a lien for elevator charges in addition to
all other charges hereunder.
Sec. 4. (a) Property not removed by the party entitled to receive it
within the free time allowed by tariffs, lawfully on file (such free
time to be computed as therein provided), after notice of the arrival of
the property at destination or at the port of export (if intended for
export) has been duly sent or given, and after placement of the property
for delivery at destination has been made, may be kept in vessel, car,
depot, warehouse or place of delivery of the carrier, subject to the
tariff charge for storage and to carrier's responsibility as
warehouseman, only, or at the option of the carrier, may be removed to
and stored in a public or licensed warehouse at the place of delivery or
other available

[[Page 83]]

place, at the cost of the owner, and there held without liability on the
part of the carrier, and subject to a lien for all freight and other
lawful charges, including a reasonable charge for storage.
(b) Where nonperishable property which has been transported to
destination hereunder is refused by consignee or the party entitled to
receive it, or said consignee or party entitled to receive it fails to
receive it within 15 days after notice of arrival shall have been duly
sent or given, the carrier may sell the same at public auction to the
highest bidder, at such place as may be designated by the carrier:
Provided, That the carrier shall have first mailed, sent, or given to
the consignor notice that the property has been refused or remains
unclaimed, as the case may be, and that it will be subject to sale under
the terms of the bill of lading if disposition be not arranged for, and
shall have published notice containing a description of the property,
the name of the party to whom consigned, or, if shipped order notify,
the name of the party to be notified, and the time and place of sale,
once a week for two successive weeks, in a newspaper of general
circulation at the place of sale or nearest place where such newspaper
is published: Provided, That 30 days shall have elapsed before
publication of notice of sale after said notice that the property was
refused or remains unclaimed was mailed, sent, or given.
(c) Where perishable property which has been transported hereunder
to destination is refused by consignee or party entitled to receive it,
or said consignee or party entitled to receive it shall fail to receive
it promptly, the carrier, may, in its discretion, to prevent
deterioration or further deterioration, sell the same to the best
advantage at private or public sale: Provided, That if time serves for
notification to the consignor or owner of the refusal of the property or
the failure to receive it, and request for disposition of the property,
such notification shall be given, in such manner as the exercise of due
diligence requires, before the property is sold.
(d) Where the procedure provided for in the two paragraphs last
preceding is not possible, it is agreed that nothing contained in said
paragraphs shall be construed to abridge the right of the carrier at its
option to sell the property under such circumstances and in such manner
as may be authorized by law.
(e) The proceeds of any sale made under this section shall be
applied by the carrier to the payment of freight, demurrage, storage,
and any other lawful charges and the expense of notice, advertisement,
sale, and other necessary expense and of caring for and maintaining the
property, if proper care of the same requires special expense, and
should there be a balance it shall be paid to the owner of the property
sold hereunder.
(f) Property destined to or taken from a station, wharf, or landing
at which there is no regularly appointed freight agent shall be entirely
at risk of owner after unloaded from cars or vessels or until loaded
into cars or vessels, and except in case of carrier's negligence, when
received from or delivered to such stations, wharves, or landings shall
be at owner's risk until the cars are attached to and after they are
detached from locomotive or train or until loaded into and after
unloaded from vessels.
Sec. 5. No carrier hereunder will carry or be liable in any way for
any documents, specie, or for any articles of extraordinary value not
specifically rated in the published classifications or tariffs unless a
special agreement to do so and a stipulated value of the articles are
indorsed hereon.
Sec. 6. Every party, whether principal or agent, shipping explosives
or dangerous goods, without previous full written disclosure to the
carrier of their nature, shall be liable for and indemnify the carrier
against all loss or damage caused by such goods, and such goods may be
warehoused at owner's risk and expense or destroyed without
compensation.
Sec. 7. The owner or consignee shall pay the freight and average, if
any, and all other lawful charges accruing on said property; but, except
in those instances where it may lawfully be authorized to do so, no
carrier by railroad shall deliver or relinquish possession at
destination of the property covered by this bill of lading until all
tariff rates and charges thereon have been paid. The consignor shall be
liable for the freight and all other lawful charges, except that if the
consignor stipulates, by signature, in the space provided for that
purpose on the face of this bill of lading that the carrier shall not
make delivery without requiring payment of such charges and the carrier,
contrary to such stipulation, shall make delivery without requiring such
payment, the consignor (except as hereinafter provided) shall not be
liable for such charges. Provided, that, where the carrier has been
instructed by the shipper or consignor to deliver said property to a
consignee other than the shipper or consignor, such consignee shall not
be legally liable for transportation charges in respect of the
transportation of said property (beyond those billed against him at the
time of delivery for which he is otherwise liable) which may be found to
be due after the property has been delivered to him, if the consignee
(a) is an agent only and has no beneficial title in said property, and
(b) prior to delivery of said property has notified the delivering
carrier in writing of the fact of such agency and absence of beneficial
title, and, in the case of a shipment reconsigned or diverted to a point
other than that specified in the original bill of lading, has also
notified the delivering carrier in writing of the name

[[Page 84]]

and address of the beneficial owner of said property; and, in such cases
the shipper or consignor, or, in the case of a shipment so reconsigned
or diverted, the beneficial owner, shall be liable for such additional
charges. If the consignee has given to the carrier erroneous information
as to who the beneficial owner is, such consignee shall himself be
liable for such additional charges. On shipments reconsigned or diverted
by an agent who has furnished the carrier in the reconsignment or
diversion order with a notice of agency and the proper name and address
of the beneficial owner, and where such shipments are refused or
abandoned at ultimate destination, the said beneficial owner shall be
liable for all legally applicable charges in connection therewith. If
the reconsignor or diverter has given to the carrier erroneous
information as to who the beneficial owner is, such reconsignor or
diverter shall himself be liable for all such charges.
If a shipper or consignor of a shipment of property (other than a
prepaid shipment) is also the consignee named in the bill of lading and,
prior to the time of delivery, notifies, in writing, a delivering
carrier by railroad (a) to deliver such property at destination to
another party, (b) that such party is the beneficial owner of such
property, and (c) that delivery is to be made to such party only upon
payment of all transportation charges in respect of the transportation
of such property, and delivery is made by the carrier to such party
without such payment, such shipper or consignor shall not be liable (as
shipper, consignor, consignee, or otherwise) for such transportation
charges but the party to whom delivery is so made shall in any event be
liable for transportation charges billed against the property at the
time of such delivery, and also for any additional charges which may be
found to be due after delivery of the property, except that if such
party prior to such delivery has notified in writing the delivering
carrier that he is not the beneficial owner of the property, and has
given in writing to such delivering carrier the name and address of such
beneficial owner, such party shall not be liable for any additional
charges which may be found to be due after delivery of the property; but
if the party to whom delivery is made has given to the carrier erroneous
information as to the beneficial owner, such party shall nevertheless be
liable for such additional charges. If the shipper or consignor has
given to the delivering carrier erroneous information as to who the
beneficial owner is, such shipper or consignor shall himself be liable
for such transportation charges, notwithstanding the foregoing
provisions of this paragraph and irrespective of any provisions to the
contrary in the bill of lading or in the contract of transportation
under which the shipment was made. The term ``delivering carrier'' means
the line-haul carrier making ultimate delivery.
Nothing herein shall limit the right of the carrier to require at
time of shipment the prepayment or guarantee of the charges. If upon
inspection it is ascertained that the articles shipped are not those
described in this bill of lading, the freight charges must be paid upon
the articles actually shipped.
Where delivery is made by a common carrier by water the foregoing
provisions of this section shall apply, except as may be inconsistent
with part III of the Interstate Commerce Act.
Sec. 8. If this bill of lading is issued on the order of the
shipper, or his agent, in exchange or in substitution for another bill
of lading, the shipper's signature to the prior bill of lading as to the
statement of value or otherwise, or election of common law or bill of
lading liability, in or in connection with such prior bill of lading,
shall be considered a part of this bill of lading as fully as if the
same were written or made in or in connection with this bill of lading.
Sec. 9. (a) If all or any part of said property is carried by water
over any part of said route, and loss, damage or injury to said property
occurs while the same is in the custody of a carrier by water the
liability of such carrier shall be determined by the bill of lading of
the carrier by water (this bill of lading being such bill of lading if
the property is transported by such water carrier thereunder) and by and
under the laws and regulations applicable to transportation by water.
Such water carriage shall be performed subject to all the terms and
provisions of, and all the exemptions from liability contained in the
Act of Congress of the United States, approved on February 13, 1893, and
entitled ``An act relating to the navigation of vessels, etc.'' and of
other statutes of the United States according carriers by water the
protection of limited liability as well as the following subdivisions of
this section: and to the conditions contained in this bill of lading not
inconsistent with this section, when this bill of lading becomes the
bill of lading of the carrier by water.
(b) No such carrier by water shall be liable for any loss or damage
resulting from any fire happening to or on board the vessel, or from
explosion, bursting of boilers or breakage of shafts, unless caused by
the design or neglect of such carrier.
(c) If the owner shall have exercised due diligence in making the
vessel in all respects seaworthy and properly manned, equipped and
supplied, no such carrier shall be liable for any loss or damage
resulting from the perils of the lakes, seas, or other waters, or from
latent defects in hull, machinery, or appurtenances whether existing
prior to, at the time of, or after sailing, or from collision,
stranding, or other accidents of navigation, or from prolongation of the
voyage. And,

[[Page 85]]

when for any reason it is necessary, any vessel carrying any or all of
the property herein described shall be at liberty to call at any port or
ports, in or out of the customary route, to tow and be towed, to
transfer, trans-ship, or lighter, to load and discharge goods at any
time, to assist vessels in distress, to deviate for the purpose of
saving life or property, and for docking and repairs. Except in case of
negligence such carrier shall not be responsible for any loss or damage
to property if it be necessary or is usual to carry the same upon deck.
(d) General Average shall be payable according to the York-Antwerp
Rules of 1924, sections 1 to 15, inclusive, and sections 17 to 22,
inclusive, and as to matters not covered thereby according to the laws
and usages of the Port of New York. If the owners shall have exercised
due diligence to make the vessel in all respects seaworthy and properly
manned, equipped and supplied, it is hereby agreed that in case of
danger, damage or disaster resulting from faults or errors in
navigation, or in the management of the vessel, or from any latent or
other defects in the vessel, her machinery or appurtenance, or from
unseaworthiness, whether existing at the time of shipment or at the
beginning of the voyage (provided the latent or other defects or the
unseaworthiness was not discoverable by the exercise of due diligence),
the shippers, consignees and/or owners of the cargo shall nevertheless
pay salvage and any special charges incurred in respect of the cargo,
and shall contribute with the shipowner in general average to the
payment of any sacrifices, losses or expenses of a general average
nature that may be made or incurred for the common benefit or to relieve
the adventure from any common peril.
(e) If the property is being carried under a tariff which provides
that any carrier or carriers party thereto shall be liable for loss from
perils of the sea, then as to such carrier or carriers the provisions of
this section shall be modified in accordance with the tariff provisions,
which shall be regarded as incorporated into the conditions of this bill
of lading.
(f) The term ``water carriage'' in this section shall not be
construed as including lighterage in or across rivers, harbors, or
lakes, when performed by or on behalf of rail carriers.
Sec. 10. Any alteration, addition, or erasure in this bill of lading
which shall be made without the special notation hereon of the agent of
the carrier issuing this bill of lading, shall be without effect, and
this bill of lading shall be enforceable according to its original
tenor.

[58 FR 60797, Nov. 18, 1993, as amended at 81 FR 8852, Feb. 23, 2016]

PART 1037_BULK GRAIN AND GRAIN PRODUCTS_LOSS AND DAMAGE CLAIMS-
-Table of Contents

Sec.
1037.1 Weights and weighing.
1037.2 Cars.
1037.3 Claims.

Authority: 49 U.S.C. 1321.

Source: 40 FR 49342, Oct. 22, 1975, unless otherwise noted.

Sec. 1037.1 Weights and weighing.

(a) How determined--Accuracy of the weights used in determining the
quantity of grain and grain products received for transportation by
carriers and delivered by them to consignees being of primary and
fundamental importance, the use of estimated weights based upon the
cubical contents of the load and the test weight per bushel of the grain
and grain products, or otherwise, will not be accepted. All shipments
shall be carefully weighed by competent weighers upon scales that are
known to be accurate within the limits of tolerance stated in scale
specifications.
(b) Inspection of scales--Before weighing grain and grain products
to and from cars, the scale and all other facilities to be used must be
thoroughly inspected to ascertain whether they are in proper working
condition, necessary adjustments or repairs, if any required, must be
made, and an accurate and complete record thereof shall be entered at
the time of inspection.
(c) Shipping weights--Where the shipper weighs the grain or grain
products for shipment and a claim for loss and damage is subsequently
filed on that shipment, the shipper shall furnish the carrier with whom
the claim is filed certificates of weight showing car initials and
number; the kind of grain or grain products; the total scale weight; the
type and house number of the scale used; the number of drafts and weight
of each draft; the date and time of weighing; whether the weight is
official, board-of-trade, grain-exchange, State, or other supervised
weight; and the number of grain doors used. This information should be
furnished at the time the claim is filed.

[[Page 86]]

(d) Destination weights--Where the consignee weighs a shipment of
grain or grain products and a claim for loss and damage is subsequently
filed on the shipment, the consignee shall furnish the carrier with whom
the claim is filed certificates of weight showing the car initials and
number; the kind of grain or grain products; the total scale weight; the
type and house number of the scale used; the number of drafts and weight
of each draft, and the date and time of weighing; and whether the weight
is official, board-of-trade, grain-exchange, State, or other supervised
weight. This information should be furnished at the time the claim is
filed.
(e) A difference in weights at origin and destination, both of which
are based on supervised scales, establishes prima facie that the loss
occurred in transit and that the railroad is liable. When a difference
in weights is based in part on an unsupervised weight, which
nevertheless, was accepted by the railroad as the basis for assessing
freight charges, such unsupervised weight in combination with a
supervised weight establishes prima facie that the loss occurred in
transit and the railroad is liable. When a difference in weights is
based in part on an unsupervised weight, with the above exception, a
prima facie case of railroad liability for loss in transit has not been
established. Such difference in weights is a factor, however, to be
considered in connection with other evidence that a clear-record car
arrived at destination with seals intact and unbroken or that the
shipper made a written complaint that any car placed for loading was
defective, in response to which the railroad filed a written report
after investigation of the complaint. See paragraph (c) of Sec. 1037.3.

Sec. 1037.2 Cars.

A car is not in suitable condition for the transportation of bulk
grain and grain products when it is defective. The rules prescribed in
this part 1037 apply on shipments transported solely in railroad-owned
and railroad-leased cars.

[57 FR 54334, Nov. 18, 1992]

Sec. 1037.3 Claims.

(a) In computing the amount of the loss for which the carrier will
pay there will be deducted from the gross amount of the ascertained
actual loss one-fourth of 1 percent of the established loading weight to
cover invisible loss and waste; provided, however, that where grain and
grain products heat in transit and investigation shows that the
invisible loss resulting therefrom exceeded one-fourth of 1 percent of
such other amount as may hereafter be fixed in the manner above stated,
and that the carrier is not otherwise liable for said loss, then the
ascertained actual amount of the invisible loss due to heating of the
grain and grain products will be deducted.
(b) Where investigation discloses a defect in equipment, seal or
seal record, or a transfer in transit by the carrier of a carload of
bulk grain or grain products upon which the unloading weight is less
than the loading weight and the shipper furnishes duly attested
certificates showing the correctness of the claimed weight, and
investigation fails to show that the discrepancy is due to defective
scales or other shipper facilities, or to inaccurate weighing or other
error at point of origin or destination, or to fraud, then the resulting
claim will be adjusted subject to the deductions authorized in the
immediately preceding paragraph (a) of this Sec. 1037.3; provided,
however, that the clear record of either the carrier's or shippers'
facilities shall not be interpreted as affecting or changing the burden
of proof now lawfully resting upon either party. Therefore, movement in
a clear-record car is not conclusive evidence of the fact that the car
is not defective. It must be considered along with other evidence to
determine liability. See paragraph (e) of Sec. 1037.1
(c) In case of a disputed claim, the records of both the carrier and
the claimant affecting the shipment involved shall be available to both
parties. These records shall include a written complaint, if any, filed
by the shipper with the railroad at the time the car was placed for
loading that the car was defective, and the written report of an
investigation of the complaint, filed

[[Page 87]]

by the railroad with the shipper, if made.

PART 1039_EXEMPTIONS--Table of Contents

Sec.
1039.10 Exemption of agricultural commodities except grain, soybeans,
and sunflower seeds.
1039.11 Miscellaneous commodities exemptions.
1039.13 Rail intermodal transportation exemption.
1039.14 Boxcar transportation exemptions and rules.
1039.16 Exemption of new highway trailers or containers.
1039.17 Protective service contracts exemption.
1039.20 Storage leases.
1039.22 Exemption of certain payments, services, and commitments from
the Elkins Act and related provisions.

Authority: 49 U.S.C. 10502, 13301.

Source: 47 FR 50262, Nov. 5, 1982, unless otherwise noted.

Sec. 1039.10 Exemption of agricultural commodities except grain,
soybeans, and sunflower seeds.

The rail transportation of the commodities listed below is exempt
from the provisions of subtitle IV of title 49, except that carriers
must continue to comply with Board accounting and reporting
requirements, including a brief statement in their annual reports of
operations under this exemption, and must maintain copies of rates,
charges, rules or regulations, for traffic moved under this exemption,
at their principal office, subject to inspection, and send a letter of
notification to the docket [Ex Parte No. 346 (Sub-No. 14)], within 30
days, of the fact that they are using the exemption. All tariffs
pertaining to the transportation of these miscellaneous commodities will
no longer apply except to the extent adopted by carrier quotations. The
categories of commodities which are exempt under this decision, by
Standard Transportation Commodity Code (STCC) number are:

01.................................. Farm products, with the exception
of grain (STCC No. 0113),
soybeans (STCC No. 01144), and
sunflower seeds (STCC No.
0114940).
09.................................. Fresh fish and other marine
products.
20-11............................... Fresh meat.
20-15............................... Fresh dressed poultry.
20-17............................... Processed poultry.
20-21............................... Creamery Butter.
20-23............................... Condensed, Evaporated or Dried
Milk.
20-25............................... Cheese and Special Dairy Products.
20-26............................... Processed Whole Milk.
20-141.............................. Hides and Skins.
20-144.............................. Animal refuse, tankage, or meat
meal.
20-421-27........................... Citrus pomace.
20-712-12........................... Shelled walnuts.
20-914-25........................... Cottonseed hulls.
20-915.............................. Cotton linters.
20-999-29........................... Butter and honey mixed.
20-999-41........................... Honey, comb, granulated or
strained, or heat treated to
retard granulation.
20-999-76........................... Freeze-dried poultry.
20-999-77........................... Freeze-dried meat.
20-999-78........................... Freeze-dried salad ingredients.
20-999-93........................... Fresh and salted meat and products
mixed, not hung.
20-999-94........................... Fresh and salted meat and products
mixed, hung and not hung.
21-4................................ Stemmed or redried tobacco.
22-811-30........................... Cotton, carded, dyed or not dyed,
but not spun, woven or knitted,
but including cotton lap.
22-911-63........................... Mattress felt, nec, cjors, not
finished.
22-911-74........................... Felts, cotton, nec.
22-971-35........................... Wool, nec, scoured.
22-995-22........................... Flax fibre.
22-999-26........................... Cotton linters, bleached or dyed.
28-423-37........................... Beeswax.

and shall embrace all articles assigned additional digits. The STCC
shall be those code numbers in effect as of January 1, 1979, as shown in
Standard Transportation Commodity Code Tariff 1-G, STB STCC 6001-C.
Nothing in this exemption shall be construed to affect our jurisdiction
under section 10502 or our ability to enforce this decision or any
subsequent decision made under authority of this exemption section.
Consistent with the exemptions in Sec. 1039.11 and Sec. 1039.14, this
exemption shall not apply to the regulation of demurrage, except the
regulation of demurrage related to transportation that is subject to
Sec. 1039.13. This exemption shall remain in effect, unless modified or
revoked by a subsequent order of this Board.

[48 FR 9277, Mar. 4, 1983; 49 FR 22095, May 25, 1984, as amended at 49
FR 26745, June 29, 1984; 49 FR 27321, July 3, 1984; 64 FR 53267, Oct. 1,
1999; 69 FR 58365, Sept. 30, 2004; 85 FR 12756, Mar. 4, 2020]

Sec. 1039.11 Miscellaneous commodities exemptions.

(a) Commodities exempted. Except as indicated in paragraph (b) of
this section, the rail transportation of the commodities listed below is
exempt from the provisions of 49 U.S.C. subtitle IV. The Standard
Transportation Commodity Code (STCC) numbers that identify the exempted
commodities are

[[Page 88]]

those in effect on the effective date of the tariff cited, and shall
embrace all commodities assigned additional digits.

----------------------------------------------------------------------------------------------------------------
STCC No. STCC tariff Commodity
----------------------------------------------------------------------------------------------------------------
14 1................................. 6001-T, eff. 1-1-92.... Dimension stone, quarry.
14 2................................. ......do............... Crushed or broken stone or riprap.
14 411............................... ......do............... Sand (aggregate or ballast).
14 412............................... ......do............... Gravel (aggregate or ballast).
20................................... ......do............... Food or kindred products except
20 143 Grease or inedible tallow.
20 32 Canned specialties.
20 33 Canned fruits, jams, jellies, preserves or
vegetables.
20 4 Grain mill products.
20 6 Sugar, beet or cane.
20 8 Beverages or flavoring extracts.
20 911 Cottonseed oil, crude or refined.
20 914 Cottonseed cake or meal or by-products.
20 92 Soybean oil or by-products.
20 93 Nut or vegetable oils or by-products.
22................................... ......do............... Textile mill products.
23................................... ......do............... Apparel or other finished textile products or
knit apparel.
24................................... ......do............... Lumber or wood products.
25................................... ......do............... Furniture or fixtures.
26................................... ......do............... Pulp, paper or allied products except
26 1 Pulp or pulp mill products.
26 211 Newsprint.
26 212 Ground wood paper, uncoated.
26 213 Printing paper, coated or uncoated, etc.
26 214 Wrapping paper, wrappers or coarse paper.
26 218 Sanitary tissue stock.
26 471 Sanitary tissues or health products.
26 6 Building paper or building board except
26 613 Wallboard.
27................................... ......do............... Printed matter.
28 195 22-23......................... ......do............... Iron chloride, liquid.
28 195 27-30......................... ......do............... Iron sulphate.
28 195 68-69......................... ......do............... Ferrous sulphate.
29 914............................... ......do............... Coke produced from coal.
29 915............................... ......do............... Distillate or residual fuel oil from coal
refining.
30................................... ......do............... Rubber or miscellaneous plastics products except
30 111 Rubber pneumatic tires or parts.
31................................... ......do............... Leather or leather products.
32................................... ......do............... Clay, concrete, glass or stone products except
32 411 Hydraulic cement, natural, portland or
masonry.
32 741 Lime or lime plaster.
32 95 Nonmetallic earths or minerals, ground or
treated in any other manner except
32 952 15 Cinders, clay, shale expanded shale),
slate or volcanic (not pumice stone), or
haydrite.
33................................... ......do............... Primary metal products, including galvanized.
34................................... ......do............... Fabricated metal products except
34 6 Metal stampings.
34 919 40 Radioactive material shipping
containers, etc.
35................................... ......do............... Machinery except
35 11 Steam engines, turbines, turbine generator
sets, or parts.
35 85 Refrigerators or refrigeration machinery
or complete air-conditioning units.
36................................... ......do............... Electrical machinery, equipment or supplies
except
36 12 Power, distribution or specialty
transformers.
36 21 Motors or generators.
37 11................................ ......do............... Motor vehicles.
37 14................................ ......do............... Motor vehicle parts or accessories.
38................................... ......do............... Instruments, photographic goods, optical goods,
watches or clocks.
39................................... ......do............... Miscellaneous products of manufacturing.
41 118............................... 6001-U, eff. 1-1-93.... Used vehicles.
14 715............................... 6001-V, eff. 1-1-94.... Rock salt.
20 143............................... ......do............... Grease or inedible tallow.
28 133............................... ......do............... Carbon dioxide.
28 991............................... ......do............... Salt.
32-4................................. ......do............... Hydraulic cement.
34 912............................... 6001-W, eff. 1-1-95.... Steel shipping containers.
40 211............................... ......do............... Iron and steel scrap.
33 119............................... 6001-X, eff. 1-11-96... Blast furnace, open hearth, rolling mill or coke
oven products, NEC.
20511................................ 6001-X, eff. 1-1-96.... Bread or other bakery products exc. biscuits,
crackers, pretzels or other dry bakery
products. See 20521-20529.
22941................................ ......do............... Textile waste, garnetted, processed, or
recovered or recovered fibres or flock exc.
packing or wiping cloths or rags. See 22994.

[[Page 89]]

22973................................ ......do............... Textile fibres, laps, noils, nubs, roving,
sliver or slubs, prepared for spinning, combed
or converted.
22994................................ ......do............... Packing or wiping cloths or rags (processed
textile wastes).
24293................................ ......do............... Shavings or sawdust.
30311................................ ......do............... Reclaimed rubber.
3229924.............................. ......do............... Cullet (broken glass).
33312................................ ......do............... Copper matte, speiss, flue dust, or residues,
etc.
33322................................ ......do............... Lead matte, speiss, flue dust, dross, slag,
skimmings, etc.
33332................................ ......do............... Zinc dross, residues, ashes, etc.
33342................................ ......do............... Aluminum residues, etc.
33398................................ ......do............... Misc. nonferrous metal residues, including
solder babbitt or type metal residues.
40112................................ ......do............... Ashes.
40212................................ ......do............... Brass, bronze, copper or alloy scrap, tailings,
or wastes.
40213................................ ......do............... Lead, zinc, or alloy scrap, tailings or wastes.
40214................................ ......do............... Aluminum or alloy scrap, tailings or wastes.
4021960.............................. ......do............... Tin scrap, consisting of scraps or pieces of
metallic tin, clippings, drippings, shavings,
turnings, or old worn-out block tin pipe having
value for remelting purposes only.
40221................................ ......do............... Textile waste, scrap or sweepings.
40231................................ ......do............... Wood scrap or waste.
40241................................ ......do............... Paper waste or scrap.
40251................................ ......do............... Chemical or petroleum waste, including spent.
40261................................ ......do............... Rubber or plastic scrap or waste.
4029114.............................. ......do............... Municipal garbage waste, solid, digested and
ground, other than sewage waste or fertilizer.
4029176.............................. ......do............... Automobile shredder residue.
4111434.............................. ......do............... Bags, old, burlap, gunny, istle (ixtle), jute,
or sisal, NEC.
41115................................ ......do............... Articles, used, returned for repair or
reconditioning.
42111................................ ......do............... Nonrevenue movement of containers, bags,
barrels, bottles, boxes, crates, cores, drums,
kegs, reels, tubes, or carriers, NEC, empty,
returning in reverse of route used in loaded
movement, and so certified.
42112................................ ......do............... Nonrevenue movement of shipping devices,
consisting of blocking, bolsters, cradles,
pallets, racks, skids, etc., empty, returning
in reverse of route used in loaded movement,
and so certified.
42311................................ ......do............... Revenue movement of containers, bags, barrels,
bottles, boxes, crates, cores, drums, kegs,
reels, tubes, or carriers, NEC., empty,
returning in reverse of route used in loaded
movement and so certified.
----------------------------------------------------------------------------------------------------------------

Excluded from this exemption are any movements for which a finding of
market dominance has been made. However, this exemption shall not be
construed as affecting in any way the existing regulations, agreements,
prescriptions, conditions, allowances or levels of compensation
regarding the use of equipment, whether shipper or railroad owned or
leased, including car hire, per diem and mileage allowances, and also
including exemption from the anti-trust laws necessary to negotiate car
service regulations or mandatory interchange of equipment or to maintain
and execute such agreements. Nor shall this exemption be construed to
affect existing Class III railroad ``protections'' in the case of
boxcars. Consistent with the exemptions in Sec. Sec. 1039.10 and
1039.14, this exemption shall not apply to the regulation of demurrage,
except the regulation of demurrage related to transportation that is
subject to Sec. 1039.13.
(b) Conditions. Carriers must continue to comply with Board
accounting and reporting requirements. All railroad tariffs pertaining
to the transportation of these miscellaneous commodities will no longer
apply. This exemption shall remain in effect, unless modified or revoked
by a subsequent order of this Board.

[48 FR 24901, June 3, 1983]

Editorial Note: For Federal Register citations affecting Sec.
1039.11, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.

Sec. 1039.13 Rail intermodal transportation exemption.

See part 1090.

[52 FR 23660, June 24, 1987]

Sec. 1039.14 Boxcar transportation exemptions and rules.

(a) The Rail transportation of all commodities in boxcars is exempt
from the provisions of 49 U.S.C. subtitle IV except as otherwise
provided in this section.

[[Page 90]]

(b) The Board retains jurisdiction in the following areas:
(1) Car hire and car service;
(2) Mandatory interchange of equipment;
(3) Reciprocal switching or joint use of terminal facilities;
(4) Car supply;
(5) Freight car pooling agreements; and
(6) Freight rates applicable to boxcar traffic originating or
terminating at an industry facility served physically by a Class III
rail carrier, to the extent provided in paragraphs (c)(4) and (c)(5) of
this section.
(c)(1) Except as provided in paragraph (c)(2) of this section,
carriers are authorized to take the following actions with respect to
boxcar equipment use:
(i) Assess charges for empty movement of cars where movements are
made at the request of the car owner, the Association of American
Railroads, or the Board. The empty mileage charge is subject to a
maximum of 35 cents per mile, as adjusted for inflation or deflation
using the rail cost adjustment factors published periodically by the
Board in Ex Parte No. 290 (Sub-No. 2), Railroad Cost Recovery
Procedures. In applying those factors, the figure of 35 cents will be
treated as having been in effect on October 1, 1982.
(ii) Store empty cars and reclaim car hire payments beginning at the
expiration of a 72-hour grace period after the car is made empty.
(iii) Negotiate bilateral agreements governing car hire rates, empty
movements, and storage.
(2) The authorization in paragraphs (c)(1) (i) and (ii) of this
section will not apply to excluded carriers, as defined in paragraph
(c)(2)(i) of this section, nor will it apply to any boxcar which, on
December 30, 1983, was owned or leased by a carrier which then would
have qualified as an excluded carrier and which bears the reporting
marks of an excluded carrier.
(i) An ``excluded carrier'' is a Class III carrier or a Class II
carrier not affiliated with one or more Class I carriers. To be
affiliated, the Class II carrier must be more than 50 percent owned by
one or more Class I carriers.
(ii) The boxcar exclusion of paragraph (c)(2) of this section will
apply:
(A) To an excluded boxcar whenever it is owned or leased by any
Class III carrier and bears a Class III carrier's reporting marks; and
(B) To an excluded boxcar owned or leased by an excluded Class II
carrier beginning on October 16, 1986, and ending on October 31, 1990,
so long as such boxcar has not been otherwise owned or leased by another
carrier during this period.
(iii) The exclusion will not apply during any period in which an
excluded boxcar is leased or assigned to a Class I or affiliated Class
II carrier. If an excluded Class II carrier becomes a Class III carrier
within the period under Sec. 1039.14(c)(2)(ii)(B), that carrier will
thereafter, for purposes of this rule, be treated as if it had been a
Class III carrier on December 10, 1983.
(iv) Nothing in paragraph (c)(2) of this section will affect the
right of any carrier to negotiate bilateral agreements governing car
hire rates and rules.
(3) The hourly and mileage car hire rates in effect on January 1,
1985, as published in AAR Traffic Circular No. OT-10, for any boxcar
excluded under paragraph (c)(2) of this section, will remain in effect
without regard to the aging of such car subsequent to January 1, 1986,
and any modification to the existing car hire formula will not apply to
such cars. With respect to an excluded boxcar owned or leased by an
excluded Class II carrier, those car hire rates shall remain in effect
through October 31, 1990. Any improvements subsequent to January 1,
1985, to the excluded boxcars capitalized under OT-37 criteria or under
rebuilt criteria will be subject to the same formula applicable to OT-37
or rebuilt cars under Ex Parte No. 334 or any other railroad car hire
proceeding, including any efficiency ratio, if adopted. Any improvements
or repairs subsequent to December 31, 1990, to the excluded boxcars
performed under OT-37 criteria or under rebuilt criteria or any other
criteria shall not result in any increases, additions, or surcharges in
the car hire rates for such cars.
(4) No freight rate made effective after April 1, 1985, that applies
to traffic moving by boxcar and originating or terminating at an
industry facility

[[Page 91]]

served physically by a Class III rail carrier may discriminate while
these rules are in effect on the basis of:
(i) The ownership of the boxcar used or the reporting marks any such
boxcar bears;
(ii) The car hire rate applicable to the boxcar used; or
(iii) Any car hire discounts, in the form of reclaims or otherwise,
available to any carriers with respect to the boxcar used.

Except as prohibited above, carriers may use car ownership or car marks
for identification purposes when establishing rates.
(5) The provisions of 49 U.S.C. 10705 and 10705a applicable to joint
rates and through routes will be effective as to rates and routes
applicable to boxcar traffic originating or terminating at an industry
facility served physically by a Class III rail carrier.
(6) The following carriers are not regarded as Class III or
unaffiliated Class II carriers for the purpose of this section:

Central New York Railroad Corporation
Cooperstown and Charlotte Valley Railway Corporation
Fonda, Johnstown & Gloversville Railroad Corporation
Lackawaxen and Stourbridge Railroad Corporation
New York, Susquehanna & Western Railway Corporation
Rahway Valley Railroad Company
Staten Island Railway Corporation.

(d) Carriers must continue to comply with Board accounting and
reporting requirements. Railroad tariffs pertaining to the exempted
transportation of commodities in boxcars will no longer apply.
Consistent with the exemptions in Sec. 1039.10 and Sec. 1039.11, this
exemption shall not apply to the regulation of demurrage, except the
regulation of demurrage related to transportation that is subject to
Sec. 1039.13. This exemption shall remain in effect, unless modified or
revoked by a subsequent order of the Board.

[48 FR 20415, May 6, 1983, as amended at 50 FR 20419, May 16, 1985; 51
FR 32656, Sept. 15, 1986; 51 FR 32922, Sept. 17, 1986; 52 FR 37971, Oct.
13, 1987; 55 FR 41339, Oct. 11, 1990; 57 FR 53451, Nov. 10, 1992; 57 FR
56641, Nov. 30, 1992; 61 FR 26847, May 29, 1996; 81 FR 8852, Feb. 23,
2016; 85 FR 12756, Mar. 4, 2020]

Sec. 1039.16 Exemption of new highway trailers or containers.

The rail transportation of new highway trailers or containers (which
is not otherwise exempt) is exempt from the provisions of 49 U.S.C.
Subtitle IV, except that carriers must continue to comply with the
Board's accounting and reporting requirements. This exemption will
remain in effect unless modified or revoked by subsequent order of this
Board.

[52 FR 17404, May 8, 1987]

Sec. 1039.17 Protective service contracts exemption.

Contracts for protective services against heat or cold, provided to
or on behalf of rail carriers and express companies, are exempt from the
requirements of 49 U.S.C. 11105. Nothing in this exemption shall be
construed to affect our jurisdiction under section 10505 or our ability
to enforce this decision or any subsequent decision made under authority
of this exemption section. This exemption shall remain in effect, unless
modified or revoked by a subsequent order of this Board.

[49 FR 19025, May 4, 1984]

Sec. 1039.20 Storage leases.

Storage leases for all equipment for all carriers are exempt from
the provisions of 49 U.S.C. subtitle IV except for 49 U.S.C. 11123.
Nothing in this exemption should be construed to affect our jurisdiction
under section 10502 or our ability to enforce this decision or any
subsequent decision made under authority of this exemption section. This
exemption shall remain in effect, unless modified or revoked by a
subsequent decision of this Board.

[51 FR 46675, Dec. 24, 1986, as amended at 69 FR 58365, Sept. 30, 2004]

Sec. 1039.22 Exemption of certain payments, services, and commitments
from the Elkins Act and related provisions.

(a) Whenever a rail carrier:
(1) Provides payments or services for industrial development
activities; or,
(2) Makes commitments regarding future transportation;

and reasonably determines that such payments, services or commitments

[[Page 92]]

would not be eligible for inclusion in rail contracts under 49 U.S.C.
10709, such transaction(s) shall be exempt from 49 U.S.C. 13702(a),
13702(b)-(d), 11902, 11903, and 11904(a), subject to the conditions set
forth in paragraphs (b) through (e) of this section.
(b) If any interested person(s) believes a transaction is eligible
for inclusion in one or more contracts under 49 U.S.C. 10713, that
person's exclusive remedy shall be to request the Board to so determine,
and if the Board does so, the transaction shall no longer be exempted by
this section commencing 60 days after the date of the Board's
determination.
(c) Transactions that are exempt under paragraph (a) of this section
shall be subject to all other applicable provisions of Title 49 U.S.C.
Subtitle IV and to the antitrust laws to the extent that the activity
does not fall within the Board's exclusive jurisdiction.
(d) For any actual movement of traffic, a carrier must file any
required tariff or section 10713 contract, and conform to all other
applicable provisions of the Interstate Commerce Act, but this paragraph
shall not be interpreted to limit, revoke, or remove the effect of the
exemption granted under paragraph (a) of this section with respect to
any payments, services, or commitments made prior to the filing of the
rate or contract.
(e) When any person files with the Board a petition to revoke the
exemption granted by this section as to any specific transaction, the
rail carrier shall have the burden of showing that, with respect to such
transaction, all requirements of paragraph (a) of this section were met,
and the carrier reasonably expected, before undertaking such payments,
services or commitments, that such payments, services or commitments
would result, within a reasonable time, in a contribution to the
carrier's going concern value.
(f) This exemption shall remain in effect unless modified or revoked
by a subsequent order of this Board.

[57 FR 11913, Apr. 8, 1992, as amended at 81 FR 8852, Feb. 23, 2016]

PARTS 1040 1089 [RESERVED]

Parts 1090 1099_Intermodal Transportation

PART 1090_PRACTICES OF CARRIERS INVOLVED IN THE INTERMODAL MOVEMENT OF
CONTAINERIZED FREIGHT--Table of Contents

Sec.
1090.1 Definition of TOFC/COFC service.
1090.2 Exemption of rail and highway TOFC/COFC service.
1090.3 Use of TOFC/COFC service by motor and water carriers.

Authority: 49 U.S.C. 1321.

Sec. 1090.1 Definition of TOFC/COFC service.

(a) Rail trailer-on-flatcar/container-on-flatcar (TOFC/COFC) service
means the transportation by rail, in interstate or foreign commerce,
of--
(1) Any freight-laden highway truck, trailer, or semitrailer,
(2) The freight-laden container portion of any highway truck,
trailer, or semitrailer having a demountable chassis,
(3) Any freight-laden multimodal vehicle designed to operate both as
a highway truck, trailer, or semitrailer and as a rail car,
(4) Any freight-laden intermodal container comparable in dimensions
to a highway truck, trailer, or semitrailer and designed to be
transported by more than one mode of transportation, or
(5) Any of the foregoing types of equipment when empty and being
transported incidental to its previous or subsequent use in TOFC/COFC
service.
(b) Highway TOFC/COFC service means the highway transportation, in
interstate or foreign commerce, of any of the types of equipment listed
in paragraph (a) of this section as part of a continuous intermodal
movement that includes rail TOFC/COFC service, and during which the
trailer or container is not unloaded.

[52 FR 23660, June 24, 1987]

Sec. 1090.2 Exemption of rail and highway TOFC/COFC service.

Except as provided in 49 U.S.C. 10502(e) and (g) and 13902, rail
TOFC/COFC service and highway TOFC/COFC

[[Page 93]]

service provided by a rail carrier either itself or jointly with a motor
carrier as part of a continuous intermodal freight movement is exempt
from the requirements of 49 U.S.C. subtitle IV, regardless of the type,
affiliation, or ownership of the carrier performing the highway portion
of the service. Motor carrier TOFC/COFC pickup and delivery services
arranged independently with the shipper or receiver (or its
representative/agent) and performed immediately before or after a TOFC/
COFC movement provided by a rail carrier are similarly exempt. Tariffs
heretofore applicable to any transportation service exempted by this
section shall no longer apply to such service. The exemption does not
apply to a motor carrier service in which a rail carrier participates
only as the motor carrier's agent (Plan I TOFC/COFC), nor does the
exemption operate to relieve any carrier of any obligation it would
otherwise have, absent the exemption, with respect to providing
contractual terms for liability and claims.

[54 FR 51746, Dec. 18, 1989, as amended at 81 FR 8852, Feb. 23, 2016]

Sec. 1090.3 Use of TOFC/COFC service by motor and water carriers.

(a) Except as otherwise prohibited by these rules, motor and water
common and contract carriers may use rail TOFC/COFC service in the
performance of all or any portion of their authorized service.
(b) Motor and water common carriers may use rail TOFC/COFC service
only if their tariff publications give notice that such service may be
used at their option, but that the right is reserved to the user of
their services to direct that in any particular instance TOFC/COFC
service not be used.
(c) Motor and water contract carriers may use rail TOFC/COFC service
only if their transportation contracts and tariffs (for water carriers)
make appropriate provisions therefor.
(d) Tariffs of motor and water common or water contract carriers
providing for the use of rail TOFC/COFC service shall set forth the
points between which TOFC/COFC service may be used.

[52 FR 27811, July 24, 1987]

[[Page 94]]

SUBCHAPTER B_RULES OF PRACTICE

Parts 1100 1129_Rules of General Applicability

PART 1100_GENERAL PROVISIONS--Table of Contents

Sec.
1100.1 Scope of rules.
1100.2 Applicability.
1100.3 Liberal construction.
1100.4 Information and inquiries.

Authority: 49 U.S.C. 1321.

Source: 47 FR 49548, Nov. 1, 1982, unless otherwise noted.

Sec. 1100.1 Scope of rules.

These rules govern practice and procedure before the Surface
Transportation Board under title 49, subtitle IV of the United States
Code (49 U.S.C. 10101 et seq.). This subchapter will be referred to as
the ``Rules of Practice''.

Sec. 1100.2 Applicability.

The rules in parts 1100-1129, Rules of General Applicability,
establish general rules applicable to all types of proceedings. Other
rules in this subchapter establish special rules applicable to
particular types of proceedings. When there is a conflict or
inconsistency between a rule of general applicability and a special
rule, the special rule will govern.

[47 FR 49548, Nov. 1, 1982, as amended at 50 FR 30275, July 25, 1985]

Sec. 1100.3 Liberal construction.

The rules will be construed liberally to secure just, speedy and
inexpensive determination of the issues presented.

Sec. 1100.4 Information and inquiries.

Persons with questions concerning these rules should either send a
written inquiry addressed to the Director, Office of Public Assistance,
Governmental Affairs, and Compliance, Surface Transportation Board or
should telephone the Office of Public Assistance, Governmental Affairs,
and Compliance.

[74 FR 52905, Oct. 15, 2009]

PART 1101_DEFINITIONS AND CONSTRUCTION--Table of Contents

Sec.
1101.1 Statutory definitions.
1101.2 Definitions applicable to this subchapter.
1101.3 Construction.

Authority: 49 U.S.C. 1321.

Source: 47 FR 49548, Nov. 1, 1982, unless otherwise noted.

Sec. 1101.1 Statutory definitions.

The definitions contained in section 10102 of the Act (49 U.S.C.
10102) apply in this chapter.

Sec. 1101.2 Definitions applicable to this subchapter.

(a) Act or Interstate Commerce Act means subtitle IV of title 49 of
the United States Code (49 U.S.C. 10101 et seq.).
(b) Board means (1) the Surface Transportation Board and (2) any
body or individual to which or to whom decision making authority is
assigned by the Board or the Chairman of the Board, including the
Chairman, another Board Member, employee board, an individual employee,
an administrative law judge, or other hearing officer entitled to act in
a particular proceeding. See 49 CFR part 1011, Board Organization;
Delegations of Authority.
(c) Decision means any formal, published action of the Board,
including orders and notices.
(d) Party means a complainant, defendant, applicant, respondent,
protestant, intervener, or petitioner in any proceeding, or other
persons permitted or directed by the Board to participate in a
proceeding. It will not include persons merely signing certificates of
support or witnesses at oral hearing or in modified procedure
proceedings, unless they are otherwise a party to the proceeding.
Persons on the docket service list merely for the purpose of receiving
copies of Board releases are not considered parties to the proceeding.
(e) Proceeding includes:

[[Page 95]]

(1) An informal complaint filed under Sec. Sec. 1130.1, or 1130.2
or a formal complaint alleging violation of any provision of the Act or
of any regulation or requirement made pursuant to a power granted by
such Act, including petitions on special dockets;
(2) An application for (i) the granting of any right, privilege,
authority, or relief under or from any provision of the Act or of any
regulation or requirement made pursuant to a power granted by such Act,
or (ii) the consideration of any submission required by law to be made
to the Board;
(3) An investigation instituted by the Board;
(4) A rulemaking proposal instituted by the Board; or
(5) A petition for exemption filed under 49 U.S.C. 10502 requesting
the Board to exempt from application all or part of subtitle IV of title
49 of the United States Code any person, class of persons, transaction,
or service related to a rail carrier.

[47 FR 49548, Nov. 1, 1982, as amended at 50 FR 30275, July 25, 1985; 64
FR 53267, Oct. 1, 1999; 69 FR 58365, Sept. 30, 2004; 81 FR 8852, Feb.
23, 2016]

Sec. 1101.3 Construction.

The rules of construction contained in chapter 1 of title 1 of the
United States Code (1 U.S.C. 1 et seq.) apply in this chapter. Among
other things, they provide that the singular includes the plural, and
vice versa; that the masculine includes the feminine; that the word
``person'' includes corporations, associations, and the like; that
``county'' includes parish and similar subdivisions; and that
``company'' includes successors and assigns.

PART 1102_COMMUNICATIONS--Table of Contents

Sec.
1102.1 How addressed.
1102.2 Procedures governing ex parte communications.

Authority: 49 U.S.C. 1321.

Sec. 1102.1 How addressed.

All communications should be addressed to the Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board,
Washington, DC 20423-0001 unless otherwise specifically directed by
another Board regulation. All communications should designate the docket
number and title, if any. The person communicating shall state his
address, and the party he represents.

[74 FR 52905, Oct. 15, 2009]

Sec. 1102.2 Procedures governing ex parte communications.

(a) Definitions. (1) ``On-the-record proceeding'' means any matter
described in Sections 556-557 of the Administrative Procedure Act (5
U.S.C. 556-557) or any matter required by the Constitution, statute,
Board rule, or by decision in the particular case, that is decided
solely on the record made in a Board proceeding.
(2) ``Informal rulemaking proceeding'' means a proceeding to issue,
amend, or repeal rules pursuant to 5 U.S.C. 553 and part 1110 of this
chapter.
(3) ``Covered proceedings'' means on-the-record proceedings and
informal rulemaking proceedings following the issuance of a notice of
proposed rulemaking.
(4) ``Person who intercedes in any proceeding'' means any person,
partnership, corporation, or association, private or public, outside of
the Board which is neither a party nor party's agent, that volunteers a
communication that it has reason to know may advance or adversely affect
the interest of a party or party's agent in any proceeding before the
Board.
(5) ``Ex parte communication'' means an oral or written
communication that concerns the merits or substantive outcome of a
pending proceeding; is made without notice to all parties and without an
opportunity for all parties to be present; and could or is intended to
influence anyone who participates or could reasonably be expected to
participate in the decision.
(b) Ex parte communications that are not prohibited and need not be
disclosed. (1) Any communication that the Board formally rules may be
made on an ex parte basis;
(2) Any communication occurring in informal rulemaking proceedings
prior to the issuance of a notice of proposed rulemaking;

[[Page 96]]

(3) Any communication of facts or contention which has general
significance for a regulated industry if the communicator cannot
reasonably be expected to have known that the facts or contentions are
material to a substantive issue in a pending covered proceeding in which
it is interested;
(4) Any communication by means of the news media that in the
ordinary course of business of the publisher is intended to inform the
general public, members of the organization involved, or subscribers to
such publication with respect to pending covered proceedings;
(5) Any communications related solely to the preparation of
documents necessary for the Board's implementation of the National
Environmental Policy Act and related environmental laws, pursuant to
part 1105 of this chapter;
(6) Any communication concerning judicial review of a matter that
has already been decided by the Board made between parties to the
litigation and the Board or Board staff who are involved in that
litigation.
(c) General prohibitions. (1) Except to the extent permitted by the
rules in this section, no party, counsel, agent of a party, or person
who intercedes in any covered proceeding shall engage in any ex parte
communication with any Board Member, hearing officer, or Board employee
who participates, or who may reasonably be expected to participate, in
the decision in the proceeding.
(2) No Board Member, hearing officer, or Board employee who
participates, or is reasonably expected to participate, in the decision
in a covered proceeding shall invite or knowingly entertain any ex parte
communication or engage in any such communication to any party, counsel,
agent of a party, or person reasonably expected to transmit the
communication to a party or party's agent.
(d) When prohibitions take effect. In on-the-record proceedings, the
prohibitions against ex parte communications apply from the date on
which the first filing or Board decision in a proceeding is posted to
the public docket by the Board, or when the person responsible for the
communication has knowledge that such a filing has been filed, or at any
time the Board, by rule or decision, specifies, whichever occurs first.
In informal rulemaking proceedings, except as provided in paragraph (g)
of this section, the prohibitions against ex parte communications apply
following the issuance of a notice of proposed rulemaking. The
prohibitions in covered proceedings continue until the proceeding is no
longer subject to administrative reconsideration under 49 U.S.C. 1322(c)
or judicial review.
(e) Procedure required of Board Members and Board staff upon receipt
of prohibited ex parte communications. (1) Any Board Member, hearing
officer, or Board employee who receives an ex parte communication not
permitted by these regulations must promptly transmit either the written
communication, or a written summary of the oral communication with an
outline of the surrounding circumstances to the Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board. The
Section Chief shall promptly place the written material or summary in
the correspondence section of the public docket of the proceeding with a
designation indicating that it is a prohibited ex parte communication
that is not part of the decisional record.
(2) Any Board Member, hearing officer, or Board employee who is the
recipient of such ex parte communication may request a ruling from the
Board's Designated Agency Ethics Official as to whether the
communication is a prohibited ex parte communication. The Designated
Agency Ethics Official shall promptly reply to such requests. The Chief,
Section of Administration, Office of Proceedings, shall promptly notify
the Chairman of the Board of such ex parte communications sent to the
Section Chief. The Designated Agency Ethics Official shall promptly
notify the Chairman of all requests for rulings sent to the Designated
Agency Ethics Official. The Chairman may require that any communication
be placed in the correspondence section of the docket when fairness
requires that it be made public, even if it is not a prohibited
communication. The Chairman may direct the taking of such other action
as may be appropriate under the circumstances.

[[Page 97]]

(f) Sanctions. (1) The Board may censure, suspend, or revoke the
privilege of practicing before the agency of any person who knowingly
and willfully engages in or solicits prohibited ex parte communication.
(2) The relief or benefit sought by a party to a covered proceeding
may be denied if the party, or his agent knowingly and willfully
violates the foregoing rules.
(3) The Board may censure, suspend, dismiss, or institute
proceedings to suspend or dismiss any Board employee who knowingly and
willfully violates the rules in this section.
(g) Ex parte communications in informal rulemaking proceedings;
disclosure requirements. (1) Notwithstanding paragraph (c) of this
section, ex parte communications with Board Members in informal
rulemaking proceedings are permitted after the issuance of a notice of
proposed rulemaking and until 20 days before the deadline for reply
comments set forth in the notice of proposed rulemaking, unless
otherwise specified by the Board in procedural orders governing the
proceeding. The Board may delegate its participation in such ex parte
communications to Board staff. All such ex parte communications must be
disclosed in accordance with paragraph (g)(4) of this section. Any
person who engages in such ex parte communications must comply with any
schedule and additional instructions provided by the Board in the
proceeding. Communications that do not comply with this section or with
the schedule and instructions established in the proceeding are not
permitted and are subject to the procedures and sanctions in paragraphs
(e) and (f) of this section.
(2) To schedule ex parte meetings permitted under paragraph (g)(1)
of this section, parties should contact the Board's Office of Public
Assistance, Governmental Affairs, and Compliance or the Board Member
office with whom the meeting is requested, unless otherwise specified by
the Board.
(3) Parties seeking to present confidential information during an ex
parte communication must inform the Board of the confidentiality of the
information at the time of the presentation and must comply with the
disclosure requirements in paragraph (g)(4)(iv) of this section.
(4) The following disclosure requirements apply to ex parte
communications permitted under paragraph (g)(1) of this section:
(i) Any person who engages in ex parte communications in an informal
rulemaking proceeding shall submit to the Board Member office or
delegated Board staff with whom the meeting was held a memorandum that
states the date and location of the communication; lists the names and
titles of all persons who attended (including via phone or video) or
otherwise participated in the meeting during which the ex parte
communication occurred; and summarizes the data and arguments presented
during the ex parte communication. Any written or electronic material
shown or given to Board Members or Board staff during the meeting must
be attached to the memorandum.
(ii) Memoranda must be sufficiently detailed to describe the
substance of the presentation. Board Members or Board staff may ask
presenters to resubmit memoranda that are not sufficiently detailed.
(iii) If a single meeting includes presentations from multiple
parties, counsel, or persons, a single summary may be submitted so long
as all presenters agree to the form and content of the summary.
(iv) If a memorandum, including any attachments, contains
information that the presenter asserts is confidential, the presenter
must submit a public version and a confidential version of the
memorandum. If there is no existing protective order governing the
proceeding, the presenter must, at the same time the presenter submits
its public and redacted memoranda, file a request with the Board seeking
such an order pursuant to Sec. 1104.14 of this chapter.
(v) Memoranda must be submitted to the Board in the manner
prescribed no later than two business days after the ex parte
communication.
(vi) Ex parte memoranda submitted under this section will be posted
on the Board's website in the docket for the informal rulemaking
proceeding within five days of submission. If a presenter has requested
confidential treatment

[[Page 98]]

for all or part of a memorandum, only the public version will appear on
the Board's website. Persons seeking access to the confidential version
must do so pursuant to the protective order governing the proceeding.

[47 FR 49548, Nov. 1, 1982, as amended at 58 FR 42027, Aug. 6, 1993; 74
FR 52905, Oct. 15, 2009; 81 FR 8853, Feb. 23, 2016; 83 FR 9231, Mar. 5,
2018]

PART 1103_PRACTITIONERS--Table of Contents

Subpart A_General Information

Sec.
1103.1 Register of practitioners.
1103.2 Attorneys-at-law--qualifications and requirements to practice
before the Board.
1103.3 Persons not attorneys-at-law--qualifications and requirements for
practice before the Board.
1103.4 Initial appearances.
1103.5 Discipline.

Subpart B_Canons of Ethics

1103.10 Introduction.

The Practitioner's Duties and Responsibilities Toward the Board

1103.11 Standards of ethical conduct in courts of the United States to
be observed.
1103.12 The practitioner's duty to and attitude toward the Board.
1103.13 Attempts to exert political or personal influence on the Board
are prohibited.
1103.14 Private communications with the Board are prohibited.

The Practitioner's Duties and Responsibilities Toward a Client

1103.15 The practitioner's duty to clients, generally.
1103.16 Adverse influences and conflicting interests.
1103.17 Joint association of practitioners and conflicts of opinion.
1103.18 Withdrawal from employment.
1103.19 Advising upon the merits of a client's cause.
1103.20 Practitioner's fees and related practices.
1103.21 How far a practitioner may go in supporting a client's cause.
1103.22 Restraining clients from improprieties.
1103.23 Confidences of a client.

The Practitioner's Duties and Responsibilities Regarding Witnesses,
Other Litigants and the Public

1103.24 Use of adverse witnesses.
1103.25 Treatment of witnesses, litigants and other counsel.
1103.26 Discussion of pending litigation in the public press.
1103.27 Candor and fairness in dealing with other litigants.
1103.28 Negotiations with opposing party.
1103.29 Public communication and solicitation.
1103.30 Acceptance of employment.
1103.31 Responsibility for litigation.
1103.32 Discovery of imposition and deception and duty to report corrupt
or dishonest conduct.
1103.33 Responsibility when proposing a person for admission to practice
before the Board.
1103.34 Intermediaries.
1103.35 Partnership or professional corporation names and titles.

Authority: 21 U.S.C. 862; 49 U.S.C. 1303(c), 1321.

Source: 47 FR 49549, Nov. 1, 1982, unless otherwise noted.

Subpart A_General Information

Sec. 1103.1 Register of practitioners.

The Board maintains a register containing the names of all non-
attorneys entitled to practice before it. The register is maintained
according to the individual non-attorney practitioner's name and not by
corporate or firm name. Corporations and firms are not admitted or
recognized as practitioners before the Board.

Sec. 1103.2 Attorneys-at-law--qualifications and requirements to
practice before the Board.

Any person who is a member in good standing of the bar of the
highest court of any State, Commonwealth, possession, territory, or the
District of Columbia may represent persons before the Board.

Sec. 1103.3 Persons not attorneys-at-law--qualifications and requirements
for practice before the Board.

(a) In general. Any citizen or resident of the United States, not an
attorney-at-law, who files an application for admission to practice,
accompanied by the payment of the fee prescribed by rule or order of the
Board, and who

[[Page 99]]

successfully completes the practitioners' examination, and shows that
applicant possesses the necessary legal and technical qualifications to
enable applicant to render valuable service before the Board and that
applicant is competent to advise and assist in the presentation of
matters before the Board, may be permitted to practice before the Board.
(b) Qualifications standards. A non-attorney applicant for admission
to practice must meet one of the following requirements:
(1) An applicant must have completed 2 years (60 semester hours or
90 quarter hours) of post secondary education and must possess technical
knowledge, training or experience in the field of transportation which
is regarded by the Board as the equivalent of 2 additional years of
college education;
(2) An applicant must have worked in the field of transportation for
at least 10 years;
(3) An applicant must have received a bachelor's degree with at
least 12 semester hours or 18 quarter hours in transportation or
business; or
(4) An applicant must have received a bachelor's degree and worked
in the field of transportation for at least one year. An applicant's
statement of college education must be supported by a transcript of
records attached to the original application. Transcripts from any
college accredited by the U.S. Department of Education will be accepted
without question. With all other institutions, the burden of proof is on
the applicant to establish that the formal education satisfies the
standards set forth above. The qualifications standards are intended as
general guidelines. Individual situations that vary from the standards
will continue to be evaluated on their own merits.
(c)(1) Application for admission. An application filed pursuant to
this rule under oath for admission to practice shall be submitted
between January and May 1 of the year in which the examination is to be
taken. The application is to be completed in full on the form provided
by the Board, and shall be addressed to the Director, Office of Public
Assistance, Governmental Affairs, and Compliance, Surface Transportation
Board, Washington, DC 20423-0001, to the attention of the room number
indicated on the form.
(2) Certification: All applicants must complete the following
certification:

I, _____ (Name) _____, certify under penalty of perjury under the
laws of the United States, that I have not been convicted, after
September 1, 1989, of any Federal or State offense involving the
distribution or possession of a controlled substance, or that if I have
been so convicted, I am not ineligible to receive Federal Benefits,
either by court order or operation of law, pursuant to 21 U.S.C. 862.

(d) Application fee. Each application filed pursuant to this rule
must be accompanied by the non-refundable fee in the amount set forth in
49 CFR 1002.2(f)(99)(i). Payment must be made either by check, money
order or credit card payable to the Surface Transportation Board. Cash
payment will not be accepted.
(e) Additional certification. (1) When an application meets the
required standards, a copy will be referred to the Association of
Surface Transportation Board Practitioners for a report to the Board as
to the reputation and character of the applicant. Inquiry also will be
made by the Board of the sponsors as to their knowledge of the
applicant's legal and technical qualifications as contemplated by the
Board's Rules of Practice. If the Board is satisfied as to the
applicant's qualifications, reputation and character, then applicant
will be considered eligible to take the examination.
(2) The Board may require an applicant's sponsors to provide a
detailed statement of the nature and extent of their knowledge of
applicant's qualifications. Upon consideration of this material, if the
Board is not satisfied as to the adequacy of applicant's qualifications,
the applicant will be notified by registered mail. Applicant may then
request a hearing to prove his qualifications. If applicant makes such a
request, the Board will allow a hearing. In the absence of a request for
a hearing within 20 days after receipt of the notice, the application
will be considered withdrawn.
(f) Scope of examination. If applicant meets the educational and
experience standards, and is found to be of good character, the
applicant will be permitted to take the examination. The

[[Page 100]]

examination tests the applicant's experience and knowledge of the
principal regulations, laws, and economic principles in the field of
transportation as well as knowledge of the Board's Rules of Practice and
Canons of Ethics.
(g) Time and place of examination. The examination will be conducted
once a year on the second Tuesday in July. Notice of the time and place
to appear for the examination will be mailed to qualifying applicants
approximately 30 days prior to the date of the examination.
(h) Location of examination. Examinations will be conducted at the
Board's office in Washington, DC.
(i) Cancellation of examination. If the Board determines that there
is an insufficient number of applicants to warrant conducting the
examination, the Board will cancel the examination for that year. Notice
of the cancellation will be mailed to applicants on or before June 15
and the application fee will be refunded. The Board will conduct the
examination the next year following the cancellation of the examination.
(j) Examination results. Results will be released within 90 days
after the examination. Individual results will be forwarded to the
applicants at least 1 week before being publicly released. To protect
the privacy of those taking the examination, individual grades will not
be released over the telephone to anyone. Requests for grades may,
however, be submitted in writing to the Office of Public Assistance,
Governmental Affairs, and Compliance to the attention of the address
stated in the application form.
(k) Failure to appear for examination. Applicants who have failed to
appear for, or postponed taking an examination, a total of three times
without showing good cause will have any subsequently filed application
returned.
(l) Failing or postponing the examination. Applicants who fail the
examination may reapply by submitting a request in writing with an
additional filing fee in the amount set forth in 49 CFR
1002.2(f)(99)(i). Applicants who postpone taking the examination three
times without showing good cause will have their applications returned.
(m) The filing fee in the amount set forth in 49 CFR
1002.2(f)(99)(i) is not refundable.
(n) Any application resubmitted to the Board after being returned
must be accompanied by a filing fee in the amount set forth in 49 CFR
1002.2(f)(99)(i).
(o) Content and grading of examination. A Board staff member is
responsible, under the general supervision of the Vice Chairman, for the
examination of non-attorney applicants, the preparation of examination
questions, and the grading of examinations. The staff member is
appointed by the Chairman, with the approval of the Board. The staff
member must be an attorney and must have at least two years of
experience with the Board.
(p) Applicant's oath. No applicant shall be admitted to practice
before the Board until applicant shall subscribe to an oath or
affirmation that applicant will conduct practice uprightly and according
to the law, as a practitioner before the Board, and that applicant will
support the Constitution of the United States and laws of the United
States and will conform to the rules and regulations of the Board.

[47 FR 49549, Nov. 1, 1982, as amended at 49 FR 38614, Oct. 1, 1984; 52
FR 46483, Dec. 8, 1987; 54 FR 48250, Nov. 22, 1989; 56 FR 1374, Jan. 14,
1991; 64 FR 53267, Oct. 1, 1999; 74 FR 52906, Oct. 15, 2009; 81 FR 8853,
Feb. 23, 2016; 83 FR 15078, Apr. 9, 2018]

Sec. 1103.4 Initial appearances.

Practitioners shall file a declaration that they are authorized to
represent the particular party on whose behalf they appear at the time
of making an initial appearance, in all proceedings. This requirement
can be met by:
(a) Entering the practitioner's name as the representative of an
applicant in the appropriate space on an application form;
(b) Signing any complaint, petition, protest, reply or other
pleading with a designation following the practitioner's signature that
he is the representative of a party;
(c) Entering an appearance at any hearing on the form provided; or
(d) Filing a letter with the Chief, Section of Administration,
Office of Proceedings, Surface Transportation

[[Page 101]]

Board stating that practitioner is authorized to represent a party. The
party represented, their address, and the docket number of the
proceeding must also be identified at the time of the initial
appearance.

[47 FR 49549, Nov. 1, 1982, as amended at 74 FR 52906, Oct. 15, 2009]

Sec. 1103.5 Discipline.

(a) A member of the Board's bar may be subject to suspension,
disbarment, or other disciplinary action if it is shown that the
practitioner:
(1) Has been suspended or disbarred from practice in any court of
record;
(2) Violated any of the Board's rules including the Canons of Ethics
set out in Sec. Sec. 1103.10 through 1103.35; or
(3) Engaged in conduct unbecoming a member of the bar of the Board.
(b) The practitioner will be afforded an opportunity to show why he
should not be suspended, disbarred, or otherwise disciplined. Upon the
practitioner's timely response to the show cause order after any
requested hearing, or upon failure to make a timely response to the show
cause order, the Board shall issue an appropriate decision.

Subpart B_Canons of Ethics

Sec. 1103.10 Introduction.

The following canons of ethics are adopted as a general guide for
those admitted to practice before the Surface Transportation Board. The
practitioners before the Board include (a) lawyers, who have been
regularly admitted to practice law and (b) others who have fulfilled the
requirements set forth in Sec. 1103.3. The former are bound by a broad
code of ethics and unwritten rules of professional conduct which apply
to every activity of a lawyer. The canons do not release the lawyer from
any of the duties or principles of professional conduct by which lawyers
are bound. They apply similarly to all practitioners before the Board,
but do not negate the applicability of other ethical codes. The canons
are organized under three headings, The Practitioner's Duties and
Responsibilities to the Board, The Practitioner's Duties and
Responsibilities to the Client, The Practitioner's Duties and
Responsibilities to Other Litigants, Witnesses and the Public.

The Practitioner's Duties and Responsibilities Toward the Board

Sec. 1103.11 Standards of ethical conduct in courts of the
United States to be observed.

These canons further the purpose of the Board's Rules of Practice
which direct all persons appearing in proceedings before it to conform,
as nearly as possible, to the standards of ethical conduct required of
practice before the courts of the United States. Such standards are
taken as the basis for these specifications and are modified as the
nature of the practice before the Board requires.

Sec. 1103.12 The practitioner's duty to and attitude toward the Board.

(a) It is the duty of the practitioner to maintain a respectful
attitude toward the Board and for the importance of the functions it
administers. In many respects the Board functions as a Court, and
practitioners should regard themselves as officers of that Court and
uphold its honor and dignity.
(b) It is the right and duty of the practitioner to submit
grievances about a member or employee of the Board to the proper
authorities when proper grounds for complaint exists. In such cases,
charges should be encouraged and the person making them should be
protected.
(c) It is the duty of the practitioner to be punctual in attendance,
and to be concise and direct in the trial and disposition of causes.

Sec. 1103.13 Attempts to exert political or personal influence on
the Board are prohibited.

(a) It is unethical for a practitioner to attempt to influence the
judgment of the Board by threats of political or personal reprisal.
(b) Marked attention and unusual hospitality on the part of a
practitioner to a Board Member, administrative law judge, or other
representative of the Board, which is unwarranted by the personal
relationship of the parties, is subject to misconstruction of motive and
should be avoided.

[[Page 102]]

Sec. 1103.14 Private communications with the Board are prohibited.

To the extent that the Board acts in a quasi-judicial capacity, it
is improper for litigants, directly or through any counsel or
representative, to communicate privately with a Board Member,
administrative law judge, or other representative of the Board about a
pending case, or to argue privately the merits thereof in the absence of
the adversaries or without notice to them. Practitioners at all times
shall scrupulously refrain from going beyond ex parte representations
which are clearly proper in view of the administrative work of the Board
in their communication with the Board and its staff.

The Practitioner's Duties and Responsibilities Toward a Client

Sec. 1103.15 The practitioner's duty to clients, generally.

The practitioner shall be respectful of the law and its official
ministers, and shall not be involved in corruption of public officials
or deception of the public. In giving improper service or advice, the
practitioner invites and deserves stern condemnation. The practitioner
shall observe and advise all clients to observe the statutory law to the
best of his knowledge or as interpreted by competent adjudication. The
practitioner owes a general duty to practice candor toward his client
with respect to all aspects to his service to the client.

Sec. 1103.16 Adverse influences and conflicting interests.

(a) At the time of the retainer, the practitioner shall disclose to
the client all circumstances of his relations to the parties, and any
interest in or connection with the case.
(b) It is unethical for a practitioner to represent conflicting
interests, except by express consent of all concerned given after a full
disclosure of the facts. Within the meaning of this section, a
practitioner represents conflicting interest, when on behalf of one
client, it is his duty to contend for that which duty to another client
requires him to oppose.
(c) The obligation to represent the client with undivided fidelity
and not to divulge secrets or confidences forbids also the subsequent
acceptance of retainers or employment from others in matters adversely
affecting any interest of the client with respect to which confidence
has been reposed.

[47 FR 49549, Nov. 1, 1982, as amended at 81 FR 8853, Feb. 23, 2016]

Sec. 1103.17 Joint association of practitioners and conflicts of opinion.

(a) A client's offer of the assistance of an additional practitioner
should not be regarded as evidence of lack of confidence, but the matter
should be left to the determination of the client. A practitioner shall
decline association as colleague if it is objectionable to the
practitioner first retained, but if the client should relieve the
practitioner first retained, another may come into the case.
(b) When practitioners jointly associated in a case cannot agree as
to any matter vital to the interest of the client the conflict of
opinion should be frankly stated to the client for final determination.
The client's decision should be accepted by them unless the nature of
the difference makes it impracticable for the practitioner whose
judgment has been overruled to cooperate effectively. In that event, it
is the practitioner's duty to ask the client to relieve him of his
obligation.
(c) It is the right of any practitioner to give proper advice to
those seeking relief against an unfaithful or neglectful practitioner.
The practitioner against whom the complaint is made should be notified
of such action.

Sec. 1103.18 Withdrawal from employment.

The right of a practitioner to withdraw from employment, once begun,
arises only from good cause. The desire or consent of the client is not
always sufficient cause for withdrawal. The practitioner shall not
abandon the unfinished task to the detriment of the client except for
reasons of honor, or the client's persistence over the practitioner's
remonstrance in presenting frivolous defenses, or the client's
deliberate disregard of an obligation as to fees or expenses. In these
cases, the practitioner may be warranted in withdrawing after due notice
to the client

[[Page 103]]

with time allowed for the employment of another practitioner. Other
reasons for withdrawal might include instances in which a practitioner
discovers that his client has no cause and the client is determined to
continue the cause, or the practitioner's own inability to conduct a
case effectively. Upon withdrawing from a case, the practitioner shall
refund any part of a retainer which clearly has not been earned.

Sec. 1103.19 Advising upon the merits of a client's cause.

A practitioner shall try to obtain full knowledge of his client's
cause before advising thereon. The practitioner shall give a candid
opinion of the merits and probable result of bringing the case or of any
related pending or contemplated litigation. The practitioner shall
beware of bold and confident assurances to clients, especially where
employment may depend upon such assurances. Whenever a fair settlement
can be reached, the client shall be advised to avoid or to end
litigation.

Sec. 1103.20 Practitioner's fees and related practices.

(a) Establishing fees. In establishing fees, a practitioner shall
avoid charges which overestimate the value of his advice and services. A
client's ability to pay cannot justify a charge in excess of the value
of the service although a client's poverty may require a lesser charge
or even no charge at all. Publicly quoted fees should be adhered to when
actual charges are made. Practitioners are bound to charge no more than
the quoted rates for 30 days following the date of their quotations
unless a different period of time for the effectiveness of such rates is
clearly specified when quoted, or unless permission to charge a higher
rate is obtained from the Vice Chairman of the Board.
(b) Compensation, commission, and rebates. A practitioner shall
accept no compensation, commission, rebates, or other advantages from
the parties in a proceeding other than his client without the knowledge
and consent of his client after full disclosure.
(c) Contingent fees. Contingent fees should be only those sanctioned
by law. In no case, except a charity case, should fees be entirely
contingent upon success.
(d) Division of fees. Fees for services should be divided only with
another member of the bar of practitioners and should be based upon a
division of service or responsibility. It is unethical for a
practitioner to retain laymen to solicit his employment in pending or
prospective cases, and to reward them by a share of the fees. Such a
practice cannot be too severely condemned.
(e) Suing clients for fees. Controversies with clients concerning
compensation are to be entered into only insofar as they are compatible
with self-respect and with the right to receive reasonable compensation
for services. Lawsuits against clients should be resorted to only to
prevent injustice, imposition or fraud.
(f) Acquiring interest in litigation. The practitioner shall not
purchase or otherwise acquire any pecuniary interest in the subject
matter of litigation which the practitioner is conducting.
(g) Expenses. A practitioner may not properly agree with a client
that the practitioner shall pay or bear the expenses of litigation. He
may in good faith advance expenses as a matter of convenience but must
do so subject to reimbursement by the client. A practitioner shall bill
and collect from a client, and thereafter retain only such payments and
reimbursements for expenses as have actually been incurred on behalf of
the client.
(h) Witnesses' compensation. Compensation of a witness is not to be
made contingent on the success of a case in which the witness is called.
(i) Dealing with trust property. Money of the client or other trust
property coming into the possession of the practitioner should be
reported promptly, and, except with the client's knowledge and consent,
should not be commingled with the practitioner's private property or be
put to the practitioner's private use.

[47 FR 49549, Nov. 1, 1982, as amended at 81 FR 8853, Feb. 23, 2016]

Sec. 1103.21 How far a practitioner may go in supporting a
client's cause.

A practitioner shall put forth his best effort to maintain and
defend the rights of his client. Fear of disfavor of

[[Page 104]]

the Board or public unpopularity should not cause a practitioner to
refrain from the full discharge of his duty. The client is entitled to
the benefit of any and every remedy and defense authorized by law. The
client may expect his counsel to assert every such remedy or defense.
However, the practitioner shall act within the bounds of the law. A
practitioner shall not violate the law or be involved in any manner of
fraud or chicanery for any client.

Sec. 1103.22 Restraining clients from improprieties.

A practitioner should see that his clients act with the same
restraint that the practitioner himself uses, particularly with
reference to the client's conduct toward the Board, fellow
practitioners, witnesses and other litigants. If a client persists in
improper conduct, the practitioner should terminate their relationship.

Sec. 1103.23 Confidences of a client.

(a) The practitioner's duty to preserve his client's confidence
outlasts the practitioner's employment by the client, and this duty
extends to the practitioner's employees as well. Neither practitioner
nor his employees shall accept employment which involves the disclosure
or use of a client's confidences without knowledge and consent of the
client even though there are other available sources of information. A
practitioner shall not continue employment when he discovers that this
obligation presents a conflict in his duty between the former and the
new client.
(b) If a practitioner is falsely accused by his client, he is not
precluded from disclosing the truth in respect to the false accusation.
The announced intention of a client to commit a crime is not included in
the confidence which a practitioner is bound to respect. The
practitioner may properly make such disclosures to prevent the act or
protect those against whom that is threatened.

The Practitioner's Duties and Responsibilities Regarding Witnesses,
Other Litigants and the Public

Sec. 1103.24 Use of adverse witnesses.

A practitioner shall not be deterred from seeking information from a
witness connected with or reputed to be biased in favor of an adverse
party, if the ascertainment of the truth requires that such a person be
called as a witness in a proceeding.

Sec. 1103.25 Treatment of witnesses, litigants and other counsel.

(a) A practitioner shall always treat adverse witnesses and other
litigants with fairness and due consideration. He should never minister
to the prejudice of a client in a trial or conduct in a cause. The
client has no right to demand that the practitioner representing him
abuse the opposing party or indulge in offensive personal attacks.
(b) A practitioner shall not attempt to obstruct Board
investigations or corruptly to influence witnesses and potential
witnesses during an investigation.
(c) In conducting a case it is improper for a practitioner to allude
to the personal history or the personal peculiarities or idiosyncracies
of practitioners on the other side, or otherwise engage in personal
abuse of other practitioners.

Sec. 1103.26 Discussion of pending litigation in the public press.

Attempts to influence the action and attitude of the members and
administrative law judges of the Board through propaganda or through
colored or distorted articles in the public press, should be avoided.
However, it is not against the public interest or unfair to the Board if
the facts of pending litigation are made known to the public through the
press in a fair and unbiased manner and in dispassionate terms. When the
circumstances of a particular case appear to justify a statement to the
public through the press, it is unethical to make it anonymously.

[[Page 105]]

Sec. 1103.27 Candor and fairness in dealing with other litigants.

(a) The conduct of practitioners before the Board and with other
practitioners should be characterized by candor and fairness. The
practitioner shall observe scrupulously the principles of fair dealing
and just consideration for the rights of others.
(b) It is not candid or fair for a practitioner knowingly to
misstate or misquote the contents of a paper, the testimony of a
witness, the language or the argument of an opposing practitioner, or
the language or effect of a decision or a text book; or, with knowledge
of its invalidity to cite as authority a decision which has been
overruled or otherwise impaired as a precedent or a statute which has
been repealed; or in argument to assert as a fact that which has not
been proved, or to mislead his opponent by concealing or withholding
positions in his opening argument upon which his side then intends to
rely.
(c) It is dishonorable to deal other than candidly with the facts in
taking the statements of witnesses, in drawing affidavits and other
documents, and in the presentation of cases.
(d) A practitioner shall not offer evidence which he knows the Board
should reject, in order to get the same before the Board by argument for
its admissibility, or arguments upon any point not properly calling for
determination. He shall not introduce into an argument remarks or
statements intended to influence the bystanders.
(e) A practitioner shall rely on his judgment concerning matters
incidental to the trial which may, in some cases, affect the proceeding.
For example, a practitioner should not force a matter to trial when
there is affliction or bereavement on the part of the opposing
practitioner if no harm will come from postponing the proceeding.
(f) A practitioner shall not ignore known customs or practice of the
Board, even when the law permits, without giving timely notice to the
opposing practitioner.
(g) Insofar as is possible, important agreements affecting the
rights of the clients should be made in writing. It is, however,
dishonorable to avoid performance of an agreement fairly made only
because it is not made in writing.

Sec. 1103.28 Negotiations with opposing party.

A practitioner shall not in any way communicate upon the subject of
controversy with a party represented by another practitioner except upon
express agreement with the practitioner representing such party. He
shall not negotiate or make compromises with the other party, but shall
deal only with the opposing practitioner. The practitioner shall avoid
everything that may tend to mislead a party not represented by a
practitioner and should not advise that party as to the law.

Sec. 1103.29 Public communication and solicitation.

(a) A practitioner shall not make any public communication or
solicitation for employment containing a false, fraudulent, misleading,
or deceptive statement or claim. This prohibition includes, but is not
limited to:
(1) The use of statements containing a material misrepresentation of
fact or omission of a material fact necessary to keep the statement from
being misleading;
(2) Statements intended or likely to create an unjustifiable
expectation; statements of fee information which are not complete and
accurate;
(3) Statements containing information on past performance or
prediction of future success;
(4) Statements of prior Board employment outside the context of
biographical information; statements containing a testimonial about or
endorsement of a practitioner;
(5) Statements containing an opinion as to the quality of a
practitioner's services, or statements intended or likely to attract
clients by the use of showmanship, puffery, or self-laudation, including
the use of slogans, jingles, or sensational language or format.
(b) A practitioner shall not solicit a potential client who has
given the practitioner adequate notice that he does not want to receive
communications from the practitioner, nor shall a

[[Page 106]]

practitioner make a solicitation which involves the use of undue
influence.
(c) A practitioner shall not solicit a potential client who is
apparently in a physical or mental condition which would make it
unlikely that he could exercise reasonable, considered judgment as to
the selection of a practitioner.
(d) A practitioner shall not pay or otherwise assist any other
person who is not also a practitioner and a member or associate of the
same firm to solicit employment for the practitioner.
(e) If a public communication is to be made through use of radio or
television, it must be prerecorded and approved for broadcast by the
practitioner. A recording of the actual transmission must be retained by
the practitioner for a period of 1 year after the date of the final
transmission.
(f) A paid advertisement must be identified as such unless it is
apparent from the context that it is a paid advertisement.
(g) A practitioner shall not compensate or give anything of value to
a representative of any communication medium in anticipation of or in
return for professional publicity in a news item.

Sec. 1103.30 Acceptance of employment.

(a) The practitioner must decline to conduct a case or to make a
defense when convinced that it is intended merely to harass or to injure
the opposing party, or to work oppression or wrong. Otherwise, it is the
practitioner's right, and having accepted retainer, it becomes the
practitioner's duty, to insist upon the judgment of the Board as to the
merits of the client's claim. The practitioner's acceptance of a case is
equivalent to the assertion that the client's case is proper for
determination.
(b) No practitioner is obliged to act either as adviser or advocate
for every potential client. The practitioner has the right to decline
employment. Every practitioner shall decide what employment he will
accept, what cases he will bring before the Board for complainants, or
contest for defendants or respondents.

Sec. 1103.31 Responsibility for litigation.

The practitioner bears the responsibility for advising as to
questionable transactions, bringing questionable proceedings, or urging
questionable defenses. Client's instructions cannot be used as an excuse
for questionable practices.

Sec. 1103.32 Discovery of imposition and deception and duty to
report corrupt or dishonest conduct.

(a) The practitioner, upon detecting fraud or deception practiced
against the Board or a party in a case, shall make every effort to
rectify the practice by advising his client to forgo any unjustly earned
advantage. If such advice is refused, the practitioner should inform the
injured party or that party's practitioner so that appropriate steps may
be taken.
(b) Practitioners shall expose without fear or favor before the
proper tribunals any corrupt or dishonest conduct and should accept
without hesitation employment against a practitioner who has wronged his
client. The practitioner upon the trial of a case in which perjury has
been committed owes it to the Board and to the public to bring the
matter to the knowledge of the prosecuting authorities.

Sec. 1103.33 Responsibility when proposing a person for admission to
practice before the Board.

The practitioner shall aid in guarding the bar of the Board against
admission of candidates unfit or unqualified because deficient in either
moral character or qualification. A practitioner shall propose no person
for admission to practice before the Board unless from personal
knowledge or after reasonable inquiry he sincerely believes and is able
to vouch that such person possesses the qualifications prescribed in
Sec. 1103.3.

Sec. 1103.34 Intermediaries.

(a) The services of a practitioner should not be controlled or
exploited by any lay agency, personal or corporate, which intervenes
between client and practitioner. The responsibility and qualifications
of the practitioner are individual. The practitioner shall avoid all
relations which direct

[[Page 107]]

the performance of his duties in the interest of such intermediaries.
The practitioner's relationship and responsibility to the client should
be direct.
(b) The practitioner may accept employment from any organization
(such as an association, club or trade organization) authorized by law
to be a party to proceedings before the Board, to render services in
such proceedings in any matter in which the organization, as an entity,
is interested. This employment should only include the rendering of such
services to the members of the organization in respect to the individual
affairs as are consistent with the free and faithful performance of his
duties to the Board.
(c) Nothing in this canon shall be construed as conflicting with
Sec. 1103.20(d).

Sec. 1103.35 Partnership or professional corporation names and titles.

In the formation of a partnership or professional corporation among
practitioners care should be taken to avoid any misleading name or
representation which would create a false impression as to the position
or privileges of a member not duly authorized to practice. No person
should be held as a practitioner who is not duly qualified under Sec.
1103.2 or Sec. 1103.3 of these rules. No person who is not duly
admitted to practice should be held out in a way which will give the
impression that he is so admitted. No false or assumed or trade name
should be used to disguise the practitioner or his partnership or
professional corporation.

PART 1104_FILING WITH THE BOARD-COPIES-VERIFICATION-SERVICE-PLEADINGS,
GENERALLY--Table of Contents

Sec.
1104.1 Address, identification, and electronic filing option.
1104.2 Document specifications.
1104.3 Paper filings, electronic submissions, and copies.
1104.4 Attestation and verification.
1104.5 Affirmation or delegations under penalty of perjury in accordance
with 18 U.S.C. 1621 in lieu of oath.
1104.6 Timely filing required.
1104.7 Computation and extension of time.
1104.8 Objectionable matter.
1104.9 [Reserved]
1104.10 Rejection of a deficient document.
1104.11 Amendments.
1104.12 Service of pleadings, papers, and decisions.
1104.13 Replies and motions.
1104.14 Protective orders to maintain confidentiality.
1104.15 Certification of eligibility for Federal benefits under 21
U.S.C. 862.

Authority: 5.U.S.C. 553 and 559; 18 U.S.C. 1621; and 49 U.S.C. 1321.

Source: 47 FR 49554, Nov. 1, 1982, unless otherwise noted.

Sec. 1104.1 Address, identification, and electronic filing option.

(a) Except as provided in Sec. 1115.7, pleadings should be
addressed to the ``Chief, Section of Administration, Office of
Proceedings, Surface Transportation Board, Washington, DC 20423-0001,''
and should designate the docket number and title of the proceeding, if
known.
(b) The address of the person filing the pleading should be included
on the first page of the pleading.
(c) All envelopes in which a pleading is being submitted should be
marked in the lower left hand corner with the docket number, if known,
(not the full title) and the pleading type.
(d) All multi-volume pleadings must be sequentially numbered on the
cover of each volume to indicate the volume number of the pleading and
the total number of volumes filed (e.g., the first volume in a 4-volume
set should be labeled ``volume 1 of 4,'' the second volume ``volume 2 of
4'' and so forth).
(e) Unless otherwise directed by the Board, persons filing pleadings
and documents with the Board have the option of electronically filing
(e-filing) pleadings and documents instead of filing paper copies.
Details regarding file size limitations, permissible formats, procedures
to be followed, acceptable signature formats, and other pertinent
information are available on the Board's website, www.stb.gov. If the e-
filing option is chosen, then the applicable requirements will be those
specified on the Board's website, and any requirements of this part that
specifically apply to filing of paper copies will not apply to the e-
filed pleadings and documents (these requirements include, but are not
limited to, stapling or binding

[[Page 108]]

specifications, signature ``in ink,'' etc.). Persons are not required to
e-file and may continue to use the Board's processes for filing paper
copies.

[47 FR 49554, Nov. 1, 1982, as amended at 48 FR 34475, July 29, 1983; 53
FR 20854, June 7, 1988; 61 FR 52711, Oct. 8, 1996; 69 FR 18498, Apr. 8,
2004; 74 FR 52906, Oct. 15, 2009; 83 FR 15078, Apr. 9, 2018; 84 FR
12943, Apr. 3, 2019]

Sec. 1104.2 Document specifications.

(a) Documents, except electronic filings, filed with the Board must
be on white paper not larger than 8\1/2\ by 11 inches, including any
tables, charts, or other documents that may be included. Ink must be
dark enough to provide substantial contrast for scanning and
photographic reproduction. Text must be double-spaced (except for
footnotes and long quotations, which may be single-spaced), using type
not smaller than 12 point. Printing may appear only on one side of the
paper for original documents, but copies of filings may be printed on
both sides of the paper.
(b) In order to facilitate automated processing in document sheet
feeders, original documents of more than one page may not be bound in
any permanent form (no metal, plastic, or adhesive staples or binders)
but must be held together with removable metal clips or similar
retainers. Original documents may not include divider tabs, but copies
must if workpapers or expert witness testimony are submitted. All pages
of original documents, and each side of pages that are printed on both
sides, must be paginated continuously, including cover letters and
attachments. Where, as a result of assembly processes, such pagination
is impractical, documents may be numbered within the logical sequences
of volumes or sections that make up the filing and need not be
renumbered to maintain a single numbering sequence throughout the entire
filing.
(c) Some filings or portions of filings will not conform to the
standard paper specifications set forth in paragraph (a) of this section
and may not be scannable. For example, electronic spreadsheets are not
susceptible to scanning, but oversized documents, such as oversized maps
and blueprints, may or may not be scannable. Filings that are not
scannable will be referenced on-line and made available to the public at
the Board's offices. If parties file oversized paper documents, they are
encouraged to file, in addition to the oversized documents,
representations of them that fit on the standard paper, either through
reductions in size that do not undermine legibility, or through division
of the oversized whole into multiple sequential pages. The standard
paper representations must be identified and placed immediately behind
the oversized documents they represent.
(d) Color printing may not be used for textual submissions. Use of
color in filings is limited to images such as graphs, maps and
photographs. To facilitate automated processing of color pages, color
pages may not be inserted among pages containing text, but may be filed
only as appendices or attachments to filings. Also, the original of any
filing that includes color images must bear an obvious notation, on the
cover sheet, that the filing contains color.

[67 FR 5514, Feb. 6, 2002, as amended at 69 FR 18499, Apr. 8, 2004]

Sec. 1104.3 Paper filings, electronic submissions, and copies.

(a) The executed original of a paper pleading or document permitted
or required to be filed under this subchapter, including correspondence,
must be furnished for the use of the Board. Textual submissions of 20 or
more pages must be accompanied by an electronic version. Details
regarding electronic submissions, including evidence, workpapers, and
other pertinent information are available on the Board's website,
www.stb.gov.
(b) The Board may, at its discretion, request paper copies of a
pleading, document, or paper filed or e-filed with the Board. Any such
copies must be clear and legible. Appropriate notes or other indications
shall be used so that matters shown in color on the original, but in
black and white on copies, will be accurately identified on all copies.

[84 FR 12944, Apr. 3, 2019]

Sec. 1104.4 Attestation and verification.

(a) Signature of attorney or practitioner. If a party is represented
by a

[[Page 109]]

practitioner or an attorney, the original of each paper filed should be
signed in ink by the practitioner or attorney, whose address should be
stated. The signature of a practitioner or attorney constitutes a
certification that the representative:
(1) Has read the pleading, document or paper;
(2) Is authorized to file it;
(3) Believes that there is good ground for the document;
(4) Has not interposed the document for delay;

A pleading, document or paper thus signed need not be verified or
accompanied by affidavit unless required elsewhere in these rules.
(b) Signature by one not authorized to represent others before the
Board. The original of each document not signed by a practitioner or
attorney must be:
(1) Signed in ink;
(2) Accompanied by the signer's address; and
(3) Verified, if it contains allegations of fact, under oath by the
person, in whose behalf it is filed, or by a duly authorized officer of
the corporation in whose behalf it is filed. If the pleading is a
complaint, at least one complainant must sign and verify the pleading.

[47 FR 49554, Nov. 1, 1982, as amended at 61 FR 52711, Oct. 8, 1996]

Sec. 1104.5 Affirmation or declarations under penalty of perjury in
accordance with 18 U.S.C. 1621 in lieu of oath.

(a) An affirmation will be accepted in lieu of an oath.
(b) Whenever any rule of this Board requires or permits matter to be
supported, evidenced, established, or proved by sworn declaration,
verification, certificate, statement, oath, or affidavit, in writing of
the person making the same (other than a deposition, oath of office, or
an oath required to be taken before a special official other than a
notary public), such matter may, with like force and effect, be
supported, evidenced, established, or proven by the unsworn declaration,
certificate, verification, or statement, in writing of such person which
is subscribed by him, as true under penalty of perjury and dated, in the
following form:

I ______________, declare (certify, verify, or state) under penalty
of perjury (``under the laws of the United States,'' if executed outside
of the United States) that the foregoing is true and correct. Further, I
certify that I am qualified and authorized to file this (specify type of
document). Executed on (date).

Signature

(c) Knowing and willful misstatements or omissions of material facts
constitute federal criminal violations punishable under 18 U.S.C. 1001.
Additionally, these misstatements are punishable as perjury under 18
U.S.C. 1621.

[47 FR 49554, Nov. 1, 1982, as amended at 61 FR 52711, Oct. 8, 1996; 81
FR 8853, Feb. 23, 2016]

Sec. 1104.6 Timely filing required.

Documents must be received for filing at the Board's offices in
Washington, DC within the time limits set for filing. The date of
receipt at the Board, and not the date of deposit in the mail,
determines the timeliness of filing. However, if a document is mailed by
United States express mail, postmarked at least one day prior to the due
date, it will be accepted as timely. Other express mail, received by the
private express mail carrier at least one day prior to the due date,
also will be accepted as timely filed. The term express mail means that
the carrier or delivery service offers next day delivery to Washington,
DC. If the e-filing option is chosen (for those pleadings and documents
that are appropriate for e-filing, as determined by reference to the
information on the Board's Web site), then the e-filed pleading or
document is timely filed if the e-filing process is completed before
11:59 p.m. eastern time on the due date.

[47 FR 49554, Nov. 1, 1982, as amended at 61 FR 52711, Oct. 8, 1996; 69
FR 18499, Apr. 8, 2004; 81 FR 8853, Feb. 23, 2016]

Sec. 1104.7 Computation and extension of time.

(a) Computation. In computing any period of time, the day of the
act, event, or default upon which the designated period of time begins
to run is not included. The last day of the period is included unless it
is Saturday, Sunday, or a legal holiday in the District

[[Page 110]]

of Columbia, in which event the period runs until the end of the next
day which is not a Saturday, Sunday or holiday. This rule applies to
forward and backward measurement of time.
(b) Extensions. Any time period, except those provided by law or
specified in these rules respecting informal complaints seeking damage,
may be extended by the Board in its discretion, upon request and for
good cause. Requests for extensions must be served on all parties of
record at the same time and by the same means as service is made on the
Board. However, if service is made on the Board in person and personal
service on other parties is not feasible, service on other parties
should be made by first class or express mail. A request for an
extension must be filed not less than 10 days before the due date,
except that in cases seeking expedited relief for service emergencies
under part 1146 of this chapter, a request for an extension must be made
within 24 hours of service of the petition, reply, or other filing or
procedural order of the Board as applicable. Only the original of the
request and certificate of service need be filed with the Board. If
granted, the party making the request should promptly notify all parties
to the proceeding of the extension and so certify to the Board, except
that this notification is not required in rulemaking proceedings.
(c) Exception to time computation rules. See 49 CFR part 1152 for
special abandonment rules.

[47 FR 49554, Nov. 1, 1982, as amended at 61 FR 52711, Oct. 8, 1996; 89
FR 4578, Jan. 24, 2024]

Sec. 1104.8 Objectionable matter.

The Board may order that any redundant, irrelevant, immaterial,
impertinent, or scandalous matter be stricken from any document.

[47 FR 49554, Nov. 1, 1982, as amended at 61 FR 52711, Oct. 8, 1996]

Sec. 1104.9 [Reserved]

Sec. 1104.10 Rejection of a deficient document.

(a) The Board may reject a document, submitted for filing if the
Board finds that the document does not comply with the rules.
(b) The Board may either return the material unfiled or tentatively
accept the material for filing and advise the person tendering it of the
deficiency and require that the deficiency be corrected.

[47 FR 49554, Nov. 1, 1982, as amended at 61 FR 52711, Oct. 8, 1996]

Sec. 1104.11 Amendments.

Leave to amend any document is a matter of the Board's discretion.

[47 FR 49554, Nov. 1, 1982, as amended at 61 FR 52711, Oct. 8, 1996]

Sec. 1104.12 Service of pleadings, papers, and decisions.

(a) Generally. Every document filed with the Board should include a
certificate showing simultaneous service upon all parties to the
proceeding. Service on the parties should be by the same method and
class of service used in serving the Board, with charges, if any,
prepaid. One copy should be served on each party. If service is made on
the Board in person, and personal service on other parties is not
feasible, service should be made by first-class or express mail. If a
document is filed with the Board through the e-filing process, a copy of
the e-filed document should be emailed to other parties if that means of
service is acceptable to those other parties, or a paper copy of the
document should be personally served on the other parties, but if email
is not acceptable to the receiving party and personal service is not
feasible, service of a paper copy should be by first-class or express
mail. When a party is represented by a practitioner or attorney, service
upon the practitioner is deemed to be service upon the party. If a
document is filed with the Board through the e-filing process, a copy of
the e-filed document should be emailed to other parties, or a paper copy
of the document should be personally served on the other parties, but if
neither email nor personal service is feasible, service of a paper copy
should be by first-class or express mail.
(b) Exceptions. Copies of letters to the Board relating to oral
argument under part 1116, and subpoenas under Sec. 1113.2, need not be
served on other parties of the proceeding. Service of comments in

[[Page 111]]

rulemaking proceedings is not required, unless specifically directed by
the Board.
(c) Sample Certificate of Service.

I certify that I have this day served copies of document upon all
parties of record in this proceeding, by (here state the method of
making service which must be consistent with this part).

________________________________________________________________________

Signature Date

(49 U.S.C. 721, 5 U.S.C. 553)

(d) Service by the Board. Service of decisions and other Board
issuances as appropriate generally will be made by electronic means (e-
service), except in the case of paper filers that have not consented to
e-service, in which case service upon that recipient will be made by
first-class mail. Paper filers that include email contact information on
their filing and do not opt out of e-service via written notification
will be deemed to have consented to e-service.

[47 FR 49554, Nov. 1, 1982, as amended at 48 FR 44827, Sept. 30, 1983;
61 FR 52711, Oct. 8, 1996; 69 FR 18499, Apr. 8, 2004; 81 FR 8853, Feb.
23, 2016; 84 FR 12944, Apr. 3, 2019]

Sec. 1104.13 Replies and motions.

(a) Time. A party may file a reply or motion addressed to any
pleading within 20 days after the pleading is filed with the Board,
unless otherwise provided.
(b) Number of copies. The original of a reply or motion should be
accompanied by the same number of copies required to be filed with the
pleading to which the reply or motion is addressed.
(c) Reply to a Reply. A reply to a reply is not permitted.

[47 FR 49554, Nov. 1, 1982, as amended at 61 FR 52711, Oct. 8, 1996]

Sec. 1104.14 Protective orders to maintain confidentiality.

(a) Segregation of confidential material. A party submitting
materials which it believes are entitled to be kept confidential and not
made part of the public docket should submit these materials as a
separate package, clearly marked on the outside ``Confidential materials
subject to a request for a protective order.'' When confidential
documents are filed, redacted versions must also be filed.
(b) Requests for protective orders. A request that materials
submitted to the Board be kept confidential should be submitted as a
separate pleading and clearly headed ``Motion for protective order.''
(c) Requests for protective orders in stand-alone cost and
simplified standards cases. A motion for protective order in stand-alone
cost and simplified standards cases shall specify that evidentiary
submissions will designate confidential material within single braces
(i.e., {X{time} ), highly confidential material within double braces
(i.e., {{Y{time} {time} ), and sensitive security information within
triple braces (i.e., {{{Z{time} {time} {time} ). In stand-alone cost
cases, the motion for protective order shall be filed together with the
notice pursuant to 49 CFR 1111.1.

[48 FR 44827, Sept. 30, 1983, as amended at 61 FR 52711, Oct. 8, 1996;
81 FR 8853, Feb. 23, 2016; 82 FR 57378, Dec. 5, 2017]

Sec. 1104.15 Certification of eligibility for Federal benefits
under 21 U.S.C. 862.

(a) An individual who is applying in his or her name for a
certificate, license or permit to operate as a rail carrier must
complete the certification set forth in paragraph (b) of this section.
This certification is required if the transferee in a finance proceeding
under 49 U.S.C. 11323 and 11324 is an individual. The certification also
is required if an individual applies for authorization to acquire, to
construct, to extend, or to operate a rail line.
(b) Certification:

I ___ (Name) ___, certify under penalty of perjury under the laws of
the United States, that I have not been convicted, after September 1,
1989, of any Federal or State offense involving the distribution or
possession of a controlled substance, or that if I have been so
convicted, I am not ineligible to receive Federal Benefits, either by
court order or by operation of law, pursuant to 21 U.S.C. 862.

[54 FR 48250, Nov. 22, 1989, as amended at 61 FR 52711, Oct. 8, 1996; 64
FR 53268, Oct. 1, 1999; 67 FR 5515, Feb. 6, 2002]

[[Page 112]]

PART 1105_PROCEDURES FOR IMPLEMENTATION OF ENVIRONMENTAL LAWS-
-Table of Contents

Sec.
1105.1 Purpose.
1105.2 Responsibility for administration of these rules.
1105.3 Information and assistance.
1105.4 Definitions.
1105.5 Determinative criteria.
1105.6 Classification of actions.
1105.7 Environmental reports.
1105.8 Historic reports.
1105.9 Coastal Zone Management Act requirements.
1105.10 Board procedures.
1105.11 Transmittal letter for Applicant's Report.
1105.12 Sample newspaper notices for abandonment exemption cases.

Authority: 16 U.S.C. 1456 and 1536; 42 U.S.C. 4332 and 6362(b); 49
U.S.C. 1301 note (1995) (Savings Provisions), 1321(a), 10502, and 10903-
10905; 54 U.S.C. 306108.

Source: 56 FR 36105, July 31, 1991, unless otherwise noted.

Sec. 1105.1 Purpose.

These rules are designed to assure adequate consideration of
environmental and energy factors in the Board's decisionmaking process
pursuant to the National Environmental Policy Act, 42 U.S.C. 4332; the
Energy Policy and Conservation Act, 42 U.S.C. 6362(b); and related laws,
including the National Historic Preservation Act, 16 U.S.C. 470f, the
Coastal Zone Management Act, 16 U.S.C. 1451, and the Endangered Species
Act, 16 U.S.C. 1531.

Sec. 1105.2 Responsibility for administration of these rules.

The Director of the Office of Environmental Analysis is delegated
the authority to sign, on behalf of the Board, memoranda of agreement
entered into pursuant to 36 CFR 800.5(e)(4) regarding historic
preservation matters. The Director of the Office of Environmental
Analysis is responsible for the preparation of documents under these
rules and is delegated the authority to provide interpretations of the
Board's National Environmental Policy Act (NEPA) process, to render
initial decisions on requests for waiver or modification of any of these
rules for individual proceedings, and to recommend rejection of
environmental reports not in compliance with these rules. This delegated
authority shall be used only in a manner consistent with Board policy.
Appeals to the Board will be available as a matter of right.

[81 FR 8853, Feb. 23, 2016]

Sec. 1105.3 Information and assistance.

Information and assistance regarding the rules and the Board's
environmental and historic review process is available by writing or
calling the Office of Environmental Analysis.

[81 FR 8853, Feb. 23, 2016]

Sec. 1105.4 Definitions.

In addition to the definitions contained in the regulations of the
Council on Environmental Quality (40 CFR part 1508), the following
definitions apply to these regulations:
(a) Act means the Interstate Commerce Act, Subtitle IV of Title 49,
U.S. Code, as amended.
(b) Applicant means any person or entity seeking Board action,
whether by application, petition, notice of exemption, or any other
means that initiates a formal Board proceeding.
(c) Board means the Surface Transportation Board.
(d) Environmental Assessment or ``EA'' means a concise public
document for which the Board is responsible that contains sufficient
information for determining whether to prepare an Environmental Impact
Statement or to make a finding of no significant environmental impact.
(e) Environmental documentation means either an Environmental Impact
Statement or an Environmental Assessment.
(f) Environmental Impact Statement or ``EIS'' means the detailed
written statement required by the National Environmental Policy Act, 42
U.S.C. 4332(2)(c), for a major Federal action significantly affecting
the quality of the human environment.
(g) Environmental Report means a document filed by the applicant(s)
that:
(1) Provides notice of the proposed action; and
(2) Evaluates its environmental impacts and any reasonable
alternatives to the action. An environmental report

[[Page 113]]

may be in the form of a proposed draft Environmental Assessment or
proposed draft Environmental Impact Statement.
(h) Filing means any request for STB authority, whether by
application, petition, notice of exemption, or any other means that
initiates a formal Board proceeding.
(i) Office of Environmental Analysis or ``OEA'' means the Office
that prepares the Board's environmental documents and analyses.
(j) Third-Party Consultant means an independent contractor, utilized
by the applicant, who works with OEA's approval and under OEA's
direction to prepare any necessary environmental documentation. The
third party consultant must act on behalf of the Board. The railroad may
participate in the selection process, as well as in the subsequent
preparation of environmental documents. However, to avoid any
impermissible conflict of interest (i.e., essentially any financial or
other interest in the outcome of the railroad-sponsored project), the
railroad may not be responsible for the selection or control of
independent contractors.

[56 FR 36105, July 31, 1991, as amended at 64 FR 53268, Oct. 1, 1999; 81
FR 8853, Feb. 23, 2016]

Sec. 1105.5 Determinative criteria.

(a) In determining whether a ``major Federal action'' (as that term
is defined by the Council on Environmental Quality in 40 CFR 1508.18)
has the potential to affect significantly the quality of the human
environment, the Board is guided by the definition of ``significantly''
at 40 CFR 1508.27.
(b) A finding that a service or transaction is not within the STB's
jurisdiction does not require an environmental analysis under the
National Environmental Policy Act or historic review under the National
Historic Preservation Act.
(c) The environmental laws are not triggered where the STB's action
is nothing more than a ministerial act, as in:
(1) The processing of abandonments proposed under the Northeast Rail
Services Act (45 U.S.C. 744(b)(3));
(2) Statutorily-authorized interim trail use arrangements under 16
U.S.C. 1247(d) [see, 49 CFR 1152.29]; or
(3) Financial assistance arrangements under 49 U.S.C. 10904 (see 49
CFR 1152.27).

Finally, no environmental analysis is necessary for abandonments that
are authorized by a bankruptcy court, or transfers of rail lines under
plans of reorganization, where our function is merely advisory under 11
U.S.C. 1166, 1170, and 1172.

[56 FR 36105, July 31, 1991; 56 FR 49821, Oct. 1, 1991; 81 FR 8853, Feb.
23, 2016]

Sec. 1105.6 Classification of actions.

(a) Environmental Impact Statements will normally be prepared for
rail construction proposals other than those described in paragraph
(b)(1) of this section.
(b) Environmental Assessments will normally be prepared for the
following proposed actions:
(1) Construction of connecting track within existing rail rights-of-
way, or on land owned by the connecting railroads;
(2) Abandonment of a rail line (unless proposed under the Northeast
Rail Services Act or the Bankruptcy Act);
(3) Discontinuance of passenger train service or freight service
(except for discontinuances of freight service under modified
certificates issued under 49 CFR 1150.21 and discontinuances of trackage
rights where the affected line will continue to be operated);
(4) An acquisition, lease or operation under 49 U.S.C. 10901, 10902,
or 10907, or consolidation, merger or acquisition of control under 49
U.S.C. 11323 and 14303, if it will result in either
(i) Operational changes that would exceed any of the thresholds
established in Sec. 1105.7(e) (4) or (5); or
(ii) An action that would normally require environmental
documentation (such as a construction or abandonment);
(5) A rulemaking, policy statement, or legislative proposal that has
the potential for significant environmental impacts; and
(6) Any other proceeding not listed in paragraphs (a) or (c) of this
section.

[[Page 114]]

(c) No environmental documentation will normally be prepared
(although a Historic Report may be required under section 1105.8) for
the following actions:
(1) Any action that does not result in significant changes in
carrier operations (i.e., changes that do not exceed the thresholds
established in section 1105.7(e) (4) or (5)), including (but not limited
to) all of the following actions that meet this criterion:
(i) An acquisition, lease, or operation under 49 U.S.C. 10901,
10902, or 10907, or consolidation, merger, or acquisition of control
under 49 U.S.C. 11323 and 14303 that does not come within subsection
(b)(4) of this section.
(ii) Transactions involving corporate changes (such as a change in
the ownership or the operator, or the issuance of securities or
reorganization) including grants of authority to hold position as an
officer or director;
(iii) Declaratory orders, interpretation or clarification of
operating authority, substitution of an applicant, name changes, and
waiver of lease and interchange regulations;
(iv) Pooling authorizations, approval of rate bureau agreements, and
approval of shipper antitrust immunity;
(v) Determinations of the fact of competition;
(2) Rate, fare, and tariff actions;
(3) Common use of rail terminals and trackage rights;
(4) Discontinuance of rail freight service under a modified
certificate issued pursuant to 49 CFR 1150.21;
(5) Discontinuance of trackage rights where the affected line will
continue to be operated; and
(6) A rulemaking, policy statement, or legislative proposal that has
no potential for significant environmental impacts.
(d) The Board may reclassify or modify these requirements for
individual proceedings. For actions that generally require no
environmental documentation, the Board may decide that a particular
action has the potential for significant environmental impacts and that,
therefore, the applicant should provide an environmental report and
either an EA or an EIS will be prepared. For actions generally requiring
an EA, the Board may prepare a full EIS where the probability of
significant impacts from the particular proposal is high enough to
warrant an EIS. Alternatively, in a rail construction, an applicant can
seek to demonstrate (with supporting information addressing the
pertinent aspects of Sec. 1105.7(e)) that an EA, rather than an EIS,
will be sufficient because the particular proposal is not likely to have
a significant environmental impact. Any request for reclassification
must be in writing and, in a rail construction, should be presented with
the prefiling notice required by Sec. 1105.10(a)(1) (or a request to
waive that prefiling notice period).
(e) The classifications in this section apply without regard to
whether the action is proposed by application, petition, notice of
exemption, or any other means that initiates a formal Board proceeding.

[56 FR 36105, July 31, 1991, as amended at 81 FR 8853, Feb. 23, 2016]

Sec. 1105.7 Environmental reports.

(a) Filing. An applicant for an action identified in Sec. 1105.6
(a) or (b) must submit to the Board (with or prior to its application,
petition or notice of exemption) except as provided in paragraph (b) for
abandonments and discontinuances) an Environmental Report on the
proposed action containing the information set forth in paragraph (e) of
this section. The Environmental Report may be filed with the Board
electronically.
(b) At least 20 days prior to the filing with the Board of a notice
of exemption, petition for exemption, or an application for abandonment
or discontinuance, the applicant must serve copies of the Environmental
Report on:
(1) The State Clearinghouse of each State involved (or other State
equivalent agency if the State has no clearinghouse);
(2) The State Environmental Protection Agency of each State
involved;
(3) The State Coastal Zone Management Agency for any state where the
proposed activity would affect land or water uses within that State's
coastal zone;
(4) The head of each county (or comparable political entity
including any Indian reservation) through which the line goes;

[[Page 115]]

(5) The appropriate regional offices of the Environmental Protection
Agency;
(6) The U.S. Fish and Wildlife Service;
(7) The U.S. Army Corps of Engineers;
(8) The National Park Service;
(9) The Natural Resources Conservation Service;
(10) The National Geodetic Survey (formerly known as the Coast and
Geodetic Survey) as designated agent for the National Geodetic Survey
and the U.S. Geological Survey; and
(11) Any other agencies that have been consulted in preparing the
report.
(c) Certification. In its Environmental Report, the applicant must
certify that it has sent copies of the Environmental Report to the
agencies listed and within the time period specified in paragraph (b) of
this section and that it has consulted with all appropriate agencies in
preparing the report. These consultations should be made far enough in
advance to afford those agencies a reasonable opportunity to provide
meaningful input. Finally, in every abandonment exemption case,
applicant shall certify that it has published in a newspaper of general
circulation in each county through which the line passes a notice that
alerts the public to the proposed abandonment, to available reuse
alternatives, and to how it may participate in the STB proceeding.
(d) Documentation. Any written responses received from agencies that
were contacted in preparing the Environmental Report shall be attached
to the report. Oral responses from such agencies shall be briefly
summarized in the report and the names, titles, and telephone numbers of
the persons contacted shall be supplied. A copy of, or appropriate
citation to, any reference materials relied upon also shall be provided.
(e) Content. The Environmental Report shall include all of the
information specified in this paragraph, except to the extent that
applicant explains why any portion(s) are inapplicable. If an historic
report is required under Sec. 1105.8, the Environmental Report should
also include the Historic Report required by that section.
(1) Proposed action and alternatives. Describe the proposed action,
including commodities transported, the planned disposition (if any) of
any rail line and other structures that may be involved, and any
possible changes in current operations or maintenance practices. Also
describe any reasonable alternatives to the proposed action. Include a
readable, detailed map and drawings clearly delineating the project.
(2) Transportation system. Describe the effects of the proposed
action on regional or local transportation systems and patterns.
Estimate the amount of traffic (passenger or freight) that will be
diverted to other transportation systems or modes as a result of the
proposed action.
(3) Land use. (i) Based on consultation with local and/or regional
planning agencies and/or a review of the official planning documents
prepared by such agencies, state whether the proposed action is
consistent with existing land use plans. Describe any inconsistencies.
(ii) Based on consultation with the U.S. Soil Conservation Service,
state the effect of the proposed action on any prime agricultural land.
(iii) If the action affects land or water uses within a designated
coastal zone, include the coastal zone information required by Sec.
1105.9.
(iv) If the proposed action is an abandonment, state whether or not
the right-of-way is suitable for alternative public use under 49 U.S.C.
10905 and explain why.
(4) Energy. (i) Describe the effect of the proposed action on
transportation of energy resources.
(ii) Describe the effect of the proposed action on recyclable
commodities.
(iii) State whether the proposed action will result in an increase
or decrease in overall energy efficiency and explain why.
(iv) If the proposed action will cause diversions from rail to motor
carriage of more than:
(A) 1,000 rail carloads a year; or
(B) An average of 50 rail carloads per mile per year for any part of
the affected line, quantify the resulting net change in energy
consumption and show the data and methodology used to arrive at the
figure given. To minimize the production of repetitive data, the

[[Page 116]]

information on overall energy efficiency in Sec. 1105.7(e)(4)(iii) need
not be supplied if the more detailed information in Sec.
1105.7(e)(4)(iv) is required.
(5) Air. (i) If the proposed action will result in either:
(A) An increase in rail traffic of at least 100 percent (measured in
gross ton miles annually) or an increase of at least eight trains a day
on any segment of rail line affected by the proposal, or
(B) An increase in rail yard activity of at least 100 percent
(measured by carload activity), or
(C) An average increase in truck traffic of more than 10 percent of
the average daily traffic or 50 vehicles a day on any affected road
segment, quantify the anticipated effect on air emissions. For a
proposal under 49 U.S.C. 10901 (or 10502) to construct a new line or
reinstitute service over a previously abandoned line, only the eight
train a day provision in subsection (5)(i)(A) will apply.
(ii) If the proposed action affects a class I or nonattainment area
under the Clean Air Act, and will result in either:
(A) An increase in rail traffic of at least 50 percent (measured in
gross ton miles annually) or an increase of at least three trains a day
on any segment of rail line,
(B) An increase in rail yard activity of at least 20 percent
(measured by carload activity), or
(C) An average increase in truck traffic of more than 10 percent of
the average daily traffic or 50 vehicles a day on a given road segment,
then state whether any expected increased emissions are within the
parameters established by the State Implementation Plan. However, for a
rail construction under 49 U.S.C. 10901 (or 49 U.S.C. 10502), or a case
involving the reinstitution of service over a previously abandoned line,
only the three train a day threshold in this item shall apply.
(iii) If transportation of ozone depleting materials (such as
nitrogen oxide and freon) is contemplated, identify: the materials and
quantity; the frequency of service; safety practices (including any
speed restrictions); the applicant's safety record (to the extent
available) on derailments, accidents and spills; contingency plans to
deal with accidental spills; and the likelihood of an accidental release
of ozone depleting materials in the event of a collision or derailment.
(6) Noise. If any of the thresholds identified in item (5)(i) of
this section are surpassed, state whether the proposed action will
cause:
(i) An incremental increase in noise levels of three decibels Ldn or
more; or
(ii) An increase to a noise level of 65 decibels Ldn or greater. If
so, identify sensitive receptors (e.g., schools, libraries, hospitals,
residences, retirement communities, and nursing homes) in the project
area, and quantify the noise increase for these receptors if the
thresholds are surpassed.
(7) Safety. (i) Describe any effects of the proposed action on
public health and safety (including vehicle delay time at railroad grade
crossings).
(ii) If hazardous materials are expected to be transported,
identify: the materials and quantity; the frequency of service; whether
chemicals are being transported that, if mixed, could react to form more
hazardous compounds; safety practices (including any speed
restrictions); the applicant's safety record (to the extent available)
on derailments, accidents and hazardous spills; the contingency plans to
deal with accidental spills; and the likelihood of an accidental release
of hazardous materials.
(iii) If there are any known hazardous waste sites or sites where
there have been known hazardous materials spills on the right-of-way,
identify the location of those sites and the types of hazardous
materials involved.
(8) Biological resources. (i) Based on consultation with the U.S.
Fish and Wildlife Service, state whether the proposed action is likely
to adversely affect endangered or threatened species or areas designated
as a critical habitat, and if so, describe the effects.
(ii) State whether wildlife sanctuaries or refuges, National or
State parks or forests will be affected, and describe any effects.
(9) Water. (i) Based on consultation with State water quality
officials, state whether the proposed action is consistent with
applicable Federal, State or local water quality standards. Describe any
inconsistencies.

[[Page 117]]

(ii) Based on consultation with the U.S. Army Corps of Engineers,
state whether permits under section 404 of the Clean Water Act (33
U.S.C. 1344) are required for the proposed action and whether any
designated wetlands or 100-year flood plains will be affected. Describe
the effects.
(iii) State whether permits under section 402 of the Clean Water Act
(33 U.S.C. 1342) are required for the proposed action. (Applicants
should contact the U.S. Environmental Protection Agency or the state
environmental protection or equivalent agency if they are unsure whether
such permits are required.)
(10) Proposed Mitigation. Describe any actions that are proposed to
mitigate adverse environmental impacts, indicating why the proposed
mitigation is appropriate.
(11) Additional Information for Rail Constructions. The following
additional information should be included for rail construction
proposals (including connecting track construction):
(i) Describe the proposed route(s) by State, county, and
subdivision, including a plan view, at a scale not to exceed 1:24,000
(7\1/2\ minute U.S.G.S. quadrangle map), clearly showing the
relationship to the existing transportation network (including the
location of all highway and road crossings) and the right-of-way
according to ownership and land use requirements.
(ii) Describe any alternative routes considered, and a no-build
alternative (or why this would not be applicable), and explain why they
were not selected.
(iii) Describe the construction plans, including the effect on the
human environment, labor force requirements, the location of borrow
pits, if any, and earthwork estimates.
(iv) Describe in detail the rail operations to be conducted upon the
line, including estimates of freight (carloads and tonnage) to be
transported, the anticipated daily and annual number of train movements,
number of cars per train, types of cars, motive power requirements,
proposed speeds, labor force, and proposed maintenance-of-way practices.
(v) Describe the effects, including indirect or down-line impacts,
of the new or diverted traffic over the line if the thresholds governing
energy, noise and air impacts in Sec. 1105.7(e)(4), (5), or (6) are
met.
(vi) Describe the effects, including impacts on essential public
services (e.g., fire, police, ambulance, neighborhood schools), public
roads, and adjoining properties, in communities to be traversed by the
line.
(vii) Discuss societal impacts, including expected change in
employment during and after construction.
(f) Additional information. The Board may require applicants to
submit additional information regarding the environmental or energy
effects of the proposed action.
(g) Waivers. The Board may waive or modify, in whole or in part, the
provisions of this section where a railroad applicant shows that the
information requested is not necessary for the Board to evaluate the
environmental impacts of the proposed action.

[56 FR 36105, July 31, 1991; 56 FR 49821, Oct. 1, 1991, as amended at 58
FR 44619, Aug. 24, 1993; 60 FR 32277, June 21, 1995; 61 FR 67883, Dec.
24, 1996; 64 FR 53268, Oct. 1, 1999; 69 FR 58366, Sept. 30, 2004; 81 FR
8854, Feb. 23, 2016; 83 FR 15078, Apr. 9, 2018; 83 FR 17300, Apr. 19,
2018]

Sec. 1105.8 Historic Reports.

(a) Filing. An applicant proposing an action identified in Sec.
1105.6 (a) or (b), or an action in Sec. 1105.6(c) that will result in
the lease, transfer, or sale of a railroad's line, sites or structures,
must submit (with its application, petition or notice) the Historic
Report described in paragraph (d) of this section, unless excepted under
paragraph (b) of this section. This report should be combined with the
Environmental Report where one is required. The purpose of the Historic
Report is to provide the Board with sufficient information to conduct
the consultation process required by the National Historic Preservation
Act. The Historic Report may be filed with the Board electronically.
(b) Exceptions. The following proposals do not require an historic
report:
(1) A sale, lease or transfer of a rail line for the purpose of
continued rail operations where further STB approval is required to
abandon any service and there are no plans to dispose of or alter

[[Page 118]]

properties subject to STB jurisdiction that are 50 years old or older.
(2) A sale, lease, or transfer of property between corporate
affiliates where there will be no significant change in operations.
(3) Trackage rights, common use of rail terminals, common control
through stock ownership or similar action which will not substantially
change the level of maintenance of railroad property.
(4) A rulemaking, policy statement, petition for declaratory order,
petition for waiver of procedural requirements, or proceeding involving
transportation rates or classifications.
(c) Distribution. The applicant must send the Historic Report to the
appropriate State Historic Preservation Officer(s), preferably at least
60 days in advance of filing the application, petition, or notice, but
not later than 20 days prior to filing with the Board.
(d) Content. The Historic Report should contain the information
required by Sec. 1105.7(e)(1) and the following additional historic
information:
(1) A U.S.G.S. topographic map (or an alternate map drawn to scale
and sufficiently detailed to show buildings and other structures in the
vicinity of the proposed action) showing the location of the proposed
action, and the locations and approximate dimensions of railroad
structures that are 50 years old or older and are part of the proposed
action;
(2) A written description of the right-of-way (including approximate
widths, to the extent known), and the topography and urban and/or rural
characteristics of the surrounding area;
(3) Good quality photographs (actual photographic prints, not
photocopies) of railroad structures on the property that are 50 years
old or older and of the immediately surrounding area;
(4) The date(s) of construction of the structure(s), and the date(s)
and extent of any major alterations, to the extent such information is
known;
(5) A brief narrative history of carrier operations in the area, and
an explanation of what, if any, changes are contemplated as a result of
the proposed action;
(6) A brief summary of documents in the carrier's possession, such
as engineering drawings, that might be useful in documenting a structure
that is found to be historic;
(7) An opinion (based on readily available information in the
railroad's possession) as to whether the site and/or structures meet the
criteria for listing on the National Register of Historic Places (36 CFR
60.4), and whether there is a likelihood of archeological resources or
any other previously unknown historic properties in the project area,
and the basis for these opinions (including any consultations with the
State Historic Preservation Office, local historical societies or
universities);
(8) A description (based on readily available information in the
railroad's possession) of any known prior subsurface ground disturbance
or fill, environmental conditions (naturally occurring or manmade) that
might affect the archeological recovery of resources (such as swampy
conditions or the presence of toxic wastes), and the surrounding
terrain.
(9) Within 30 days of receipt of the historic report, the State
Historic Preservation Officer may request the following additional
information regarding specified nonrailroad owned properties or groups
of properties immediately adjacent to the railroad right-of-way:
photographs of specified properties that can be readily seen from the
railroad right-of-way (or other public rights-of-way adjacent to the
property) and a written description of any previously discovered
archeological sites, identifying the location and type of the site
(i.e., prehistoric or native American).
(e) Any of these requirements may be waived or modified when the
information is not necessary to determine the presence of historic
properties and the effect of the proposed action on them.
(f) Historic preservation conditions imposed by the Board in rail
abandonment cases generally will not extend beyond the 330-day statutory
time period in 49 U.S.C. 10904 for abandonment proceedings.

[56 FR 36105, July 31, 1991, as amended at 61 FR 67883, Dec. 24, 1996;
81 FR 8854, Feb. 23, 2016]

[[Page 119]]

Sec. 1105.9 Coastal Zone Management Act requirements.

(a) If the proposed action affects land or water uses within a State
coastal zone designated pursuant to the Coastal Zone Management Act (16
U.S.C. 1451 et seq.) applicant must comply with the following
procedures:
(1) If the proposed action is listed as subject to review in the
State's coastal zone management plan, applicant (with, or prior to its
filing) must certify (pursuant to 15 CFR 930.57 and 930.58) that the
proposed action is consistent with the coastal zone management plan.
(2) If the activity is not listed, applicant (with, or prior to its
filing) must certify that actual notice of the proposal was given to the
State coastal zone manager at least 40 days before the effective date of
the requested action.
(b) If there is consistency review under 15 CFR 930.54, the Board
and the applicant will comply with the consistency certification
procedures of 15 CFR 930. Also, the Board will withhold a decision, stay
the effective date of a decision, or impose a condition delaying
consummation of the action, until the applicant has submitted a
consistency certification and either the state has concurred in the
consistency certification, or an appeal to the Secretary of Commerce
(under 15 CFR 930.64(e)) is successful.

Sec. 1105.10 Board procedures.

(a) Environmental Impact Statements--(1) Prefiling Notice. Where an
environmental impact statement is required or contemplated, the
prospective applicant must provide the Office of Environmental Analysis
(OEA) with written notice of its forthcoming proposal at least 6 months
prior to filing its application.
(2) Notice and scope of EIS. When an Environmental Impact Statement
is prepared for a proposed action, the Board will publish in the Federal
Register a notice of its intent to prepare an EIS, with a description of
the proposed action and a request for written comments on the scope of
the EIS. Where appropriate, the scoping process may include a meeting
open to interested parties and the public. After considering the
comments, the Board will publish a notice of the final scope of the EIS.
If the Environmental Impact Statement is to be prepared in cooperation
with other agencies, this notice will also indicate which agencies will
be responsible for the various parts of the Statement.
(3) Notice of availability. The Board will serve copies of both the
draft Environmental Impact Statement (or an appropriate summary) and the
full final Environmental Impact Statement (or an appropriate summary) on
all parties to the proceeding and on appropriate Federal, State, and
local agencies. A notice that these documents are available to the
public will be published (normally by the Environmental Protection
Agency) in the Federal Register. (Interested persons may obtain copies
of the documents by contacting OEA.)
(4) Comments. The notice of availability of the draft Environmental
Impact Statement will establish the time for submitting written
comments, which will normally be 45 days following service of the
document. When the Board decides to hold an oral hearing on the merits
of a proposal, the draft Environmental Impact Statement will be made
available to the public in advance, normally at least 15 days prior to
the portion of the hearing relating to the environmental issues. The
draft EIS will discuss relevant environmental and historic preservation
issues. The final Environmental Impact Statement will discuss the
comments received and any changes made in response to them.
(5) Supplements. An Environmental Impact Statement may be
supplemented where necessary and appropriate to address substantial
changes in the proposed action or significant new and relevant
circumstances or information. If so, the notice and comment procedures
outlined above will be followed to the extent practical.
(b) Environmental Assessments. In preparing an Environmental
Assessment, OEA will verify and independently analyze the Environmental
Report and/or Historic Report and related material submitted by an
applicant pursuant to

[[Page 120]]

sections 1105.7 and 1105.8. The Environmental Assessment will discuss
relevant environmental and historic preservation issues. OEA will serve
copies of the Environmental Assessment on all parties to the proceeding
and appropriate federal, state, and local agencies, and will announce
its availability to the public through a notice in the Federal Register.
In the case of abandonment applications processed under 49 U.S.C. 10903,
the availability of the Environmental Assessment must be announced in
the applicant's Notice of Intent filed under 49 CFR 1152.21. The
deadline for submission of comments on the Environmental Assessment will
generally be within 30 days of its service (15 days in the case of a
notice of abandonment under 49 CFR 1152.50). The comments received will
be addressed in the Board's decision. A supplemental Environmental
Assessment may be issued where appropriate.
(c) Waivers. (1) The provisions of paragraphs (a)(1) or (a)(4) of
this section or any STB-established time frames in paragraph (b) of this
section may be waived or modified where appropriate.
(2) Requests for waiver of Sec. 1105.10(a)(1) must describe as
completely as possible the anticipated environmental effects of the
proposed action, and the timing of the proposed action, and show that
all or part of the six month lead period is not appropriate.
(d) Third-Party Consultants. Applicants may utilize independent
third-party consultants to prepare any necessary environmental
documentation, if approved by OEA. The environmental reporting
requirements that would otherwise apply will be waived if a railroad
hires a consultant, OEA approves the scope of the consultant's work, and
the consultant works under OEA's supervision. In such a case, the
consultant acts on behalf of the Board, working under OEA's direction to
collect the needed environmental information and compile it into a draft
EA or draft EIS, which is then submitted to OEA for its review,
verification, and approval. We encourage the use of third-party
consultants.
(e) Service of Environmental Pleadings. Agencies and interested
parties sending material on environmental and historic preservation
issues directly to the Board should send copies to the applicant. Copies
of Board communications to third-parties involving environmental and
historic preservation issues also will be sent to the applicant where
appropriate.
(f) Consideration in decisionmaking. The environmental documentation
(generally an EA or an EIS) and the comments and responses thereto
concerning environmental, historic preservation, Coastal Zone Management
Act, and endangered species issues will be part of the record considered
by the Board in the proceeding involved. The Board will decide what, if
any, environmental or historic preservation conditions to impose upon
the authority it issues based on the environmental record and its
substantive responsibilities under the Interstate Commerce Act. The
Board will withhold a decision, stay the effective date of an exemption,
or impose appropriate conditions upon any authority granted, when an
environmental or historic preservation issue has not yet been resolved.
(g) Finding of No Significant Impact. In all exemption cases, if no
environmental or historic preservation issues are raised by any party or
identified by OEA in its independent investigation, the Board will issue
a separate decision making a Finding of No Significant Impact
(``FONSI'') to show that it has formally considered the environmental
record.

[56 FR 36105, July 31, 1991, as amended at 56 FR 49821, Oct. 1, 1991;64
FR 53268, Oct. 1, 1999; 81 FR 8854, Feb. 23, 2016; 83 FR 15078, Apr. 9,
2018]

Sec. 1105.11 Transmittal letter for Applicant's Report.

A carrier shall send a copy of its Environmental and/or Historic
Report to the agencies identified in section 1105.7(b) and/or the
appropriate State Historic Preservation Officer(s) and certify to the
Board that it has done this. The form letter contained in the Appendix
to this section should be used in transmitting the Environmental and/or
Historic Reports.

[[Page 121]]

Appendix to Sec. 1105.11--Transmittal Letter for Applicant's Report

(Carrier Letterhead)
(Addresses)
Re: (Brief description of proposed action with STB docket number, if
available)
(Date)

On (date), we are (or expect to be) filing with the Surface
Transportation Board a (type of proceeding) seeking authority to ( )
located in (state) (city or town) and (mileposts, if applicable).
Attached is an Environmental Report (and/or Historic Report) describing
the proposed action and any expected environmental (and/or historic)
effects, as well as a map of the affected area.
We are providing this report so that you may review the information
that will form the basis for the STB's independent environmental
analysis of this proceeding. If any of the information is misleading or
incorrect, if you believe that pertinent information is missing, or if
you have any questions about the Board's environmental review process,
please contact the Office of Environmental Analysis (OEA), Surface
Transportation Board, Washington, DC, telephone [INSERT TELEPHONE
NUMBER] and refer to the above Docket No. (if available). Because the
applicable statutes and regulations impose stringent deadlines for
processing this action, your written comments to OEA (with a copy to our
representative) would be appreciated within 3 weeks.
Your comments will be considered by the Board in evaluating the
environmental and/or historic preservation impacts of the contemplated
action. If there are any questions concerning this proposal, please
contact our representative directly. Our representative in this matter
is (name) who may be contacted by telephone at (telephone number) or by
mail at (address).
(Complimentary close)
(Name and title of author of letter)

[56 FR 36105, July 31, 1991, as amended at 58 FR 44619, Aug. 24, 1993;
64 FR 53268, Oct. 1, 1999; 81 FR 8854, Feb. 23, 2016; 83 FR 15078, Apr.
9, 2018]

Sec. 1105.12 Sample newspaper notices for abandonment exemption cases.

In every abandonment exemption case, the applicant shall publish a
notice in a newspaper of general circulation in each county in which the
line is located and certify to the Board that it has done this by the
date its notice of (or petition for) exemption is filed. The notice
shall alert the public to the proposed abandonment, to available reuse
alternatives, such as trail use and public use, and to how it may
participate in a Board proceeding. Sample newspaper notices are provided
in the Appendix to this section for guidance to the railroads.

Appendix to Sec. 1105.12--Sample Newspaper Notices

Sample Local Newspaper Notice for Out-Of-Service Abandonment Exemptions

Notice of Intent To Abandon or To Discontinue Rail Service

(Name of railroad) gives notice that on or about (insert date notice
of exemption will be filed with the Surface Transportation Board), it
intends to file with the Surface Transportation Board, Washington, DC, a
notice of exemption under 49 CFR 1152 Subpart F--Exempt Abandonments
permitting the (abandonment of or discontinuance of service on) a__mile
line of railroad between railroad milepost __, near (station name),
which traverses through United States Postal Service ZIP Codes (ZIP
Codes) and railroad milepost __, near (station name) which traverses
through United States Postal Service ZIP Codes (ZIP Codes)
in__County(ies), (State). The proceeding will be docketed as No.
AB__(Sub-No.__X).
The Board's Office of Environmental Analysis (OEA)will generally
prepare an Environmental Assessment (EA), which will normally be
available 25 days after the filing of the notice of exemption. Comments
on environmental and energy matters should be filed no later than 15
days after the EA becomes available to the public and will be addressed
in a Board decision. Interested persons may obtain a copy of the EA or
make inquiries regarding environmental matters by writing to the Office
of Environmental Analysis (OEA), Surface Transportation Board,
Washington, DC or by calling that office at [INSERT TELEPHONE NUMBER].
Appropriate offers of financial assistance to continue rail service
can be filed with the Board. Requests for environmental conditions,
public use conditions, or rail banking/trails use also can be filed with
the Board. An original and 10 copies of any pleading that raises matters
other than environmental issues (such as trails use, public use, and
offers of financial assistance) must be filed directly with the Board's
Office of Proceedings, Washington, DC [See 49 CFR 1104.1(a) and
1104.3(a)], and one copy must be served on applicants' representative
[See 49 CFR 1104.12(a)]. Questions regarding offers of financial
assistance, public use or trails use may be directed to the Board's
Office of Public Assistance, Governmental Affairs, and Compliance at
[INSERT TELEPHONE NUMBER]. Copies of any comments or requests for
conditions should be served on the applicant's representative: (Name,
address and phone number).

[[Page 122]]

Sample Local Newspaper Notice for Petitions for Abandonment Exemptions

Notice of Intent To Abandon or To Discontinue Rail Service

(Name of railroad) gives notice that on or about (insert date
petition for abandonment exemption will be filed with the Surface
Transportation Board) it intends to file with the Surface Transportation
Board, Washington, DC, a petition for exemption under 49 U.S.C. 10502
from the prior approval requirements of 49 U.S.C. 10903, et seq.,
permitting the (abandonment of or discontinuance of service on) a__mile
line of railroad between railroad milepost___, near (station name) which
traverses through United States Postal Service ZIP Codes (ZIP Codes),
and railroad milepost_, near (station name) which traverses through
United States Postal Service ZIP Codes (ZIP Codes) in__County(ies),
(State). The proceeding has been docketed as No. AB__(Sub-No.__X).
The Board's Office of Environmental Analysis (OEA) will generally
prepare an Environmental Assessment (EA), which will normally be
available 60 days after the filing of the petition for abandonment
exemption. Comments on environmental and energy matters should be filed
no later than 30 days after the EA becomes available to the public and
will be addressed in a Board decision. Interested persons may obtain a
copy of the EA or make inquiries regarding environmental matters by
writing to OEA, Surface Transportation Board, Washington, DC or by
calling OEA at [INSERT TELEPHONE NUMBER].
Appropriate offers of financial assistance to continue rail service
can be filed with the Board. Requests for environmental conditions,
public use conditions, or rail banking/trails use also can be filed with
the Board. An original and 10 copies of any pleading that raises matters
other than environmental issues (such as trails use, public use, and
offers of financial assistance) must be filed directly with the Board's
Office of Proceedings, Washington, DC [See 49 CFR 1104.1(a) and
1104.3(a)], and one copy must be served on applicants' representative
[See 49 CFR 1104.12(a)]. Questions regarding offers of financial
assistance, public use or trails use may be directed to the Board's
Office of Public Assistance, Governmental Affairs, and Compliance at
[INSERT TELEPHONE NUMBER]. Copies of any comments or requests for
conditions should be served on the applicant's representative (name and
address).

[56 FR 36105, July 31, 1991, as amended at 56 FR 49821, Oct. 1, 1991; 58
FR 44619, Aug. 24, 1993; 61 FR 67883, Dec. 24, 1996; 64 FR 53268, Oct.
1, 1999; 69 FR 58366, Sept. 30, 2004; 74 FR 52906, Oct. 15, 2009; 81 FR
8854, Feb. 23, 2016; 83 FR 15078, Apr. 9, 2018]

PART 1106_PROCEDURES FOR SURFACE TRANSPORTATION BOARD CONSIDERATION
OF SAFETY INTEGRATION PLANS IN CASES INVOLVING RAILROAD CONSOLIDATIONS,
MERGERS, AND ACQUISITIONS OF CONTROL--Table of Contents

Sec.
1106.1 Purpose.
1106.2 Definitions.
1106.3 Actions for which Safety Integration Plan is Required.
1106.4 The Safety Integration Plan Process.
1106.5 Waiver.
1106.6 Reservation of jurisdiction.

Authority: 5 U.S.C. 553; 5 U.S.C. 559; 49 U.S.C. 1321; 49 U.S.C.
10101; 49 U.S.C. 11323-11325; 42 U.S.C. 4332.

Source: 67 FR 11607, Mar. 15, 2002, unless otherwise noted.

Sec. 1106.1 Purpose.

This part is designed to ensure adequate and coordinated
consideration of safety integration issues, by both the Board and the
Federal Railroad Administration, the agency within the Department of
Transportation responsible for the enforcement of railroad safety, in
the implementation of rail transactions subject to the Board's
jurisdiction. It establishes the procedures by which the Board will
consider safety integration plans in connection with its approval and
authorization of transactions for which the Board has concluded such
consideration is required.

Sec. 1106.2 Definitions.

The following definitions apply to this part:
Act means the ICC Termination Act of 1995, Pub. L. 104-88, 109 Stat.
803 (1995).
Amalgamation of operations, as defined by the Federal Railroad
Administration at 49 CFR 244.9, means the migration, combination, or
unification of one set of railroad operations with another set of
railroad operations, including, but not limited to, the allocation of
resources affecting railroad operations (e.g., changes in personnel,
track, bridges, or communication or signal systems; or use or deployment
of maintenance-of-way equipment, locomotives, or freight or passenger
cars).

[[Page 123]]

Applicant means a Class I railroad or a Class II railroad engaging
in a transaction subject to this part.
Board means the Surface Transportation Board.
Class I or Class II railroad has the meaning assigned by the Board's
regulations (49 CFR part 1201; General Instructions 1-1), as those
regulations may be revised by the Board (including modifications in
class thresholds based on the revenue deflator formula) from time to
time.
Environmental documentation means either an Environmental Assessment
or an Environmental Impact Statement prepared in accordance with the
National Environmental Policy Act and Board's environmental rules at 49
CFR part 1105.
Federal Railroad Administration (``FRA'') means the agency within
the Department of Transportation responsible for railroad safety.
Office of Environmental Analysis (``OEA'') means the Office that
prepares the Board's environmental documents and analyses.
Safety Integration Plan (``SIP'') means a comprehensive written
plan, prepared in accordance with FRA guidelines or regulations,
explaining the process by which Applicants intend to integrate the
operation of the properties involved in a manner that would maintain
safety at every step of the integration process, in the event the Board
approves the transaction that requires a SIP.
Transaction means an application by a Class I railroad that proposes
to consolidate with, merge with, or acquire control under 49 U.S.C.
11323(a) of another Class I railroad, or with a Class II railroad where
there is a proposed amalgamation of operations, as defined by FRA's
regulations at 49 CFR 244.9. ``Transaction'' also includes a proceeding
other than those specified above if the Board concludes that a SIP is
necessary in its proper consideration of the application or other
request for authority.

[67 FR 11607, Mar. 15, 2002, as amended at 83 FR 15078, Apr. 9, 2018]

Sec. 1106.3 Actions for which Safety Integration Plan is required.

A SIP shall be filed by any applicant requesting authority to
undertake a transaction as defined under Sec. 1106.2 of this part.

Sec. 1106.4 The Safety Integration Plan process.

(a) Each applicant in a transaction subject to this part shall file
a proposed SIP in accordance with the informational requirements
prescribed at 49 CFR part 244, or other FRA guidelines or requirements
regarding the contents of a SIP, with OEA and FRA no later than 60 days
from the date the application is filed with the Board.
(b) The proposed SIP shall be made part of the environmental record
in the Board proceeding and dealt with in the ongoing environmental
review process under 49 CFR part 1105. The procedures governing the
process shall be as follows:
(1) In accordance with 49 CFR 244.17, FRA will provide its findings
and conclusions on the adequacy of the proposed SIP (i.e., assess
whether the proposed SIP establishes a process that provides a
reasonable assurance of safety in executing the proposed transaction) to
OEA at a date sufficiently in advance of the Board's issuance of its
draft environmental documentation in the case to permit incorporation in
the draft environmental document.
(2) The draft environmental documentation shall incorporate the
proposed SIP, any revisions or modifications to it based on further
consultations with FRA, and FRA's written comments regarding the SIP.
The public may review and comment on the draft environmental
documentation within the time limits prescribed by OEA.
(3) OEA will independently review each proposed SIP. In its final
environmental documentation, OEA will address written comments on the
proposed SIP received during the time established for submitting
comments on the draft environmental documentation. The Board then will
consider the full environmental record, including the information
concerning the SIP, in arriving at its decision in the case.

[[Page 124]]

(4) If the Board approves the transaction and adopts the SIP, it
will require compliance with the SIP as a condition to its approval.
Each applicant involved in the transaction then shall coordinate with
FRA in implementing the approved SIP, including any amendments thereto.
FRA has provided in its rules at 49 CFR 244.17(g) for submitting
information to the Board during implementation of an approved
transaction that will assist the Board in exercising its continuing
jurisdiction over the transaction. FRA also has agreed to advise the
Board when, in its view, the integration of the applicants' operations
has been safely completed.
(c) If a SIP is required in transactions that would not be subject
to environmental review under the Board's environmental rules at 49 CFR
part 1105, the Board will develop appropriate case-specific SIP
procedures based on the facts and circumstances presented.

[67 FR 11607, Mar. 15, 2002, as amended at 83 FR 15078, Apr. 9, 2018]

Sec. 1106.5 Waiver.

The SIP requirements established by this part may be waived or
modified by the Board where a railroad shows that relief is warranted or
appropriate.

Sec. 1106.6 Reservation of Jurisdiction.

The Board reserves the right to require a SIP in cases other than
those enumerated in this part, or to adopt modified SIP requirements in
individual cases, if it concludes that doing so is necessary in its
proper consideration of the application or other request for authority.

PART 1107 [RESERVED]

PART 1108_ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY
JURISDICTION OF THE SURFACE TRANSPORTATION BOARD--Table of Contents

Subpart A_General Arbitration Procedures

Sec.
1108.1 Definitions.
1108.2 Statement of purpose, organization, and jurisdiction.
1108.3 Participation in the Board's arbitration program.
1108.4 Use of arbitration.
1108.5 Arbitration commencement procedures.
1108.6 Arbitrators.
1108.7 Arbitration procedures.
1108.8 Relief.
1108.9 Decisions.
1108.10 Precedent.
1108.11 Enforcement and appeals.
1108.12 Fees and costs.
1108.13 Additional parties per side.

Subpart B_Voluntary Program for Arbitration of Small Freight Rail Rate
Disputes

1108.21 Definitions.
1108.22 Statement of purpose, organization, and jurisdiction.
1108.23 Participation in the Small Rate Case Arbitration Program.
1108.24 Use of the Small Rate Case Arbitration Program.
1108.25 Arbitration initiation procedures.
1108.26 Arbitrators.
1108.27 Arbitration procedures.
1108.28 Relief.
1108.29 Decisions.
1108.30 No precedent.
1108.31 Enforcement and appeals.
1108.32 Assessment of the Small Rate Case Arbitration Program.
1108.33 Exemption from Final Offer Rate Review.

Authority: 49 U.S.C. 11708, 49 U.S.C. 1321(a), and 5 U.S.C. 571 et
seq.

Source: 78 FR 29079, May 17, 2013, unless otherwise noted.

Subpart A_General Arbitration Procedures

Sec. 1108.1 Definitions.

As used in this subpart:
(a) Arbitrator means a single person appointed to arbitrate pursuant
to this subpart.
(b) Arbitrator Panel means a group of three people appointed to
arbitrate pursuant to this subpart. One panel member would be selected
from the roster by each side to the arbitration dispute, and the parties
would mutually agree to the selection of the third-lead arbitrator under
the ``strike'' methodology described in Sec. 1108.6(c).
(c) Arbitration program means the program established by the Surface
Transportation Board in this subpart under which participating parties,
including rail carriers and shippers, have agreed voluntarily in
advance, or on a case-by-

[[Page 125]]

case basis to resolve disputes about arbitration-program-eligible
matters brought before the Board using the Board's arbitration
procedures.
(d) Arbitration-program-eligible matters are those disputes or
components of disputes, that may be resolved using the Board's
arbitration program and include disputes involving one or more of the
following subjects: rates; Demurrage; accessorial charges; misrouting or
mishandling of rail cars; and disputes involving a carrier's published
rules and practices as applied to particular rail transportation.
(e) Counterclaim is an independent arbitration claim filed by a
respondent against a complainant arising out of the same set of
circumstances or is substantially related to the underlying arbitration
complaint and subject to the Board's jurisdiction.
(f) Final arbitration decision is the unredacted decision served
upon the parties 30 days after the close of the arbitration's
evidentiary phase.
(g) Interstate Commerce Act means the Interstate Commerce Act as
amended by the ICC Termination Act of 1995 and the Surface
Transportation Board Reauthorization Act of 2015.
(h) Lead arbitrator or single arbitrator means the arbitrator
selected by the strike methodology outlined in Sec. 1108.6(c).
(i) Monetary award cap means a limit on awardable damages of
$25,000,000 in rate disputes, including any rate prescription, and
$2,000,000 in practice disputes, unless the parties mutually agree to a
lower award cap. If parties bring one or more counterclaims, such
counterclaims will be subject to a separate monetary award cap.
(j) Practice disputes are disputes involving demurrage; accessorial
charges; misrouting or mishandling of rail cars; and disputes involving
a carrier's published rules and practices as applied to particular rail
transportation.
(k) Statutory jurisdiction means the jurisdiction conferred on the
STB by the Interstate Commerce Act, including jurisdiction over rail
transportation or services that have been exempted from regulation.
(l) STB or Board means the Surface Transportation Board.
(m) Rate disputes are disputes involving the reasonableness of a
rail carrier's rates.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016; 88
FR 729, Jan. 4, 2023]

Sec. 1108.2 Statement of purpose, organization, and jurisdiction.

(a) The Board's intent. The Board favors the resolution of disputes
through the use of mediation and arbitration procedures, in lieu of
formal Board proceedings, whenever possible. This section provides for
the creation of a binding, voluntary arbitration program in which
parties, including shippers and railroads, agree in advance to arbitrate
certain types of disputes with a limit on potential liability of
$25,000,000 in rate disputes, including any rate prescription, and
$2,000,000 in other disputes unless the parties mutually agree to a
lower award cap. The Board's arbitration program is open to all parties
eligible to bring or defend disputes before the Board.
(1) Except as discussed in paragraph (b) of this section, parties to
arbitration may agree by mutual written consent to arbitrate additional
matters and to a lower amount of potential liability than the monetary
award cap identified in this section.
(2) Nothing in these rules shall be construed in a manner to prevent
parties from independently seeking or utilizing private arbitration
services to resolve any disputes they may have.
(b) Limitations to the Board's arbitration program. These procedures
shall not be available:
(1) To resolve disputes involving labor protective conditions;
(2) To obtain the grant, denial, stay or revocation of any license,
authorization (e.g., construction, abandonment, purchase, trackage
rights, merger, pooling), or exemption related to such matters;
(3) To prescribe for the future any conduct, rules, or results of
general, industry-wide applicability;
(4) To resolve disputes that are solely between two or more rail
carriers.
Parties may only use these arbitration procedures to arbitrate
matters

[[Page 126]]

within the statutory jurisdiction of the Board.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016]

Sec. 1108.3 Participation in the Board's arbitration program.

(a) Opt-in procedures. Any rail carrier, shipper, or other party
eligible to bring or defend disputes before the Board may at any time
voluntarily choose to opt into the Board's arbitration program. Opting
in may be for a particular dispute or for all potential disputes before
the Board unless and until the party exercises the opt-out procedures
discussed in Sec. 1108.3(b). To opt in parties may:
(1) File a notice with the Board, under Docket No. EP 699, advising
the Board of the party's intent to participate in the arbitration
program. Such notice may be filed at any time and shall be effective
upon receipt by the Board.
(i) Notices filed with the Board shall state which arbitration-
program-eligible issue(s) the party is willing to submit to arbitration.
(ii) Notices may, at the submitting party's discretion, provide for
a lower monetary award cap than the monetary award caps provided in this
subpart.
(2) Participants to a proceeding, where one or both parties have not
opted into the arbitration program, may by joint notice agree to submit
an issue in dispute to the Board's arbitration program. The joint notice
must clearly state the issue(s) which the parties are willing to submit
to arbitration and the corresponding maximum monetary award cap if the
parties desire to arbitrate for a lower amount than the monetary award
cap that would otherwise be applicable.
(3) Parties to a dispute may jointly notify the Board that they
agree to submit an eligible matter in dispute to the Board's arbitration
program, where no formal proceeding has begun before the Board. The
joint notice must clearly state the issue(s) which the parties are
willing to submit to arbitration and the corresponding maximum monetary
award cap if the parties desire to arbitrate for a lower amount than the
applicable monetary award cap.
(b) Opt-out procedures. Any party who has elected to participate in
the arbitration program may file a notice at any time under Docket No.
EP 699, informing the Board of the party's decision to opt out of the
program or amend the scope of its participation. The notice shall take
effect 90 days after filing and shall not itself excuse the filing party
from arbitration proceedings that are ongoing, or permit it to withdraw
its consent to participate in any arbitration-program-eligible dispute
associated with their opt-in notice for any matter before the Board at
any time prior to the end of the 90 day period before the opt-out notice
takes effect
(c) Public notice of arbitration program participation. The Board
shall maintain a list of participants who have opted into the
arbitration program on its Web site at www.stb.gov. Those parties
participating in arbitration only for a particular dispute will not be
listed on the Board's Web site.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016; 83
FR 15078, Apr. 9, 2018; 88 FR 729, Jan. 4, 2023]

Sec. 1108.4 Use of arbitration.

(a) Arbitration-program-eligible matters. Matters eligible for
arbitration under the Board's program are: rates; Demurrage; accessorial
charges; misrouting or mishandling of rail cars; and disputes involving
a carrier's published rules and practices as applied to particular rail
transportation. Parties may agree in writing to arbitrate additional
matters on a case-by-case basis as provided in paragraph (e) of this
section.
(b) Monetary award cap. Arbitration claims will be subject to the
arbitration program award cap of $25,000,000, including any rate
prescription, per rate dispute and $2,000,000 per practice dispute
unless:
(1) The defending party's opt-in notice provides for a lower
monetary cap or;
(2) The parties agree to select a lower award cap that will govern
their arbitration proceeding. The parties may change the award cap by
incorporating an appropriate provision in their agreement to arbitrate.

[[Page 127]]

(3) Counterclaims will not offset against the monetary award cap of
the initiating claim. A counterclaim is an independent claim and is
subject to a monetary award cap of $25,000,000, including any rate
prescription, per rate dispute and $2,000,000 per practice dispute,
separate from the initiating claim, or to a lower cap agreed upon by the
parties in accordance with Sec. 1108.4(b)(2).
(c) Assignment of arbitration-program-eligible matters. The Board
shall assign to arbitration all arbitration-program-eligible disputes
where all parties to the proceeding are participants in the Board's
arbitration program, or where one or more parties to the matter are
participants in the Board's arbitration program, and all other parties
to the proceeding request or consent to arbitration for a particular
dispute.
(d) Matters partially arbitration-program-eligible. Where the issues
in a proceeding before the Board relate in part to arbitration-program-
eligible matters, only those parts of the dispute related to
arbitration-program-eligible matters may be arbitrated pursuant to the
arbitration program, unless the parties petition the Board in accordance
with paragraph (e) of this section to include additional disputes.
(e) Other matters. Parties may petition the Board, on a case-by-case
basis, to assign to arbitration disputes, or portions of disputes, not
listed as arbitration-program-eligible matters. This may include
counterclaims and affirmative defenses. Such disputes are subject to a
monetary award cap of $2,000,000 or to a lower cap agreed upon by the
parties in accordance with paragraph (b)(2) of this section. The Board
will not consider for arbitration types of disputes that are expressly
prohibited in Sec. 1108.2(b).
(f) Arbitration clauses. Nothing in the Board's regulations shall
preempt the applicability of, or otherwise supersede, any new or
existing arbitration clauses contained in agreements between shippers
and carriers.
(g) Rate disputes. Arbitration of rate disputes will only be
available to parties if the rail carrier has market dominance as
determined by the Board under 49 U.S.C. 10707. In rate disputes, the
arbitrator or panel of arbitrators, as applicable, shall consider the
Board's methodologies for setting maximum lawful rates, giving due
consideration to the need for differential pricing to permit a rail
carrier to collect adequate revenues (as determined under 49 U.S.C.
10704(a)(2)).

[78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016]

Sec. 1108.5 Arbitration commencement procedures.

(a) Complaint. Except as provided in paragraph (e) of this section,
arbitration under these rules shall commence with a written complaint,
which shall be filed and served in accordance with Board rules contained
at part 1104 of this chapter. Each complaint must contain a statement
that the complainant and the respondent are participants in the Board's
arbitration program pursuant to Sec. 1108.3(a), or that the complainant
is willing to arbitrate voluntarily all or part of the dispute pursuant
to the Board's arbitration procedures, and the relief requested.
(1) If the complainant desires arbitration with a single arbitrator
instead of a three-member arbitration panel, the complaint must make
such a request in its complaint.
(2) If the complainant is not a participant in the arbitration
program, the complaint may specify the issues that the complainant is
willing to arbitrate.
(3) If the complainant desires to set a lower amount of potential
liability than the monetary award cap that would otherwise apply, the
complaint should specify what amount of potential liability the
complainant is willing to incur.
(b) Answer to the complaint. Any respondent must, within 20 days of
the date of the filing of a complaint, answer the complaint. The answer
must state whether the respondent is a participant in the Board's
arbitration program, or whether the respondent is willing to arbitrate
the particular dispute.
(1) If the complaint requests arbitration by a single arbitrator
instead of by an arbitration panel, the answer must contain a statement
consenting to arbitration by a single arbitrator or an express rejection
of that request.

[[Page 128]]

(i) The respondent may also initiate a request to use a single
arbitrator instead of an arbitration panel.
(ii) Absent the parties agreeing to arbitration through a single
arbitrator, the Board will assign the case to arbitration by a panel of
three arbitrators as provided by Sec. 1108.6(a) through (d). The party
requesting the single arbitrator shall at that time provide written
notice to the Board and the other parties if it continues to object to a
three-member arbitration panel. Upon timely receipt of the notice, the
Board shall the set the case for formal adjudication by the Board.
(2) When the complaint limits the arbitrable issues, the answer must
state whether the respondent agrees to those limitations or, if the
respondent is already a participant in the Board's arbitration program,
whether those limitations are consistent with the respondent's opt-in
notice filed with the Board pursuant to Sec. 1108.3(a)(1)(i). If the
answer contains an agreement to arbitrate some but not all of the
arbitration-program-eligible issues in the complaint, the complainant
will have 10 days from the date of the answer to advise the respondent
and the Board in writing whether the complainant is willing to arbitrate
on that basis.
(3) When the complaint proposes a lower amount of potential
liability, the answer must state whether the respondent agrees to that
amount in lieu of the otherwise applicable monetary award cap.
(c) Counterclaims. In answering a complaint, the respondent may file
one or more counterclaims against the complainant if such claims arise
out of the same set of circumstances or are substantially related, and
are subject to the Board's jurisdiction as provided in Sec. 1108.2(b).
Counterclaims are subject to the assignment provisions contained in
Sec. 1108.4(c)-(e). Counterclaims are subject to the monetary award cap
provisions contained in Sec. 1108.4(b)(2)-(3).
(d) Affirmative defenses. An answer to an arbitration complaint
shall contain specific admissions or denials of each factual allegation
contained in the complaint, and any affirmative defenses that the
respondent wishes to assert against the complainant.
(e) Jointly-filed notice. In lieu of a formal complaint proceeding,
arbitration under these rules may commence with a jointly-filed notice
by parties agreeing to submit an eligible matter in dispute to the
Board's arbitration program under Sec. 1108.3(a)(3). The notice must:
(1) Contain a statement that all relevant parties are participants
in the Board's arbitration program pursuant to Sec. 1108.3(a), or that
the relevant parties are willing to arbitrate voluntarily a matter
pursuant to the Board's arbitration procedures, and the relief
requested;
(2) Indicate whether parties have agreed to a three-member
arbitration panel or a single arbitrator;
(3) Indicate if the parties have agreed to a lower amount of
potential liability in lieu of the otherwise applicable monetary award
cap.
(f) Arbitration initiation. When the parties have agreed upon
whether to use a single arbitrator or a panel of arbitrators, the
issues(s) to be arbitrated, and the monetary limit to any arbitral
decision, the Board shall initiate the arbitration under Sec. 1108.7(a)
and provide a list of arbitrators as described in Sec. 1108.6.
(g) Arbitration agreement. Shortly after the panel of arbitrators or
arbitrator is selected, the parties to arbitration together with the
lead or single arbitrator, as applicable, shall create a written
arbitration agreement, which at a minimum will state with specificity
the issues to be arbitrated and the corresponding monetary award cap to
which the parties have agreed. The agreement may also contain other
mutually agreed upon provisions.
(1) Any additional issues selected for arbitration by the parties,
that are not outside the scope of these arbitration rules as explained
in Sec. 1108.2(b), must be subject to the Board's statutory authority.
(2) These rules shall be incorporated by reference into any
arbitration agreement conducted pursuant to an arbitration complaint
filed with the Board.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69415, Oct. 6, 2016]

[[Page 129]]

Sec. 1108.6 Arbitrators.

(a) Panel of arbitrators. Unless otherwise requested in writing
pursuant to Sec. 1108.5(a)(1) and agreed to by all parties to the
arbitration, all matters arbitrated under these rules shall be resolved
by a panel of three arbitrators.
(b) Roster. Arbitration shall be conducted by an arbitrator (or
panel of arbitrators) selected, as provided herein, from a roster of
persons with rail transportation, economic regulation, professional or
business experience, including agriculture, in the private sector.
Persons seeking to be included on the roster must have training in
dispute resolution and/or experience in arbitration or other forms of
dispute resolution. The Board will establish the initial roster of
arbitrators by no-objection vote. The Board may modify the roster at any
time by no-objection vote to include other eligible arbitrators or
remove arbitrators who are no longer available. The Board's roster will
provide a brief biographical sketch of each arbitrator, including
information such as background, area(s) of expertise, arbitration
experience, and geographical location, as well as general contact
information and fees, based on the information supplied by the
arbitrator. The roster shall be published on the Board's Web site. The
Board will update the roster every year. The Board will seek public
comment on any modifications that should be made to the roster,
including requesting the names and qualifications of new arbitrators who
wish to be placed on the roster, and updates from arbitrators appearing
on the roster to confirm that the biographical information on file with
the Board remains accurate. Arbitrators who wish to remain on the roster
must notify the Board of their continued availability.
(c) Selecting the lead arbitrator. If the parties cannot mutually
agree on a lead arbitrator for a panel of arbitrators, the parties shall
use the following process to select a lead arbitrator: First, each party
will be given three peremptory strikes to remove names from the Board's
roster. Then, from the remaining names on the roster, each party will
submit a list of up to 10 potential arbitrators. If only one arbitrator
appears on both lists, he or she would be selected as the single or lead
arbitrator. If multiple arbitrators appear on both lists, the parties
would alternatively strike names of the jointly listed arbitrators until
one remains, beginning with complainant. If no name appears on both
lists, the parties would alternatively strike from the Board's entire
roster, as amended based on the peremptory strikes. A lead arbitrator
shall be selected within 14 days of the Board initiating the arbitration
process.
(1) The parties are responsible for conducting their own due
diligence in striking names from the arbitrator list. The final
selection of a lead arbitrator is not challengeable before the Board.
(2) The lead arbitrator appointed through the strike methodology
shall serve as the head of the arbitration panel and will be responsible
for ensuring that the tasks detailed in Sec. Sec. 1108.7 and 1108.9 are
accomplished.
(d) Party-appointed arbitrators. The party or parties on each side
of an arbitration dispute shall select one arbitrator from the roster,
regardless of whether the other party struck the arbitrator's name in
selecting a lead arbitrator. The party or parties on each side will
appoint that side's own arbitrator within 14 days of the Board
initiating the arbitration process. Parties on one side of an
arbitration proceeding may not challenge the arbitrator selected by the
opposing side.
(e) Use of a single arbitrator. Parties to arbitration may request
the use of a single arbitrator. Requests for use of a single arbitrator
must be included in a complaint or an answer as required in Sec.
1108.5(a)(1), or in the joint notice filed under Sec. 1108.5(e).
Parties to both sides of an arbitration dispute must agree to the use of
a single arbitrator in writing. If the single-arbitrator option is
selected, and if parties cannot mutually agree on a single arbitrator,
the arbitrator selection procedures outlined in paragraph (c) of this
section shall apply.
(f) Arbitrator incapacitation. If at any time during the arbitration
process a selected arbitrator becomes incapacitated or is unwilling or
unable to fulfill

[[Page 130]]

his or her duties, a replacement arbitrator shall be promptly selected
by either of the following processes:
(1) If the incapacitated arbitrator was appointed directly by a
party to the arbitration, the appointing party shall, without delay,
appoint a replacement arbitrator pursuant to the procedures set forth in
Sec. 1108.6(d).
(2) If the incapacitated arbitrator was the lead or single
arbitrator, the parties shall promptly inform the Board of the
arbitrator's incapacitation and the selection procedures set forth in
paragraph (c) of this section shall apply.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69415, Oct. 6, 2016]

Sec. 1108.7 Arbitration procedures.

(a) Initiation. With the exception of rate dispute arbitration
proceedings, the Board shall initiate the arbitration process within 40
days after submission of a written complaint or joint notice filed under
Sec. 1108.5(e). In arbitrations involving rate disputes, the Board
shall initiate the arbitration process within 10 days after the Board
issues a decision determining that the rail carrier has market
dominance.
(b) Arbitration evidentiary phase timetable. Whether the parties
select a single arbitrator or a panel of three arbitrators, the lead or
single arbitrator shall establish all rules deemed necessary for each
arbitration proceeding, including with regard to discovery, the
submission of evidence, and the treatment of confidential information,
subject to the requirement that this evidentiary phase shall be
completed within 90 days from the date on which the arbitration process
is initiated, unless a party requests an extension, and the arbitrator
or panel of arbitrators, as applicable, grants such extension request.
(c) Written decision timetable. The lead or single arbitrator will
be responsible for writing the arbitration decision. The unredacted
arbitration decision must be served on the parties within 30 days of
completion of the evidentiary phase. A redacted copy of the arbitration
decision must be served upon the Board within 60 days of the close of
the evidentiary phase for publication on the Board's Web site.
(d) Extensions to the arbitration timetable. The Board may extend
any deadlines in the arbitration timetable provided in this subpart upon
agreement of all parties to the dispute.
(e) Protective orders. Any party, on either side of an arbitration
proceeding, may request that discovery and the submission of evidence be
conducted pursuant to a standard protective order agreement.

[81 FR 69416, Oct. 6, 2016, as amended at 88 FR 729, Jan. 4, 2023]

Sec. 1108.8 Relief.

(a) Relief available. An arbitrator may grant relief in the form of
monetary damages or a rate prescription in rate disputes to the extent
they are available under this subpart or as agreed to in writing by the
parties. A rate prescription shall not exceed 5 years.
(b) Relief not available. No injunctive relief shall be available in
Board arbitration proceedings.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69416, Oct. 6, 2016; 88
FR 729, Jan. 4, 2023]

Sec. 1108.9 Decisions.

(a) Decision requirements. Whether by a panel of arbitrators or a
single arbitrator, all arbitration decisions shall be in writing and
shall contain findings of fact and conclusions of law. All arbitration
decisions must be consistent with sound principles of rail regulation
economics. The arbitrator shall provide an unredacted draft of the
arbitration decision to the parties to the dispute, in accordance with
any protective order governing the release of confidential and highly
confidential information pursuant to Sec. 1108.7(e).
(b) Redacting arbitration decision. The lead or single arbitrator
shall also provide the parties with a draft of the decision that redacts
or omits all proprietary business information and confidential
information pursuant to any such requests of the parties under the
arbitration agreement.
(c) Party input. The parties may then suggest what, if any,
additional redactions they think are required to protect against the
disclosure of proprietary and confidential information in the decision.

[[Page 131]]

(d) Lead or single arbitrator authority. The lead or single
arbitrator shall retain the final authority to determine what, if any,
additional redactions are appropriate to make.
(e) Service of arbitration decision. The lead or single arbitrator
shall serve copies of the unredacted decision upon the parties in
accordance with the timetable and requirements set forth in Sec.
1108.7(c). The lead or single arbitrator shall also serve copies of the
redacted decision upon the parties and the Board in accordance with the
timetable and requirements set forth in Sec. 1108.7(c). The arbitrator
may serve the decision via any service method permitted by the Board's
regulations.
(f) Service in the case of an appeal. In the event an arbitration
decision is appealed to the Board, the lead or single arbitrator shall,
without delay and under seal, serve upon the Board an unredacted copy of
the arbitration decision.
(g) Publication of decision. Redacted copies of the arbitration
decisions shall be published and maintained on the Board's Web site.
(h) Arbitration decisions are binding. By arbitrating pursuant to
these procedures, each party agrees that the decision and award of the
arbitrator(s) shall be binding and judicially enforceable in any court
of appropriate jurisdiction, subject to the rights of appeal provided in
Sec. 1108.11.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69416, Oct. 6, 2016]

Sec. 1108.10 Precedent.

Decisions rendered by arbitrators pursuant to these rules may be
guided by, but need not be bound by, agency precedent. Arbitration
decisions shall have no precedential value and may not be relied upon in
any manner during subsequent arbitration proceedings conducted under the
rules in this part.

Sec. 1108.11 Enforcement and appeals.

(a) Petitions to modify or vacate. A party may petition the Board to
modify or vacate an arbitral award. The appeal must be filed within 20
days of service upon the Board of a final arbitration decision, and is
subject to the page limitations of Sec. 1115.2(d) of this chapter.
Copies of the appeal shall be served upon all parties in accordance with
the Board's rules at part 1104 of this chapter. The appealing party
shall also serve a copy of its appeal upon the arbitrator(s). Replies to
such appeals shall be filed within 20 days of the filing of the appeal
with the Board, and shall be subject to the page limitations of Sec.
1115.2(d) of this chapter.
(b) Board's standard of review. On appeal, the Board's standard of
review of arbitration decisions will be narrow. The Board will review a
decision to determine if the decision is consistent with sound
principles of rail regulation economics, a clear abuse of arbitral
authority or discretion occurred; the decision directly contravenes
statutory authority; or the award limitation was violated. Using this
standard, the Board may modify or vacate an arbitration award in whole
or in part.
(1) Board decisions vacating or modifying arbitration decisions
under the Board's standard of review are reviewable under the Hobbs Act,
28 U.S.C. 2321 and 2342.
(2) Nothing in these rules shall prevent parties to arbitration from
seeking judicial review of arbitration awards in a court of appropriate
jurisdiction pursuant to the Federal Arbitration Act, 9 U.S.C. 9-13, in
lieu of seeking Board review.
(c) Staying arbitration decision. The timely filing of a petition
for review of the arbitral decision by the Board will not automatically
stay the effect of the arbitration decision. A stay may be requested
under Sec. 1115.3(f) of this chapter.
(d) Enforcement. Parties seeking to enforce an arbitration decision
made pursuant to the Board's arbitration program must petition a court
of appropriate jurisdiction under the Federal Arbitration Act, 9 U.S.C.
9-13.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69416, Oct. 6, 2016]

Sec. 1108.12 Fees and costs.

(a) Filing fees. When parties use the Board's arbitration procedures
to resolve a dispute, the party filing the complaint or an answer shall
pay the applicable filing fee pursuant to 49 CFR part 1002.

[[Page 132]]

(b) Costs. The parties shall share the costs incurred by the Board
and arbitrators equally, with each party responsible for paying its own
legal and other associated arbitration costs.

[78 FR 29079, May 17, 2013, as amended at 81 FR 69417, Oct. 6, 2016]

Sec. 1108.13 Additional parties per side.

Where an arbitration complaint is filed by more than one complainant
in a particular arbitration proceeding against, or is answered or
counterclaimed by, more than one respondent, these arbitration rules
will apply to the complainants as a group and the respondents as a group
in the same manner as they will apply to individual opposing parties.

Subpart B_Voluntary Program for Arbitration of Small Freight Rail Rate
Disputes

Source: 88 FR 729, Jan. 4, 2023, unless otherwise noted.

Sec. 1108.21 Definitions.

As used in this subpart:
(a) Arbitrator means a single person appointed to arbitrate under
this subpart.
(b) Arbitration panel means a group of three people appointed to
arbitrate under this subpart.
(c) Arbitration decision means the decision of the arbitration panel
served on the parties as set forth in Sec. 1108.27(c)(3).
(d) Complainant means a party that seeks to challenge the
reasonableness of a rate charged by a rail carrier using the Small Rate
Case Arbitration Program, including rail shippers.
(e) Final offer rate review means the Final Offer Rate Review
process for determining the reasonableness of railroad rates.
(f) Lead arbitrator means the third arbitrator selected by the two
party-appointed arbitrators or, if the two party-appointed arbitrators
cannot agree, an individual selected from a list of individuals jointly
developed by the parties and using the procedures to select from this
list, as set forth in Sec. 1108.26(c)(3).
(g) Limit price test means the methodology for determining market
dominance described in M&G Polymers USA, LLC v. CSX Transp., Inc., NOR
42123, slip op. at 11-18 (STB served Sept. 27, 2012).
(h) Participating railroad or participating carrier means a railroad
that has voluntarily opted into the Small Rate Case Arbitration Program
pursuant to Sec. 1108.23(a).
(i) Party-appointed arbitrator means the arbitrator selected by each
party pursuant to the process described in Sec. 1108.26(b).
(j) Rate disputes are disputes involving the reasonableness of a
rail carrier's rates.
(k) Small Rate Case Arbitration Program means the program
established by the Surface Transportation Board in this subpart.
(l) STB or Board means the Surface Transportation Board.
(m) STB-maintained roster means the roster of arbitrators maintained
by the Board, as required by Sec. 1108.6(b), under the Board's
arbitration program established pursuant to 49 U.S.C. 11708 and set
forth in subpart A of this part.
(n) Streamlined market dominance test means the methodology set
forth in 49 CFR 1111.12.

Sec. 1108.22 Statement of purpose, organization, and jurisdiction.

(a) The Board's intent. The Board favors the resolution of disputes
through the use of mediation and arbitration procedures, in lieu of
formal Board proceedings, whenever possible. This subpart establishes a
binding and voluntary arbitration program, the Small Rate Case
Arbitration Program, that is tailored to rate disputes and open to all
parties eligible to bring or defend rate disputes before the Board.
(1) The Small Rate Case Arbitration Program serves as an alternative
to, and is separate and distinct from, the broader arbitration program
set forth in subpart A of this part.
(2) By participating in the Small Rate Case Arbitration Program,
parties consent to arbitrate rail rate disputes subject to the limits on
potential liability set forth in Sec. 1108.28.
(3) The Small Rate Case Arbitration Program will become operative
only if

[[Page 133]]

all Class I carriers initially commit to participate in the program.
Class I carriers that participate in the program agree to arbitrate rate
disputes that meet the requirements of this subpart for a term of five
years from the date the program becomes effective.
(4) In the event the Small Rate Case Arbitration program becomes
operative, Class I carriers that participate will be exempt from having
their rates challenged under Final Offer Rate Review, pursuant to Sec.
1108.33, as long as they remain in the program.
(b) Establishment and Term of the Small Rate Case Arbitration
Program. (1) The regulations contained in this subpart will not become
operable until the Board issues a notice in the Federal Register
commencing the Small Rate Case Arbitration Program. A copy of the notice
will also be issued in Docket No. EP 765 and will be posted on the
Board's website.
(2) The Board will promptly issue the notice commencing the
arbitration program upon receipt of the required opt-in notices
specified in Sec. 1108.23(a) from all existing Class I carriers. If the
Board does not receive opt-in notices from all existing Class I
carriers, the notice will not be issued and the regulations in this
subpart will not become operable, including any exemption from FORR. The
notice will establish an initial five-year term for the program,
beginning from the date the notice is issued.
(3) Class I carriers must indicate whether they choose to
voluntarily participate in the Small Rate Case Arbitration Program by
February 23, 2023, by filing the notice specified in Sec. 1108.23(a)
with the Board.
(c) Renewal of the Small Rate Case Arbitration Program. (1)
Approximately 60 days before the five-year term expires, the Board will
issue another notice in the Federal Register, requesting that all
existing Class I carriers that wish to participate in the program for
another 5-year period file an opt-in notice pursuant to Sec.
1108.23(a).
(2) The Small Rate Case Arbitration Program will become operative
for an additional 5-year period only if all Class I carriers again
commit to participate in the program. This requirement will apply even
if one or more of the Class I carriers has previously withdrawn from the
program pursuant to Sec. 1108.23(c).
(3) The Board will promptly issue a notice in the Federal Register
renewing the Small Rate Case Arbitration Program for an additional five
years upon receipt of the required opt-in notices specified in Sec.
1108.23(a) from all existing Class I carriers. The regulations contained
in this subpart will only remain operative if the Board issues such a
notice. If the program is renewed, all of the regulations within this
subpart shall remain in effect for the entirety of the 5-year renewal
period, with the exception of Sec. 1108.32.
(4) The Board will repeat this process to renew the arbitration
program every five years for as long as the program remains in effect.
(5) At the end of any five-year period, if the arbitration program
is not renewed, any pending arbitrations will continue until they are
completed.
(d) Limitations to the use of the Small Rate Case Arbitration
Program. The Small Rate Case Arbitration Program may be used only for
rate disputes within the statutory jurisdiction of the Board.
(e) No limitation on other avenues of arbitration. Nothing in this
subpart shall be construed in a manner to prevent parties from
independently seeking or utilizing private arbitration services to
resolve any disputes they may have.

Sec. 1108.23 Participation in the Small Rate Case Arbitration Program.

(a) Carrier opt-in procedures--(1) Opt-in notice. To opt into the
Small Rate Case Arbitration Program, a carrier must file a notice with
the Board under Docket No. EP 765, notifying the Board of the carrier's
consent to participate in the Small Rate Case Arbitration Program. Such
notice must be filed by February 23, 2023. The notice should also
include:
(i) A statement that the carrier agrees to an extension of the
timelines set forth in 49 U.S.C. 11708(e) for any arbitrations initiated
under this subpart; and

[[Page 134]]

(ii) A statement that the carrier agrees to the appointment of
arbitrators that may not be on the STB-maintained roster of arbitrator
established under Sec. 1108.6(b).
(2) Participation for a specified term. By opting into the Small
Rate Case Arbitration Program, the carrier consents to participate in
the program for the full five-year term of the program, beginning on the
date the Board issues the notice commencing the program. A carrier may
withdraw from the Program prior to expiration of the five-year term only
pursuant to paragraph (c) of this section.
(3) Public notice of carrier participants. The Board shall maintain
a list of carriers who have opted into the Small Rate Case Arbitration
Program on its website at www.stb.gov.
(4) Class II and Class III carrier participation. Class II or Class
III rail carriers may consent to use the Small Rate Case Arbitration
Program to arbitrate an individual rate dispute, even if the Class II or
Class III has not opted into the process under paragraph (a)(1) of this
section. If a Class II or Class III carrier intends to participate for
an individual rate dispute, a letter from the Class II or Class III
carrier must be submitted with the notice of intent to arbitrate dispute
required under Sec. 1108.25(a). The letter must indicate that the
carrier consents to participate in the Small Rate Case Arbitration
Program and include the statements required under paragraphs (a)(1)(i)
and (ii) of this section.
(b) Complainant participation. A complainant seeking to challenge
the reasonableness of carrier's rate may participate in the Small Rate
Case Arbitration Program on a case-by-case basis by notifying a
participating carrier that it wishes to arbitrate an eligible dispute
under the Small Rate Case Arbitration Program. A complainant must inform
the participating carrier by submitting a written notice of intent to
arbitrate to the participating carrier, as set forth in Sec.
1108.25(a).
(c) Withdrawal for change in law--(1) Basis for withdrawal. A
carrier or complainant participating in the Small Rate Case Arbitration
Program may withdraw its consent to arbitrate under this subpart if
either: material change(s) are made to the Small Rate Case Arbitration
Program under this subpart after a complainant or carrier has opted into
the Small Rate Case Arbitration Program; or material change(s) are made
to the Board's existing rate reasonableness methodologies or a new rate
reasonableness methodology is created after a complainant or carrier has
opted into the Small Rate Case Arbitration Program. However, the
termination or modification of the Final Offer Rate Review process will
not be considered a change in law.
(2) Procedures for withdrawal for change in law. A participating
carrier or complainant may withdraw its consent to arbitrate under this
subpart by filing with the Board a notice of withdrawal for change in
law within 20 days of an event that qualifies as a basis for withdrawal
as set forth in paragraph (c)(1) of this section.
(i) The notice of withdrawal for change in law shall state the basis
or bases under paragraph (c)(1) of this section for the party's
withdrawal of its consent to arbitrate under this part. A copy of the
notice must be served on any parties with which the carrier is currently
engaged in arbitration. A copy of the notice will also be posted on the
Board's website.
(ii) Any party may challenge the withdrawing party's withdrawal for
change in law on the ground that the change is not material by filing a
petition with the Board within 10 days of the filing of the notice of
withdrawal being challenged. The withdrawing party may file a reply to
the petition within 5 days from the filing of the petition. The petition
shall be resolved by the Board within 14 days from the filing deadline
for the withdrawing party's reply.
(iii) Subject to the stay provision of paragraph (c)(3)(ii) of this
section, the notice of withdrawal for change in law shall be effective
on the day of its filing.
(3) Effect of withdrawal for change in law--(i) The Small Rate Case
Arbitration Program. If one or more Class I carriers withdraw, the
program will not terminate and the regulations in this subpart will
remain in effect. Carriers that withdraw from the program will no

[[Page 135]]

longer be subject to the exemption (set forth in Sec. 1108.33) from
rate challenges under Final Offer Rate Review.
(ii) Arbitrations with decision. The withdrawal of consent for
change in law by either a complainant or carrier shall not affect
arbitrations in which the arbitration panel has issued an arbitration
decision.
(iii) Arbitrations without decision. A carrier or complainant filing
a withdrawal of consent for change in law shall immediately inform the
arbitration panel and opposing party. The arbitration panel shall
immediately stay the arbitration. If no objection to the withdrawal of
consent is filed with the Board or the Board issues a decision granting
the withdrawal request, the arbitration panel shall dismiss any pending
arbitration under this part, unless the change in law will not take
effect until after the arbitration panel is scheduled to issue its
decision pursuant to the schedule set forth in Sec. 1108.27(c). If an
objection to the withdrawal of consent is filed but the Board rejects
the withdrawal upon objection, the arbitration panel shall lift the
stay, the arbitration shall continue, and all procedural time limits
will be tolled.
(d) Limit on the number of arbitrations. A carrier participating in
the Small Rate Case Arbitration Program is only required to participate
in 25 arbitrations simultaneously. Any arbitrations initiated by the
submission of the notice of intent to arbitrate a dispute to the rail
carrier (pursuant to Sec. 1108.25(a)) that has reached this limit will
be postponed until the carrier is once again below the limit.
(1) A carrier that has reached the limit shall notify the Board's
Office of Public Assistance, Governmental Affairs, and Compliance by
email (to [email protected]), as well as the complainant who submitted the
notice of intent to arbitrate to the carrier. The Office of Public
Assistance, Governmental Affairs, and Compliance shall confirm that the
limitation has been reached and inform the complainant (and any other
subsequent complainants) that the arbitration is being postponed, along
with an approximation of when the arbitration can proceed and
instructions for reactivating the arbitration once the carrier is again
below the limit.
(2) For purposes of this paragraph (d), an arbitration will count
toward the 25-arbitration limit only upon commencement of the first
mediation session or, where one or both parties elect to forgo
mediation, submission of the joint notice of intent to arbitrate to the
Board under Sec. 1108.25(c). For purposes of this paragraph (d), an
arbitration under this subpart is final when the arbitration panel
issues its arbitration decision, or if an arbitration is dismissed or
withdrawn, including due to settlement.

Sec. 1108.24 Use of the Small Rate Case Arbitration Program.

(a) Eligible matters. The arbitration program under this subpart may
be used only in the following instances:
(1) Rate disputes involving shipments of regulated commodities not
subject to a rail transportation contract are eligible to be arbitrated
under this subpart. If the parties dispute whether a challenged rate was
established pursuant to 49 U.S.C. 10709, the parties must petition the
Board to resolve that dispute, which must be resolved before the parties
initiate the arbitration process under this part.
(2) A complainant may challenge rates for multiple traffic lanes
within a single arbitration under this part, subject to the relief cap
in Sec. 1108.28 for all lanes.
(3) For movements in which more than one carrier participates,
arbitration under this subpart may be used only if all carriers agree to
participate (pursuant to Sec. 1108.23(a)(1) or (4)).
(b) Eligible parties. Any party eligible to bring or defend a rate
dispute before the Board is eligible to participate in the arbitration
program under this part.
(c) Use limits. A complainant may not bring separate arbitrations
for shipments with the same origin-destination or shipments where
facilities are shared.
(d) Arbitration clauses. Nothing in the Board's regulations in this
part shall

[[Page 136]]

preempt the applicability of, or otherwise supersede, any new or
existing arbitration clauses contained in agreements between
complainants and carriers.

Sec. 1108.25 Arbitration initiation procedures.

(a) Notice of complainant intent to arbitrate dispute. To initiate
the arbitration process under this subpart against a participating
carrier, a complainant must notify the carrier in writing of its intent
to arbitrate a dispute under this part. The notice must include: a
description of the dispute sufficient to indicate that the dispute is
eligible to be arbitrated under this part; a statement that the
complainant consents to extensions of the timelines set forth in forth
in 49 U.S.C. 11708(e); and a statement that the complainant consents to
the appointment of arbitrators that may not be on the STB-maintained
roster of arbitrators established under Sec. 1108.6(b). The complainant
must also submit a copy of the notice to the Board's Office of Public
Assistance, Governmental Affairs, and Compliance by email to
[email protected]. Upon receipt of the notice of intent to arbitrate, the
Office of Public Assistance, Governmental Affairs, and Compliance will
provide a letter to both parties confirming that the arbitration process
has been initiated, and that the parties have consented to extension of
the timelines set forth in 49 U.S.C. 11708(e) and the potential
appointment of arbitrators not on the Board's roster. The notice and
confirmation letter from the Office of Public Assistance, Governmental
Affairs, and Compliance will be confidential and specific information
regarding pending arbitrations, including the identity of the parties,
will not be disseminated within the Board beyond the alternative dispute
resolution functions within the Office of Public Assistance,
Governmental Affairs, and Compliance.
(b) Pre-arbitration mediation. (1) Prior to commencing arbitration,
the parties to the dispute may engage in mediation if they mutually
agree.
(2) Such mediation will not be conducted by the STB. The parties to
the dispute must jointly designate a mediator and schedule the mediation
session(s).
(3) If the parties mutually agree to mediate, the parties must
schedule mediation promptly and in good faith. The mediation period
shall end 30 days after the date of the first mediation session, unless
both parties agree to a different period.
(c) Joint Notice of Intent to Arbitrate. (1) To arbitrate a rate
dispute under this subpart, the parties must submit a Joint Notice of
Intent to Arbitrate with the Board's Office of Public Assistance,
Governmental Affairs, and Compliance, indicating the parties' intent to
arbitrate under the Small Rate Case Arbitration Program. The parties
must submit a copy of the notice to the Board's Office of Public
Assistance, Governmental Affairs, and Compliance by email to
[email protected]. The joint notice must be filed not later than two business
days following the date on which mediation ends or, in cases in which
the parties mutually agree not to engage in mediation, two business days
after the complainant submits its notice of intent to arbitrate
(required by paragraph (a) of this section) to the carrier.
(2) The joint notice shall set forth the following information:
(i) The basis for the Board's jurisdiction; and
(ii) The basis for the parties' eligibility to use the Small Rate
Case Arbitration Program, including: that the dispute being arbitrated
is solely a rate dispute involving shipments of regulated commodities
not subject to a rail transportation contract; that the carrier has
opted into the Small Rate Case Arbitration Program; that the complainant
has elected to use the Small Rate Case Arbitration Program for this
particular rate dispute; and that the complainant does not have any
other pending arbitrations at that time against the defendant carrier.
(3) The joint notice shall be confidential and will not be published
on the Board's website and specific information regarding pending
arbitrations, including the identity of the parties, will not be
disseminated within the Board

[[Page 137]]

beyond the alternative dispute resolution functions within the Office of
Public Assistance, Governmental Affairs, and Compliance.
(4) Unless the parties have agreed not to request the Waybill Sample
data pursuant allowed under Sec. 1108.27(g), the parties must also
submit a copy of the Joint Notice of Intent to Arbitrate to the Director
of the Board's Office of Economics. Parties may submit the letter and
copy of the joint notice by email to [email protected].

Sec. 1108.26 Arbitrators.

(a) Decision by arbitration panel. All matters arbitrated under this
subpart shall be resolved by a panel of three arbitrators.
(b) Party-appointed arbitrators. Within two business days of filing
the Joint Notice of Intent to Arbitrate, each side shall select one
arbitrator as its party-appointed arbitrator and notify the opposing
side of its selection.
(1) For-cause objection to party-appointed arbitrator. Each side may
object to the other side's selected arbitrator within two business days
and only for cause. A party may make a for-cause objection where it has
reason to believe a proposed arbitrator cannot act with the good faith,
impartiality, and independence required of 49 U.S.C. 11708, including
due to a conflict of interest, adverse business dealings with the
objecting party, or actual or perceived bias or animosity toward the
objecting party.
(i) The parties must confer over the objection within two business
days.
(ii) If the objection remains unresolved after the parties confer,
the objecting party shall immediately file an Objection to Party-
Appointed Arbitrator with the Office of Public Assistance, Governmental
Affairs, and Compliance. The Office of Public Assistance, Governmental
Affairs, and Compliance shall arrange for a telephonic or virtual
conference to be held before an Administrative Law Judge within two
business days, or as soon as is practicable, to hear arguments regarding
the objection(s). The Administrative Law Judge will provide its ruling
in an order to all parties by the next business day after the telephonic
or virtual conference.
(iii) The Objection to Party-Appointed Arbitrator filed with Office
of Public Assistance, Governmental Affairs, and Compliance and the
telephonic or virtual conference, including any ruling on the objection,
shall be confidential.
(2) Costs for party-appointed arbitrators. Each side is responsible
for the costs of its own party-appointed arbitrator.
(c) Lead arbitrator--(1) Appointment. Once appointed, the two party-
appointed arbitrators shall, without delay, select a lead arbitrator
from a joint list of arbitrators provided by the parties.
(2) Qualifications. The lead arbitrator must be a person with rail
transportation, economic regulation, professional or business
experience, including agriculture, in the private sector, and must have
training in dispute resolution and/or experience in arbitration or other
forms of dispute resolution.
(3) Disagreement selecting the lead arbitrator. If the two party-
appointed arbitrators cannot agree on a selection for the lead
arbitrator, the parties will develop a joint list of potential lead
arbitrators. Each side may include the names of three individuals that
meet the qualification requirement of (c)(2). Both sides will then be
permitted to strike the names of two individuals proposed by the
opposing side. The lead arbitrator shall be selected from the two names
that remain using a random selection process, which will be
administrated by the Director of the Office of Public Assistance,
Governmental Affairs, and Compliance.
(4) Lead arbitrator role. The lead arbitrator will be responsible
for ensuring that the tasks detailed in Sec. Sec. 1108.27 and 1108.29
are accomplished. The lead arbitrator shall establish all rules deemed
necessary for each arbitration proceeding, including with regard to
discovery, the submission of evidence, and the treatment of confidential
information, subject to the requirements of the rules of this subpart.
(5) Costs. The parties to the arbitration will share the cost of the
lead arbitrator equally.
(d) Arbitrator choice. The parties may choose their arbitrators
without limitation, provided that any arbitrator

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chosen must be able to comply with paragraph (f) of this section. The
arbitrators may, but are not required to, be selected from the STB-
maintained roster described in Sec. 1108.6(b).
(e) Arbitrator incapacitation. If at any time during the arbitration
process an arbitrator becomes incapacitated or is unwilling or unable to
fulfill his or her duties, a replacement arbitrator shall be promptly
selected by the following process:
(1) If the incapacitated arbitrator was a party-appointed
arbitrator, the appointing party shall, without delay, appoint a
replacement arbitrator pursuant to the procedures set forth in paragraph
(b) of this section.
(2) If the incapacitated arbitrator was the lead arbitrator, a
replacement lead arbitrator shall be appointed pursuant to the
procedures set forth in paragraph (c) of this section.
(f) Arbitrator duties. In an arbitration under this subpart, the
arbitrators shall perform their duties with diligence, good faith, and
in a manner consistent with the requirements of impartiality and
independence.

Sec. 1108.27 Arbitration procedures.

(a) Appointment of arbitration panel. Within two business days after
all three arbitrators are selected, the parties shall appoint the
arbitration panel in writing. A copy of the written appointment should
be submitted to the Director of the Board's Office of Economics. The
Director shall promptly provide the arbitrators with the confidentiality
agreements that are required under Sec. 1244.9(b)(4) of this chapter to
review confidential Waybill Sample data.
(b) Commencement of arbitration process; arbitration agreement.
Within two business days after the arbitration panel is appointed, the
lead arbitrator shall commence the arbitration process in writing.
Shortly after commencement, the parties, together with the panel of
arbitrators, shall create a written arbitration agreement, which at a
minimum will state with specificity the issues to be arbitrated and the
corresponding monetary award cap to which the parties have agreed. The
arbitration agreement shall also incorporate by reference the rules of
this subpart. The agreement may also contain other mutually agreed upon
provisions.
(c) Expedited timetables--(1) Discovery phase. The parties shall
have 45 days from the written commencement of arbitration by the lead
arbitrator to complete discovery. The arbitration panel may extend the
discovery phase upon an individual party's request. If the discovery
phase is extended, the arbitration panel may decide whether the
evidentiary phase should also be extended and, if so, for how long.
(2) Evidentiary phase. The evidentiary phase consists of the 45-day
discovery phase described in paragraph (c)(1) of this section and an
additional 45 days for the submission of pleadings or evidence, based on
the procedural schedule and using the procedures adopted by the lead
arbitrator, for a total duration of 90 days. The evidentiary phase
(including the discovery phase) shall begin on the written commencement
of the arbitration process under paragraph (b) of this section. The
arbitration panel shall have complete discretion whether to extend the
procedural schedule, based on input from the parties.
(3) Decision. The unredacted arbitration decision, as well as any
redacted version(s) of the arbitration decision as required by Sec.
1108.29(a)(2), shall be served on the parties within 30 days from the
end of the evidentiary phase.
(d) Limited discovery. (1) Discovery under this subpart shall be
limited to 20 written document requests and 5 interrogatories.
Depositions shall not be permitted.
(2) Each party is permitted an additional 3 written document request
and 3 interrogatories if the defendant carrier(s) does not concede
market dominance and the complainant elects to use a non-streamlined
market dominance analysis.
(3) Parties may request permission from the arbitration panel to
seek additional written document requests and interrogatories. The
arbitration panel may grant such requests for exceptional circumstances.
(e) Evidentiary guidelines--(1) Principles of due process. The lead
arbitrator shall adopt rules that comply with the principles of due
process, including but

[[Page 139]]

not limited to, allowing the defendant carrier a fair opportunity to
respond to the complainant's case-in-chief.
(2) Inadmissible evidence. The following evidence shall be
inadmissible in an arbitration under this part:
(i) On the issue of market dominance, any evidence that would be
inadmissible before the Board; and
(ii) Any non-precedential decisions, including prior decisions
issued by an arbitration panel.
(f) Confidentiality agreement. All arbitrations under this subpart
shall be governed by a confidentiality agreement, unless the parties
agree otherwise. With the exception of the Waybill Sample provided
pursuant to paragraph (g) of this section, the terms of the
confidentiality agreement shall apply to all aspects of an arbitration
under this part, including but not limited to discovery, party filings,
and the arbitration decision.
(g) Waybill Sample. (1) The Board's Office of Economics shall
provide unmasked confidential Waybill Sample data to each party to the
arbitration proceeding within seven days of the filing of a copy Joint
Notice of Intent to Arbitrate with the Director and accompanying letter
containing the relevant five-digit Standard Transportation Commodity
Code information. Such data to be provided by the Office of Economics
shall be limited to the most recent four years of movements on the
defendant carriers.
(2) Parties may request additional Waybill Sample data from the
Director of the Office of Economics pursuant to Sec. 1244.9(b)(4) of
this chapter. Parties must make such requests by submitting a formal
filing (with a ``WB'' docket prefix). The decision of the Director may
be appealed to the Board pursuant to Sec. 1115.1. In the event of an
appeal, the party filing the appeal shall immediately inform the other
parties to the arbitration and the arbitration panel. The arbitration
panel shall immediately stay the arbitration proceeding. After the Board
issues a decision ruling on the appeal of the Director's decision, the
arbitration panel shall lift the stay, the arbitration shall continue,
and all procedural time limits will be tolled. The Director's decision
(and, if necessary, the Board's decision ruling on appeal of the
Director's decision) will be published as part of the separate Waybill
docket, but the decision(s) will not be published until the Board
receives the confidential summary the parties are required to file
pursuant to Sec. 1108.29(e).

Sec. 1108.28 Relief.

(a) Relief available. Subject to the relief limits set forth in
paragraph (b) of this section, the arbitration panel under this subpart
may grant relief in the form of monetary damages or a rate prescription.
(b) Relief limits. Any relief awarded by the arbitration panel under
this subpart shall not exceed $4 million (as indexed annually for
inflation using the Producer Price Index and a 2007 base year) over two
years, inclusive of prospective rate relief, reparations for past
overcharges, or any combination thereof, unless otherwise agreed to by
the parties. Reparations or prescriptions may not be set below 180% of
variable cost, as determined by unadjusted Uniform Railroad Costing
System (URCS).
(c) Agreement to a different relief cap. For an individual dispute,
parties may agree by mutual written consent to arbitrate an amount above
or below the monetary cap in paragraph (b) of this section, up to $25
million, or for shorter or longer than two years, but no longer than 5
years. Parties must inform the Board of such agreement in the
confidential summary filed at the conclusion of the arbitration, as
required by Sec. 1108.29(e)(1).
(d) Relief not available. No injunctive relief shall be available in
arbitration proceedings under this part.

Sec. 1108.29 Decisions.

(a) Technical requirements--(1) Findings of fact and conclusions of
law. An arbitration decision under this subpart shall be in writing and
shall contain findings of fact and conclusions of law.
(2) Compliance with confidentiality agreement. The unredacted
arbitration decision served on the parties in accordance with Sec.
1108.27(c)(3) shall comply with the confidentiality agreement described
in Sec. 1108.27(f). As applicable, the arbitration panel shall also
provide the parties with a redacted version(s)

[[Page 140]]

of the arbitration decision that redacts or omits confidential and/or
highly confidential information as required by the governing
confidentiality agreement.
(b) Substantive requirements. The arbitration panel under this
subpart shall decide the issues of both market dominance and maximum
lawful rate.
(1) Market dominance. (i) The arbitration panel shall determine if
the carrier whose rate is the subject of the arbitration has market
dominance based on evidence submitted by the parties, unless paragraph
(b)(1)(vi) of this section applies.
(ii) Subject to Sec. 1108.27(e)(2), in determining the issue of
market dominance, the arbitration panel under this subpart shall follow,
at the complainant's discretion, either the streamlined market dominance
test or the non-streamlined market dominance test.
(iii) The arbitration panel shall issue its decision on market
dominance as part of its final arbitration decision.
(iv) The arbitration panel shall not consider evidence of product
and geographic competition when deciding market dominance.
(v) The arbitration panel shall not consider evidence on the Limit
Price Test when deciding market dominance.
(vi) If a carrier concedes that it possesses market dominance, the
arbitration panel need not make a determination on market dominance and
need only address the maximum lawful rate in the arbitration decision.
Additionally, the parties may jointly request that the Board determine
market dominance prior to initiating arbitration under this part.
(2) Maximum lawful rate. Subject to the requirements on inadmissible
evidence in Sec. 1108.27(e)(2), in determining the issue of maximum
lawful rate, the arbitration panel under this subpart shall consider the
Board's methodologies for setting maximum lawful rates, giving due
consideration to the need for differential pricing to permit a rail
carrier to collect adequate revenues (as determined under 49 U.S.C.
10704(a)(2)). The arbitration panel may otherwise base its decision on
the Board's existing rate review methodologies, revised versions of
those methodologies, new methodologies, or market-based factors,
including, for example: rate levels on comparative traffic; market
factors for similar movements of the same commodity; and overall costs
of providing the rail service. The arbitration panel's decision must be
consistent with sound principles of rail regulation economics.
(3) Agency precedent. Decisions rendered by the arbitration panel
under this subpart may be guided by, but need not be bound by, agency
precedent.
(c) Confidentiality of arbitration decision. The arbitration
decision under this part, whether redacted or unredacted, shall be
confidential, subject to the limitations set forth in Sec. 1108.31(d).
(1) No copy of the arbitration decision shall be served on the Board
except as is required under Sec. 1108.31(a)(1).
(2) The arbitrators and parties shall have a duty to maintain the
confidentiality of the arbitration decision, whether redacted or
unredacted, and shall not disclose any details of the arbitration
decision unless, and only to the extent, required by law.
(d) Arbitration decisions are binding. (1) By arbitrating pursuant
to the procedures under this part, each party to the arbitration agrees
that the decision and award of the arbitration panel shall be binding
and judicially enforceable in any court of appropriate jurisdiction,
subject to the rights of appeal provided in Sec. 1108.31.
(2) An arbitration decision under this subpart shall preclude the
complainant(s) from filing any rate complaint for the movements at issue
in the arbitration or instituting any other proceeding regarding the
rates for the movements at issue in the arbitration, with the exception
of appeals under Sec. 1108.31. This preclusion shall last until the
later of:
(i) Two years after the Joint Notice of Intent to Arbitrate; or
(ii) The expiration of the term of any prescription imposed by the
arbitration decision.
(3) The preclusion will cease if the carrier increases the rate
either: after a complainant is unsuccessful in arbitration or after a
complainant has been awarded a prescription and the prescription has
expired.

[[Page 141]]

(e) Confidential summaries of arbitrations; quarterly reports. To
permit the STB to monitor the Small Rate Case Arbitration Program, the
parties shall submit a confidential summary of the arbitration to the
Board's Office of Public Assistance, Governmental Affairs, and
Compliance (OPAGAC) within 14 days after either the arbitration decision
is issued, the dispute settles, or the dispute is withdrawn. A
confidential summary must be filed for any instance in which a
complainant has submitted to the participating carrier a notice of
intent to arbitrate, even if the parties did not reach the arbitration
phase. The confidential summary itself shall not be published. OPAGAC
will provide copies of the confidential summaries to the Board Members
and other appropriate Board employees.
(1) Contents of confidential summary. The confidential summary shall
provide only the following information to the Board with regard to the
dispute arbitrated under this part:
(i) Geographic region of the movement(s) at issue;
(ii) Commodities shipped;
(iii) Number of calendar days from the commencement of the
arbitration proceeding to the conclusion of the arbitration;
(iv) Resolution of the arbitration, limited to the following
descriptions: settled, withdrawn, dismissed on market dominance,
challenged rate(s) found unreasonable/reasonable; and
(v) Any agreement to a different relief cap or period than set forth
in Sec. 1108.28(b).
(2) STB quarterly reports on Small Rate Case Arbitration Program.
The STB may publish public quarterly reports on the final disposition of
arbitrated rate disputes under the Small Rate Case Arbitration Program.
(i) If issued, the Board's quarterly reports on the Small Rate Case
Arbitration Program shall disclose only the five categories of
information listed in paragraph (e)(1) of this section. The parties to
the arbitration who filed the confidential summary shall not be
disclosed.
(ii) If issued, the Board's quarterly reports on the Small Rate Case
Arbitration Program shall be posted on the Board's website.

Sec. 1108.30 No precedent.

Arbitration decisions under this subpart shall have no precedential
value, and their outcomes and reasoning may not be submitted into
evidence or argued in subsequent arbitration proceedings conducted under
this subpart or in any Board proceeding, except an appeal of the
arbitration decision under Sec. 1108.31.

Sec. 1108.31 Enforcement and appeals.

(a) Appeal to the Board--(1) Petition to vacate or modify
arbitration decision. A party appealing the arbitration decision shall
file under seal a petition to modify or vacate the arbitration decision,
setting forth its full argument for vacating or modifying the decision.
The petition to vacate or modify the arbitration decision must be filed
within 20 days from the date on which the arbitration decision was
served on the parties. The party appealing must include both a redacted
and unredacted copy of the arbitration decision. The petition shall be
subject to the page limitations of Sec. 1115.2(d) of this chapter.
(2) Replies. Replies to the petition shall be filed under seal
within 20 days of the filing of the petition to vacate or modify with
the Board. Replies shall be subject to the page limitations of Sec.
1115.2(d) of this chapter.
(3) Content and confidentiality of filings; public docket. All
submissions for appeals of the arbitration decision to the Board shall
be filed under seal. After the party has submitted its filing to the
Board under seal, the party shall prepare a public version of the filing
with any information having an effect or impact on the marketplace
redacted. A party may also attach to its petition or reply excerpts from
any materials from the underlying arbitration record that are necessary
support for its petition or reply. Such attachments will be treated as
confidential and will not count toward the page limit set forth in 49
CFR 1115.2. The party will then provide the opposing party an
opportunity to request further redactions. After consulting with the
opposing party on redactions, the party

[[Page 142]]

shall file the public version with the Board for posting on its website.
(4) Service. Copies of the petition to vacate or modify and replies
shall be served upon all parties in accordance with the Board's rules at
part 1104 of this chapter. The appealing party shall also serve a copy
of its petition to vacate or modify upon the arbitration panel.
(b) Board's standard of review. The Board's standard of review of
arbitration decisions under this subpart shall be limited to determining
only whether:
(1) The decision is consistent with sound principles of rail
regulation economics;
(2) A clear abuse of arbitral authority or discretion occurred;
(3) The decision directly contravenes statutory authority; or
(4) The award limitation was violated.
(c) Relief available on appeal to the Board. Subject to the Board's
limited standard of review as set forth in paragraph (b) of this
section, the Board may affirm, modify, or vacate an arbitration award in
whole or in part, with any modifications subject to the relief limits
set forth in Sec. 1108.28.
(d) Confidentiality of Board's decision on appeal--(1) Scope of
confidentiality. The Board's decision will be public but shall maintain
the confidentiality of the arbitration decision to the maximum extent
possible, giving particular attention to avoiding the disclosure of
information that would have an effect or impact on the marketplace,
including the specific relief awarded by the arbitration panel, if any,
or by the Board; or the origin-destination pair(s) involved in the
arbitration.
(2) Opportunity to propose redactions to the Board decision. Before
publishing the Board's decision, the Board shall serve only the parties
with a confidential version of its decision in order to provide the
parties with an opportunity to file confidential requests for redaction
of the Board's decision.
(i) A request for redaction may be filed under seal within 5 days
after the date on which the Board serves the parties with the
confidential version of its decision.
(ii) The Board will publish its decision(s) on any requests for
redaction in a way that maintains the confidentiality of any information
the Board determines should be redacted.
(e) Reviewability of Board decision. Board decisions affirming,
vacating, or modifying arbitration awards under this subpart are
reviewable under the Hobbs Act, 28 U.S.C. 2321 and 2342.
(f) Appeals subject to the Federal Arbitration Act. Nothing in this
subpart shall prevent parties to arbitration from seeking judicial
review of arbitration awards in a court of appropriate jurisdiction
pursuant to the Federal Arbitration Act, 9 U.S.C. 9-13, in lieu of
seeking Board review.
(g) Staying arbitration decision. The timely filing of a petition
with the Board to modify or vacate the arbitration decision will not
automatically stay the effect of the arbitration decision. A stay may be
requested under Sec. 1115.3(f) of this chapter.
(h) Enforcement. A party seeking to enforce an arbitration decision
under this subpart must petition a court of appropriate jurisdiction
under the Federal Arbitration Act, 9 U.S.C. 9-13.

Sec. 1108.32 Assessment of the Small Rate Case Arbitration Program.

The Board will conduct an assessment of the Small Rate Case
Arbitration Program to determine if the program is providing an
effective means of resolving rate disputes for small cases. The Board's
assessment will occur upon the completion of a reasonable number of
arbitration proceedings such that the Board can conduct a comprehensive
assessment, though not later than three years after start of the
program. In conducting this assessment, the Board will obtain feedback
from relevant parties. As part of the Board's assessment, it will study
the cost to arbitrate a rate dispute as compared to the cost of
adjudicating a formal rate case. Depending on the outcome of such
review, the Board may determine that the arbitration program will be
terminated, modified, and/or extended beyond the initial 5-year period.

[[Page 143]]

Sec. 1108.33 Exemption from Final Offer Rate Review.

Carriers that opt into the arbitration program under Sec.
1108.23(a) will be exempt from having their rates challenged under Final
Offer Rate Review if the program becomes operative. The exemption from
Final Offer Rate Review will become operative upon publication of the
Board's notice commencing the arbitration program required under Sec.
1108.22(b) in the Federal Register. The exemption will terminate upon
the effective date of the participating carrier no longer participating
in the arbitration program under this part, including, due to withdrawal
from the arbitration program, as set forth in Sec. 1108.23(c) or
termination of the program under the sunset-provision of Sec.
1108.22(b). Upon termination of the exemption, parties are permitted to
challenge a carrier's rate using Final Offer Rate Review.

PART 1109_USE OF MEDIATION IN BOARD PROCEEDINGS--Table of Contents

Sec.
1109.1 Mediation statement of purpose, organization, and jurisdiction.
1109.2 Commencement of mediation.
1109.3 Mediation procedures.
1109.4 Mandatory mediation in rate cases to be considered under the
stand-alone cost methodology.
1109.5 Resolution of certain disputes involving the State Sponsored
Route Committee and the Northeast Corridor Commission.

Authority: 49 U.S.C. 1321(a) and 5 U.S.C. 571 et seq.

Source: 78 FR 29083, May 17, 2013, unless otherwise noted.

Sec. 1109.1 Mediation statement of purpose, organization, and jurisdiction.

The Board favors the resolution of disputes through the use of
mediation and arbitration procedures, in lieu of formal Board
proceedings, whenever possible. Parties may seek to resolve a dispute
brought before the Board using the Board's mediation procedures. These
procedures shall not be available in a regulatory proceeding to obtain
the grant, denial, stay or revocation of a request for construction,
abandonment, purchase, trackage rights, merger, pooling authority or
exemption related to such matters. The Board may, by its own order,
direct the parties to participate in mediation using the Board's
mediation procedures. The Board's mediation program is open to all
parties eligible to bring or defend matters before the Board.

Sec. 1109.2 Commencement of mediation.

(a) Availability of mediation. Mediation may be commenced in a
dispute before the Board:
(1) Pursuant to a Board order issued in response to a written
request of one or more parties to a matter;
(2) Where the Board orders mediation by its own order; or
(3) In connection with a rate complaint, as provided by Sec. 1109.4
and part 1111 of this chapter.
(b) Requests for mediation. Parties wishing to pursue mediation may
file a request for mediation with the Board at any time following the
filing of a complaint. Parties that use the Board's mediation procedures
shall not be required to pay any fees other than the appropriate filing
fee associated with the underlying dispute, as provided at 49 CFR
1002.2. The Board shall grant any mediation request submitted by all
parties to a matter, but may deny mediation where one or more parties to
the underlying dispute do not consent to mediation, or where the parties
seek to mediate disputes not eligible for Board-sponsored mediation, as
listed in Sec. 1109.1.

Sec. 1109.3 Mediation procedures.

(a) Mediation model. The Chairman will appoint one or more Board
employees trained in mediation to mediate any dispute assigned for
mediation. Alternatively, the parties to a matter may agree to use a
non-Board mediator if they so inform the Board within 10 days of an
order assigning the dispute to mediation. If a non-Board mediator is
used, the parties shall share equally the fees and/or costs of the
mediator. The following restrictions apply to any mediator selected by
the Board or the parties:
(1) No person serving as a mediator may thereafter serve as an
advocate for a party in any other proceeding arising

[[Page 144]]

from or related to the mediated dispute, including, without limitation,
representation of a party to the mediation before any other federal
court or agency; and
(2) If the mediation does not fully resolve all issues in the docket
before the Board, the Board employees serving as mediators may not
thereafter advise the Board regarding the future disposition of the
remaining issues in the docket.
(b) Mediation period. The mediation period shall be 30 days,
beginning on the date of the first mediation session. The Board may
extend mediation for additional periods of time not to exceed 30 days
per period, pursuant to mutual written requests of all parties to the
mediation proceeding. The Board will not extend mediation for additional
periods of time where one or more parties to mediation do not agree to
an extension. The Board will not order mediation more than once in any
particular proceeding, but may permit it if all parties to a matter
mutually request another round of mediation. The mediator(s) shall
notify the Board whether the parties have reached any agreement by the
end of the 30-day period.
(c) Party representatives. At least one principal of each party, who
has the authority to bind that party, shall participate in the mediation
and be present at any session at which the mediator(s) request that
principal to be present.
(d) Confidentiality. Mediation is a confidential process, governed
by the confidentiality rules of the Administrative Dispute Resolution
Act of 1996 (ADRA) (5 U.S.C. 574). In addition to the confidentiality
rules set forth in the ADRA, the Board requires the following additional
confidentiality protections:
(1) All parties to Board sponsored mediation will sign an Agreement
to Mediate. The Agreement to Mediate shall incorporate these rules by
reference.
(2) As a condition of participation, the parties and any interested
parties joining the mediation must agree to the confidentiality of the
mediation process as provided in this section and further detailed in an
agreement to mediate. The parties to mediation, including the
mediator(s), shall not testify in administrative or judicial proceedings
concerning the issues discussed in mediation, nor submit any report or
record of the mediation discussions, other than the settlement agreement
with the consent of all parties, except as required by law.
(3) Evidence of conduct or statements made during mediation is not
admissible in any Board proceeding. If mediation fails to result in a
full resolution of the dispute, evidence that is otherwise discoverable
may not be excluded from introduction into the record of the underlying
proceeding merely because it was presented during mediation. Such
materials may be used if they are disclosed through formal discovery
procedures established by the Board or other adjudicatory bodies.
(e) Abeyance. Except as otherwise provided for in Sec. 1109.4(f)
and part 1111 of this chapter, any party may request that a proceeding
be held in abeyance while mediation procedures are pursued. Any such
request should be submitted to the Chief, Section of Administration,
Office of Proceedings. The Board shall promptly issue an order in
response to such requests. Except as otherwise provided for in Sec.
1109.4(g) and part 1111 of this chapter, the Board may also direct that
a proceeding be held in abeyance pending the conclusion of mediation.
Where both parties to mediation voluntarily consent to mediation, the
period during which any proceeding is held in abeyance shall toll
applicable statutory deadlines. Where one or both parties to mediation
do not voluntarily consent to mediation, the Board will not hold the
underlying proceeding in abeyance and statutory deadlines will not be
tolled.
(f) Mediated settlements. Any settlement agreement reached during or
as a result of mediation must be in writing, and signed by all parties
to the mediation. The parties need not provide a copy of the settlement
agreement to the Board, or otherwise make the terms of the agreement
public, but the parties, or the mediator(s), shall notify the Board that
the parties have reached a mutually agreeable resolution and request
that the Board terminate the underlying Board proceeding. Parties to the
settlement agreement

[[Page 145]]

shall waive all rights of administrative appeal to the issues resolved
by the settlement agreement.
(g) Partial resolution of mediated issues. If the parties reach only
a partial resolution of their dispute, they or the mediator(s) shall so
inform the Board, and the parties shall file any stipulations they have
mutually reached, and ask the Board to reactivate the procedural
schedule in the underlying proceeding to decide the remaining issues.

Sec. 1109.4 Mandatory mediation in rate cases to be considered under
the stand-alone cost methodology.

(a) Mandatory use of mediation. A shipper seeking rate relief from a
railroad or railroads in a case involving the stand-alone cost
methodology must engage in non-binding mediation of its dispute with the
railroad upon submitting a pre-filing notice under 49 CFR part 1111.
(b) Assignment of mediators. Within 5 business days after the
shipper submits its pre-filing notice, the Board will assign one or more
mediators to the case. Within 5 business days of the assignment to
mediate, the mediator(s) shall contact the parties to discuss ground
rules and the time and location of any meeting.
(c) Party representatives. At least one principal of each party, who
has the authority to bind that party, shall participate in the mediation
and be present at any session at which the mediator(s) requests that the
principal be present.
(d) Settlement. The mediator(s) will work with the parties to try to
reach a settlement of all or some of their dispute or to narrow the
issues in dispute, and reach stipulations that may be incorporated into
any adjudication before the Board if mediation does not fully resolve
the dispute. If the parties reach a settlement, the mediator(s) may
assist in preparing a written settlement agreement.
(e) Confidentiality. The entire mediation process shall be private
and confidential. No party may use any concessions made or information
disclosed to either the mediator(s) or the opposing party before the
Board or in any other forum without the consent of the other party. The
confidentiality provision of Sec. 1109.3(d) and the mediation agreement
shall apply to all mediations conducted under this section.
(f) Mediation period. The mediation shall be completed within 60
days of the appointment of the mediator(s). The mediation may be
terminated prior to the end of the 60-day period only with the
certification of the mediator(s) to the Board. Requests to extend
mediation, or to re-engage it later, will be entertained on a case-by-
case basis, but only if filed by all interested parties.
(g) Procedural schedule. Absent a specific order from the Board
granting an extension, the mediation will not affect the procedural
schedule in stand-alone cost rate cases set forth at 49 CFR 1111.9(a).

[78 FR 29083, May 17, 2013, as amended at 82 FR 57378, Dec. 5, 2017]

Sec. 1109.5 Resolution of certain disputes involving the State Sponsored
Route Committee and the Northeast Corridor Commission.

(a) In addition to the mediation procedures under this part that are
available following the filing of a complaint in a proceeding before the
Board, Amtrak or a State member of the State Supported Route Committee
established under 49 U.S.C. 24712 may request that the Board informally
assist in securing outside professional mediation services in order to
resolve disputes arising from: Implementation of, or compliance with,
the cost allocation methodology for State-Supported Routes developed
under section 209 of the Passenger Rail Investment and Improvement Act
of 2008 or amended under 49 U.S.C. 24712(a)(6); invoices or reports
provided under 49 U.S.C. 24712(b); or rules and procedures implemented
by the State Supported Route Committee under 49 U.S.C. 24712(a)(4). With
respect to a particular dispute, such a request for informal assistance
in securing outside professional mediation services may be submitted to
the Board:
(1) In the absence of a complaint proceeding before the Board; or
(2) If, while a formal complaint is pending before the Board, a
motion is

[[Page 146]]

filed in that formal proceeding requesting that it be held in abeyance
in light of the request for informal assistance.
(b) In addition to the mediation procedures under this part that are
available following the filing of a complaint in a proceeding before the
Board, the Northeast Corridor Commission established under 49 U.S.C.
24905, Amtrak, or public authorities providing commuter rail passenger
transportation on the Northeast Corridor may request that the Board
informally assist in securing outside professional mediation services in
order to resolve disputes involving implementation of, or compliance
with, the policy developed under 49 U.S.C. 24905(c)(1). With respect to
a particular dispute, such a request for informal assistance in securing
outside professional mediation services may be submitted to the Board:
(1) In the absence of a complaint proceeding before the Board; or
(2) If, while a formal complaint is pending before the Board, a
motion is filed in that formal proceeding requesting that it be held in
abeyance in light of the request for informal assistance.
(c) A request for informal Board assistance in securing outside
professional mediation services under paragraph (a) or (b) of this
section shall be submitted by letter duly authorized to be submitted to
the Board by the requesting party. The request letter shall be addressed
to the Director of the Board's Office of Public Assistance, Governmental
Affairs, and Compliance, and shall include a concise description of the
issues for which outside professional mediation services are sought. The
Office of Public Assistance, Governmental Affairs, and Compliance shall
contact the requesting party in response to such request within 14 days
of receipt of the request.

[81 FR 85904, Nov. 29, 2016]

PART 1110_PROCEDURES GOVERNING INFORMAL RULEMAKING PROCEEDINGS-
-Table of Contents

Sec.
1110.1 Applicability.
1110.2 Opening of proceeding.
1110.3 Publication of notices.
1110.4 Participation.
1110.5 Consideration of comments received.
1110.6 Petitions for extension of time to comment.
1110.7 Availability of dockets.
1110.8 Adoption of final rules.
1110.9 Petition for waiver.
1110.10 Petitions for reconsideration.

Authority: 49 U.S.C. 1321.

Source: 47 FR 49556, Nov. 1, 1982, unless otherwise noted.

Sec. 1110.1 Applicability.

This part contains general rulemaking procedures that apply to the
issuance, amendment, and repeal of rules, general policy statement, or
other interpretation of rules or law of the Surface Transportation
Board, adopted under the procedures of section 553 of title 5 of the
United States Code (the Administrative Procedure Act).

Sec. 1110.2 Opening of proceeding.

(a) The Board may open a rulemaking proceeding on its own motion. In
doing so, it may consider the recommendations of other agencies of the
United States and of other persons.
(b) Any person may petition the Board to open a proceeding to issue,
amend, or repeal a rule.
(c) Each petition seeking the institution of a proceeding, filed
under this section must:
(1) Be submitted to the Chief, Section of Administration, Office of
Proceedings, Surface Transportation Board, Washington DC;
(2) Set forth the text or substance of the rule or amendment
proposed or specify the rule that the petitioner wants to have repealed
or modified;
(3) Explain the interest of the petitioner in the action requested;
and
(4) Contain any information and arguments available to the
petitioner to support the action sought and may detail any
environmental, energy, or small business considerations.
(d) In rail cases, the Board will grant or deny a petition within
120 days of its receipt.
(e) If the Board determines that a petition contains adequate
justification, it will open a rulemaking proceeding pursuant to Sec.
1110.3 and will notify the petitioner of its action.

[[Page 147]]

(f) If the Board determines that the petition does not contain
adequate justification for opening a rulemaking proceeding, the petition
will be denied, with a brief statement of the grounds for denial, and
the petitioner will be notified of the Board's action.
(g) If a petition under this section concerning a common carrier by
railroad is granted, the Board will proceed as soon as it is
practicable. If the petition is denied, the Board will publish a
statement of the reasons for the denial in the Federal Register.

[47 FR 49556, Nov. 1, 1982, as amended at 74 FR 52907, Oct. 15, 2009; 81
FR 8854, Feb. 23, 2016; 84 FR 12944, Apr. 3, 2019]

Sec. 1110.3 Publication of notices.

(a) Interpretive rules, general statements of policy, and rules
relating to organization, procedure, or practice may be issued as final
without notice or other public rulemaking proceedings.
(b) General rulemaking proceedings will be opened by the issuance of
either a notice of intent to institute a rulemaking proceeding, an
advance notice of proposed rulemaking, or a notice of proposed rules.
The Board will publish the notice in the Federal Register, and it will
invite the public to participate in the rulemaking proceeding. No notice
will be issued when the Board finds for good cause, that notice is
impractical or unnecessary or contrary to the public interest.
(c) Notices of proposed rulemakings will include:
(1) The proposed rules, if prepared;
(2) A discussion of why the rulemakings are needed and what they are
intended to accomplish;
(3) Identification of significant dates in the proceedings, such as
dates by which comments must be filed or on which the rules are proposed
to take effect;
(4) Any relevant addresses;
(5) The name and phone number of an individual within the Board who
can provide further information concerning the proceedings;
(6) Any supplementary information required; and
(7) Reference to the legal authority under which the rules are
proposed.
(d) In addition to being published in the Federal Register, notices
of proposed rulemaking and subsequent notices and decisions in
rulemaking proceedings, will be served on the parties by the Office of
Proceedings and made available to the public through the Office of
Public Assistance, Governmental Affairs, and Compliance. To the extent
possible, the date of service will be the same as the date of
publication in the Federal Register. When the service and publication
dates are not the same, the date of publication in the Federal Register
is controlling for the purpose of determining time periods set by these
procedures or by notices issued in individual proceedings.

[47 FR 49556, Nov. 1, 1982, as amended at 74 FR 52907, Oct. 15, 2009]

Sec. 1110.4 Participation.

Any person may participate in rulemaking proceedings by submitting
written information or views. In addition, the Board may invite persons
to present oral arguments, participate in informal conferences, appear
at informal fact-finding hearings, or participate in any other
proceedings. Information contained in written submissions will be given
the same consideration.

Sec. 1110.5 Consideration of comments received.

All timely comments will be considered before final action is taken
on a rulemaking proposal. Comments which are filed late will be
considered so far as possible without incurring undue expense, delay, or
prejudice to other parties.

[47 FR 49556, Nov. 1, 1982, as amended at 81 FR 8854, Feb. 23, 2016]

Sec. 1110.6 Petitions for extension of time to comment.

(a) Any person may petition the Board for an extension of time to
submit comments in response to a notice of proposed rulemaking. The
petition must be submitted at least 10 days prior to the deadline for
filing comments. The filing of the petition does not automatically
extend the time for the filing of petitioner's comments.

[[Page 148]]

(b) The Board will grant the petition only if the petitioner shows a
substantive interest in the proposed rule and good cause for the
extension, and if the extension is in the public interest. If an
extension is granted, notice of it will be published in the Federal
Register, and it will apply to all persons.

[47 FR 49556, Nov. 1, 1982, as amended at 84 FR 12944, Apr. 3, 2019]

Sec. 1110.7 Availability of dockets.

Dockets of pending rulemaking proceedings are maintained in the
Office of Proceedings. These dockets are available for inspection by any
person, and copies may be obtained upon payment of the prescribed fee.

[74 FR 52907, Oct. 15, 2009]

Sec. 1110.8 Adoption of final rules.

If, after consideration of all comments received, final rules are
adopted, notice will be published in the Federal Register.

Sec. 1110.9 Petition for waiver.

Any person may petition the Board for a permanent or temporary
waiver of any rule. Petitions should be filed with the Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board,
Washington, DC 20423-0001, and should identify the rule involved.

[74 FR 52907, Oct. 15, 2009]

Sec. 1110.10 Petitions for reconsideration.

Any person may file a petition for reconsideration of the Board's
decision in a rulemaking proceeding. Petitions should be filed within 20
days of the date that the final decision is published in the Federal
Register and should identify the interest of the petitioner, the
specific action sought, and the arguments favoring that action.

PART 1111_COMPLAINT AND INVESTIGATION PROCEDURES--Table of Contents

Sec.
1111.1 Pre-filing procedures in stand-alone cost cases.
1111.2 Content of formal complaints; joinder.
1111.4 Service.
1111.5 Answers and cross complaints.
1111.6 Motions to dismiss or to make more definite.
1111.7 Satisfaction of complaint.
1111.8 Investigations on the Board's own motion.
1111.9 Procedural schedule in stand-alone cost cases.
1111.10 Procedural schedule in cases using simplified standards.
1111.11 Meeting to discuss procedural matters.
1111.12 Streamlined market dominance.

Authority: 49 U.S.C. 10701, 10704, 11701 and 1321.

Source: 82 FR 57379, Dec. 5, 2017, unless otherwise noted.

Sec. 1111.1 Pre-filing procedures in stand-alone cost cases.

(a) General. At least 70 days prior to the proposed filing of a
complaint challenging the reasonableness of a rail rate based on stand-
alone cost, complainant shall file a notice with the Board. The notice
shall:
(1) Identify the rate to be challenged;
(2) Identify the origin/destination pair(s) to be challenged;
(3) Identify the affected commodities; and
(4) Include a motion for protective order as set forth at 49 CFR
1104.14(c).
(b) Liaison. Within 10 days of the filing of the pre-filing notice,
the Board shall appoint a liaison to the parties.

Sec. 1111.2 Content of formal complaints; joinder.

(a) General. A formal complaint must contain the correct,
unabbreviated names and addresses of each complainant and defendant. It
should set forth briefly and in plain language the facts upon which it
is based. It should include specific reference to pertinent statutory
provisions and Board regulations, and should advise the Board and the
defendant fully in what respects these provisions or regulations have
been violated. The complaint should contain a detailed statement of the
relief requested. Relief in the alternative or of several different
types may be demanded, but the issues raised in the formal complaint
should not be broader than those to which complainant's evidence is to
be directed. In a complaint challenging the reasonableness of a rail
rate, the complainant should indicate

[[Page 149]]

whether, in its view, the reasonableness of the rate should be examined
using constrained market pricing or using the simplified standards
adopted pursuant to 49 U.S.C. 10701(d)(3). If the complainant seeks to
use the simplified standards, it should support this request by
submitting, at a minimum, the following information:
(1) The carrier or region identifier.
(2) The type of shipment (local, received-terminated, etc.).
(3) The one-way distance of the shipment.
(4) The type of car (by URCS code).
(5) The number of cars.
(6) The car ownership (private or railroad).
(7) The commodity type (STCC code).
(8) The weight of the shipment (in tons per car).
(9) The type of movement (individual, multi-car, or unit train).
(10) A narrative addressing whether there is any feasible
transportation alternative for the challenged movements.
(11) For matters for which voluntary, binding arbitration is
available pursuant to 49 CFR part 1108, the complaint shall state that
arbitration was considered, but rejected, as a means of resolving the
dispute.
(b) Disclosure with simplified standards complaint. The complainant
must provide to the defendant all documents relied upon in formulating
its assessment of a feasible transportation alternative and all
documents relied upon to determine the inputs to the URCS Phase III
program.
(c) Multiple causes of action. Two or more grounds of complaint
concerning the same principle, subject, or statement of facts may be
included in one complaint, but should be stated and numbered separately.
(d) Joinder. Two or more complainants may join in one complaint
against one or more defendants if their respective causes of action
concern substantially the same alleged violations and like facts.
(e) Request for access to waybill data. Parties needing access to
the Waybill Sample to prepare their case should follow the procedures
set forth at 49 CFR 1244.9.
(f) Discovery in stand-alone cost cases. Upon filing its complaint,
the complainant shall certify that it has served its initial discovery
requests on the defendant.

Sec. 1111.3 Amended and supplemental complaints.

(a) Generally. An amended or supplemental complaint may be tendered
for filing by a complainant against a defendant or defendants named in
the original complaint, stating a cause of action alleged to have
accrued within the statutory period immediately preceding the date of
such tender, in favor of complainant and against the defendant or
defendants. The time limits for responding to an amended or supplemental
complaint are computed pursuant to Sec. Sec. 1111.5 and 1111.6, as if
the amended or supplemental complaint was an original complaint.
(b) Stand-alone cost. If a complainant tenders an amended or
supplemental complaint in a stand-alone cost case, the complainant shall
certify that it has served on the defendant those initial discovery
requests affected by the amended or supplemental complaint, if any.
(c) Simplified standards. A complaint filed under Simplified-SAC or
Three-Benchmark may be amended once before the filing of opening
evidence to opt for a different rate reasonableness methodology, among
Three-Benchmark, Simplified-SAC, or stand-alone cost. If so amended, the
procedural schedule begins again under the new methodology as set forth
at Sec. Sec. 1111.9 and 1111.10. However, only one mediation period per
complaint shall be required. A complaint filed under Final Offer Rate
Review may not be amended to opt for Three-Benchmark, Simplified-SAC, or
stand-alone cost, and a complaint filed under Three-Benchmark,
Simplified-SAC, or stand-alone cost may not be amended to opt for Final
Offer Rate Review.

[82 FR 57379, Dec. 5, 2017, as amended at 88 FR 318, Jan. 4, 2023]

Sec. 1111.4 Service.

A complainant is responsible for serving formal complaints, amended
or supplemental complaints, and cross complaints on the defendant(s).
Service

[[Page 150]]

shall be made by sending a copy of such complaint to the chief legal
officer of each defendant by either confirmed facsimile and first-class
mail or express overnight courier. The cover page of each such facsimile
and the front of each such first-class mail or overnight express courier
envelope shall include the following legend: ``Service of STB
Complaint''. Service of the complaint shall be deemed completed on the
date on which the complaint is served by confirmed facsimile or, if
service is made by express overnight courier, on the date such complaint
is actually received by the defendant. When the complaint involves more
than one defendant, service of the complaint shall be deemed completed
on the date on which all defendants have been served. The complaint
should be filed with the Board together with an acknowledgment of
service by the persons served or proof of service in the form of a
statement of the date and manner of service, of the names of the persons
served, and of the addresses to which the papers were mailed or at which
they were delivered, certified by the person who made service.

[82 FR 57379, Dec. 5, 2017, as amended at 84 FR 12944, Apr. 3, 2019]

Sec. 1111.5 Answers and cross complaints.

(a) Generally. Other than in cases under Final Offer Rate Review,
which does not require the filing of an answer, an answer shall be filed
within the time provided in paragraph (c) of this section. An answer
should be responsive to the complaint and should fully advise the Board
and the parties of the nature of the defense. In answering a complaint
challenging the reasonableness of a rail rate, the defendant should
indicate whether it will contend that the Board is deprived of
jurisdiction to hear the complaint because the revenue-variable cost
percentage generated by the traffic is less than 180 percent, or the
traffic is subject to effective product or geographic competition. In
response to a complaint filed under Simplified-SAC or Three-Benchmark,
the answer must include the defendant's preliminary estimate of the
variable cost of each challenged movement calculated using the
unadjusted figures produced by the URCS Phase III program.
(b) Disclosure with Simplified-SAC or Three-Benchmark answer. The
defendant must provide to the complainant all documents that it relied
upon to determine the inputs used in the URCS Phase III program.
(c) Time for filing; copies; service. Other than in cases under
Final Offer Rate Review, which does not require the filing of an answer,
an answer must be filed with the Board within 20 days after the service
of the complaint or within such additional time as the Board may
provide. The defendant must serve copies of the answer upon the
complainant and any other defendants.
(d) Cross complaints. A cross complaint alleging violations by other
parties to the proceeding or seeking relief against them may be filed
with the answer. An answer to a cross complaint shall be filed within 20
days after the service date of the cross complaint. The party shall
serve copies of an answer to a cross complaint upon the other parties.
(e) Failure to answer complaint. Other than in cases under Final
Offer Rate Review, which does not require the filing of an answer,
averments in a complaint are admitted when not denied in an answer to
the complaint.
(f) Discovery in stand-alone cost cases. Upon filing its answer, the
defendant shall certify that it has served its initial discovery
requests on the complainant. If the complainant tenders an amended or
supplemental complaint to which the defendant must reply, upon filing
the answer to the amended or supplemental complaint, the defendant shall
certify that it has served on the complainant those initial discovery
requests affected by the amended or supplemental complaint, if any.

[82 FR 57379, Dec. 5, 2017, as amended at 84 FR 12944, Apr. 3, 2019; 88
FR 318, Jan. 4, 2023]

Sec. 1111.6 Motions to dismiss or to make more definite.

An answer to a complaint or cross complaint may be accompanied by a
motion to dismiss the complaint or cross complaint or a motion to make
the complaint or cross complaint more definite. A motion to dismiss can
be

[[Page 151]]

filed at anytime during a proceeding. A complainant or cross complainant
may, within 10 days after an answer is filed, file a motion to make the
answer more definite. Any motion to make more definite must specify the
defects in the particular pleading and must describe fully the
additional information or details thought to be necessary.

Sec. 1111.7 Satisfaction of complaint.

If a defendant satisfies a formal complaint, either before or after
answering, a statement to that effect signed by the complainant must be
filed (original only need be filed), setting forth when and how the
complaint has been satisfied. This action should be taken as
expeditiously as possible.

Sec. 1111.8 Investigations on the Board's own motion.

(a) Service of decision. A decision instituting an investigation on
the Board's own motion will be served by the Board upon respondents.
(b) Default. If within the time period stated in the decision
instituting an investigation, a respondent fails to comply with any
requirement specified in the decision, the respondent will be deemed in
default and to have waived any further proceedings, and the
investigation may be decided forthwith.

Sec. 1111.9 Procedural schedule in stand-alone cost cases.

(a) Procedural schedule. Absent a specific order by the Board, the
following general procedural schedule will apply in stand-alone cost
cases after the pre-complaint period initiated by the pre-filing notice:
(1) Day 0--Complaint filed, discovery period begins.
(2) Day 7 or before--Conference of the parties convened pursuant to
Sec. 1111.11(b).
(3) Day 20--Defendant's answer to complaint due.
(4) Day 150--Discovery completed.
(5) Day 210--Complainant files opening evidence on absence of
intermodal and intramodal competition, variable cost, and stand-alone
cost issues.
(6) Day 270--Defendant files reply evidence to complainant's opening
evidence.
(7) Day 305--Complainant files rebuttal evidence to defendant's
reply evidence. In cases using the streamlined market dominance
approach, a telephonic evidentiary hearing before an administrative law
judge, as described in Sec. 1111.12(d) of this chapter, will be held at
the discretion of the complainant in lieu of the submission of a written
rebuttal on market dominance issues. The hearing will be held on or
about the date that the complainant's rebuttal evidence on rate
reasonableness is due.
(8) Day 335--Complainant and defendant file final briefs.
(9) Day 485 or before--The Board issues its decision.
(b) Staggered filings; final briefs. (1) The parties may submit non-
public (e.g., confidential, highly confidential) versions of filings on
the dates identified in the procedural schedule, and submit public
versions of those filings within three business days thereafter.
(2) Final briefs are limited to 30 pages, inclusive of exhibits.
(c) Conferences with parties. (1) The Board will convene a technical
conference of the parties with Board staff prior to the filing of any
evidence in a stand-alone cost rate case, for the purpose of reaching
agreement on the operating characteristics that are used in the variable
cost calculations for the movements at issue. The parties should jointly
propose a schedule for this technical conference.
(2) In addition, the Board may convene a conference of the parties
with Board staff, after discovery requests are served but before any
motions to compel may be filed, to discuss discovery matters in stand-
alone cost rate cases. The parties should jointly propose a schedule for
this discovery conference.

[82 FR 57379, Dec. 5, 2017, as amended at 85 FR 47697, Aug. 6, 2020]

Sec. 1111.10 Procedural schedule in cases using simplified standards.

(a) Procedural schedule. Absent a specific order by the Board, the
following general procedural schedules will apply in cases using the
simplified standards:
(1)(i) In cases relying upon the Simplified-SAC methodology:

[[Page 152]]

(A) Day 0--Complaint filed (including complainant's disclosure).
(B) Day 10--Mediation begins.
(C) Day 20--Defendant's answer to complaint (including defendant's
initial disclosure).
(D) Day 30--Mediation ends; discovery begins.
(E) Day 140--Defendant's second disclosure.
(F) Day 150--Discovery closes.
(G) Day 220--Opening evidence.
(H) Day 280--Reply evidence.
(I) Day 310--Rebuttal evidence. In cases using the streamlined
market dominance approach, a telephonic evidentiary hearing before an
administrative law judge, as described in Sec. 1111.12(d) of this
chapter, will be held at the discretion of the complainant in lieu of
the submission of a written rebuttal on market dominance issues. The
hearing will be held on or about the date that the complainant's
rebuttal evidence on rate reasonableness is due.
(J) Day 320--Technical conference (market dominance and merits,
except for cases using the streamlined market dominance approach, in
which the technical conference will be limited to merits issues).
(K) Day 330--Final briefs.
(ii) In addition, the Board will appoint a liaison within 10
business days of the filing of the complaint.
(2)(i) In cases relying upon the Three-Benchmark methodology:
(A) Day 0--Complaint filed (including complainant's disclosure).
(B) Day 10--Mediation begins. (STB production of unmasked Waybill
Sample.)
(C) Day 20--Defendant's answer to complaint (including defendant's
initial disclosure).
(D) Day 30--Mediation ends; discovery begins.
(E) Day 60--Discovery closes.
(F) Day 90--Complainant's opening (initial tender of comparison
group and opening evidence on market dominance). Defendant's opening
(initial tender of comparison group).
(G) Day 95--Technical conference on comparison group.
(H) Day 120--Parties' final tenders on comparison group. Defendant's
reply on market dominance.
(I) Day 150--Parties' replies to final tenders. Complainant's
rebuttal on market dominance. In cases using the streamlined market
dominance approach, a telephonic evidentiary hearing before an
administrative law judge, as described in Sec. 1111.12(d) of this
chapter, will be held at the discretion of the complainant in lieu of
the submission of a written rebuttal on market dominance issues. The
hearing will be held on or about the date that the complainant's
rebuttal evidence on rate reasonableness is due.
(ii) In addition, the Board will appoint a liaison within 10
business days of the filing of the complaint.
(3)(i) In cases relying upon the Final Offer Rate Review procedure
where the complainant elects streamlined market dominance:
(A) Day -25--Complainant files notice of intent to initiate case and
serves notice on defendant.
(B) Day 0--Complaint filed; discovery begins.
(C) Day 35--Discovery closes.
(D) Day 49--Complainant's opening (rate reasonableness analysis,
final offer, and opening evidence on market dominance). Defendant's
opening (rate reasonableness analysis and final offer).
(E) Day 59--Parties' replies. Defendant's reply evidence on market
dominance.
(F) Day 66--Complainant's letter informing the Board whether it
elects an evidentiary hearing on market dominance.
(G) Day 73--Telephonic evidentiary hearing before an administrative
law judge, as described in Sec. 1111.12(d) of this chapter, at the
discretion of the complainant (market dominance).
(H) Day 149--Board decision.
(ii) In cases relying upon the Final Offer Rate Review procedure
where the complainant elects non-streamlined market dominance:
(A) Day -25--Complainant files notice of intent to initiate case and
serves notice on defendant.
(B) Day 0--Complaint filed; discovery begins.
(C) Day 35--Discovery closes.
(D) Day 49--Complainant's opening (rate reasonableness analysis,
final offer, and opening evidence on market

[[Page 153]]

dominance). Defendant's opening (rate reasonableness analysis and final
offer).
(E) Day 79--Parties' replies. Defendant's reply evidence on market
dominance.
(F) Day 169--Board decision.
(iii) In addition, the Board will appoint a liaison within five
business days after the Board receives the pre-filing notification.
(iv) The mediation period in Final Offer Rate Review cases is 20
days beginning on the date of appointment of the mediator(s). The Board
will appoint a mediator or mediators as soon as possible after the
filing of the notice of intent to initiate a case.
(v) With its final offer, each party must submit an explanation of
the methodology it used. If a complainant fails to submit explanation
and support for its offer, the Board may dismiss the complaint without
determining the reasonableness of the challenged rate.
(b) Staggered filings; final briefs. (1) The parties may submit non-
public (e.g., confidential, highly confidential) versions of filings on
the dates identified in the procedural schedule, and submit public
versions of those filings within three business days thereafter.
(2) In cases relying upon the Simplified-SAC methodology, final
briefs are limited to 30 pages, inclusive of exhibits.
(c) Defendant's second disclosure. In cases using the Simplified-SAC
methodology, the defendant must make the following disclosures to the
complainant by Day 170 of the procedural schedule.
(1) Identification of all traffic that moved over the routes
replicated by the SARR in the Test Year.
(2) Information about those movements, in electronic format,
aggregated by origin-destination pair and shipper, showing the origin,
destination, volume, and total revenues from each movement.
(3) Total operating and equipment cost calculations for each of
those movements, provided in electronic format.
(4) Revenue allocation for the on-SARR portion of each cross-over
movement in the traffic group provided in electronic format.
(5) Total trackage rights payments paid or received during the Test
Year associated with the route replicated by the SARR.
(6) All workpapers and documentation necessary to support the
calculations.
(d) Conferences with parties. The Board may convene a conference of
the parties with Board staff to facilitate voluntary resolution of
discovery disputes and to address technical issues that may arise.
(e) Complaint filed with a petition to revoke a class exemption. If
a complaint is filed simultaneously with a petition to revoke a class
exemption, the Board will take no action on the complaint and the
procedural schedule will be held in abeyance automatically until the
petition to revoke is adjudicated.

[82 FR 57379, Dec. 5, 2017, as amended at 85 FR 47697, Aug. 6, 2020; 88
FR 318, Jan. 4, 2023]

Sec. 1111.11 Meeting to discuss procedural matters.

(a) Generally. In all complaint proceedings, other than those
challenging the reasonableness of a rail rate based on stand-alone cost
or the simplified standards, the parties shall meet, or discuss by
telephone, discovery and procedural matters within 12 days after an
answer to a complaint is filed. Within 19 days after an answer to a
complaint is filed, the parties, either jointly or separately, shall
file a report with the Board setting forth a proposed procedural
schedule to govern future activities and deadlines in the case.
(b) Stand-alone cost or simplified standards complaints. In
complaints challenging the reasonableness of a rail rate based on stand-
alone cost or the simplified standards, the parties shall meet or
otherwise discuss discovery and procedural matters within 7 days after
the complaint is filed in stand-alone cost cases, 3 days after the
complaint is filed in Final Offer Rate Review cases, and 7 days after
the mediation period ends in Simplified-SAC or Three-Benchmark cases.
The parties should inform the Board as soon as possible thereafter
whether there are unresolved disputes that require Board

[[Page 154]]

intervention and, if so, the nature of such disputes.

[82 FR 57379, Dec. 5, 2017, as amended at 88 FR 318, Jan. 4, 2023]

Sec. 1111.12 Streamlined market dominance.

(a) A complainant may elect to pursue the streamlined market
dominance approach to market dominance if the challenged movement
satisfies the factors listed in paragraphs (a)(1) through (7) of this
section. The Board will find a complainant has made a prima facie
showing on market dominance when it can demonstrate the following with
regard to the traffic subject to the challenged rate:
(1) The movement has an R/VC ratio of 180% or greater;
(2) The movement would exceed 500 highway miles between origin and
destination;
(3) There is no intramodal competition from other railroads;
(4) There is no barge competition;
(5) There is no pipeline competition;
(6) The complainant has used truck for 10% or less of its volume (by
tonnage) subject to the rate at issue over a five-year period; and
(7) The complainant has no practical build-out alternative due to
physical, regulatory, financial, or other issues (or combination of
issues).
(b) A complainant may rely on any competent evidence, including a
verified statement from an appropriate official(s) with knowledge of the
facts, in demonstrating the factors set out in paragraph (a) of this
section. An appropriate official is any individual who has either direct
or supervisory responsibility for, or otherwise has knowledge or
understanding of, the complainant's transportation needs and options.
The official(s) should provide his or her title and a short description
of his or her duties in the verified statement. In demonstrating the
revenue to variable cost ratio, a complainant must show its quantitative
calculations.
(c) A defendant's reply evidence under the streamlined market
dominance approach may address the factors in paragraph (a) of this
section and any other issues relevant to market dominance. A complainant
may elect to submit rebuttal evidence on market dominance issues except
in cases under Final Offer Rate Review, which does not provide for
rebuttal. Reply and rebuttal filings under the streamlined market
dominance approach are each limited to 50 pages, inclusive of exhibits
and verified statements.
(d)(1) Pursuant to the authority under Sec. 1011.6 of this chapter,
an administrative law judge will hold a telephonic evidentiary hearing
on the market dominance issues at the discretion of the complainant in
lieu of the submission of a written rebuttal on market dominance issues.
In cases under Final Offer Rate Review, which does not provide for
rebuttal, the telephonic evidentiary hearing is at the discretion of the
complainant.
(2) The hearing will be held on or about the date that the
complainant's rebuttal evidence on rate reasonableness is due, except in
cases under Final Offer Rate Review, where the hearing will be held 14
days after replies are due unless the parties agree on an earlier date.
The complainant shall inform the Board by letter submitted in the
docket, no later than 10 days after defendant's reply is due, whether it
elects an evidentiary hearing in lieu of the submission of a written
rebuttal on market dominance issues. In cases under Final Offer Rate
Review, the complainant shall inform the Board by letter submitted in
the docket, no later than 7 days after defendant's reply is due, whether
it elects an evidentiary hearing on market dominance issues.
(3) The Board will provide an unofficial copy of the hearing
transcript no later than 5 days after the conclusion of the hearing. The
Board will provide the official hearing transcript shortly thereafter.
The hearing transcript will be part of the docket in the proceeding.

[85 FR 47697, Aug. 6, 2020, as amended at 88 FR 318, Jan. 4, 2023]

PART 1112_MODIFIED PROCEDURES--Table of Contents

Sec.
1112.1 When modified procedure is used.
1112.2 Decisions directing modified procedure.
1112.3 Default for failure to comply with schedule; effect of default.

[[Page 155]]

1112.4 Petitions to intervene.
1112.5 Joint pleadings.
1112.6 Verified statements; contents.
1112.7 Records in other Board proceedings.
1112.8 Verification.
1112.9 Sample verification for statement of fact under modified
procedure.
1112.10 Requests for oral hearings and cross examination.
1112.11 Authority of officers.

Authority: 5 U.S.C. 559; 49 U.S.C. 1321.

Source: 47 FR 49558, Nov. 1, 1982, unless otherwise noted.

Sec. 1112.1 When modified procedure is used.

The Board may decide that a proceeding be heard under modified
procedure when it appears that substantially all material issues of fact
can be resolved through submission of written statements, and efficient
disposition of the proceeding can be accomplished without oral
testimony. Modified procedure may be ordered on the Board's initiative,
or upon approval of a request by any party.

[47 FR 49558, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

Sec. 1112.2 Decisions directing modified procedure.

A decision directing that modified procedure be used will set out
the schedule for filing verified statements by all parties and will list
the names and addresses of all persons who at that time are on the
service list in the proceeding. In this part, a statement responding to
an opening statement is referred to as a ``reply'', and a statement
responding to a reply is referred to as a ``rebuttal''. Replies to
rebuttal material are not permitted. The filing of motions or other
pleadings will not automatically stay or delay the established
procedural schedule. Parties will adhere to this schedule unless the
Board issues an order modifying the schedule.

[47 FR 49558, Nov. 1, 1982, as amended at 61 FR 58491, Nov. 15, 1996]

Sec. 1112.3 Default for failure to comply with schedule; effect of default.

If a party fails to comply with the schedule for submission of
verified statements, or any other requirements established by the
modified procedure decision, that party will be deemed to be in default
and to have waived any further participation in the proceeding.
Thereafter, the proceeding may be disposed of without notice to and
without participation by parties in default.

Sec. 1112.4 Petitions to intervene.

(a) The Board may grant a petition to intervene in a proceeding set
for modified procedure if intervention:
(1) Will not unduly disrupt the schedule for filing verified
statements, except for good cause shown; and
(2) Would not unduly broaden the issues raised in the proceeding.
(b) The petition to intervene shall set out:
(1) The petitioner's interest in the proceeding;
(2) Whether the petitioner supports or opposes the relief sought or
the action proposed or is otherwise concerned with the issues presented
in the proceeding; and
(3) The petitioner's request, if any, for relief.

[47 FR 49558, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

Sec. 1112.5 Joint pleadings.

Parties with common interests are encouraged to prepare joint
pleadings whenever possible.

Sec. 1112.6 Verified statements; contents.

A verified statement should contain all the facts upon which the
witness relies, and to the extent that it contains arguments, they
should be based only on those facts. Parties filing reply and rebuttal
verified statements will be considered to have admitted the truth of
material allegations of fact contained in their opponents' statements
unless those allegations are specifically challenged. Rebuttal
statements shall be confined to issues raised in the reply statements to
which they are directed.

Sec. 1112.7 Records in other Board proceedings.

If any portion of the record before the Board in any proceeding
other than the proceeding at issue is offered in

[[Page 156]]

evidence, a true copy should be presented for the record.

[47 FR 49558, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

Sec. 1112.8 Verification.

The original of any pleading filed must show the signature,
capacity, and seal, if any, of the person administering the oath, and
the date thereof.

Sec. 1112.9 Sample verification for statement of fact under modified procedure.

State of __________,
County of __________,
SS:
__________ being duly sworn, deposes and says that he has read the
foregoing statement, knows the facts asserted there are true and that
the same are true as stated.
Signed __________.
Subscribed and sworn to before me this _____ day of __________.
Notary Public of __________.
My Commission expires __________.

Sec. 1112.10 Requests for oral hearings and cross examination.

(a) Requests. Requests for oral hearings in matters originally
assigned for handling under modified procedure must include the reasons
why the matter cannot be properly resolved under modified procedure.
Requests for cross examination of witnesses must include the name of the
witness and the subject matter of the desired cross examination.
(b) Disposition. Unless material facts are in dispute, oral hearings
will not be held. If held, oral hearings will normally be confined to
material issues upon which the parties disagree. The decision setting a
matter for oral hearing will define the scope of the hearing.

[61 FR 52712, Oct. 8, 1996]

Sec. 1112.11 Authority of officers.

Except to the extent that they apply only to the conduct of a public
hearing, the officer assigned to handle a proceeding under the modified
procedure shall have the same authority as officers assigned to conduct
oral hearings as described in Sec. 1113.3(a) and (b).

PART 1113_ORAL HEARING--Table of Contents

Sec.
1113.1 Scheduling hearings; continued hearings.
1113.2 Subpoenas.
1113.3 Authority of officers.
1113.4 Prehearing conferences.
1113.5 Stipulations.
1113.6 Appearances; withdrawal or absence from hearing.
1113.7 Intervention; petitions.
1113.8 Witness examination; order of procedure.
1113.9 Prepared statements.
1113.10 Records in other Board proceedings.
1113.11 Abstracts of documents.
1113.12 Exhibits.
1113.13 Filing evidence subsequent to hearing.
1113.14 Objections to rulings.
1113.15 Interlocutory appeals.
1113.16 Oral argument before the hearing officer.
1113.17 Transcript of record.
1113.18 Briefs.
1113.19 Pleadings: part of the record.
1113.20-1113.30 [Reserved]

Authority: 5 U.S.C. 559; 49 U.S.C. 1321.

Source: 47 FR 49559, Nov. 1, 1982, unless otherwise noted.

Sec. 1113.1 Scheduling hearings; continued hearings.

(a) Assignment; service and posting of notice. In those proceedings
in which an oral hearing is to be held, the Board will assign a time and
place for hearing. Notice of hearings will be posted on the Board's Web
site, will be served upon the parties and such other persons as may be
entitled to receive notice under the Act, and will be available for
inspection at the Board's office.
(b) Requests for changes in assignment. Requests for postponements
of date of hearing will be granted only in exceptional circumstances.
(c) Continuances. (1) A continuance may be granted at the discretion
of the presiding officer.
(2) If the presiding officer announces the time and place of a
continued hearing on the record, no further notice need be given.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 74
FR 52907, Oct. 15, 2009]

[[Page 157]]

Sec. 1113.2 Subpoenas.

(a) Issuance. A subpoena may be issued upon the direction of the
Board on its own motion or upon request. A subpoena may be issued by the
Board or by the officer presiding at a hearing and must be signed by the
Director of the Office of Proceedings or a member of the Board.
(b) Requests. (1) A request for a subpoena to compel the appearance
of a person at a hearing to give oral testimony, but not to produce
documents, may be made either by letter (only the original need be filed
with the Board) or orally upon the record at the hearing. A showing of
general relevance and reasonable scope of the evidence sought to be
introduced through the subpoenaed person may be required.
(2) A request for a subpoena to compel a witness to produce
documentary evidence should be made in writing by petition. The petition
should specify with particularity the books, papers, or documents
desired and facts expected to be proved, and should show the general
relevance and reasonable scope of the evidence sought. The officer
presiding at a hearing may grant a request for such a subpoena made
orally upon the record.
(c) Service. The original subpoena should be exhibited to the person
served, should be read to him if he is unable to read, and a copy should
be delivered to him by the officer or person making service.
(d) Return. If service of subpoena is made by a United States
marshal or his deputy, service should be evidenced by his return of the
subpoena. If made by any other person, such person shall make an
affidavit stating the date, time and manner of service; and return such
affidavit on, or with, the original subpoena in accordance with the form
thereon. In case of failure to make service the reasons for the failure
should be stated on the original subpoena. The written acceptance of
service of a subpoena by the person subpoenaed will be sufficient
without other evidence of return. The original subpoena bearing or
accompanied by the required return, affidavit, statement, or acceptance
of service, should be returned forthwith to the Chief, Section of
Administration, Office of Proceedings, unless otherwise directed.
(e) Witness fees. A witness who is summoned and responds to the
summons is entitled to the same fee as is paid for like service in the
courts of the United States. Such fee is to be paid by the party at
whose insistence the testimony is taken at the time the subpoena is
served, except that when the subpoena is issued on behalf of the United
States or an officer or agency thereof, fees and mileage need not be
tendered at the time of service.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 74
FR 52907, Oct. 15, 2009; 81 FR 8854, Feb. 23, 2016]

Sec. 1113.3 Authority of officers.

(a) General. (1) The presiding officer has the authority to regulate
the procedure in the hearing before him, and has authority to take all
measures necessary or proper for the efficient performance of the duties
assigned him. These include authority: (i) To hold hearings; (ii) to
administer oaths and affirmations; (iii) to grant intervention; (iv) to
accept any pleading; (v) to establish special rules of procedure
appropriate to the effective handling of the particular proceeding; (vi)
to examine witnesses; (vii) to issue subpoenas at the hearing; (viii) to
dispose of requests for discovery; (ix) to hold conferences for the
settlement and simplification of issues; (x) to rule on motions and
dispose of procedural requests; (xi) to make initial decisions; (xii) to
exclude any person from the hearing for contemptuous conduct; and (xiii)
to take any other action authorized by this part, by the Administrative
Procedure Act, or by the Interstate Commerce Act and related acts.
(2) The presiding officer has the authority: (i) To terminate
examination or cross-examination of repetitious or cumulative nature;
(ii) to limit direct examination to material matters; (iii) to limit
cross-examination to disputed material facts; (iv) to require that
principal examination or cross-examination be conducted by one or more
counsel representing similar interests in proceedings where several
parties are involved; (v) to set reasonable schedules for the
presentation of witnesses; (vi) and to set reasonable time

[[Page 158]]

limits for the examination or cross-examination of witnesses. In order
to enforce this paragraph, the officer may require a clear statement on
the record of the nature of the testimony to be given by any witness.
(b) Motions to dismiss; amendments. (1) The presiding officer shall
have power to decide any motion to dismiss the proceeding or other
motion which involves final determination of the merits of the
proceeding.
(2) The presiding officer may grant leave to amend any application
or complaint.
(c) Preparation of the decision by the prevailing party. Any
proceeding in which an oral hearing is held and in which the officer is
able to announce his decision either:
(1) On the record after the close of the taking of testimony and the
hearing of arguments by the officer, or
(2) By appropriate notification to the parties after the close of
the hearing, may be made the subject of an initial decision prepared by
a party or parties in whose favor the officer decides, within a period
specified by the officer, and subject to such changes as the officer
considers appropriate in the draft prepared for him.
(d) Recording; media coverage. The presiding officer shall have
authority to permit or to refuse to permit the recording of the hearing
by means of live or delayed television or radio broadcast, or the use of
a tape recorder or other electronic or photographic equipment by any
person other than the official reporter.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 81
FR 8854, Feb. 23, 2016]

Sec. 1113.4 Prehearing conferences.

(a) Purposes. Upon written notice by the Board in any proceeding, or
upon written or oral instruction of an officer, parties or their
representatives may be directed to appear before an officer at a
specified time and place for a conference, prior to or during the course
of a hearing, or in lieu of personally appearing, to submit suggestions
in writing, for the purpose of formulating issues and considering:
(1) The simplification of issues;
(2) The necessity or desirability of amending the pleadings either
for the purpose of clarification, amplification, or limitation;
(3) The possibility of making admissions of certain averments of
fact or stipulations concerning the use by any or all parties of matters
of public record, such as annual reports and the like, to avoid the
unnecessary introduction of proof;
(4) The procedure at the hearing;
(5) The limitation of the number of witnesses;
(6) The propriety of prior mutual exchange between or among the
parties of prepared testimony and exhibits; and
(7) Such other matters, including disposition of requests for
discovery, as may aid in the simplification of the evidence and
disposition of the proceeding. Parties may request a prehearing
conference.
(b) Facts disclosed privileged. Facts disclosed in the course of the
prehearing conference are privileged and, except by agreement, will not
be used against participating parties either before the Board or
elsewhere unless fully corroborated by other evidence.
(c) Recordation and decision. Action taken at the conference,
including a recitation of the amendments allowed to the pleadings, the
agreements made by the parties as to any of the matters considered, and
defining the issues, will be recorded in an appropriate decision unless
the parties enter into a written stipulation as to such matters, or
agree to a statement thereof made on the record by the officer.
(d) Objection to the decision; subsequent proceedings. If a decision
is entered, the parties may, within 20 days of the date of service, or
within such lesser time as is set by the officer, present objections on
the grounds that the decision does not fully or correctly embody the
agreements reached at the conference. Thereafter the terms of the
written stipulation or statement of the officer, as the case may be,
will determine the subsequent course of the proceedings, unless modified
to prevent manifest injustice.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

[[Page 159]]

Sec. 1113.5 Stipulations.

Apart from the procedure contemplated by the prehearing provisions,
the parties may, by stipulation in writing filed with the Board at any
stage of the proceeding, or orally made at the hearing, agree upon any
pertinent facts in the proceeding. The parties should agree to facts in
this manner whenever practicable.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

Sec. 1113.6 Appearances; withdrawal or absence from hearing.

(a) Who may appear. Any individual may appear for himself. Any
member of a partnership which is a party to any proceeding may appear
for such partnerships upon adequate identification. A bona fide officer
or a full-time employee of a corporation, association, or of an
individual may appear for such corporation, association, or individual
by permission of the officer presiding at the hearing. A party also may
be represented by a practitioner.
(b) Withdrawal or absence from hearing. A practitioner who has
entered his appearance at the hearing shall not be permitted to withdraw
from the hearing, or willfully be absent therefrom, except for good
cause and, wherever practicable, only with the permission of the
presiding officer. If a person who has entered an appearance withdraws
from the hearing in a manner other than that specified, the Board or the
Officer may take such action as, in the interest of justice and the
protection of the lawful rights of all parties to the proceeding, the
circumstances of the case may warrant, including the striking out of all
or any part of any pleading of the offending party, and including the
possible dismissal of the action or proceeding, or any part thereof, the
entry of an order of default against that party, or if the withdrawal is
without the permission of the presiding officer, disciplining of the
practitioner concerned.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

Sec. 1113.7 Intervention; petitions.

(a) How requested. Intervention will normally be granted only upon
petition. In exceptional circumstances, where the issues would not be
broadened or the proceeding delayed, an officer may, at his or her
discretion, allow intervention upon motion made orally at the hearing.
(b) Content generally. A petition for leave to intervene must set
forth the grounds for the proposed intervention, the position and
interest of the petitioner in the proceeding, and whether petitioner's
position is in support of or in opposition to the relief sought. If the
proceeding is by formal complaint and affirmative relief is sought by
petitioner, the petition should conform to the requirements for a formal
complaint.
(c) When filed. A petition for leave to intervene in any proceeding
should be filed prior to or at the time the proceeding is called for
hearing, but not after, except for good cause shown.
(d) Broadening issues; filing. If the petition seeks a broadening of
the issues and shows that they would not thereby be unduly broadened,
and in respect thereof seeks affirmative relief, the petition should be
filed in time to permit service upon and answer by the parties in
advance of the hearing.
(e) Copies; service; replies. When a petition for leave to intervene
is tendered at the hearing, sufficient copies of the petition must be
provided for distribution to the parties represented at the hearing.
When a petition for leave to intervene is not tendered at the hearing,
the petition should be submitted to the Board together with a
certificate that service has been made by petitioner. Any reply in
opposition to a petition for leave to intervene not tendered at the
hearing must be filed within 20 days after service of the petition to
intervene. At the discretion of the Board, leave to intervene may be
granted or denied before the expiration of the time allowed for replies.
(f) Disposition. Leave to intervene will be granted only when the
petitioner addresses issues reasonably pertinent to the issues already
presented and which do not unduly broaden them.

[[Page 160]]

If leave is granted the petitioner becomes an intervener and a party to
the proceeding.

[47 FR 49559, Nov. 1, 1982, as amended at 53 FR 19301, May 27, 1988; 61
FR 52712, Oct. 8, 1996; 84 FR 12944, Apr. 3, 2019]

Sec. 1113.8 Witness examination; order of procedure.

Witnesses will be orally examined under oath before the officer
unless the facts are presented to the Board in the manner provided under
modified procedure. In formal complaint, application, and investigation
proceedings, complainant, applicant, and respondent, respectively, shall
open and close at the hearing. In the event of further hearings granted
on petition, the petitioners requesting further hearing shall open and
close the proceeding. Instances exist in which parties other than the
respondent may open and close in investigations where the burden of
proof is not upon the respondent. Interveners shall follow the party on
whose behalf the intervention is made. The foregoing order of
presentation may be varied by the officer.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 81
FR 8854, Feb. 23, 2016]

Sec. 1113.9 Prepared statements.

With the approval of the officer, a witness may read into the
record, as his testimony, statements of fact or expressions of opinion
prepared by the witness, or written answers to interrogatories of
counsel. A prepared statement of a witness who is present at the hearing
may be received as an exhibit, provided that the statement does not
include argument. Before any such statement is read or admitted in
evidence, the witness shall deliver to the officer, the reporter, and to
opposing counsel, as may be directed by the officer, a copy of such
statement or of such interrogatories and the written answers thereto.
The admissibility of the evidence contained in such statement will be
subject to the same rules as if such testimony was produced orally,
including the right of cross-examination of the witness. The officer may
require that the witness testify orally if, in the officer's opinion,
the memory or demeanor of the witness may be of importance.

Sec. 1113.10 Records in other Board proceedings.

A portion of the record before the Board in another proceeding may
be offered in evidence at an oral hearing. A party making such an offer
must provide, as an exhibit, a certified copy of the material sought to
be introduced. A hearing officer may waive the requirement that a copy
be provided, subject to such conditions as he or she may impose to
assure that a copy will be available later, if needed, at no expense to
the Board and to assure that the interests of other parties are not
prejudiced. An offer of evidence under this section will be subject to
objection by other parties.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

Sec. 1113.11 Abstracts of documents.

When documents, such as freight bills or bills of lading, are
numerous, the officer may refuse to receive all the documents in
evidence and instead admit only a limited number of representative
documents. He may instruct, if the proffer be for the purpose of proving
damages, that introduction be deferred until there is opportunity to
comply with Sec. 1133.2. If the proffer be for another purpose the
officer may require the party in orderly fashion to abstract the
relevant data from the documents, affording other parties reasonable
opportunity to examine both the documents and the abstract, and
thereupon offer such abstract in evidence in exhibit form.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 81
FR 8854, Feb. 23, 2016]

Sec. 1113.12 Exhibits.

(a) Copies. Unless the officer otherwise directs, the original and
10 copies of each exhibit of a documentary character should be furnished
for the use of the Board. The original will be delivered to the
reporter, and the copy to the officer. If the hearing is before a board,
a copy of the exhibit should be furnished to each member of the board,

[[Page 161]]

unless the board otherwise directs. Unless the officer for cause directs
otherwise, a reasonable number of copies should be furnished to counsel
in attendance at the hearing.
(b) Interchange prior to hearing. Whenever practicable, the parties
should interchange copies of exhibits or other pertinent material or
matter before or at the commencement of the hearing; and the Board or
presiding officer may so direct.
(c) When excluded how treated. When exhibit has been identified,
objected to, and excluded, the officer will develop whether the party
offering the exhibit withdraws the offer, and if so, permit the return
of the exhibit to him. If the excluded exhibit is not withdrawn, it
should be given an exhibit number for identification and be incorporated
in the record. Exhibit numbers once used for identification will not be
duplicated thereafter.

[47 FR 49559, Nov. 1, 1982, as amended at 53 FR 19301, May 27, 1988; 61
FR 52712, Oct. 8, 1996]

Sec. 1113.13 Filing evidence subsequent to hearing.

Except as provided in this section or as expressly may be permitted
in a particular instance, the Board will not receive in evidence or
consider as part of the record any documents, letters, or other writings
submitted for consideration in connection with any proceeding after
close of the hearing, and may return any such documents to the sender.
Before the close of a hearing the officer may, at the request of a party
or upon his own motion, or upon agreement of the parties, require that a
party furnish additional documentary evidence that supplements the
existing record, within a stated period of time. Documentary evidence to
be furnished in this way will be given an exhibit number at the time of
filing and the parties advised accordingly.

[47 FR 49559, Nov. 1, 1982, as amended at 53 FR 19301, May 27, 1988; 61
FR 52712, Oct. 8, 1996; 84 FR 12944, Apr. 3, 2019]

Sec. 1113.14 Objections to rulings.

It is sufficient that a party, at the time the ruling is made or
sought, make known to the officer on the record the action which he
desires the officer to take or his objection to the action of the
officer and his grounds for that objection. An objection not pressed in
brief will be considered as waived. Where no brief is filed an objection
will be considered as waived if not pressed in an appeal or reply to an
appeal, if filed, or in a separate petition dealing only with that
objection.

Sec. 1113.15 Interlocutory appeals.

Rulings of the presiding officer may be appealed prior to service of
the initial decision only if:
(a) The ruling denies or terminates any person's participation,
(b) The ruling grants a request for the inspection of documents not
ordinarily available for public inspection,
(c) The ruling overrules an objection based on privilege, the result
of which ruling is to require the presentation of testimony or
documents, or
(d) The presiding officer finds that the ruling may result in
substantial irreparable harm, substantial detriment to the public
interest, or undue prejudice to a party.

Sec. 1113.16 Oral argument before the hearing officer.

At the discretion of the hearing officer and upon reasonable notice
to the parties, oral argument may be made at the close of testimony
before him as an alternative to the filing of written briefs. Such
argument, which should include requested findings and conclusions, will
be recorded and made a part of the transcript of testimony, and will be
available to the Board for consideration in deciding the case. The
making of such argument will not preclude oral argument before the
Board.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

Sec. 1113.17 Transcript of record.

(a) Filing. After the close of the hearing, the complete transcript
of the testimony taken and the exhibits shall be part of the record in
the proceeding.
(b) Corrections. A suggested correction in a transcript ordinarily
will be considered only if offered not later than 20 days after the date
each transcript is filed with the Board. A copy of the letter (original
only need be filed

[[Page 162]]

with the Board) requesting the suggested corrections should be served
upon all parties of record and with 2 copies to the official reporter.
(c) Objections to corrections. Parties disagreeing with corrections
suggested pursuant to paragraph (b) of this section should file written
objections in the same manner as suggested corrections are to be filed.
Objections to suggested corrections should be filed not later than 15
days after the filing with the Board of suggested corrections. If no
objections are timely filed, the Office of Proceedings shall make the
suggested corrections to the transcript. If objections are timely filed,
the officer who presided at the hearing shall determine the merits of
the suggested correction and enter an appropriate decision in the
proceeding.
(d) No free copies. The Board will not furnish free copies of the
transcript to any party to any proceeding.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 74
FR 52907, Oct. 15, 2009]

Sec. 1113.18 Briefs.

(a) When filed. In a proceeding which has been the subject of oral
hearing, and in which briefs are to be filed, that fact will be stated
by the officer on the record. The officer shall fix the time for filing
briefs. Simultaneous filing will normally be required, and reply briefs
will not normally be permitted.
(b) Evidence abstract. A brief filed after a hearing may contain an
abstract of the evidence relied upon by the party filing it, preferably
assembled by subjects, with reference to the pages of the record, if
written, or exhibit where the evidence appears. In the event the party
elects not to include a separate abstract in his brief, he should give
specific reference to the portions of the record, whether transcript or
otherwise, relied upon in support of the respective statements of fact
made throughout the brief.
(c) Requested findings. Each brief should include such requests for
specific findings, separately stated and numbered, as the party desires
the Board to make.
(d) Exhibit reproduction. Exhibits should not be reproduced in the
brief, but may be shown, within reasonable limits, in an appendix to the
brief. Analysis of such exhibits should be included in the brief where
pertinent.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

Sec. 1113.19 Pleadings: part of the record.

Matters of fact that are verified and filed prior to oral hearing
and that are not specifically denied constitute evidence and are part of
the record. A witness, who would present such evidence, must be made
available for cross-examination if a request is reasonably made. This
rule does not apply to protests against tariffs or schedules.

[47 FR 49559, Nov. 1, 1982, as amended at 64 FR 53268, Oct. 1, 1999]

Sec. Sec. 1113.20-1113.30 [Reserved]

PART 1114_EVIDENCE; DISCOVERY--Table of Contents

Subpart A_General Rules of Evidence

Sec.
1114.1 Admissibility.
1114.2 Official records.
1114.3 Admissibility of business records.
1114.4 Documents in Board's files.
1114.5 Records in other Board proceedings.
1114.6 Official notice of corroborative material.
1114.7 Exhibits.

Subpart B_Discovery

1114.21 Applicability; general provisions.
1114.22 Deposition.
1114.23 Depositions; location, officer, time, fees, absence,
disqualification.
1114.24 Depositions; procedures.
1114.25 Effect of errors and irregularities in depositions.
1114.26 Written interrogatories to parties.
1114.27 Request for admission.
1114.28 Depositions, requests for admission, written interrogatories,
and responses thereto: inclusion in record.
1114.29 Supplementation of responses.
1114.30 Production of documents and records and entry upon land for
inspection and other purposes.
1114.31 Failure to respond to discovery.

Authority: 5 U.S.C. 559; 49 U.S.C. 1321.

Source: 47 FR 49562, Nov. 1, 1982, unless otherwise noted.

[[Page 163]]

Subpart A_General Rules of Evidence

Sec. 1114.1 Admissibility.

Any evidence which is sufficiently reliable and probative to support
a decision under the provisions of the Administrative Procedure Act, or
which would be admissible under the general statutes of the United
States, or under the rules of evidence governing proceedings in matters
not involving trial by jury in the courts of the United States, will be
admissible in hearings before the Board. The rules of evidence will be
applied in any proceeding to the end that necessary and proper evidence
will be conveniently, inexpensively, and speedily produced, while
preserving the substantial rights of the parties.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996]

Sec. 1114.2 Official records.

An official record or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record, or
by a deputy, and accompanied with a certificate that such officer has
the custody. If the office in which the record is kept is within the
United States or within a territory or insular possession subject to the
dominion of the United States, the certificate may be made by a judge of
a court of record of the district or political subdivision in which the
record is kept, authenticated by the seal of the court, or may be made
by any public officer having a seal of office and having official duties
in the district or political subdivision in which the record is kept,
authenticated by the seal of his office. If the office in which the
record is kept is in a foreign state or country, the certificate may be
made by a secretary of embassy or legation, consul general, consul, vice
consul, or consular agent or by officer in the foreign service of the
United States stationed in the foreign state or country in which the
record is kept, and authenticated by the seal of his office. A written
statement signed by an officer having the custody of an official record
or by his deputy that after diligent search no record or entry of a
specified tenor is found to exist in the records of his office,
accompanied by a certificate as above provided, is admissible as
evidence that the records of this office contain no such record or
entry. This section does not prevent the proof of official records or of
entry or lack of entry therein or official notice thereof by a method
authorized by any applicable statute or by the rules of evidence.

Sec. 1114.3 Admissibility of business records.

Any writing or record, whether in the form of an entry in a book or
otherwise, made as a memorandum or record of any act, transaction,
occurrence, or event, will be admissible as evidence thereof if it
appears that it was made in the regular course of business, and that it
was the regular course of business to make such memorandum or record at
the time such record was made, or within a reasonable time thereafter.

Sec. 1114.4 Documents in Board's files.

If a party offers in evidence any matter contained in a report or
other document open to public inspection in the files of the Board, such
report or other document need not be made available at the hearing.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996]

Sec. 1114.5 Records in other Board proceedings.

If any portion of the record before the Board in any proceeding
other than the proceeding at issue is offered in evidence, a true copy
will be presented for the record.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996]

Sec. 1114.6 Official notice of corroborative material.

The Board or a hearing officer may take notice of official records,
records in other Board proceedings, or other materials which are
otherwise subject to specific rules governing admissibility regardless
of compliance with the full technical provisions of such rules, where
the admissibility of the

[[Page 164]]

evidence is for purposes of corroboration of testimony presented or to
evaluate the credibility of testimony or allegations made in proceedings
where the public interest is not otherwise adequately represented by
counsel capable of fully complying with such rules.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996]

Sec. 1114.7 Exhibits.

Whenever practical the sheets of each exhibit and the lines of each
sheet should be numbered. If the exhibit consists of five or more
sheets, the first sheet or title-page should be confined to a brief
statement of what the exhibit purports to show with reference by sheet
and line to illustrative or typical examples contained therein. The
exhibit should bear an identifying number, letter, or short title which
will readily distinguish it from other exhibits offered by the same
party. It is desirable that, whenever practicable, evidence should be
condensed into tables. Whenever practicable, especially in proceedings
in which it is likely that many documents will be offered, all the
documents produced by a single witness should be assembled and bound
together, suitably arranged and indexed, so that they may be identified
and offered as one exhibit. Exhibits should not be argumentative and
should be limited to statements of facts, and be relevant and material
to the issue, which can better be shown in that form than by oral
testimony.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996]

Subpart B_Discovery

Sec. 1114.21 Applicability; general provisions.

(a) When discovery is available. (1) Parties may obtain discovery
under this subpart regarding any matter, not privileged, which is
relevant to the subject matter involved in a proceeding other than an
informal proceeding. For the purpose of this subchapter, informal
proceedings are those not required to be determined on the record after
hearing and include informal complaints and all proceedings assigned for
initial disposition to employee boards under Sec. 1011.5.
(2) It is not grounds for objection that the information sought will
be inadmissible as evidence if the information sought appears reasonably
calculated to lead to the discovery of admissible evidence.
(3) In cases using the simplified standards Three-Benchmark method,
the number of discovery requests that either party can submit is limited
as set forth in Sec. Sec. 1114.22, 1114.26, and 1114.30, absent advance
authorization from the Board.
(4) Except as stated in Sec. 1114.31(a)(2)(iii), time periods
specified in this subpart do not apply in cases under Final Offer Rate
Review. Instead, parties in cases under Final Offer Rate Review should
serve requests, answers to requests, objections, and other discovery-
related communications within a reasonable time given the length of the
discovery period.
(b) How discovery is obtained. All discovery procedures may be used
by parties without filing a petition and obtaining prior Board approval.
(c) Protective conditions. Upon motion by any party, by the person
from whom discovery is sought, or by any person with a reasonable
interest in the data, information, or material sought to be discovered
and for good cause shown, any order which justice requires may be
entered to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, or to prevent the raising of
issues untimely or inappropriate to the proceeding. Relief through a
protective order may include one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and
conditions, including a designation of the time and place;
(3) That the discovery may be had only upon such terms and
conditions as the Board may impose to insure financial responsibility
indemnifying the party or person against whom discovery is sought to
cover the reasonable expenses incurred;

[[Page 165]]

(4) That the discovery may be had only by a method other than that
selected by the party seeking discovery;
(5) That certain matters not be inquired into or that the scope of
discovery be limited to certain matters;
(6) That discovery be conducted with no one present except persons
designated in the protective order;
(7) That a deposition after being sealed be opened only by order of
the Board;
(8) That a trade secret or other confidential research development
or commercial information not be disclosed or be disclosed only in a
designated way; and
(9) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened only upon
direction or order of the Board.

If the motion for a protective order is denied in whole or in part, the
Board may, on such terms and conditions as it deems just, enter an order
requiring any party or person to provide or permit discovery. A
protective order under this paragraph may only be sought after, or in
conjunction with, an effort by any party to obtain relief under Sec.
1114.24(a), Sec. 1114.26(a), or Sec. 1114.31.
(d) Sequence and timing of discovery. Unless the Board upon motion,
and subject to the requirements at 49 CFR 1111.2(f) and 1111.5(f) in
stand-alone cost cases, for the convenience of parties and witnesses and
in the interest of justice, orders otherwise, methods of discovery may
be used in any sequence and the fact that a party is conducting
discovery, whether by deposition or otherwise, should not operate to
delay any party's discovery.
(e) Stipulations regarding discovery. Unless otherwise ordered, a
written stipulation entered into by all the parties and filed with the
Board may:
(1) Provide that depositions be taken before any person, at any time
or place, upon sufficient notice, and in any manner and when so taken
may be used like other depositions; and
(2) Modify the procedures provided by these rules for other methods
of discovery.
(f) Service of discovery materials. Unless otherwise ordered by the
Board, and subject to the requirements at 49 CFR 1111.2(f) and 1111.5(f)
in stand-alone cost cases, depositions, interrogatories, requests for
documents, requests for admissions, and answers and responses thereto,
shall be served on other counsel and parties, but shall not be filed
with the Board. Any such materials, or portions thereof, should be
appended to the appropriate pleading when used to support or to reply to
a motion, or when used as an evidentiary submission.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 72
FR 51377, Sept. 7, 2007; 81 FR 8854, Feb. 23, 2016; 82 FR 57381, Dec. 5,
2017; 88 FR 319, Jan. 4, 2023]

Sec. 1114.22 Deposition.

(a) Purpose. The testimony of any person, including a party, may be
taken by deposition upon oral examination.
(b) Request. A party requesting to take a deposition and perpetuate
testimony:
(1) Should notify all parties to the proceeding and the person
sought to be deposed; and
(2) Should set forth the name and address of the witness, the place
where, the time when, the name and office of the officer before whom,
and the cause or reason why such deposition will be taken.
(c) Limitation under simplified standards. In a case using the
Three-Benchmark methodology, each party is limited to one deposition
absent advance authorization from the Board.

[61 FR 52713, Oct. 8, 1996, as amended at 72 FR 51377, Sept. 7, 2007]

Sec. 1114.23 Depositions; location, officer, time, fees, absence,
disqualification.

(a) Where deposition should be taken. Unless otherwise ordered or
agreed to by stipulation, depositions should be taken in the city or
municipality where the deponent is located.
(b) Officer before whom taken. Within the United States or within a
territory or insular possession subject to the dominion of the United
States, depositions should be taken before an officer authorized to
administer oaths by the laws of the United States or of the place where
the examination is held. Within a foreign country, depositions

[[Page 166]]

may be taken before an officer or person designated by the Board or
agreed upon by the parties by stipulation in writing to be filed with
the Board.
(c) Fees. A witness whose deposition is taken pursuant to these
rules and the officer taking same, unless he be employed by the Board,
shall be entitled to the same fee paid for like service in the courts of
the United States, which fee should be paid by the party at whose
instance the deposition is taken.
(d) Failure to attend or to serve subpoena; expenses. (1) If the
party who filed a petition for discovery fails to attend and proceed
with the taking of the deposition and another party attends in person or
by representative pursuant to an order of the Board granting discovery
the Board may order the party who filed the petition to pay to such
other party the reasonable expenses incurred by him and his
representative in so attending, including reasonable attorney's fees.
(2) If the party who filed a petition for discovery fails to serve a
subpoena upon the witness and the witness because of such failure does
not attend, and if another party attends in person or by representative
because he expects the deposition of the witness to be taken, the Board
may order the party who filed the petition to pay to such other party
the reasonable expenses incurred by him and his representative in so
attending, including reasonable attorney's fees.
(e) Disqualification for interest. No deposition should be taken
before a person who is a relative or employee or representative or
counsel of any of the parties, or is a relative or employee of such
representative or counsel or is financially interested in the
proceeding.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996]

Sec. 1114.24 Depositions; procedures.

(a) Examination. Examination and cross-examination of witnesses
should proceed as permitted at a hearing and should be limited to the
subject matter specified in the order granting discovery. All objections
made at the time of the examination to the qualifications of the officer
taking the deposition, or to the manner of taking it, or to the evidence
presented, or to the conduct of any party, and any other objection to
the proceedings, should be noted by the officer upon the deposition.
Evidence objected to should be taken subject to the objections. In lieu
of participating in the oral examination, parties may serve written
questions in a sealed envelope on the party taking the deposition, and
shall transmit them to the officer, who shall open the sealed envelope,
propound the questions to the witness, and record the answers verbatim.
(b) Use of depositions. At the hearings, any part or all of a
deposition, so far as admissible under the rules of evidence, may be
used against any party who was present or represented at the taking of
the deposition or who had due notice thereof, in accordance with any one
of the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of a party or of anyone who at the time of taking
the deposition was an officer, director, or managing agent, or a person
designated to testify on behalf of a public or private corporation,
partnership, association or governmental agency (other than this Board,
except in those instances where the Board itself is a party to the
proceeding) which is a party, may be used by an adverse party for any
purpose.
(3) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the presiding officer or Board finds:
(i) That the witness is dead; or
(ii) That the witness is at a greater distance than 100 miles from
the place of hearing or is out of the United States, unless it appears
that the absence of the witness was procured by the party offering the
deposition; or
(iii) That the witness is unable to attend or testify because of
age, illness, infirmity, or imprisonment; or
(iv) That the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
(v) Upon application and notice, that such exceptional circumstances
exist as to make it desirable, in the interest

[[Page 167]]

of justice and with due regard to the importance of presenting the
testimony of witness orally at public hearing, to allow the deposition
to be used.
(4) If only part of a deposition is offered in evidence by a party,
an adverse party may require him to introduce any other part which ought
in fairness to be considered with the part introduced, and any party may
introduce any other parts. Substitution of parties does not affect the
right to use depositions previously taken.
(c) Effect of taking or using depositions. A party should not be
deemed to make a person his own witness for any purpose by taking his
deposition. The introduction in evidence of the deposition or any part
thereof for any purpose other than that of contradicting or impeaching
the deponent makes the deponent the witness of the party introducing the
deposition, but this should not apply to the use of an adverse party of
a deposition under paragraph (b)(2) of this section. At the hearing any
party may rebut any relevant evidence contained in a deposition whether
introduced by him or by any other party.
(d) Motions to protect. At any time during the taking of the
deposition, on motion of any party or of the deponent and upon a showing
that the examination is being conducted in bad faith or in such manner
as unreasonably to annoy, embarrass, or oppress the deponent or party,
the Board may order the officer conducting the examination to cease
forthwith from taking the deposition, or may limit the scope and manner
of the taking of the deposition as provided in Sec. 1114.21(c). If the
order made terminates the examination, it should be resumed thereafter
only if so ordered. Upon demand of the objecting party or deponent, the
taking of the deposition should be suspended for the time necessary to
make a motion for an order.
(e) Recordation. The officer before whom the deposition is to be
taken shall observe the provisions of Sec. 1113.6 respecting
appearances and typographical specifications, shall put the witness
under oath, and shall personally, or by someone acting under his
direction and in his presence, record and transcribe the testimony of
the witness as required by these rules.
(f) Signing. When the testimony is fully transcribed or otherwise
recorded, the deposition should be submitted to the witness for
examination and should be read to or by him unless such examination and
reading are waived by the witness and the parties. Any changes in form
or substance which the witness desires to make should be entered upon
the deposition by the officer with a statement of the reasons given by
the witness for making them. The witness shall then sign the deposition,
unless the parties by stipulation waive the signing or the witness is
ill or cannot be found or refuses to sign. If the deposition is not
signed by the witness within 15 days of its submission to him, the
officer shall sign it and state on the record the fact of the waiver or
of the illness or absence of the witness or the fact of the refusal to
sign together with the reason, if any, given therefor; and the
deposition may then be used fully as though signed, unless, on a motion
to suppress, it is found that the reasons given for refusal to sign
require rejection of the deposition in whole or in part.
(g) Attestation. The officer shall certify on the deposition that
the witness was duly sworn by him and that the deposition is a true
record of the testimony given by the witness, and that the officer is:
(1) not a relative, employee, representative or counsel of any of the
parties, (2) not a relative or employee of such representative or
counsel, and (3) not financially interested in the proceeding.
(h) Return. The officer shall either submit the deposition and all
exhibits by e-filing (provided the filing complies with Sec. 1104.1(e)
of this chapter) or securely seal the deposition and all exhibits in an
envelope endorsed with sufficient information to identify the proceeding
and marked ``Deposition of (here insert name of witness)'' and
personally deliver or promptly send it by registered mail to the Office
of Proceedings. A deposition to be offered in evidence must reach the
Board not later than 5 days before the date it is to be so offered.

[[Page 168]]

(i) Notice. The party taking the deposition shall give prompt notice
of its filing to all other parties.
(j) Copies. Upon payment of reasonable charges, the officer before
whom the deposition is taken shall furnish a copy of it to any
interested party or to the deponent.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 74
FR 52908, Oct. 15, 2009; 81 FR 8854, Feb. 23, 2016; 88 FR 319, Jan. 4,
2023]

Sec. 1114.25 Effect of errors and irregularities in depositions.

(a) As to disqualification of officer. Objection to taking a
deposition because of disqualification of the officer before whom it is
to be taken is waived unless made before the taking of the deposition
begins or as soon thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
(b) As to taking of deposition. (1) Objections to the competency of
a witness or to the competency, relevancy, or materiality of testimony
are not waived by failure to make them before or during the taking of
the deposition, unless the ground of the objection is one which might
have been obviated or removed if presented at that time.
(2) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed, or cured if
promptly presented, are waived unless reasonable objection thereto is
made at the taking of the deposition.
(c) As to completion and return of deposition. Objections to errors
and irregularities in the manner in which the testimony is transcribed
or the deposition is prepared, signed, certified, sealed, endorsed,
transmitted, filed, or otherwise dealt with by the officer under
Sec. Sec. 1114.23 and 1114.24 are waived unless a motion to suppress
the deposition or some part thereof is made with reasonable promptness
after such defect is, or with due diligence might have been,
ascertained.

[47 FR 49562, Nov. 1, 1982, as amended at 81 FR 8854, Feb. 23, 2016]

Sec. 1114.26 Written interrogatories to parties.

(a) Availability; procedures for use. Subject to the provisions of
Sec. 1114.21(a), any party may serve upon any other party written
interrogatories to be answered by the party served, or if the party
served is a public or private corporation, partnership, association, or
Governmental agency (other than this Board, except in those instances
where the Board itself is a party to the proceeding), by any officer or
agent, who shall furnish such information as is available to the party.
Each interrogatory should be answered separately and fully in writing,
unless it is objected to, in which event the reasons for objection
should be stated in lieu of an answer. The answers are to be signed by
the person making them and subscribed by an appropriate verification
generally in the form prescribed in Sec. 1112.9. Objections are to be
signed by the representative or counsel making them. The person upon
whom the interrogatories have been served shall serve a copy of the
answers and objections within the time period designated by the party
submitting the interrogatories, but not less than 15 days after the
service thereof.
(b) Option to produce business records. Where the answer to an
interrogatory may be derived or ascertained from the business records of
the party upon whom the interrogatory has been served or from an
examination, audit, or inspection of such business records or from a
compilation, abstract, or summary based thereon, and the burden of
deriving or ascertaining the answer is substantially the same for the
party serving the interrogatory as for the party served, it is a
sufficient answer to such interrogatory to specify the records from
which the answer may be derived or ascertained and to afford to the
party serving the interrogatory reasonable opportunity to examine,
audit, or inspect such records and to make copies thereof, or
compilation, abstracts, or summaries therefrom. If information sought is
contained in computer runs, punchcards, or tapes which also contain
privileged or proprietary information or information the disclosure of
which is proscribed by the act, it will be sufficient response under

[[Page 169]]

these rules that the person upon whom the interrogatory has been served
is willing to make available to and permit an independent professional
organization not interested in the proceeding and paid by the party
serving the interrogatory to extract from such runs, punchcards, or
tapes the information sought in the interrogatory that is not privileged
or proprietary information or information the disclosure of which is
proscribed by the act.
(c) Service of interrogatories in those proceedings not requiring a
petition. No written interrogatories shall be served within 20 days
prior to the date assigned for commencement of hearing or the filing of
opening statements of fact and argument under the modified procedure,
and when the written interrogatories are to be served in a foreign
country, they shall not be served within 40 days prior to such date.
(d) Limitation under simplified standards. In a case using the
Three-Benchmark methodology, each party is limited to ten
interrogatories (including subparts) absent advance authorization from
the Board.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 72
FR 51377, Sept. 7, 2007; 81 FR 8855, Feb. 23, 2016]

Sec. 1114.27 Request for admission.

(a) Availability; procedures for use. Subject to the provisions of
Sec. 1114.21(a), a party may serve upon any other party a written
request for the admission, for purposes of the pending proceeding only,
of the truth of any matters within the scope of Sec. 1114.21 set forth
in the request, including the genuineness of any documents described in
the request for admission. Copies of documents should be served with the
request unless they have been or are otherwise furnished or made
available for inspection and copying. Each matter of which an admission
is requested should be separately set forth. The matter is admitted
unless, within a period designated in the request, not less than 15 days
after service thereof, the party to whom the request is directed serves
upon the party requesting the admission a written answer or objection
addressed to the matter, signed by the party or his representative or
counsel. If objection is made, the reasons therefor should be stated.
The answer should specifically deny the matter or set forth in detail
the reasons why the answering party cannot truthfully admit or deny the
matter. A denial should fairly meet the substance of the requested
admission, and when good faith requires that a party qualify his answer
or deny only a part of the matter of which an admission is requested, he
shall specify so much of it as is true and qualify or deny the
remainder. An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny unless he states that
he has made reasonable inquiry and that the information known or readily
obtainable by him is insufficient to enable him to admit or deny. A
party who considers that a matter of which an admission has been
requested presents a genuine issue for hearing may not, on that ground
alone, object to the request; he may, subject to the provisions of Sec.
1114.31, deny the matter or set forth reasons why he cannot admit or
deny it.
(b) Effect of admission. Any matter admitted under this rule is
conclusively established unless upon petition and a showing of good
cause the Board enters an order permitting withdrawal or amendment of
the admission. Any admission made by a party under this rule is for the
purpose of the pending proceeding only and is not an admission by him
for any other purpose nor may it be used against him in any other
proceeding.
(c) Service of written requests for admission in those proceedings
not requiring a petition. No requests for admission should be served
within 20 days prior to the date assigned for commencement of hearing or
the filing of opening statements of fact and argument under the modified
procedure, and when requests for admission are to be served in a foreign
country they should not be served within 40 days prior to such date.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 81
FR 8855, Feb. 23, 2016]

[[Page 170]]

Sec. 1114.28 Depositions, requests for admission, written
interrogatories, and responses thereto: inclusion in record.

At the oral hearing, or upon the submission of statements under the
modified procedure, depositions, requests for admission and written
interrogatories, and respective responses may be offered in evidence by
the party at whose instance they were taken. If not offered by such
party, they may be offered in whole or in part by any other party. If
only part of a deposition, request for admission or written
interrogatory, or response thereto is offered in evidence by a party,
any other party (where the matter is being heard orally) may require him
to introduce all of it which is relevant to the part introduced, and any
party may introduce any other parts. Such depositions, requests for
admission and written interrogatories, and responses thereto should be
admissible in evidence subject to such objections as to competency of
the witness, or competency, relevancy, or materiality of the testimony
as were noted at the time of their taking or are made at the time they
are offered in evidence.

Sec. 1114.29 Supplementation of responses.

A party who has responded to a request for discovery with a response
that was complete when made is under a duty to supplement his response
to include information thereafter acquired in the following instances:
(a) A party is under a duty seasonably to supplement his response
with respect to any question directly addressed to:
(1) The identity and locations of persons having knowledge of
discoverable matters, and
(2) The identity of each person expected to be called as an expert
witness at the hearing, the subject matter on which he is expected to
testify, and the substance of his testimony.
(b) A party who knows or later learns that his response is incorrect
is under a duty seasonably to correct his response.
(c) A duty to supplement responses may be imposed by order,
agreement of the parties, or at any time prior to the hearing or the
submission of verified statements under the modified procedure through
new requests for supplementation of prior responses.

Sec. 1114.30 Production of documents and records and entry upon land
for inspection and other purposes.

(a) Scope. Any party may serve on any other party a request:
(1) To produce and permit the party making the request to inspect
any designated documents (including writings, drawings, graphs, charts,
photographs, phonograph records, tapes, and other data compilations from
which information can be obtained, translated, if necessary, with or
without the use of detection devices into reasonably usable form), or to
inspect and copy, test, or sample any tangible things which are in the
possession, custody, or control of the party upon whom the request is
served, but if the writings or data compilations include privileged or
proprietary information or information the disclosure of which is
proscribed by the Act, such writings or data compilations need not be
produced under this rule but may be provided pursuant to Sec.
1114.26(b) of this part; or
(2) To permit, subject to appropriate liability releases and safety
and operating considerations, entry upon designated land or other
property in the possession or control of the party upon whom the request
is served for the purpose of inspecting and measuring, surveying,
photographing, testing, or sampling the property or any designated
object or operation thereon.
(b) Procedure. Any request filed pursuant to this rule should set
forth the items to be inspected either by individual item or by category
and describe each item and category with reasonable particularity. The
request should specify a reasonable time, place, and manner of making
the inspection and performing the related acts.
(c) Limitation under simplified standards. In a case using the
Three-Benchmark methodology, each party is limited to ten document
requests (including subparts) absent advance authorization from the
Board.

[[Page 171]]

(d) Agreements containing interchange commitments. In any proceeding
involving the reasonableness of provisions related to an existing rail
carrier sale or lease agreement that serve to induce a party to the
agreement to interchange traffic with another party to the agreement,
rather than with a third-party connecting carrier, whether by outright
prohibition, per-car penalty, adjustment in the purchase price or
rental, positive economic inducement, or other means, a party to the
proceeding with a need for the information may obtain a confidential,
complete version of the agreement, with the prior approval of the Board.
The party seeking such approval must file an appropriate motion
containing an explanation of the party's need for the information and a
draft protective order and undertaking(s) that will ensure the agreement
is kept confidential. The motion seeking approval may be filed at any
time after the initial complaint or petition, including before the
answer to the complaint or petition is due. A reply to such a motion
must be filed within 5 days thereafter. The motion will be considered by
the Board in an expedited manner.

[61 FR 52713, Oct. 8, 1996, as amended at 72 FR 51377, Sept. 7, 2007; 73
FR 31034, May 30, 2008]

Sec. 1114.31 Failure to respond to discovery.

(a) Failure to answer. If a deponent fails to answer or gives an
evasive answer or incomplete answer to a question propounded under Sec.
1114.24(a), or a party fails to answer or gives evasive or incomplete
answers to written interrogatories served pursuant to Sec. 1114.26(a),
the party seeking discovery may apply for an order compelling an answer
by motion filed with the Board and served on all parties and deponents.
Such motion to compel an answer must be filed with the Board and served
on all parties and deponents. Except as set forth in paragraph
(a)(2)(iii) of this section, such motion to compel an answer must be
filed with the Board within 10 days after the failure to obtain a
responsive answer upon deposition, or within 10 days after expiration of
the period allowed for submission of answers to interrogatories. On
matters relating to a deposition on oral examination, the proponent of
the question may complete or adjourn the examination before he applies
for an order.
(1) Reply to motion to compel generally. Except in rate cases to be
considered under the stand-alone cost methodology or simplified
standards, the time for filing a reply to a motion to compel is governed
by 49 CFR 1104.13.
(2) Motions to compel in stand-alone cost and simplified standards
rate cases. (i) Motions to compel in stand-alone cost and simplified
standards rate cases must include a certification that the movant has in
good faith conferred or attempted to confer with the person or party
failing to answer discovery to obtain it without Board intervention.
(ii) In a rate case to be considered under the stand-alone cost,
Simplified-SAC, or Three-Benchmark methodologies, a reply to a motion to
compel must be filed with the Board within 10 days of when the motion to
compel is filed.
(iii) In a rate case under Final Offer Rate Review, each party may
file one motion to compel that aggregates all discovery disputes with
the other party. Each party's motion to compel, if any, shall be filed
on the 10th day before the close of discovery (or, if not a business
day, the last business day immediately before the 10th day). The
procedural schedule will be tolled while motions to compel are pending.
Replies to motions to compel in Final Offer Rate Review cases must be
filed with the Board within 7 days of when the motion to compel is
filed. Upon issuance of a decision on motions to compel, the procedural
schedule resumes, and any party ordered to respond to discovery must do
so within the remaining 10 days in the discovery period.
(3) Conference with parties on motion to compel. Within 5 business
days after the filing of a reply to a motion to compel in a rate case to
be considered under the stand-alone cost methodology, Simplified-SAC, or
Three-Benchmark, Board staff may convene a conference with the parties
to discuss the dispute, attempt to narrow the issues, and gather any
further information needed to render a ruling.

[[Page 172]]

(4) Ruling on motion to compel in stand-alone cost, Simplified-SAC,
and Three-Benchmark rate cases. Within 5 business days after a
conference with the parties convened pursuant to paragraph (a)(3) of
this section, the Director of the Office of Proceedings will issue a
summary ruling on the motion to compel discovery. If no conference is
convened, the Director of the Office of Proceedings will issue this
summary ruling within 10 days after the filing of the reply to the
motion to compel. Appeals of a Director's ruling will proceed under 49
CFR 1115.9, and the Board will attempt to rule on such appeals within 20
days after the filing of the reply to the appeal.
(b) Failure to comply with order. (1) If a party or other witness
refuses to be sworn or refuses to answer any question after being
directed to do so by the Board, such refusal may subject the refusing
party or person to action by the Board under 49 U.S.C. 1321(c) and (d)
to compel appearance and compliance with the Board's order.
(2) If any party or an officer, director, managing agent, or
employee of a party or person refuses to obey an order made under
paragraph (a) of this section requiring him to answer designated
questions, or an order made under Sec. 1114.30 requiring him to produce
any document or other thing for inspection, copying, testing, sampling,
or photographing or to permit it to be done, or to permit entry upon
land or other property, the Board may make such orders in regard to the
refusal as are just, and among others the following:
(i) An order that the matters regarding which questions were asked,
or the character or description of the thing or land, or the contents of
the paper, or any other designated facts should be taken to be
established for the purposes of the proceeding in accordance with the
claim of the party obtaining the order:
(ii) An order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting him from
introducing in evidence designated documents or things or items of
testimony:
(iii) An order striking out pleadings or parts thereof, or staying
further proceedings until the order is obeyed, or dismissing the
proceedings or any party thereof.
(iv) In lieu of any of the foregoing orders, or in addition thereto,
the Board shall require the party failing to obey the order or the
attorney advising that party, or both, to pay the reasonable expenses,
including attorney's fees, caused by the failure, unless the Board finds
that the failure was substantially justified or that other circumstances
make an award of expenses unjust.
(c) Expenses on refusal to admit. If a party, after being served
with a request under Sec. 1114.27 to admit the genuineness of any
document or the truth of any matter of fact, serves a sworn denial
thereof, and if the party requesting the admission thereafter proves the
genuineness of any such document or the truth of any such matter of fact
the Board may order the party making such denial to pay to such other
party the reasonable expenses incurred in making that proof, including
reasonable attorney's fees.
(d) Failure of party to attend or serve answers. If a party or a
person or an officer, director, managing agent, or employee of a party
or person willfully fails to appear before the officer who is to take
his deposition, after being served with a proper notice, or fails to
serve answers to interrogatories submitted under Sec. 1114.26, after
proper service of such interrogatories, the Board on motion and notice
may strike out all or any part of any pleading of that party or person,
or dismiss the proceeding or any part thereof. Such a motion may not be
filed in a case under Final Offer Rate Review. In lieu of any such order
or in addition thereto, the Board shall require the party failing to act
or the attorney advising that party or both to pay the reasonable
expenses, including attorney's fees, caused by the failure, unless the
Board finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
(e) Expenses against United States. Expenses and attorney's fees are
not to be

[[Page 173]]

imposed upon the United States under this rule.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 68
FR 17313, Apr. 9, 2003; 69 FR 58366, Sept. 30, 2004; 72 FR 51377, Sept.
7, 2007; 74 FR 52908, Oct. 15, 2009; 82 FR 57381, Dec. 5, 2017; 83 FR
15079, Apr. 9, 2018; 88 FR 319, Jan. 4, 2023]

PART 1115_APPELLATE PROCEDURES--Table of Contents

Sec.
1115.1 Scope of rule.
1115.2 Initial decisions.
1115.3 Board actions other than initial decisions.
1115.4 Petitions to reopen administratively final actions.
1115.5 Petitions for other relief.
1115.6 Exhaustion of remedies and judicial review.
1115.7 Petitions for judicial review; mailing address.
1115.8 Petitions to review arbitration decisions.
1115.9 Interlocutory appeals.

Authority: 5 U.S.C. 559; 49 U.S.C. 1321; 49 U.S.C. 11708.

Source: 47 FR 49568, Nov. 1, 1982, unless otherwise noted.

Sec. 1115.1 Scope of rule.

(a) These appellate procedures apply in cases where a hearing is
required by law or Board action. They do not apply to informal matters
such as car service, temporary authority, suspension, special permission
actions, or to other matters of an interlocutory nature. Abandonments
and discontinuance proceedings instituted under 49 U.S.C. 10903 are
governed by separate appellate procedures exclusive to those
proceedings. (See 49 CFR part 1152)
(b) Requests for appellate relief may relate either to initial
decisions or to Board actions other than initial decisions. For each
category, this rule describes the types of appeal permitted, the
requirements to be observed in filing an appeal, provisions for stay of
the action, and the status of the action in the absence of a stay.
(c) Appeals from the decisions of employees acting under authority
delegated to them by the Chairman of the Board pursuant to Sec. 1011.6
will be acted upon by the entire Board. Appeals must be filed within 10
days of the date of the action taken by the employee, and responses to
appeals must be filed within 10 days thereafter. Such appeals are not
favored; they will be granted only in exceptional circumstances to
correct a clear error of judgment or to prevent manifest injustice.

[47 FR 49568, Nov. 1, 1982, as amended at 61 FR 52714, Oct. 8, 1996; 69
FR 12806, Mar. 18, 2004]

Sec. 1115.2 Initial decisions.

This category includes the initial decision of an administrative law
judge, individual Board Member, or employee board.
(a) An appeal of right is permitted.
(b) Appeals must be based on one or more of the following grounds:
(1) That a necessary finding of fact is omitted, erroneous, or
unsupported by substantial evidence of record;
(2) That a necessary legal conclusion, or finding is contrary to
law, Board precedent, or policy;
(3) That an important question of law, policy, or discretion is
involved which is without governing precedent; or
(4) That prejudicial procedural error has occurred.
(c) Appeals must detail the assailed findings with supporting
citations to the record and authorities.
(d) Appeals and replies shall not exceed 30 pages in length,
including argument, and appendices or other attachments, but excluding a
table of cases and an index of subject matter.
(e) Appeals must be filed within 20 days after the service date of
the decision or within any further period (not to exceed 20 days) the
Board may authorize. Replies must be filed within 20 days of the date
the appeal is filed.
(f) The timely filing of an appeal to an initial decision will stay
the effect of the action pending determination of the appeal.
(g) If an appeal of an initial decision is not timely filed or the
Board does not stay the effectiveness on its own motion, the order set
forth in the initial decision shall become the action of

[[Page 174]]

the Board and be effective at the expiration of the time for filing,
unless otherwise provided.

[47 FR 49568, Nov. 1, 1982, as amended at 54 FR 19894, May 9, 1989; 61
FR 52714, Oct. 8, 1996; 81 FR 8855, Feb. 23, 2016]

Sec. 1115.3 Board actions other than initial decisions.

(a) A discretionary appeal of an entire Board action is permitted.
Such an appeal should be designated a ``petition for reconsideration.''
(b) The petition will be granted only upon a showing of one or more
of the following points:
(1) The prior action will be affected materially because of new
evidence or changed circumstances.
(2) The prior action involves material error.
(c) The petition must state in detail the nature of and reasons for
the relief requested. When, in a petition filed under this section, a
party seeks an opportunity to introduce evidence, the evidence must be
stated briefly and must not appear to be cumulative, and an explanation
must be given why it was not previously adduced.
(d) The petition and any reply must not exceed 20 pages in length. A
separate preface and summary of argument, not exceeding 3 pages, may
accompany petitions and replies and must accompany those that exceed 10
pages in length.
(e) Petitions must be filed within 20 days after the service of the
action or within any further period (not to exceed 20 days) as the Board
may authorize. However, in cases under Final Offer Rate Review and in
cases seeking expedited relief for service emergencies under the
accelerated process at 49 CFR 1146.2, petitions must be filed within 5
days after the service of the action, and replies to petitions must be
filed within 10 days after the service of the action.
(f) The filing of a petition will not automatically stay the effect
of a prior action, but the Board may stay the effect of the action on
its own motion or on petition. A petition to stay may be filed in
advance of the petition for reconsideration and shall be filed within 10
days of service of the action. No reply need be filed. However, if a
party elects to file a reply, it must reach the Board no later than 16
days after service of the action. In all proceedings, the action, if not
stayed, will become effective 30 days after it is served, unless the
Board provides for the action to become effective at a different date.
On the day the action is served parties may initiate judicial review.

[61 FR 52714, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996; 88
FR 320, Jan. 4, 2023; 89 FR 4578, Jan. 24, 2024]

Sec. 1115.4 Petitions to reopen administratively final actions.

A person at any time may file a petition to reopen any
administratively final action of the Board pursuant to the requirements
of Sec. 1115.3 (c) and (d) of this part. A petition to reopen must
state in detail the respects in which the proceeding involves material
error, new evidence, or substantially changed circumstances and must
include a request that the Board make such a determination.

[61 FR 52714, Oct. 8, 1996]

Sec. 1115.5 Petitions for other relief.

(a) A party may petition for a stay of an action pending a request
for judicial review, for extension of the compliance date, or for
modification of the date the terms of the decision take effect. The
reasons for the desired relief must be stated in the petition, and the
petition must be filed not less than 10 days prior to the date the terms
of the action take effect. No reply need be filed. If a party elects to
file a reply, the reply must reach the Board no later than 5 days after
the petition is filed.
(b) When the terms of a Board action take effect on less than 15
days' notice, a petition for stay pending a request for judicial review
must be filed prior to the institution of court action and as close to
the service date as practicable. No reply need be filed. Where time
permits, a party may elect to file a reply.
(c) A petition or reply must not exceed 10 pages in length.

[47 FR 49568, Nov. 1, 1982, as amended at 61 FR 52714, Oct. 8, 1996]

[[Page 175]]

Sec. 1115.6 Exhaustion of remedies and judicial review.

These rules do not relieve the requirement that a party exhaust its
administrative remedies before going to court. Any action appealable as
of right must be timely appealed. If an appeal, discretionary appeal, or
petition seeking reopening is filed under Sec. 1115.2 or Sec. 1115.3
of this part, before or after a petition seeking judicial review is
filed with the courts, the Board will act upon the appeal or petition
after advising the court of its pendency unless action might interfere
with the court's jurisdiction.

[47 FR 49568, Nov. 1, 1982, as amended at 61 FR 52714, Oct. 8, 1996]

Sec. 1115.7 Petitions for judicial review; mailing address.

Petitions for judicial review of final agency orders may be served
on the Board pursuant to 28 U.S.C. 2112(a) and be addressed to ``General
Counsel, Office of the General Counsel, Surface Transportation Board,
Washington, DC 20423.''

[53 FR 20854, June 7, 1988, as amended at 61 FR 52714, Oct. 8, 1996]

Sec. 1115.8 Petitions to review arbitration decisions.

An appeal of right to the Board is permitted. The appeal must be
filed within 20 days upon the Board of a final arbitration decision,
unless a later date is authorized by the Board, and is subject to the
page limitations of Sec. 1115.2(d). For arbitrations authorized under
part 1108, subparts A and B, of this chapter, the Board's standard of
review of arbitration decisions will be narrow, and relief will only be
granted on grounds that the decision is inconsistent with sound
principles of rail regulation economics, a clear abuse of arbitral
authority or discretion occurred, the decision directly contravenes
statutory authority, or the award limitation was violated. For labor
arbitration decisions, the Board's standard of review is set forth in
Chicago and North Western Transportation Company--Abandonment--near
Dubuque & Oelwein, Iowa, 3 I.C.C.2d 729 (1987), aff'd sub nom.
International Brotherhood of Electrical Workers v. Interstate Commerce
Commission, 862 F.2d 330 (D.C. Cir. 1988). The timely filing of a
petition will not automatically stay the effect of the arbitration
decision. A stay may be requested under Sec. 1115.3(f).

[81 FR 69417, Oct. 6, 2016, as amended at 88 FR 735, Jan. 4, 2023]

Sec. 1115.9 Interlocutory appeals.

(a) Rulings of Board employees, including administrative law judges,
may be appealed prior to service of the initial decision only if:
(1) The ruling denies or terminates any person's participation;
(2) The ruling grants a request for the inspection of documents not
ordinarily available for public inspection;
(3) The ruling overrules an objection based on privilege, the result
of which ruling is to require the presentation of testimony or
documents; or
(4) The ruling may result in substantial irreparable harm,
substantial detriment to the public interest, or undue prejudice to a
party.
(b) In stand-alone cost complaints or in cases filed under the
simplified standards, any interlocutory appeal of a ruling shall be
filed with the Board within three (3) business days of the ruling.
Replies to any interlocutory appeal shall be filed with the Board within
three (3) business days after the filing of any such appeal. In all
other cases, interlocutory appeals shall be filed with the Board within
seven (7) calendar days of the ruling and replies to interlocutory
appeals shall be filed with Board within seven (7) calendar days after
the filing of any such appeal as computed under 49 CFR 1104.7.

[61 FR 52714, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996; 72
FR 51377, Sept. 7, 2007]

PART 1116_ORAL ARGUMENT BEFORE THE BOARD--Table of Contents

Sec.
1116.1 Requests.
1116.2 Manner of presentation.

Authority: 49 U.S.C. 1321.

Source: 47 FR 49569, Nov. 1, 1982, unless otherwise noted.

Sec. 1116.1 Requests.

(a) Addressee. Requests for oral argument should be addressed to the
Chief,

[[Page 176]]

Section of Administration, Office of Proceedings, Surface Transportation
Board, Washington, DC 20423-0001.
(b) Who may request? Any party may submit a written request for oral
argument and state the reasons for the request. No replies from other
parties to the request shall be made.
(c) When to file a request. Requests for oral argument should be
filed within 20 days after the date of service of the decision, order,
or requirement being appealed, unless the Board by order prescribes a
different time period.
(d) Granting of request. The Board will rule upon requests by
decision, and the granting of requests is entirely at the discretion of
the Board.

[47 FR 49569, Nov. 1, 1982, as amended at 74 FR 52908, Oct. 15, 2009]

Sec. 1116.2 Manner of presentation.

Proponents of a rule or order will be heard first, and opponents
will be heard second. One counsel only will usually be heard for each of
the opposing interests, unless additional presentations are specifically
authorized.

PART 1117_PETITIONS (FOR RELIEF) NOT OTHERWISE COVERED--Table of Contents

Authority: 49 U.S.C. 1321.

Sec. 1117.1 Petitions.

A party seeking relief not provided for in any other rule may file a
petition for such relief. The petition should contain (a) a short, plain
statement of the grounds upon which the Board's jurisdiction is based;
(b) a short plain statement of the claim showing that the petitioner is
entitled to relief; and (c) a demand for the relief the petitioner
believes is appropriate.

[47 FR 49569, Nov. 1, 1982]

PART 1119_COMPLIANCE WITH BOARD DECISIONS--Table of Contents

Authority: 49 U.S.C. 1321.

Sec. 1119.1 Compliance.

A defendant or respondent directed by the Board to do or desist from
doing a particular thing must notify the Board on or before the
compliance date specified in the decision of the manner of compliance.
Notification should be by verified affidavit showing simultaneous
service upon all parties to the proceeding. Where a change in rates or
schedules is directed, notification specifying the Surface
Transportation Board tariff or schedule numbers must be given in
addition to the filing of proper tariffs or schedules.

[47 FR 49570, Nov. 1, 1982]

PART 1120_USE OF 1977 1978 STUDY OF MOTOR CARRIER PLATFORM HANDLING
FACTORS--Table of Contents

Sec.
1120.1 Scope.
1120.2 Purpose.

Authority: 49 U.S.C. 1321, 13701, 13703.

Sec. 1120.1 Scope.

The provisions of this part apply only to Class I and II motor
common carriers of general freight subject to accounting instruction
number 27 of the Board's Uniform System of Accounts (49 CFR Part 1207).

[47 FR 36184, Aug. 19, 1982. Redesignated at 47 FR 49570, Nov. 1, 1982]

Sec. 1120.2 Purpose.

In any proceeding requiring the development of platform handling
times for distribution of platform expense, carriers may use the results
of the national weight formula contained in the Board's study, entitled
1977-1978 Motor Carrier Platform Study, Statement 2S1-79.

[47 FR 36184, Aug. 19, 1982. Redesignated at 47 FR 49570, Nov. 1, 1982]

PART 1121_RAIL EXEMPTION PROCEDURES--Table of Contents

Sec.
1121.1 Scope.
1121.2 Discovery.
1121.3 Content.
1121.4 Procedures.

Authority: 49 U.S.C. 10502 and 10704.

Source: 61 FR 52714, Oct. 8, 1996, unless otherwise noted.

[[Page 177]]

Sec. 1121.1 Scope.

These procedures generally govern petitions filed under 49 U.S.C.
10502 to exempt a transaction or service from 49 U.S.C. subtitle IV, or
any provision of 49 U.S.C. subtitle IV, or to revoke an exemption
previously granted. These procedures also apply to notices of exemption.

Sec. 1121.2 Discovery.

Discovery shall follow the procedures set forth at 49 CFR part 1114,
subpart B. Discovery may begin upon the filing of the petition for
exemption or petition for revocation of an exemption. In petitions to
revoke an exemption, a party must indicate in the petition whether it is
seeking discovery. If it is, the party must file its discovery requests
at the same time it files its petition to revoke. Discovery shall be
completed 30 days after the petition to revoke is filed. The party
seeking discovery may supplement its petition to revoke 45 days after
the petition is filed. Replies to the supplemental petition are due 15
days after the supplemental petition is filed.

Sec. 1121.3 Content.

(a) A party filing a petition for exemption shall provide its case-
in-chief, along with its supporting evidence, workpapers, and related
documents at the time it files its petition.
(b) A petition must comply with environmental or historic reporting
and notice requirements of 49 CFR part 1105, if applicable.
(c) A party seeking revocation of an exemption or a notice of
exemption shall provide all of its supporting information at the time it
files its petition. Information later obtained through discovery can be
submitted in a supplemental petition pursuant to 49 CFR 1121.2.
(d) Interchange Commitments. (1) The filing party must certify
whether or not a proposed acquisition or operation of a rail line
involves a provision or agreement that may limit future interchange with
a third-party connecting carrier, whether by outright prohibition, per-
car penalty, adjustment in the purchase price or rental, positive
economic inducement, or other means (``interchange commitment''). If
such a provision exists, the following additional information must be
provided (the information in paragraphs (d)(1)(ii), (iv), (vii) of this
section may be filed with the Board under 49 CFR 1104.14(a) and will be
kept confidential without need for the filing of an accompanying motion
for a protective order under 49 CFR 1104.14(b)):
(i) The existence of that provision or agreement and identification
of the affected interchange points; and
(ii) A confidential, complete version of the document(s) containing
or addressing that provision or agreement;
(iii) A list of shippers that currently use or have used the line in
question within the last two years;
(iv) The aggregate number of carloads those shippers specified in
paragraph (d)(1)(iii) of this section originated or terminated
(confidential);
(v) A certification that the filing party has provided notice of the
proposed transaction and interchange commitment to the shippers
identified in paragraph (d)(1)(iii) of this section;
(vi) A list of third party railroads that could physically
interchange with the line sought to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price
with and without the interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an
interchange commitment is apparent from the case title.
(2) To obtain information about an interchange commitment for use in
a proceeding before the Board, a shipper or other affected party may be
granted access to the confidential documents filed pursuant to paragraph
(d)(1) of this section by filing, and serving upon the petitioner, a
``Motion for Access to Confidential Documents,'' containing:
(i) An explanation of the party's need for the information; and
(ii) An appropriate draft protective order and confidentiality
undertaking(s) that will ensure that the documents are kept
confidential.
(3) Deadlines. (i) Replies to a Motion for Access are due within 5
days after the motion is filed.

[[Page 178]]

(ii) The Board will rule on a Motion for Access within 30 days after
the motion is filed.
(iii) Parties must produce the relevant documents within 5 days of
receipt of a Board approved, signed confidentiality agreement.

[61 FR 52714, Oct. 8, 1996, as amended at 73 FR 31034, May 30, 2008; 78
FR 54590, Sept. 5, 2013]

Sec. 1121.4 Procedures.

(a) Exemption proceedings are informal, and public comments are
generally not sought during consideration of exemption petition
proposals, except as provided in Sec. 1121.4(c). However, the Board may
consider during its deliberation any public comments filed in response
to a petition for exemption.
(b) If the Board determines that the criteria in 49 U.S.C. 10502 are
met for the proposed exemption, it will issue the exemption and publish
a notice of exemption in the Federal Register.
(c)(1) If the impact of the proposed individual exemption cannot be
ascertained from the information contained in the petition or
accompanying submissions, or significant adverse impacts might occur if
the proposed exemption were granted, the Board may, in its discretion:
(i) Direct that additional information be filed; or
(ii) Publish a notice in the Federal Register requesting public
comments.
(2) If a petition for a new class exemption is filed, the Board will
publish a notice in the Federal Register requesting public comments
before granting the class exemption. This requirement does not pertain
to individual notices of exemption filed under existing class
exemptions. The Board may deny a request for a class exemption without
seeking public comments.
(d) Exemption petitions containing proposals that are directly
related to and concurrently filed with a primary application will be
considered along with that primary application.
(e) Unless otherwise specified in the decision, an exemption
generally will be effective 30 days from the service date of the
decision granting the exemption. Unless otherwise provided in the
decision, petitions to stay must be filed within 10 days of the service
date, and petitions for reconsideration or petitions to reopen under 49
CFR part 1115 or 49 CFR 1152.25(e) must be filed within 20 days of the
service date.
(f) Petitions to revoke an exemption or the notice of exemption may
be filed at any time. The person seeking revocation has the burden of
showing that the revocation criteria of 49 U.S.C. 10502(d) have been
met.
(g) In abandonment exemptions, petitions to revoke in part to impose
public use conditions under 49 CFR 1152.28, or to invoke the Trails Act,
16 U.S.C. 1247(d), may be filed at any time prior to the consummation of
the abandonment, except that public use conditions may not prohibit
disposal of the properties for any more than the statutory limit of 180
days after the effective date of the decision granting the exemption.
(h) In transactions for the acquisition or operation of rail lines
by Class II rail carriers under 49 U.S.C. 10902, the exemption may not
become effective until 60 days after applicant certifies to the Board
that it has posted at the workplace of the employees on the affected
line(s) and served a notice of the transaction on the national offices
of the labor unions with employees on the affected line(s), setting
forth the types and numbers of jobs expected to be available, the terms
of employment and principles of employee selection, and the lines that
are to be transferred.

[61 FR 52714, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996; 62
FR 47583, Sept. 10, 1997; 64 FR 46595, Aug. 26, 1999]

PART 1122_BOARD-INITIATED INVESTIGATIONS--Table of Contents

Sec.
1122.1 Definitions.
1122.2 Scope and applicability of this part.
1122.3 Preliminary Fact-Finding.
1122.4 Board-Initiated Investigations.
1122.5 Procedural rules.
1122.6 Confidentiality.
1122.7 Request for confidential treatment.
1122.8 Limitation on participation.
1122.9 Power of persons conducting Board-Initiated Investigations.
1122.10 Transcripts.
1122.11 Rights of witnesses.
1122.12 Certifications and false statements.
1122.13 Right to submit statements.

Appendix A to Part 1122--Informal Procedure Relating to Recommendations

[[Page 179]]

and Summary of Findings from the Board-Initiated Investigation

Authority: 49 U.S.C. 1321, 11144, 11701.

Source: 81 FR 90239, Dec. 14, 2016, unless otherwise noted.

Sec. 1122.1 Definitions.

(a) Board-Initiated Investigation means an investigation instituted
by the Board pursuant to an Order of Investigation and conducted in
accordance with Section 12 of the Surface Transportation Board
Reauthorization Act of 2015, now incorporated and codified at 49 U.S.C.
11701.
(b) Formal Board Proceeding means a public proceeding instituted by
the Board pursuant to an Order to Show Cause after a Board-Initiated
Investigation has been conducted.
(c) Investigating officer(s) means the individual(s) designated by
the Board in an Order of Investigation to conduct a Board-Initiated
Investigation.
(d) Preliminary Fact-Finding means an informal fact-gathering
inquiry conducted by Board staff prior to the opening of a Board-
Initiated Investigation.

Sec. 1122.2 Scope and applicability of this part.

This part applies only to matters subject to Section 12 of the
Surface Transportation Board Reauthorization Act of 2015, 49 U.S.C.
11701.

Sec. 1122.3 Preliminary Fact-Finding.

The Board staff may, in its discretion, conduct nonpublic
Preliminary Fact-Finding, subject to the provisions of Sec. 1122.6, to
determine if a matter presents an alleged violation that could be of
national or regional significance and subject to the Board's
jurisdiction under 49 U.S.C. Subtitle IV, Part A, and warrants a Board-
Initiated Investigation. Board staff shall inform the subject of
Preliminary Fact-Finding that Preliminary Fact-Finding has commenced.
Where it appears from Preliminary Fact-Finding that a Board-Initiated
Investigation is warranted, staff shall so recommend to the Board. Where
it appears from the Preliminary Fact-Finding that a Board-Initiated
Investigation is not warranted, staff shall conclude its Preliminary
Fact-Finding and notify any parties involved that the process has been
terminated.

Sec. 1122.4 Board-Initiated Investigations.

The Board may, in its discretion, commence a nonpublic Board-
Initiated Investigation of any matter of national or regional
significance that is subject to the jurisdiction of the Board under 49
U.S.C. Subtitle IV, Part A, subject to the provisions of Sec. 1122.6,
by issuing an Order of Investigation. Orders of Investigation shall
state the basis for the Board-Initiated Investigation and identify all
Board staff who are authorized to conduct the investigation as
Investigating Officer(s). The Board may add or remove Investigating
Officer(s) during the course of a Board-Initiated Investigation. To the
extent practicable, an Investigating Officer shall not participate in
any decisionmaking functions in any Formal Board Proceeding(s) opened as
a result of any Board-Initiated Investigation(s) that he or she
conducted.

Sec. 1122.5 Procedural rules.

(a) After notifying the party subject to Preliminary Fact-Finding
that Preliminary Fact-Finding has commenced, the Board staff shall,
within a reasonable period of time, either:
(1) Conclude Preliminary Fact-Finding and notify any parties
involved that the process has been terminated; or
(2) Recommend to the Board that a Board-Initiated Investigation is
warranted.
(b) Not later than 30 days after commencing a Board-Initiated
Investigation, the Investigating Officer(s) shall provide the parties
under investigation a copy of the Order of Investigation. If the Board
adds or removes Investigating Officer(s) during the course of the Board-
Initiated Investigation, it shall provide written notification to the
parties under investigation.
(c) Not later than 275 days after issuance of the Order of
Investigation, the Investigating Officer(s) shall submit to the Board
and the parties under investigation:
(1) Any recommendations made as a result of the Board-Initiated
Investigation; and

[[Page 180]]

(2) A summary of the findings that support such recommendations.
(d) Not later than 90 days after receiving the recommendations and
summary of findings, the Board shall decide whether to dismiss the
Board-Initiated Investigation if no further action is warranted or
initiate a Formal Board Proceeding to determine whether any provision of
49 U.S.C. Subtitle IV, Part A, has been violated in accordance with
section 12 of the Surface Transportation Board Reauthorization Act of
2015. The Board shall dismiss any Board-Initiated Investigation that is
not concluded with administrative finality within one year after the
date on which it was commenced.
(e) A Formal Board Proceeding commences upon issuance of a public
Order to Show Cause. The Order to Show Cause shall state the basis for,
and the issues to be considered during, the Formal Board Proceeding and
set forth a procedural schedule.

Sec. 1122.6 Confidentiality.

(a) All information and documents obtained under Sec. 1122.3 or
Sec. 1122.4, whether or not obtained pursuant to a Board request or
subpoena, and all activities conducted by the Board under this part
prior to the opening of a Formal Board Proceeding, shall be treated as
nonpublic by the Board and its staff except to the extent that:
(1) The Board, in accordance with 49 CFR 1001.4(c), (d), and (e),
directs or authorizes the public disclosure of activities conducted
under this part prior to the opening of a Formal Board Proceeding. If
any of the activities being publicly disclosed implicate records claimed
to be confidential commercial information, the Board shall notify the
submitter prior to disclosure in accordance with 49 CFR 1001.4(b) and
provide an opportunity to object to disclosure in accordance with 49 CFR
1001.4(d);
(2) The information or documents are made a matter of public record
during the course of an administrative proceeding; or
(3) Disclosure is required by the Freedom of Information Act, 5
U.S.C. 552 or other relevant provision of law.
(b) Procedures by which persons submitting information to the Board
pursuant to this part of title 49, chapter X, subchapter B, of the Code
of Federal Regulations may specifically seek confidential treatment of
information for purposes of the Freedom of Information Act disclosure
are set forth in Sec. 1122.7. A request for confidential treatment of
information for purposes of Freedom of Information Act disclosure shall
not, however, prevent disclosure for law enforcement purposes or when
disclosure is otherwise found appropriate in the public interest and
permitted by law.

Sec. 1122.7 Request for confidential treatment.

Any person that produces documents to the Board pursuant to Sec.
1122.3 or Sec. 1122.4 may claim that some or all of the information
contained in a particular document or documents is exempt from the
mandatory public disclosure requirements of the Freedom of Information
Act (FOIA), 5 U.S.C. 552, is information referred to in 18 U.S.C. 1905,
or is otherwise exempt by law from public disclosure. In such case, the
person making such a claim shall, at the time the person produces the
document to the Board, indicate on the document that a request for
confidential treatment is being made for some or all of the information
in the document. In such case, the person making such a claim also shall
file a brief statement specifying the specific statutory justification
for non-disclosure of the information in the document for which
confidential treatment is claimed. If the person states that the
information comes within the exception in 5 U.S.C. 552(b)(4) for trade
secrets and commercial or financial information, and the information is
responsive to a subsequent FOIA request to the Board, 49 CFR 1001.4
shall apply.

Sec. 1122.8 Limitation on participation.

No party who is not the subject of a Board-Initiated Investigation
may intervene or participate as a matter of right in any such Board-
Initiated Investigation under this part.

Sec. 1122.9 Power of persons conducting Board-Initiated Investigations.

The Investigating Officer(s), in connection with any Board-Initiated
Investigation, may interview or depose

[[Page 181]]

witnesses, inspect property and facilities, and request and require the
production of any information, documents, books, papers, correspondence,
memoranda, agreements, or other records, in any form or media, that are
likely to be directly relevant to the issues of the Board-Initiated
Investigation. The Investigating Officer(s), in connection with a Board-
Initiated Investigation, also may issue subpoenas, in accordance with 49
U.S.C. 1321, to compel the attendance of witnesses, the production of
any of the records and other documentary evidence listed above, and
access to property and facilities.

Sec. 1122.10 Transcripts.

Transcripts, if any, of investigative testimony shall be recorded
solely by the official reporter or other person or by means authorized
by the Board or by the Investigating Officer(s). A witness who has given
testimony pursuant to this part shall be entitled, upon written request,
to procure a transcript of the witness' own testimony or, upon proper
identification, shall have the right to inspect the official transcript
of the witness' own testimony.

Sec. 1122.11 Rights of witnesses.

(a) Any person who is compelled or requested to furnish documentary
evidence or testimony in a Board-Initiated Investigation shall, upon
request, be shown the Order of Investigation. Copies of Orders of
Investigation shall not be furnished, for their retention, to such
persons requesting the same except with the express approval of the
Chairman.
(b) Any person compelled to appear, or who appears in person at a
Board-Initiated Investigation by request or permission of the
Investigating Officer may be accompanied, represented, and advised by
counsel, as provided by the Board's regulations.
(c) The right to be accompanied, represented, and advised by counsel
shall mean the right of a person testifying to have an attorney present
with him during any aspect of a Board-Initiated Investigation and to
have this attorney advise his client before, during and after the
conclusion of such examination.

Sec. 1122.12 Certifications and false statements.

(a) When producing documents under Sec. 1122.4, the producing party
shall submit a statement certifying that such person has made a
reasonable search for the responsive documents and is producing all the
documents called for by the Investigating Officer(s), subject to any
search protocols agreed to by the Investigating Officer(s) and producing
parties. If any responsive document(s) are not produced for any reason,
the producing party shall state the reason therefor.
(b) If any responsive documents are withheld because of a claim of
the attorney-client privilege, work product privilege, or other
applicable privilege, the producing party shall submit a list of such
documents which shall, for each document, identify the attorney
involved, the client involved, the date of the document, the person(s)
shown on the document to have prepared and/or sent the document, and the
person(s) shown on the document to have received copies of the document.

Sec. 1122.13 Right to submit statements.

Any party subject to a Board-Initiated Investigation may, at any
time during the course of a Board-Initiated Investigation, submit to the
Board written statements of facts or circumstances, with any relevant
supporting evidence, concerning the subject of that investigation.

Sec. Appendix A to Part 1122--Informal Procedure Relating to
Recommendations and Summary of Findings From the Board-Initiated
Investigation

(a) After conducting sufficient investigation and prior to
submitting recommendations and a summary of findings to the Board, the
Investigating Officer, in his or her discretion, may inform the parties
under investigation (orally or in writing) of the proposed
recommendations and summary of findings that may be submitted to the
Board. If the Investigating Officer so chooses, he or she shall also
advise the parties under investigation that they may submit a written
statement, as explained below, to the Investigating Officer prior to the
consideration by the Board of the recommendations and summary of
findings. This optional process is in addition to, and does not limit in
any way,

[[Page 182]]

the rights of parties under investigation otherwise provided for in this
part.
(b) Unless otherwise provided for by the Investigating Officer,
parties under investigation may submit a written statement, as described
above, within 14 days after of being informed by the Investigating
Officer of the proposed recommendation(s) and summary of findings. Such
statements shall be no more than 20 pages, not including any supporting
data, evidence, and verified statements that may be attached to the
written statement, double spaced on 8\1/2\ by 11 inch paper, setting
forth the views of the parties under investigation of factual or legal
matters or other arguments relevant to the commencement of a Formal
Board Proceeding. Any statement of fact included in the submission must
be sworn to by a person with personal knowledge of such fact.
(c) Such written statements, if the parties under investigation
choose to submit, shall be submitted to the Investigating Officer. The
Investigating Officer shall provide any written statement(s) from the
parties under investigation to the Board at the same time that he or she
submits his or her recommendations and summary of findings to the Board.

PARTS 1123 1129 [RESERVED]

Parts 1130 1149_Rate Procedures

PART 1130_INFORMAL COMPLAINTS--Table of Contents

Sec.
1130.1 When no damages sought.
1130.2 When damages sought.

Authority: 49 U.S.C. 1321, 13301(f), 14709.

Sec. 1130.1 When no damages sought.

(a) Form and content. Informal complaint may be by letter or other
writing filed with the Board and will be serially numbered as filed. The
complaint must contain the essential elements of a formal complaint as
specified at 49 CFR 1111.2 and may embrace supporting papers.
(b) Correspondence handling. When an informal complaint appears
susceptible of informal adjustment, the Board will send a copy or
statement of the complaint to each subject of the complaint in an
attempt to have it satisfied by correspondence, thereby avoiding the
filing of a formal complaint.
(c) Discontinuance of informal proceeding. The filing of an informal
complaint does not preclude complainant from filing a formal complaint.
If a formal complaint is filed, the informal proceeding will be
discontinued.

[47 FR 49570, Nov. 1, 1982, as amended at 48 FR 44827, Sept. 30, 1983;
69 FR 12806, Mar. 18, 2004; 82 FR 57382, Dec. 5, 2017; 84 FR 12944, Apr.
3, 2019]

Sec. 1130.2 When damages sought.

(a) Actual filing required. Notification to the Board that an
informal complaint may or will be filed later seeking damages is not a
filing within the meaning of the statute.
(b) Content. An informal complaint seeking damages must be filed
within the statutory period, and should identify with reasonable
definiteness the involved shipments or transportation services. The
complaint should include:
(1) A statement that complainant seeks to recover damages;
(2) The names of each individual seeking damages;
(3) The names and addresses of defendants against which claim is
made;
(4) The commodities, the rate applied, the date on which the charges
were paid, the names of the parties paying the charges, and, if
different, the names of the parties bearing the charges;
(5) The period of time within which or the specific dates upon which
the shipments were made, and the dates when they were delivered or
tendered for delivery;
(6) The specific origin and destination points or, where they are
numerous, the territorial or rate group of the origin and destination
points and, if known, the routes of movement; and
(7) The nature and amount of the injury sustained by each claimant.
(c) Statement of prior claim. A complaint filed under paragraph (b)
of this section containing a claim which has been the subject of a
previous informal or formal complaint must specifically refer to the
previous complaint.
(d) Copies. The original of an informal complaint seeking damages
must be accompanied by a sufficient number of copies to enable the Board
to send one to each defendant named.
(e) [Reserved]
(f) Notification to the parties; six months' rule. If an informal
complaint

[[Page 183]]

seeking damages (other than a contested tariff reconciliation petition)
cannot be disposed of informally or is denied or withdrawn by
complainant, the parties affected will be so notified in writing by the
Board. Contested tariff reconciliation petitions either will be granted
or denied by the entry of a decision. Unless within six months after the
date on which a notice is mailed or a decision is served, a party either
files a formal complaint or resubmits its informal complaint on an
additional-fact basis, the matter in the complaint or petition will not
be reconsidered. The claim will be considered abandoned and no complaint
seeking damages on the same cause of action will be accepted unless
filed within the statutory period. Any filing or resubmission satisfying
the six months' requirement will be considered filed as of the date of
the original filing and must specifically refer to that date and to the
Board's file number. Any petition for reconsideration should be filed
with the Board.
(g) Tariff reconciliation proceedings for motor common carriers--(1)
Petitions to waive collection or permit payment. Subject to Board review
and approval, motor common carriers (other than household goods
carriers) and shippers may resolve, by mutual consent, overcharge and
undercharge claims under the provisions of 49 U.S.C. 14709. Petitions
for appropriate authority may be filed by either the carrier, shipper or
consignee on the Board's tariff reconciliation docket by submitting a
letter of intent to depart from the filed rate. The petitions will be
deemed the equivalent of an informal complaint and answer admitting the
matters stated in the petition. Petitions shall be sent to the Office of
Compliance and Enforcement, Surface Transportation Board, Washington, DC
20423. The petitions shall contain, at a minimum, the following
information:
(i) The name(s) and address(es) of the payer(s) of the freight
charges;
(ii) The name(s) of the carrier(s) involved in the traffic;
(iii) An estimate of the amount(s) involved;
(iv) The time period when the shipment(s) involved were delivered or
tendered for delivery;
(v) A general description of the point(s) of origin and destination
of the shipment(s);
(vi) A general description of the commodity(ies) transported;
(vii) A statement certifying that the carrier(s) and shipper(s)
participating in the shipment(s) or the payer(s) of the freight charges
concur(s) with the intent to depart from the filed rate; and
(viii) A brief explanation of the incorrect tariff provision(s) or
billing error(s) causing the request to depart from the filed rate.
(2) Public notice and protest. Tariff reconciliation petitions
(letters of intent) shall be served on all parties named in the petition
by the party that files the petition and will be made available by the
Board for public inspection in the Office of Compliance and Enforcement
Public File, Surface Transportation Board, Washington, DC 20423. Any
interested person may protest the granting of a petition by filing a
letter of objection with the Office of Compliance and Enforcement within
30 days of Board receipt of the petition. Letters of objection shall
identify the tariff reconciliation proceeding, shall clearly state the
reasons for the objection, and shall certify that a copy of the letter
of objection has been served on all parties named in the petition. The
Board may initiate an investigation of the petition on its own motion.
(3) Uncontested petitions. If a petition is not contested, and if
the Board does not initiate an investigation of the petition on its own
motion, approval is deemed granted without further action by the Board,
effective 45 days after Board receipt of the petition.
(4) Contested petitions. If a petition is contested or the Board
initiates an investigation of the petition on its own motion, 15 days
will be allowed for reply. The 15-day period will commence on the date
of service of the objections or, if the Board initiates an investigation
on its own motion, on the date of service of the decision initiating the
investigation. After the period for reply has expired, the Board will
issue a decision approving or disapproving the petition, or requesting
further submissions from the parties, and then

[[Page 184]]

will issue a decision based on the further submissions.

[47 FR 49570, Nov. 1, 1982, as amended at 50 FR 15901, Apr. 23, 1985; 51
FR 5713, Feb. 18, 1986; 52 FR 26479, July 15, 1987; 53 FR 19301, May 27,
1988; 60 FR 2544, Jan. 10, 1995; 62 FR 50884, Sept. 29, 1997; 84 FR
12944, Apr. 3, 2019]

PART 1132_PROTESTS REQUESTING SUSPENSION AND INVESTIGATION OF COLLECTIVE
RATEMAKING ACTIONS--Table of Contents

Sec.
1132.1 Protest against collective ratemaking actions.
1132.2 Procedures in certain suspension matters.

Authority: 49 U.S.C. 1321, 13301(f), and 13703.

Source: 62 FR 50885, Sept. 29, 1997, unless otherwise noted.

Sec. 1132.1 Protest against collective ratemaking actions.

(a) Content. The protested collective ratemaking action sought to be
suspended, whether or not contained in a tariff filed with the Board,
should be identified by making reference to: The name of the publishing
carrier or collective ratemaking organization; the identification of the
tariff, if applicable, or the identification of the collective
ratemaking action publication if it is not contained in a tariff filed
with the Board; the specific items or particular provisions protested;
and the effective date of the tariff or other collective ratemaking
action publication. Reference should also be made to the tariff or
collective ratemaking action, and the specific provisions proposed to be
superseded. The protest should state the grounds in support thereof, and
indicate in what respect the protested collective ratemaking action is
considered to be unlawful. Such protests will be considered as addressed
to the discretion of the Board. Should a protestant desire to proceed
further against a collective ratemaking action which is not suspended,
or which has been suspended and the suspension vacated, a separate later
formal complaint or petition should be filed.
(b) When filed. Protests against, and requests for suspension of,
collective ratemaking actions will not be considered unless made in
writing and filed with the Board at Washington, DC. If the protestant
desires action by the Board before the effective date of the collective
action, protests and requests for suspension shall reach the Board at
least 12 days (except as provided in paragraph (c) of this section)
before such effective date. If the protested collective ratemaking
action is already in effect, or if the protestant does not desire action
before its effective date, protests and requests for suspension can be
filed at any time.
(c) Copies; service. Every protest or reply filed under this section
should be directed to the attention of the Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board. One
copy of each protest or reply filed under this section simultaneously
must be served upon the publishing carrier or collective ratemaking
organization, and upon other persons known by protestant to be
interested.
(d) Reply to protest. A reply to a protest filed at least 12 days
before the effective date of proposed collective action provisions must
reach the Board not later than the fourth working day prior to the
scheduled effective date of the protested provisions unless otherwise
provided.

[62 FR 50885, Sept. 29, 1997, as amended at 74 FR 52908, Oct. 15, 2009;
84 FR 12944, Apr. 3, 2019]

Sec. 1132.2 Procedures in certain suspension matters.

(a) A petition for reconsideration may be filed by any interested
person within 20 days after the date of service of a Board decision
which results in an order for:
(1) Investigation and suspension of collective ratemaking actions,
or
(2) Investigation (without suspension) of collective ratemaking
actions.
(b) Any interested person may file and serve a reply to any petition
for reconsideration permitted under paragraph (a) of this section within
20 days after the filing of such petition with the Board, but if the
facts stated in any such petition disclose a need for accelerated
action, such action may be taken before expiration of the time allowed
for reply. In all other respects,

[[Page 185]]

such petitions and replies thereto will be governed by the rules of
general applicability of the Rules of Practice.

PART 1133_RECOVERY OF DAMAGES--Table of Contents

Sec.
1133.1 Freight bill filing requirement under modified procedure.
1133.2 Statement of claimed damages based on Board findings.

Authority: 49 U.S.C. 1321.

Source: 47 FR 49575, Nov. 1, 1982, unless otherwise noted.

Sec. 1133.1 Freight bill filing requirement under modified procedure.

If, under modified procedure (for general rules governing modified
procedure, see part 1112), an award of damages is sought, complainant
should submit the paid freight bills or properly certified copies with
its statement when there are not more than 10 shipments; if more than 10
shipments are involved, complainant should retain the documents.

Sec. 1133.2 Statement of claimed damages based on Board findings.

(a) When the Board finds that damages are due, but that the amount
cannot be ascertained upon the record before it, the complainant should
immediately prepare a statement showing details of the shipments on
which damages are claimed, in accordance with the following form:

Claim of __ under decision of the Surface Transportation Board in
Docket No. ___.
__ Date of shipment.
__ Date of delivery or tender of delivery.
__ Date charges were paid.
__ Car (or vessel) initials.
__ Car (or voyage) number.
__ Origin.
__ Destination.
__ Route.
__ Commodity.
__ Weight.
__ Rate.
__ Amount.
__ Rate.
__ Amount.
__ Reparation on basis of Board's decision.
__ Charges paid by. \1\
---------------------------------------------------------------------------

\1\ Here insert name of person paying charges in the first instance,
and state whether as consignor, consignee, or in what other capacity.
---------------------------------------------------------------------------

Claimant hereby certifies that this statement includes claims only
on shipments covered by the findings in the docket above described and
contains no claim for reparation previously filed with the Board by or
on behalf of claimant or, so far as claimant knows, by or on behalf of
any person, in any other proceedings, except as follows: (Here indicate
any exceptions, and explanation thereof).
________________________________________________________________________
(Claimant)
By______________________________________________________________________
(Practitioner)
________________________________________________________________________
(Address)
________________________________________________________________________
(Date)

Total amount of reparation $___. The undersigned hereby certifies
that this statement has been checked against the records of this company
and found correct.
Date ___ Concurred \2\ in: ___ Company ___ Company, Defendant
Collecting Carrier, Defendant \3\. ___
---------------------------------------------------------------------------

\2\ For concurring certificate in case collecting carrier is not a
defendant.
\3\ If not a defendant, strike out the word ``defendant.''
---------------------------------------------------------------------------

By ___, Auditor. By ___, Auditor.

(b) The statement should not include any shipment not covered by the
Board's findings, or any shipment on which complaint was not filed with
the Board within the statutory period. The filing of a statement will
not stop the running of the statute of limitations as to shipments not
covered by complaint or supplemental complaint. If the shipments moved
over more than one route, a separate statement should be prepared for
each route, and separately numbered, except that shipments as to which
the collecting carrier is in each instance the same may be listed in a
single statement if grouped according to routes. The statement, together
with the paid freight bills on the shipments, or true copies thereof,
should then be forwarded to the carrier which collected the charges, for
verification and certification as to its accuracy. If the statement is
not forwarded immediately to the collecting carrier for certification, a
letter request from defendants that forwarding be expedited will be
considered to the end that steps be taken to have the statement
forwarded immediately. All discrepancies,

[[Page 186]]

duplications, or other errors in the statements should be adjusted by
the parties and corrected agreed statements submitted to the Board. The
certificate must be signed in ink by a general accounting officer of the
carrier and should cover all of the information shown in the statement.
If the carrier which collected the charges is not a defendant in the
case, its certificate must be concurred in by like signature on behalf
of a carrier defendant. Statements so prepared and certified shall be
filed with the Board whereupon it will consider entry of a decision
awarding damages.

[47 FR 49575, Nov. 1, 1982, as amended at 64 FR 53268, Oct. 1, 1999]

PART 1135_RAILROAD COST RECOVERY PROCEDURES--Table of Contents

Sec.
1135.1 Quarterly adjustment.
1135.2 Revenue Shortfall Allocation Method: Annual State tax
information.

Authority: 5 U.S.C. 553, and 49 U.S.C. 1321, 10701, 10704, 10708,
and 11145.

Sec. 1135.1 Quarterly adjustment.

To enable the Board to publish the rail cost adjustment factor
(RCAF) as required by 49 U.S.C. 10708, the Association of American
Railroads (AAR) shall calculate and file with the Board by the fifth day
of December, March, June and September of each year its forecast for the
next calendar quarter of the all-inclusive index of railroad costs and
calculate and file the RCAF unadjusted for changes in railroad
productivity as prescribed in Railroad Cost Recovery Procedures, 1
I.C.C.2d 207 (1984), and any subsequent amendments thereto. In addition,
the AAR shall calculate the productivity-adjusted RCAF as prescribed in
Railroad Cost Recovery Procedures, 5 I.C.C.2d 434 (1989), and any
subsequent amendments thereto. The AAR shall submit workpapers detailing
its calculations. The Board will review and verify the AAR submissions
and make its RCAF publication by the twentieth day of December, March,
June and September of each year.

[67 FR 55166, Aug. 28, 2002]

Sec. 1135.2 Revenue Shortfall Allocation Method: Annual State
tax information.

(a) To enable the Board to calculate the revenue shortfall
allocation method (RSAM), which is one of the three benchmarks that are
used to determine the reasonableness of a challenged rate under one
standard of the Board's Simplified Standards for Rail Rate Cases, STB
Docket No. 646 (Sub-No. 1) (STB served Sept. 5, 2007), the Association
of American Railroads (AAR) shall file with the Board, on or before May
30, the weighted average State tax rates applicable to each Class I
railroad for the previous year. The AAR shall submit workpapers
detailing its calculations.
(b) The Board will serve and publish a notice of the filing in the
Federal Register within 10 days of the AAR's filing.
(c) Any interested party may file comments on the AAR's filing
within 30 days of the notice described in paragraph (b) of this section.
If no comments are received within 30 days, the Board will automatically
adopt the AAR's weighted average State tax rates on the 31st day. If
comments opposing the AAR's calculations are received, the AAR's
response will be due within 20 days of the comments. The Board will
review the submission and comments and serve a decision within 60 days
from the date of the close of the record that either accepts, rejects,
or modifies the AAR's railroad-specific tax information.

[75 FR 8818, Feb. 26, 2010]

PART 1141_PROCEDURES TO CALCULATE INTEREST RATES--Table of Contents

Authority: 49 U.S.C. 1321.

Sec. 1141.1 Procedures to calculate interest rates.

(a) For purposes of complying with a Board decision in an
investigation or complaint proceeding, interest rates to be computed
shall be the most recent U.S. Prime Rate as published by The Wall Street
Journal. The rate levels will be determined as follows:
(1) For investigation proceedings, the interest rate shall be the
U.S. Prime

[[Page 187]]

Rate as published by The Wall Street Journal in effect on the date the
statement is filed accounting for all amounts received under the new
rates.
(2) For complaint proceedings, the interest rate shall be the U.S.
Prime Rate as published by The Wall Street Journal in effect on the day
when the unlawful charge is paid. The interest rate in complaint
proceedings shall be updated whenever The Wall Street Journal publishes
a change to its reported U.S. Prime Rate. Updating will continue until
the required reparation payments are made.
(b) For investigation proceedings, the reparations period shall
begin on the date the investigation is started. For complaint
proceedings, the reparations period shall begin on the date the unlawful
charge is paid.
(c) For both investigation and complaint proceedings, the annual
percentage rate shall be the same as the annual nominal (or stated)
rate. Thus, the nominal rate must be factored exponentially to the power
representing the portion of the year covered by the interest rate. A
simple multiplication of the nominal rate by the portion of the year
covered by the interest rate would not be appropriate because it would
result in an effective rate in excess of the nominal rate. Under this
``exponential'' approach, the total cumulative reparations payment
(including interest) is calculated by multiplying the interest factor
for each period by the principal amount for that period plus any
accumulated interest from previous periods. The ``interest factor'' for
each period is 1.0 plus the interest rate for that period to the power
representing the portion of the year covered by the interest rate.

[78 FR 44460, July 24, 2013]

PART 1144_INTRAMODAL RAIL COMPETITION--Table of Contents

Sec.
1144.1 Negotiation.
1144.2 Prescription.
1144.3 General.

Authority: 49 U.S.C. 1321, 10703, 10705, and 11102.

Source: 67 FR 61290, Sept. 30, 2002, unless otherwise noted.

Sec. 1144.1 Negotiation.

(a) Timing. At least 5 days prior to seeking the prescription of a
through route, joint rate, or reciprocal switching, the party intending
to initiate such action must first seek to engage in negotiations to
resolve its dispute with the prospective defendants.
(b) Participation. Participation or failure to participate in
negotiations does not waive a party's right to file a timely request for
prescription.
(c) Arbitration. The parties may use arbitration as part of the
negotiation process, or in lieu of litigation before the Board.

Sec. 1144.2 Prescription.

(a) General. A through route or a through rate shall be prescribed
under 49 U.S.C. 10705, or a switching arrangement shall be established
under 49 U.S.C. 11102(c), if the Board determines:
(1) That the prescription or establishment is necessary to remedy or
prevent an act that is contrary to the competition policies of 49 U.S.C.
10101 or is otherwise anticompetitive, and otherwise satisfies the
criteria of 49 U.S.C. 10705 and 11102(c), as appropriate. In making its
determination, the Board shall take into account all relevant factors,
including:
(i) The revenues of the involved railroads on the affected traffic
via the rail routes in question.
(ii) The efficiency of the rail routes in question, including the
costs of operating via those routes.
(iii) The rates or compensation charged or sought to be charged by
the railroad or railroads from which prescription or establishment is
sought.
(iv) The revenues, following the prescription, of the involved
railroads for the traffic in question via the affected route; the costs
of the involved railroads for that traffic via that route; the ratios of
those revenues to those costs; and all circumstances relevant to any
difference in those ratios; provided that the mere loss of revenue to an
affected carrier shall not be a basis for finding that a prescription or
establishment is necessary to remedy or prevent an act contrary to the
competitive standards of this section; and
(2) That either:

[[Page 188]]

(i) The complaining shipper has used or would use the through route,
through rate, or reciprocal switching to meet a significant portion of
its current or future railroad transportation needs between the origin
and destination; or
(ii) The complaining carrier has used or would use the affected
through route, through rate, or reciprocal switching for a significant
amount of traffic.
(b) Other considerations. (1) The Board will not consider product
competition.
(2) If a railroad wishes to rely in any way on geographic
competition, it will have the burden of proving the existence of
effective geographic competition by clear and convincing evidence.
(3) When prescription of a through route, a through rate, or
reciprocal switching is necessary to remedy or prevent an act contrary
to the competitive standards of this section, the overall revenue
inadequacy of the defendant railroad(s) will not be a basis for denying
the prescription.
(4) Any proceeding under the terms of this section will be conducted
and concluded by the Board on an expedited basis.

[67 FR 61290, Sept. 30, 2002, as amended at 81 FR 8855, Feb. 23, 2016]

Sec. 1144.3 General.

(a) These rules will govern the Board's adjudication of individual
cases pending on or after the effective date of these rules (October 31,
1985).
(b) Discovery under these rules is governed by the Board's general
rules of discovery at 49 CFR part 1114.
(c) Any Board determinations or findings under this part with
respect to compliance or non-compliance with the standards of Sec.
1144.2 shall not be given any res judicata or collateral estoppel effect
in any litigation involving the same facts or controversy arising under
the antitrust laws of the United States.

PART 1145_RECIPROCAL SWITCHING FOR INADEQUATE SERVICE--Table of Contents

Sec.
1145.1 Definitions.
1145.2 Performance standards.
1145.3 Affirmative defenses.
1145.4 Negotiations.
1145.5 Procedures.
1145.6 Prescription.
1145.7 Termination.
1145.8 Data.

Authority: 49 U.S.C. 1321 and 11102.

Source: 89 FR 38706, May 7, 2024, unless otherwise noted.

Sec. 1145.1 Definitions.

The following definitions apply to this part:
Affiliated companies has the same meaning as ``affiliated
companies'' in Definition 5 of the Uniform System of Accounts (49 CFR
part 1201, subpart A).
Cut-off time means the deadline for requesting service during a
service window, as determined in accordance with the rail carrier's
established protocol.
Delivery means when a shipment is actually placed at a designated
destination or is constructively placed at a local yard that is
convenient to the designated destination. In the case of an interline
movement, a shipment will be deemed to be delivered to the receiving
carrier or its agent or affiliate when the shipment is moved past a
designated automatic equipment identification reader at the point of
interchange or is placed on a designated interchange track, depending on
the specific interchange that is involved. For purposes hereof,
constructive placement of a shipment at a local yard constitutes
delivery only when:
(1) The recipient has the option, by prior agreement between the
rail carrier and the customer, to have the rail carrier hold the
shipment pending the recipient's request for delivery to the designated
destination and the recipient has not yet requested delivery; or
(2) The recipient is unable to accept delivery at the designated
destination.
Designated destination means the final destination as specified in
the bill of lading or, in the case of an interline movement, the
interchange where the shipment is transferred to the receiving carrier,
its agent, or affiliated company.
Incumbent rail carrier means a Class I rail carrier that currently
provides line-haul service to the petitioner to or from the point of
origin or final destination that would be covered by the

[[Page 189]]

proposed reciprocal switching agreement.
Lane means a shipment's point of origin and designated destination.
Shipments of the same commodity that have the same point of origin and
the same designated destination are deemed to travel over the same lane,
regardless of which route(s) the rail carrier uses to move the shipments
from origin to destination. In the case of an interline movement, the
designated destination is the designated interchange.
Manifest traffic means shipments that move in carload or non-unit
train service.
Original estimated time of arrival or OETA means the estimated time
of arrival that the incumbent rail carrier provides when the shipper
tenders the bill of lading or when the incumbent rail carrier receives
the shipment from a delivering carrier.
Petitioner means a shipper or a receiver that files a petition
hereunder for prescription of a reciprocal switching agreement.
Planned service window means a service window for which the shipper
or receiver requested local service, provided that the shipper or
receiver made its request by the cut-off time for that window.
Practical physical access means a feasible line-haul option on a
rail carrier, including but not limited to: direct physical access to
that carrier or its affiliated company; an existing switching
arrangement between an incumbent rail carrier and another rail carrier;
terminal trackage rights; or contractual arrangement between a local
rail carrier and a line-haul carrier.
Receipt of a shipment means when the preceding rail carrier provides
a time stamp or rail tracking message that the shipment has been
delivered to the interchange.
Reciprocal switching agreement means an agreement for the transfer
of rail shipments between one Class I rail carrier or its affiliated
company and another Class I rail carrier or its affiliated company
within the terminal area in which the rail shipment begins or ends its
rail journey. Service under a reciprocal switching agreement may involve
one or more intermediate transfers to and from yards within the terminal
area.
Service window means a window during which the incumbent rail
carrier offers to perform local service (placements and/or pick-ups of
rail shipments) at a shipper's or receiver's facility. A service window
must be made available by a rail carrier with reasonable advance notice
to the shipper or receiver and in accordance with the carrier's
established protocol. For purposes of this part, a service window is 12
hours in duration, beginning at the start of the work shift for the crew
that will perform the local service, without regard to whether the
incumbent rail carrier specified a longer or shorter service window.
Shipment means a loaded railcar that is designated in a bill of
lading.
Similar traffic means traffic that is of the same broad type
(manifest traffic or unit train) as the traffic that is governed by a
prescribed reciprocal switching agreement, and is transported by the
incumbent rail carrier or its affiliated company to or from the terminal
area in which transfers occur under the prescribed reciprocal switching
agreement.
Terminal area means a commercially cohesive area in which two or
more railroads engage in the local collection, classification, and
distribution of rail shipments for purposes of line-haul service. A
terminal area is characterized by multiple points of loading/unloading
and yards for such local collection, classification, and distribution. A
terminal area (as opposed to main-line track) must contain and cannot
extend significantly beyond recognized terminal facilities, such as
freight or classification yards. A point of origin or final destination
on the rail system must be within a terminal area to be eligible for a
prescription under this part.
Time of arrival means the time that a shipment is delivered to the
designated destination.
Transit time means the time between a rail carrier's receipt of a
shipment, upon either the tender of the bill of lading to that rail
carrier or the rail carrier's receipt of the shipment from a delivering
carrier and the rail carrier's delivery of that shipment to the

[[Page 190]]

agreed-upon destination. Transit time does not include time spent
loading and unloading cars.

Sec. 1145.2 Performance standards.

The performance standards in this section apply only to petitions
for prescription of a reciprocal switching agreement under this part.
(a) Service reliability (original estimated time of arrival). The
service reliability standard applies to shipments that travel as
manifest traffic. The service reliability standard measures a rail
carrier's success in delivery of a shipment from its original or
interchange location by the original estimated time of arrival,
accounting for the applicable grace period. Determination of a rail
carrier's compliance with the service reliability standard is based on
all shipments from the same original or interchange location to the same
delivery location over a period of 12 consecutive weeks. A rail carrier
meets the service reliability standard when A/B ratio is greater than or
equal to 70%, where A is the number of shipments that are delivered
within 24 hours of the original estimated time of arrival, and B is the
total number of shipments.
(1) A car that is delivered more than 24 hours before or after its
OETA will not be considered as being delivered within 24 hours of OETA.
(2) Once a carrier has communicated an original estimated time of
arrival to a customer, that time will not be changed by any subsequent
changes to the original trip plan of the car, no matter what the cause
of the changed trip plan may be.
(b) Service consistency (transit time). The service consistency
standard applies to shipments in the form of a unit train and to
shipments that travel as manifest traffic. The service consistency
standard measures a rail carrier's success over time in maintaining the
transit time for a shipment. A rail carrier fails the service
consistency standard if it fails either the standard in paragraph (b)(1)
of this section or the standard in paragraph (b)(2) of this section,
with both paragraphs being subject to paragraph (b)(3) of this section.
(1) Year-to-year comparison. A is more than 20% longer than B, where
A is the average transit time for all shipments from the same location
to the same designated destination over a period of 12 consecutive
weeks, and B is the average transit time for all shipments from the same
location to the same designated destination over the same 12-week period
during the previous year.
(2) Multi-year comparison. A is more than 25% longer than B, where A
is the average transit time for all shipments from the same location to
the same designated destination over a period of 12 consecutive weeks,
and B is the average transit time for all shipments from the same
location to the same designated destination over the same 12-week period
during any of the previous three years.
(3) A carrier will not fail the service consistency standard if the
increase in transit time between B and A is 36 hours or less,
notwithstanding the percentages stated in paragraphs (b)(1) and (b)(2)
of this section.
(c) Lanes. Compliance with the performance standards in paragraphs
(a) and (b) of this section is determined separately for each lane of
traffic to or from the petitioner's facility. Shipments of the same
commodity from the same point of origin to the same designated
destination are deemed to travel over the same lane, without regard to
the route between the point of origin and designated destination. In the
case of an interline movement, the designated destination is the
designated interchange.
(d) Empty railcars. (1) For private or shipper-leased railcars, a
rail carrier fails to meet the service consistency standard in paragraph
(b) of this section if the rail carrier's average transit time for
delivering empty cars to a designated destination over a 12-week period
increases by more than 20% compared to average transit time for
delivering empty cars to the same designated destination during the same
12-week period during the previous year or by more than 25% compared to
average transit time for delivering empty cars to the same designated
destination during the same 12-week periods during any of the previous
three years. However, notwithstanding the previous sentence, a carrier
will not fail the

[[Page 191]]

service consistency standard if the increase in average transit time for
delivering empty cars is 36 hours or less.
(2) A rail carrier's failure to meet a performance standard as
provided in this paragraph (d) provides the basis for prescribing a
reciprocal switching agreement that governs both the delivery of the
empty cars and the delivery of the associated shipments of loaded cars.
(e) Industry spot and pull. The industry spot and pull standard
measures a rail carrier's success in performing local placements
(``spots'') and pick-ups (``pulls'') of loaded railcars and unloaded
private or shipper-leased railcars at a shipper's or receiver's facility
during the planned service window. The industry spot and pull standard
does not apply to unit trains or intermodal traffic.
(1) A rail carrier meets the industry spot and pull standard if,
over a period of 12 consecutive weeks, the carrier has a success rate of
85% or more in performing requested spots and pulls within the planned
service window, as determined based on the total number of planned
service windows during that 12-week period.
(2) Failure to spot constructively placed cars that have been
ordered in by the cut-off time applicable to the customer for a planned
service window is included as a failure in calculating compliance with
the industry spot and pull standard.
(3) Failure to spot ``spot on arrival'' railcars for a planned
service window results in a missed service window only if the railcars
arrived at the local yard that services the customer and are ready for
local service before the cut-off time applicable to the customer.
(4) If a rail carrier cancels a service window other than at the
shipper's or receiver's request, that window is included as a failure in
calculating compliance with the industry spot and pull standard.
(5) When a rail customer causes a carrier to miss a planned service
window, that window will not be considered a miss in determining the
success rate under this paragraph (e).
(6) If a rail carrier reduces the frequency of its local service to
a shipper's or receiver's facility, and if rail carrier cannot
demonstrate that reduction is necessary based on a commensurate
reduction in customer demand, then the industry spot and pull standard
increases to a success rate of 90% for two years.
(f) The performance standards in paragraphs (a) and (b) of this
section apply to movements within the United States and to the U.S.
portion of movements between the United States and another country, in
the latter case when the carrier's general practice with respect to such
movements is to record receipt or delivery of the shipment at a point at
or near the U.S. border (including where the carrier receives the
shipment from or delivers the shipment to an affiliated carrier).

Sec. 1145.3 Affirmative defenses.

An incumbent rail carrier shall be deemed not to fail a performance
standard in Sec. 1145.2 if any of the conditions described in this
section are met. The Board will also consider, on a case-by-case basis,
affirmative defenses that are not specified in this section.
(a) The rail carrier experiences extraordinary circumstances beyond
the carrier's control, including but not limited to unforeseen track
outages stemming from natural disasters, severe weather events,
flooding, accidents, derailments, and washouts. A carrier's intentional
reduction or maintenance of its workforce at a level that itself causes
workforce shortage, or, in the event of a workforce shortage, failure to
use reasonable efforts to increase its workforce, would not, on its own,
be considered a defense for failure to meet any performance standard. A
carrier's intentional reduction or maintenance of its power or car
supply, or failure to use reasonable efforts to maintain its power or
car supply, that itself causes a failure of any performance standard
would not, on its own, be considered a defense.
(b) The petitioner's traffic increases by 20% or more during the 12-
week period in question, as compared to the preceding 12 weeks (for non-
seasonal traffic) or the same 12 weeks during the previous year (for
seasonal traffic such as agricultural shipments), where the

[[Page 192]]

petitioner failed to notify the incumbent rail carrier at least 12 weeks
prior to the increase.
(c) There are highly unusual shipments by the shipper during any
week of the 12-week period in question. For example, a pattern might be
considered highly unusual if a shipper projected traffic of 120 cars in
a month and 30 cars per week, but the shipper had a plant outage for
three weeks and then requested shipment of 120 cars in a single week.
(d) The incumbent rail carrier's failure to meet the performance
standard is due to the dispatching choices of a third party.
(e) The incumbent rail carrier's failure to meet the performance
standard was directly caused by the conduct of a third party. This
defense will be narrowly construed to avoid undue delay of the
proceeding and unnecessary litigation costs. When presenting a defense
under this paragraph (e), the incumbent rail carrier must prove that
such conduct was outside its reasonable control. The incumbent rail
carrier must also prove that it took reasonable steps to prevent and
mitigate the impact of the third-party conduct or, if the impact could
not be reasonably prevented, that the incumbent carrier took reasonable
steps to mitigate the impact of the third-party conduct.

Sec. 1145.4 Negotiations.

At least five days prior to petitioning for prescription of a
reciprocal switching agreement hereunder, the petitioner must seek to
engage in good faith negotiations to resolve its dispute with the
incumbent rail carrier.

Sec. 1145.5 Procedures.

(a) If a shipper or a receiver believes that a rail carrier
providing it service failed to meet a performance standard described in
Sec. 1145.2, it may file a petition for prescription of a reciprocal
switching agreement.
(b) The petition must include the information and documents
described in this paragraph (b).
(1) Confirmation that the petitioner attempted good faith
negotiations as required by Sec. 1145.4, identify the performance
standard the railroad failed to meet over the requisite period of time,
identify the requested duration of the prescription of a reciprocal
switching agreement, and provide evidence supporting its claim and
requested prescription.
(2) Identification of at least one possible rail carrier to provide
alternative service.
(3) Identification of any relevant switching publications of the
incumbent rail carrier and the potential alternate carrier(s).
(4) A motion for a protective order that would govern the disclosure
of data that the rail carrier provided to the petitioner under this
part.
(c) The petition must have been served on the incumbent rail
carrier, the alternate rail carrier(s), and the Federal Railroad
Administration.
(d) A reply to a petition is due within 20 days of a completed
petition. The burden of proof of establishing infeasibility and/or undue
impairment is on the rail carrier (either the incumbent or the
alternate) that is objecting to the petition.
(e) A rebuttal may be filed within 20 days after a reply to a
petition.
(f) The Board will endeavor to issue a decision on a petition within
90 days from the date of the completed petition.

Sec. 1145.6 Prescription.

(a) The Board will prescribe a reciprocal switching agreement under
this part if all the conditions in this paragraph (a) are met.
(1) For the lane of traffic that is the subject of the petition, the
petitioner has practical physical access to only one Class I carrier
that could serve that lane.
(2) The petitioner demonstrates that the incumbent rail carrier
failed to meet one or more of the performance standards in Sec. 1145.2
with regards to its shipment.
(3) The incumbent rail carrier fails to demonstrate an affirmative
defense as provided in Sec. 1145.3.
(b) Notwithstanding paragraph (a) of this section, the Board will
not prescribe a reciprocal switching agreement if the incumbent rail
carrier or alternate rail carrier demonstrates that the agreement is not
practicable,

[[Page 193]]

including: switching service under the agreement, i.e., the process of
transferring the shipment between carriers within the terminal area,
could not be provided without unduly impairing either rail carrier's
operations; switching service under the agreement would be operationally
infeasible; or the alternate rail carrier's provision of line-haul
service to the petitioner would be infeasible or would unduly impair the
incumbent rail carrier or the alternate rail carrier's ability to serve
its existing customers. If the incumbent rail carrier and alternate rail
carrier have an existing reciprocal switching arrangement in a terminal
area in which the petitioner's traffic is currently served, the proposed
operation is presumed to be operationally feasible, and the incumbent
rail carrier will bear a heavy burden of establishing why the proposed
operation should not qualify for a reciprocal switching agreement due to
infeasibility.
(c) In prescribing a reciprocal switching agreement, the Board shall
prescribe a term of service of three years, provided that the Board may
prescribe a longer term of service of up to five years if the petitioner
demonstrates that the longer minimum term is necessary for the
prescription to be practical given the petitioner's or alternate
carrier's legitimate business needs.
(d) Upon the Board's prescription of a reciprocal switching
agreement under this part, the affected rail carriers must set the terms
of the agreement and offer service thereunder within 30 days of service
of the prescription and notify the Board within 10 days of when the
carriers offered service that the agreement has taken effect.
Additionally, the incumbent carrier must promptly amend its switching
publication(s) as appropriate to reflect the availability of reciprocal
switching under the prescription.
(e) If the affected carriers cannot agree on compensation within 30
days of the service of the prescription, then the affected rail carriers
must offer service and petition the Board to set compensation.

Sec. 1145.7 Termination.

(a) If the incumbent carrier does not timely file a petition for
termination, a prescription hereunder automatically renews at the end of
the term established under Sec. 1145.6(c). Automatic renewal is for the
same term as the original term of the prescription. If the Board denies
a petition to terminate the prescription, it will determine, on a case-
by-case basis, the appropriate renewal term based on the evidentiary
record, not to exceed the original term of the prescription. At the end
of the renewal term, if the incumbent carrier does not timely file a
petition for termination, the prescribed agreement will automatically
renew for the same number of years as the renewed term.
(b) The Board will grant a petition to terminate a prescription if
the incumbent rail carrier demonstrates that, for the most recent 12-
week period prior to the filing of the petition to terminate, the
incumbent rail carrier's service for similar traffic on average met all
three performance standards under this part. This requirement includes a
demonstration by the incumbent carrier that it has been able to meet,
over the most recent 12-week period, the performance standards for
similar traffic to or from the relevant terminal area.
(c) The incumbent rail carrier may submit a petition to terminate a
prescription not more than 180 days and not less than 150 days before
the end of the current term of the prescription.
(d) A reply to a petition to terminate is due within 15 days of the
filing of the petition.
(e) A rebuttal may be filed within 10 days of the filing of the
reply.
(f) The Board will endeavor to issue a decision on a petition to
terminate within 90 days from the close of briefing.
(1) If the Board does not act within 90 days from the close of
briefing, the prescription automatically terminates at the end of the
current term of the prescription.
(2) If the Board does not issue a decision due to extraordinary
circumstances, as determined by the Board, the prescription is
automatically renewed for 30 days from the end of the current term. When
there are extraordinary circumstances, the Board will issue an order
alerting the parties that it will not issue a decision within the
required time period. Under such

[[Page 194]]

circumstances, the Board will issue its decision as expeditiously as
possible.
(3) A prescribed agreement will continue in effect until 30 days
after the Board serves a decision that grants a petition to terminate or
after the end of the prescription period, whichever is later.

Sec. 1145.8 Data.

(a) A shipper or receiver with practical physical access to only one
Class I carrier serving the lane of traffic for which individualized
performance records are sought, and based on a good faith belief that
the Class I carrier has provided service that does not meet at least one
performance standard from Sec. 1145.2, may submit a written request to
the incumbent rail carrier for all individualized performance records
relevant to the performance standard(s) the shipper or receiver believes
the rail carrier has failed.
(1) In the request to the rail carrier, the shipper or receiver must
identify the specific performance standard(s) that it believes the rail
carrier has failed, and the corresponding date range and lane(s).
(2) Within seven days of the written request, the incumbent rail
carrier shall provide the shipper or receiver with the requested
individualized performance records.
(3) For purposes of this section, ``individualized performance
records'' means the original estimated times of arrival, transit times,
and/or industry spot and pull records related to the shipper or
receiver's traffic, along with the corresponding time stamps.
(b) All Class I carriers shall report to the Board on a weekly
basis, in a manner and form determined by the Board, data that shows:
the percentage of shipments on the carrier's system that moved in
manifest service and that were delivered within 24 hours of OETA, out of
all shipments on the carrier's system that moved in manifest service
during that week; and, for each of the carrier's operating divisions and
for the carrier's overall system, the percentage of planned service
windows during which the carrier successfully performed the requested
local service, out of the total number of planned service windows on the
relevant division or system for that week, all within the meaning of
this part.
(c) Class I carriers shall provide, in the format of their choosing,
machine-readable access to the information listed in this section.
(1) Machine-readable means data in an open format that can be easily
processed by computer without human intervention while ensuring no
semantic meaning is lost.
(2) Open format is a format that is not limited to a specific
software program and not subject to restrictions on re-use.
(d) Class I carriers shall retain all data necessary to respond to a
request under paragraph (a) of this section for a minimum of four years.

PART 1146_EXPEDITED RELIEF FOR SERVICE EMERGENCIES--Table of Contents

Sec.
1146.1 Prescription of alternative rail service or directed action by an
incumbent carrier.
1146.2 Accelerated process.

Authority: 49 U.S.C. 1321, 11101, and 11123.

Sec. 1146.1 Prescription of alternative rail service or directed action
by an incumbent carrier.

(a) General. Alternative rail service, or directed action by an
incumbent carrier, will be prescribed under 49 U.S.C. 11123(a) if the
Board determines that, over an identified period of time, there has been
a substantial, measurable deterioration or other demonstrated inadequacy
in rail service provided by the incumbent carrier. In prescribing the
relief described herein, the Board may act on its own initiative or
pursuant to a petition.
(b) Procedure for petition for relief--(1) Petition for relief.
Affected shippers or railroads may seek the relief described in
paragraph (a) of this section by filing an appropriate petition
containing:
(i) A full explanation, together with all supporting evidence, to
demonstrate that the standard for relief contained in paragraph (a) of
this section is met;
(ii) A summary of both the petitioner's discussions with the
incumbent carrier of the service problems (including a description of
the efforts

[[Page 195]]

taken to resolve the matter prior to filing of the petition, verified by
a person or persons with knowledge of the efforts taken to resolve the
matter), and the reasons why the incumbent carrier is unlikely to
restore adequate rail service consistent with the petitioner's current
transportation needs within a reasonable period of time;
(iii) In a petition that seeks alternative rail service,
identification of at least one possible rail carrier to provide
alternative service, based on the petitioner's understanding of other
rail carriers' nearby operations, that would meet the current
transportation needs of the petitioner; and
(iv) A detailed explanation of the specific remedy that is being
sought.
(2) Reply. The incumbent carrier and any proposed alternative
carriers must file a reply to a petition under this paragraph within
three (3) business days of service of the petition. If applicable, any
reply must address whether the specific remedy proposed by the
petitioner would be unsafe or infeasible, or would substantially impair
the carrier's ability to serve its other customers adequately or fulfill
its common carrier obligations.
(3) Rebuttal. The party requesting relief may file rebuttal no more
than two (2) business days after the reply is filed.
(4) Board Decision. The Board will endeavor to issue a decision five
(5) business days after receiving the rebuttal or time has expired for
the party requesting relief to file a rebuttal, whichever is earlier.
(c) Presumption of continuing need. Unless otherwise indicated in
the Board's order, a Board order issued under paragraph (a) of this
section shall establish a rebuttable presumption that the transportation
emergency will continue for more than 30 days from the date of that
order.
(d) Procedure for petition to terminate relief--(1) Petition to
terminate relief. Should the Board prescribe alternative rail service
under paragraph (a) of this section the incumbent carrier may
subsequently file a petition to terminate that relief. Such a petition
shall contain a full explanation, together with all supporting evidence,
to demonstrate that the carrier is providing, or is prepared to provide,
adequate service. Carriers are admonished not to file such a petition
prematurely.
(2) Reply. Parties must file replies to petitions to terminate filed
under this paragraph (d) within five (5) business days.
(3) Rebuttal. The incumbent carrier may file any rebuttal no more
than three (3) business days later.
(e) Service. Every document filed with the Board under this section
must include a certificate showing simultaneous service upon all parties
to the proceeding, including any proposed alternative carriers and the
Federal Railroad Administration. Service on the parties must be by the
same method and class of service used in serving the Board, with
charges, if any, prepaid. One copy must be served on each party. If
service is made on the Board in person, and personal service on other
parties is not feasible, service must be made by overnight delivery. If
a document is filed with the Board through the e-filing process, a copy
of the e-filed document must be emailed to other parties if that means
of service is acceptable to those other parties. If email is not
acceptable to the receiving party, a paper copy of the document must be
personally served on the other parties. If neither email nor personal
service is feasible, service of a paper copy must be by overnight
delivery. When a party is represented by a practitioner or attorney,
service upon the practitioner is deemed to be service upon the party.
All pleadings under this section must also be emailed to
[email protected].

[89 FR 4578, Jan. 24, 2024]

Sec. 1146.2 Accelerated process.

(a) Request for accelerated process. After making a good faith
effort to resolve its service issue through an informal dispute
resolution process or service of the Board, affected shippers or
railroads may seek accelerated temporary interim relief under 49 U.S.C.
11123(a) for substantial, measurable deterioration or other demonstrated
inadequacy in rail service provided by the incumbent carrier that
presents potential imminent significant harm and threatens potentially
severe adverse

[[Page 196]]

consequences to the petitioner, its customers, or the public. Such
emergencies exist when there is a clear and present threat to public
health, safety, national defense, or food security, or a high
probability of business closures or immediate plant shutdowns. The
timing of potential harm and consequences must render potential relief
under Sec. 1146.1 ineffective. The relief requested must be feasible
and clearly avoid any substantial impairment of the ability of a rail
carrier to serve its own customers adequately, or to fulfill its common
carrier obligations.
(b) Procedure for accelerated process--(1) Petition for relief. A
petitioner seeking accelerated relief must indicate in its petition that
it is seeking such relief pursuant to paragraph (a) of this section and
must demonstrate circumstances that meet the standard set forth in that
paragraph. The petition must include:
(i) A particularized description of the commodities and volumes
which would be subject to the requested relief and the timing necessary
for such relief, including why potential relief under Sec. 1146.1 would
be ineffective;
(ii) A particularized explanation of how the measurable
deterioration or other demonstrated inadequacy, absent the requested
relief, presents imminent significant harm and threatens potentially
severe adverse consequences as specified in paragraph (a) of this
section;
(iii) A description of specific and particularized action that could
be performed by the incumbent carrier or an alternative carrier and
ordered by the Board to relieve the potential harm and adverse
consequences;
(iv) A summary description of the efforts taken to resolve the
matter prior to filing the petition, which must be verified by a person
or persons with knowledge of the efforts taken to resolve the matter;
and
(v) Contact information for the incumbent carrier.
(vi) The petition will be limited to five (5) substantive pages, not
including the cover page, verifications, or certificate of service.
(2) Staff conference. When the Board receives a petition seeking
accelerated relief under paragraph (a) of this section, the petition
will be evaluated on its merits by the Board.
(i) After the Board receives the petition for accelerated relief, a
telephonic or virtual conference, led by designated Board staff, will be
held no sooner than 24 hours after receipt of the filing, but no later
than 48 hours after receipt of the filing, if practicable. Designated
Board staff may continue to work on the case after the conference.
(ii) Required parties for the conference include the petitioner(s),
the incumbent carrier, and any proposed potential alternative carriers
and other parties deemed necessary by the Board. Portions of the
conference may be closed to certain parties if confidential business
information needs to be discussed. The conference will be recorded and
later transcribed (with redactions, if necessary), and placed in the
public docket of the proceeding.
(iii) If applicable, the incumbent carrier or any alternative
carrier shall address at the conference whether the remedy proposed by
the petitioner is unsafe, infeasible, or will unreasonably impair the
carrier's ability to serve other customers. The Board may order the
incumbent carrier to submit, or if no such order is issued, the
incumbent carrier may choose to submit, within 24 hours of the
completion of the conference, an alternative service plan for the Board
to consider. Any alternative carrier may also submit, within 24 hours of
the completion of the conference, an alternative service plan for the
Board to consider. The Board may choose to receive such information
either via written submission or a second virtual or telephonic
conference, if practicable.
(3) Board decision. The Board will endeavor to issue an initial
decision on the merits of the petition requesting accelerated relief
within three (3) business days of the completion of the conference. The
Board shall not award relief under this section for more than 20 days,
and any relief ordered under this section shall not be extended beyond
the 20-day period. A party may petition the Board for subsequent relief
under Sec. 1146.1.
(c) Petition for reconsideration. After the Board issues an initial
decision on the merits of the petition requesting

[[Page 197]]

accelerated relief, parties may petition the Board for reconsideration.
The petition for reconsideration will be subject to Sec. 1115.3 of this
chapter. The record is to include any filings by the parties in the
proceeding and the unredacted recording of the conference.
(d) Stay of relief. Notwithstanding Sec. 1115.3 of this chapter,
parties seeking a stay of the relief issued by the Board must
concurrently file a petition for reconsideration of the decision and a
petition to stay.
(e) Service. Every document filed with the Board under this section
must include a certificate showing simultaneous service upon all parties
to the proceeding, including any proposed alternative carriers and the
Federal Railroad Administration. One copy must be served on each party.
Service on the Board must be made through the e-filing process, and a
copy of the e-filed document must be emailed to other parties if that
means of service is acceptable to those other parties. If email is not
acceptable to the receiving party, a paper copy of the document must be
personally served on the other parties. If neither email nor personal
service is feasible, service of a paper copy must be by overnight
delivery. When a party is represented by a practitioner or attorney,
service upon the practitioner is deemed to be service upon the party.
All pleadings under this section must also be emailed to
[email protected].

[89 FR 4579, Jan. 24, 2024]

PART 1147_TEMPORARY RELIEF UNDER 49 U.S.C. 10705 AND 11102 FOR SERVICE
INADEQUACIES--Table of Contents

Authority: 49 U.S.C. 1321, 10705, 11101, and 11102.

Sec. 1147.1 Prescription of alternative rail service.

(a) General. Alternative rail service will be prescribed under 49
U.S.C. 11102(a), 11102(c) or 10705(a) if the Board determines that, over
an identified period of time, there has been a substantial, measurable
deterioration or other demonstrated inadequacy in rail service provided
by the incumbent carrier.
(b)(1) Petition for Relief. Affected shippers or railroads may seek
relief described in paragraph (a) of this section by filing an
appropriate petition containing:
(i) A full explanation, together with all supporting evidence, to
demonstrate that the standard for relief contained in paragraph (a) of
this section is met;
(ii) A summary of the petitioner's discussions with the incumbent
carrier of the service problems and the reasons why the incumbent
carrier is unlikely to restore adequate rail service consistent with
current transportation needs within a reasonable period of time;
(iii) A commitment from another available railroad to provide
alternative service that would meet current transportation needs (or, if
the petitioner is a railroad and does not have an agreement from the
alternative carrier, an explanation as to why it does not), and an
explanation of how the alternative service would be provided safely
without degrading service to the existing customers of the alternative
carrier and without unreasonably interfering with the incumbent's
overall ability to provide service; and
(iv) A certification of service of the petition, by hand or by
overnight delivery, on the incumbent carrier, the proposed alternative
carrier, and the Federal Railroad Administration.
(2) Reply. The incumbent carrier must file a reply to a petition
under this paragraph within thirty (30) days.
(3) Rebuttal. The party requesting relief may file rebuttal no more
than fifteen (15) days later.
(c)(1) Petition to terminate relief. Should the Board prescribe
alternative rail service under paragraph (a) of this section, the
incumbent carrier may subsequently file a petition to terminate that
relief. Such a petition shall contain a full explanation, together with
all supporting evidence, to demonstrate that the carrier is providing,
or is prepared to provide, adequate service to affected shippers.
Carriers are admonished not to file such a petition prematurely.
(2) Reply. Parties must file replies to petitions to terminate filed
under this

[[Page 198]]

subsection within five (5) business days.
(3) Rebuttal. The incumbent carrier may file any rebuttal no more
than three (3) business days later.
(d) Service. All pleadings under this part shall be served by hand
or by overnight delivery on the Board, other parties, and the Federal
Railroad Administration.

[63 FR 71401, Dec. 28, 1998]

PARTS 1148 1149 [RESERVED]

Parts 1150 1176_Licensing Procedures

Parts 1150 1159_Rail Licensing Procedures

PART 1150_CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD LINES-
-Table of Contents

Subpart A_Applications Under 49 U.S.C. 10901

Sec.
1150.1 Introduction.
1150.2 Overview.
1150.3 Information about applicant(s).
1150.4 Information about the proposal.
1150.5 Operational data.
1150.6 Financial information.
1150.7 Environmental and energy data.
1150.8 Additional support.
1150.9 Notice.
1150.10 Procedures.

Subpart B_Designated Operators

1150.11 Introduction.
1150.12 Information about the designated operator.
1150.13 Relevant dates.
1150.14 Proposed service.
1150.15 Information about offeror.
1150.16 Procedures.

Subpart C_Modified Certificate of Public Convenience and Necessity

1150.21 Scope of rules.
1150.22 Exemptions and common carrier status.
1150.23 Modified certificate of public convenience and necessity.
1150.24 Termination of service.

Subpart D_Exempt Transactions Under 49 U.S.C. 10901

1150.31 Scope of exemption.
1150.32 Procedures and relevant dates--transactions that involve
creation of Class III carriers.
1150.33 Information to be contained in notice--transactions that involve
creation of Class III carriers.
1150.34 Caption summary--transactions that involve creation of Class III
carriers.
1150.35 Procedures and relevant dates--transactions that involve
creation of Class I or Class II carriers.
1150.36 Exempt construction of connecting track.

Subpart E_Exempt Transactions Under 49 U.S.C. 10902 for Class III Rail
Carriers

1150.41 Scope of exemption.
1150.42 Procedures and relevant dates for small line acquisitions.
1150.43 Information to be contained in notice for small line
acquisitions.
1150.44 Caption summary.
1150.45 Procedures and relevant dates--transactions under section 10902
that involve creation of Class I or Class II rail carriers.

Authority: 49 U.S.C. 1321(a), 10502, 10901, and 10902.

Source: 47 FR 8199, Feb. 25, 1982, unless otherwise noted.
Redesignated at 47 FR 49581, Nov. 1, 1982.

Subpart A_Applications Under 49 U.S.C. 10901

Sec. 1150.1 Introduction.

(a) When an application is required. This subpart governs
applications under 49 U.S.C. 10901 for a certificate of public
convenience and necessity authorizing the construction, acquisition or
operation of railroad lines. Noncarriers require Board approval under
section 10901 to construct, acquire or operate a rail line in interstate
commerce. Existing carriers require approval under section 10901 only to
construct a new rail line or operate a line owned by a noncarrier, since
acquisition by a carrier of an active rail line owned by a carrier is
covered by 49 U.S.C. 11323. We have exempted from these requirements the
acquisition by a State entity of a rail line that has been approved for
abandonment, as well as operations over these lines. See subpart C of
this

[[Page 199]]

part. In addition, where appropriate, we have granted individual
exemptions from these certification requirements. See 49 U.S.C. 10502.
(b) Content of the application. Applications filed under this
subpart shall include the information set forth in Sec. Sec. 1150.2
through 1150.9. The applicant must also comply with the Energy and
Environmental Regulations at 49 CFR parts 1106 and 1105 (including
consulting with the Board's Office of Environmental Analysis at least 6
months prior to filing an application, to begin the scoping process to
identify environmental issues and outline procedures for analysis of
this aspect of the proposal).

[47 FR 8199, Feb. 25, 1982, as amended at 64 FR 53268, Oct. 1, 1999; 69
FR 58366, Sept. 30, 2004; 83 FR 15079, Apr. 9, 2018]

Sec. 1150.2 Overview.

(a) A brief narrative description of the proposal.
(b) The full name and address of applicant(s).

Sec. 1150.3 Information about applicant(s).

(a) The name, address, and phone number of the representative to
receive correspondence concerning this application.
(b) Facts showing that applicant is either a common carrier by
railroad or has been organized to implement the proposal for which
approval is being sought.
(c) A statement indicating whether the rail line will be operated by
applicant. If not, the operator which has been selected must join in the
application, and provide all information required for an applicant. If
the operator has not yet been selected, state who is being considered.
(d) A statement indicating whether applicant is affiliated by stock
ownership or otherwise with any industry to be served by the line. If
so, provide details about the nature and extent of the affiliation.
(e) Date and place of organization, applicable State statutes, and a
brief description of the nature and objectives of the organization.
(f) If a corporation, submit:
(1) A list of officers, directors, and 10 principal stockholders of
the corporation and their respective holdings. A statement whether any
of these officers, directors or major shareholders control other
regulated carriers. Also a list of entities, corporation(s)
individual(s), or group(s) who control applicant, the extent of control,
and whether any of them control other common carriers.
(2) As exhibit A, any resolution of the stockholders or directors
authorizing the proposal.
(g) If a partnership or individual, submit the name and address of
all general partners and their respective interests, and whether any of
them control other carriers.
(h) If applicant is an entity other than as described in paragraphs
(f) or (g) of this section, submit name, title, and business address of
principals or trustee, and whether the entity controls any other common
carriers.
(i) If applicant is a trustee, receiver, assignee, or a personal
representative of the real party in interest, details about the
appointment (including supporting documents, such as the court order
authorizing the appointment and the filing) and about the real party in
interest.
(j) If applicant is an existing carrier, it may satisfy the
informational requirements of paragraphs (f) through (i) of this section
by making appropriate reference to the docket number of prior
applications that have been filed within the previous three years in
which the information has been submitted.

[47 FR 8199, Feb. 25, 1982, as amended at 81 FR 8855, Feb. 23, 2016]

Sec. 1150.4 Information about the proposal.

(a) A description of the proposal and the significant terms and
conditions, including consideration to be paid (monetary or otherwise).
As exhibit B, copies of all relevant agreements.
(b) Details about the amount of traffic and a general description of
commodities.
(c) The purposes of the proposal and an explanation of why the
public convenience and necessity require or permit the proposal.

[[Page 200]]

(d) As exhibit C, a map which clearly delineates the area to be
served including origins, termini and stations, and cities, counties and
States. The map should also delineate principal highways, rail routes
and any possible interchange points with other railroads. If alternative
routes are proposed for construction, the map should clearly indicate
each route.
(e) A list of the counties and cities to be served under the
proposal, and whether there is other rail service available to them. The
names of the railroads with which the line would connect, and the
proposed connecting points; the volume of traffic estimated to be
interchanged; and a description of the principal terms of agreements
with carriers covering operation, interchange of traffic, division of
rates or trackage rights.
(f) The time schedule for consummation or completion of the
proposal.
(g) If a new line is proposed for construction:
(1) The approximate area to be served by the line.
(2) The nature or type of existing and prospective industries (e.g.,
agriculture, manufacturing, mining, warehousing, forestry) in the area,
with general information about the age, size, growth potential and
projected rail use of these industries.
(3) Whether the construction will cross another rail line and the
name of the railroad(s) owning the line(s) to be crossed. If the
crossing will be accomplished with the permission of the railroad(s),
include supporting agreements. If a Board determination under 49 U.S.C.
10901(d)(1) will be sought, include such requests.

Sec. 1150.5 Operational data.

As exhibit D, an operating plan, including traffic projection
studies; a schedule of the operations; information about the crews to be
used and where employees will be obtained; the rolling stock
requirements and where it will be obtained; information about the
operating experience and record of the proposed operator unless it is an
operating railroad; any significant change in patterns of service; any
associated discontinuance or abandonments; and expected operating
economies.

Sec. 1150.6 Financial information.

(a) The manner in which applicant proposes to finance construction
or acquisition, the kind and amount of securities to be issued, the
approximate terms of their sale and total fixed charges, the extent to
which funds for financing are now available, and whether any of the
securities issued would be underwritten by industries to be served by
the proposed line. Explain how the fixed charges will be met.
(b) As exhibit E a recent balance sheet. As exhibit F, an income
statement for the latest available calendar year prior to filing the
application.
(c) A present value determination of the full costs of the proposal.
If construction is proposed, the costs for each year of such
construction (in a short narrative or by chart).
(d) A statement of projected net income for 2 years, based upon
traffic projections. Where construction is contemplated, the statement
should represent the 2 years following completion of construction.

Sec. 1150.7 Environmental and energy data.

As exhibit H, information and data prepared under 49 CFR Part 1105,
and the ``Revision of the Nat'l. Guidelines Environmental Policy Act of
1969,'' 363 I.C.C. 653 (1980), and in accordance with ``Implementation
of the Energy Policy and Conservation Act of 1975,'' 49 CFR Part 1106.

Sec. 1150.8 Additional support.

Any additional facts or reasons to show that the public convenience
and necessity require or permit approval of this application. The Board
may require additional information to be filed where appropriate.

Sec. 1150.9 Notice.

A summary of the proposal which will be used to provide notice under
Sec. 1150.10(f).

Sec. 1150.10 Procedures.

(a) Waivers. Prior to filing an application, prospective applicants
may seek an advance waiver, either on a permanent or temporary basis, of
required information which is unavailable or not

[[Page 201]]

necessary or useful in analysis of the proposal. However, if the
information is clearly not applicable to the individual proposal, a
waiver is not necessary and need not be sought. A petition must specify
the sections for which waiver or clarification is sought and the reasons
why it should be granted. No replies will be permitted. Parties may,
upon an appropriate showing, demonstrate their need to examine data
which have previously been waived. In such circumstances, the Board only
requires that it be produced under Sec. 1150.8 above.
(b) Filing procedures. An application and all documents shall be
filed with the Chief, Section of Administration, Office of Proceedings.
A filing fee in the amount set forth in 49 CFR 1002.2(f) is required to
file an application. Copies of documents shall be furnished promptly to
interested parties upon request. The application may include a stamped
self-addressed envelope to be used to notify applicant of the docket
number. Additionally, if possible, telephonic communication of the
docket number shall be made.
(c) Signatures. The original of the application shall be signed by
applicants (if a partnership, all general partners must sign; and if a
corporation, association, or other similar form of organization, the
signature should be that of the executive officer having knowledge of
the matters and designated for that purpose). Applications shall be made
under oath and shall contain an appropriate certification (if a
corporation, by its secretary) showing that the affiant is duly
authorized to verify and file the application. Any persons controlling
an applicant shall also sign the application.
(d) Related applications. Applicant shall file concurrently all
directly related applications (e.g., to issue securities, control motor
carriers, obtain access to terminal operations, acquire trackage
rights). All such applications will be considered with the main
application.
(e) Service. As soon as the docket number is obtained the applicant
shall serve a conformed copy of the application by first-class mail upon
the Governor (or Executive Officer), Public Service Board, and
Department of Transportation of each State in which any part of the
properties involved in the proposed transaction is located. Within 2
weeks of filing, applicant shall submit to the Board a copy of the
certificate of service indicating that all persons so designated have
been served a copy of the application.
(f) Publication. Within 2 weeks of filing, applicant shall have
published the summary of the application (prepared under Sec. 1150.9)
in a newspaper of general circulation in each county in which the line
is located. The notice should inform interested parties of the date by
which they must advise the Board of their interest in the proceeding.
This date shall be calculated as the 35th day after the filing of the
application which is neither a Saturday, Sunday, or legal holiday in the
District of Columbia. Applicant must file an affidavit of publication
immediately after the publication has been completed. The Board will, as
soon as practicable, either publish the notice summary in the Federal
Register or reject the application if it is incomplete.
(g) Public participation. Written comments must be filed within 35
days of the filing of the application. Comments must contain the basis
for the party's position either in support or opposition. Applicant must
be served with a copy of each comment. On the basis of the comments and
the assessment by the Office of Environmental Analysis, the Board will
decide if a hearing is necessary. A hearing may be either oral or
through receipt of written statements (modified procedure). (See 49 CFR
part 1112 et seq.) If there is no opposition to the application,
additional evidence normally need not be filed, and a decision will be
reached using the information in the application.
(h) Replies to written comments. Applicant's replies will be
considered by the Board provided they are filed and served within 5 days
of the due date of the pleadings they address.

[47 FR 8199, Feb. 25, 1982. Redesignated at 47 FR 49581, Nov. 1, 1982,
and amended at 52 FR 46483, Dec. 8, 1987; 53 FR 19302, May 27, 1988; 64
FR 53268, Oct. 1, 1999; 74 FR 52908, Oct. 15, 2009; 83 FR 15079, Apr. 9,
2018; 84 FR 12945, Apr. 3, 2019]

[[Page 202]]

Subpart B_Designated Operators

Sec. 1150.11 Introduction.

A certificate of designated operator will be issued to an operator
providing service pursuant to a rail service continuation agreement
under section 304 of the Regional Rail Reorganization Act of 1973, as
amended by the Railroad Revitalization and Regulatory Reform Act of
1976. The designated operator (D-OP) may commence and terminate the
service in accordance with the terms of the agreement. When service is
terminated the D-OP must notify all shippers on the line. To obtain a D-
OP certificate, the information in this subpart must be filed with the
Board. A copy of the certificate of designated operator shall be served
on the Association of American Railroads.

Sec. 1150.12 Information about the designated operator.

(a) The name and address of the D-OP.
(b) If a new corporation or other new business entity, a copy of the
certificate of incorporation or, if unincorporated, the facts and
official organizational documents relating to the business entity.
(c) The names and addresses of all officers and directors, with a
statement from each which indicates present affiliation, if any, with a
railroad.
(d) Sufficient information to establish its financial responsibility
for the proposed undertaking, unless the D-OP is a common carrier by
railroad. The nature and extent of all liability insurance coverage,
including insurance binder or policy number, and name of insurer.

Sec. 1150.13 Relevant dates.

The exact dates of the period of operation which have been agreed
upon by the D-OP, the offeror of the rail service continuation payment,
and the owner of the line to be operated, in their lease and operating
agreements.

Sec. 1150.14 Proposed service.

(a) A copy of all agreements between the D-OP, the offeror of the
rail service continuation payment, and the owner of the line to be
operated.
(b) Any additional information which is necessary to provide the
Board with a description of:
(1) The line over which service is to be provided (e.g., U.S.R.A.
Line); and
(2) All interline connections, including the names of the connecting
railroads.

Sec. 1150.15 Information about offeror.

(a) The name and address of the offeror of the rail service
continuation payment.
(b) Sufficient information to establish the financial responsibility
of the offeror for the proposed undertaking, or if the offeror is a
State or municipal corporation or authority, a statement that it has
authority to perform the service or enter into the agreement for
subsidy.

Sec. 1150.16 Procedures.

Upon receipt of this information, the matter will be docketed by the
prefix initials ``D-OP.'' Operators may begin operating immediately upon
the filing of the necessary information. Although the designated
operator will not be required to seek and obtain authority from the
Board either to commence or to terminate operations, the designated
operator is a common carrier by railroad subject to all other applicable
provisions of 49 U.S.C. Subtitle IV. However, we have exempted
designated operators from some aspects of regulation. See Exemption of
Certain Designated Operators from Section 11343, 361 ICC 379 (1979), as
modified by McGinness v. I.C.C., 662 F.2d 853 (D.C. Cir. 1981).

[47 FR 8199, Feb. 25, 1982. Redesignated at 47 FR 49581, Nov. 1, 1982,
and amended at 64 FR 53268, Oct. 1, 1999; 84 FR 12945, Apr. 3, 2019]

Subpart C_Modified Certificate of Public Convenience and Necessity

Sec. 1150.21 Scope of rules.

These special rules apply to operations over abandoned rail lines,
which have been acquired (through purchase or lease) by a State. The
rail line must have been fully abandoned, or approved for abandonment by
the Board or a bankruptcy court. As used in these rules, the term
``State'' includes

[[Page 203]]

States, political subdivisions of States, and all instrumentalities
through which the State can act. An operator has the option of applying
for a modified certificate of public convenience and necessity under
this subpart or a common carrier certificate under Subpart A of this
part. A copy of the modified certificate shall be served on the
Association of American Railroads.

[47 FR 8199, Feb. 25, 1982, as amended at 81 FR 8855, Feb. 23, 2016]

Sec. 1150.22 Exemptions and common carrier status.

The acquisition by a State of a fully abandoned line is not subject
to the jurisdiction of the Surface Transportation Board. The acquisition
by a State of a line approved for abandonment and not yet fully
abandoned is exempted from the Board's jurisdiction. If the State
intends to operate the line itself, it will be considered a common
carrier. However, when a State acquires a rail line described under
Sec. 1150.21 and contracts with an operator to provide service over the
line, only the operator incurs a common carrier obligation. The
operators of these lines are exempted from 49 U.S.C. 10901 and 10903
which are the statutory requirements governing the start up and
termination of operations. Operators exempted from these requirements
must comply with the requirements of this part and must apply for a
modified certificate of public convenience and necessity. The operator
is a common carrier and incurs all benefits and responsibilities under
49 U.S.C. subtitle IV; however, the State through its operational
agreement or the operator of the line may determine certain
preconditions, such as payment of a subsidy, which must be met by
shippers to obtain service over the line. The operator must notify the
shippers on the line of any preconditions. The modified certificate will
authorize service to shippers who meet these preconditions and the
operator will be required to provide complete common carrier service
under this certificate only to those shippers. (See 363 ICC 132.)

Sec. 1150.23 Modified certificate of public convenience and necessity.

(a) The operator must file a notice with the Board for a modified
certificate of public convenience and necessity. Operations may commence
immediately upon the filing; however, the Board will review the
information filed, and if complete, will issue a modified certificate
notice.
(b) A notice for a modified certificate of public convenience and
necessity shall include the following information:
(1) The name and address of the operator and, unless the operator is
an existing rail carrier:
(i) Its articles of incorporation or, if it is unincorporated, the
facts and organizational documents relating to its formation;
(ii) The names and addresses of all of its officers and directors
and a statement indicating any present affiliation each may have with a
rail carrier; and
(iii) Sufficient information to establish the financial
responsibility of the operator.
(2) Information about the prior abandonment, including docket
number, status and date of the first decision approving the abandonment.
(3) The exact dates of the period of operation which have been
agreed upon by the operator and the State which owns the line (if there
is any agreement, it should be provided);
(4) A description of the service to be performed including, where
applicable, a description of:
(i) The line over which service is to be performed;
(ii) All interline connections including the names of the connecting
railroads;
(iii) The nature and extent of all liability insurance coverage,
including binder or policy number and name of insurer; and
(iv) Any preconditions which shippers must meet to receive service.
(5) The name and address of any subsidizers, and
(6) Sufficient information to establish the financial responsibility
of any subsidizers (if the subsidizer is a State, the information should
show that it has authority to enter into the agreement for subsidized
operations).

[[Page 204]]

(c) The service offered and the applicable rates, charges, and
conditions must be described in tariffs published by the operator to the
Board's rules.

Sec. 1150.24 Termination of service.

The duration of the service may be determined in the contract
between the State and the operator. An operator may not terminate
service over a line unless it first provides 60 days' notice of its
intent to terminate the service. The notice of intent must be:
(a) Filed with the State and the Board, and
(b) Mailed to all persons that have used the line within the 6
months preceding the date of the notice.

Subpart D_Exempt Transactions Under 49 U.S.C. 10901

Source: 51 FR 2504, Jan. 17, 1986, unless otherwise noted.

Sec. 1150.31 Scope of exemption.

(a) Except as indicated below, this exemption applies to all
acquisitions and operations under section 10901 (See 1150.1, supra).
This exemption also includes:
(1) Acquisition by a noncarrier of rail property that would be
operated by a third party;
(2) Operation by a new carrier of rail property acquired by a third
party;
(3) A change in operators on the line; and
(4) Acquisition of incidental trackage rights. Incidental trackage
rights include the grant of trackage rights by the seller, or the
assignment of trackage rights to operate over the line of a third party
that occur at the time of the exempt acquisition or operation. This
exemption does not apply when a class I railroad abandons a line and
another class I railroad then acquires the line in a proposal that would
result in a major market extension as defined at Sec. 1180.3(c).
(b) Other exemptions that may be relevant to a proposal under this
subpart are the exemption for control at Sec. 1180.2(d)(1) and (2), and
the exemption from securities regulation at 49 CFR part 1177.

[51 FR 2504, Jan. 17, 1986, as amended at 81 FR 8855, Feb. 23, 2016]

Sec. 1150.32 Procedures and relevant dates--transactions that involve
creation of Class III carriers.

(a) To qualify for this exemption, applicant must file a verified
notice providing details about the transaction, and a brief caption
summary, conforming to the format in Sec. 1150.34, for publication in
the Federal Register.
(b) The exemption will be effective 30 days after the notice is
filed. The Board, through the Director of the Office of Proceedings,
will publish a notice in the Federal Register within 16 days of the
filing. A change in operators would follow the provisions at Sec.
1150.34, and notice must be given to shippers.
(c) If the notice contains false or misleading information, the
exemption is void ab initio. A petition to revoke under 49 U.S.C.
10502(d) does not automatically stay the exemption. Stay petitions must
be filed at least 7 days before the exemption becomes effective.
(d) Applicant must preserve intact all sites and structures more
than 50 years old until compliance with the requirements of Section 106
of the National Historic Preservation Act, 16 U.S.C. 470 is achieved.
(e) If the projected annual revenue of the carrier to be created by
a transaction under this exemption exceeds $5 million, applicant must,
at least 60 days before the exemption becomes effective, post a notice
of intent to undertake the proposed transaction at the workplace of the
employees on the affected line(s) and serve a copy of the notice on the
national offices of the labor unions with employees on the affected
line(s), setting forth the types and numbers of jobs expected to be
available, the terms of employment and principles of employee selection,
and the lines that are to be transferred, and certify to the Board that
it has done so.

[51 FR 2504, Jan. 17, 1986, as amended at 53 FR 4626, Feb. 17, 1988; 53
FR 5982, Feb. 29, 1988; 62 FR 47584, Sept. 10, 1997; 69 FR 58366, Sept.
30, 2004; 71 FR 62212, Oct. 24, 2006]

[[Page 205]]

Sec. 1150.33 Information to be contained in notice--transactions that
involve creation of Class III carriers.

(a) The full name and address of the applicant;
(b) The name, address, and telephone number of the representative of
the applicant who should receive correspondence;
(c) A statement that an agreement has been reached or details about
when an agreement will be reached;
(d) The operator of the property;
(e) A brief summary of the proposed transaction, including:
(1) The name and address of the railroad transferring the subject
property,
(2) The proposed time schedule for consummation of the transaction,
(3) The mile-posts of the subject property, including any branch
lines, and
(4) The total route miles being acquired;
(f) A map that clearly indicates the area to be served, including
origins, termini, stations, cities, counties, and States; and
(g) A certificate that applicant's projected revenues do not exceed
those that would qualify it as a Class III carrier.
(h) Interchange Commitments. (1) The filing party must certify
whether or not a proposed acquisition or operation of a rail line
involves a provision or agreement that may limit future interchange with
a third-party connecting carrier, whether by outright prohibition, per-
car penalty, adjustment in the purchase price or rental, positive
economic inducement, or other means (``interchange commitment''). If
such a provision exists, the following additional information must be
provided (the information in paragraphs (h)(1)(ii), (iv), (vii) of this
section may be filed with the Board under 49 CFR 1104.14(a) and will be
kept confidential without need for the filing of an accompanying motion
for a protective order under 49 CFR 1104.14(b)):
(i) The existence of that provision or agreement and identification
of the affected interchange points; and
(ii) A confidential, complete version of the document(s) containing
or addressing that provision or agreement;
(iii) A list of shippers that currently use or have used the line in
question within the last two years;
(iv) The aggregate number of carloads those shippers specified in
paragraph (h)(1)(iii) of this section originated or terminated
(confidential);
(v) A certification that the filing party has provided notice of the
proposed transaction and interchange commitment to the shippers
identified in paragraph (h)(1)(iii) of this section;
(vi) A list of third party railroads that could physically
interchange with the line sought to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price
with and without the interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an
interchange commitment is apparent from the case title.
(2) To obtain information about an interchange commitment for use in
a proceeding before the Board, a shipper or other affected party may be
granted access to the confidential documents filed pursuant to paragraph
(h)(1) of this section by filing, and serving upon the petitioner, a
``Motion for Access to Confidential Documents,'' containing:
(i) An explanation of the party's need for the information; and
(ii) An appropriate draft protective order and confidentiality
undertaking(s) that will ensure that the documents are kept
confidential.
(3) Deadlines. (i) Replies to a Motion for Access are due within 5
days after the motion is filed.
(ii) The Board will rule on a Motion for Access within 30 days after
the motion is filed.
(iii) Parties must produce the relevant documents within 5 days of
receipt of a Board approved, signed confidentiality agreement.

[51 FR 2504, Jan. 17, 1986, as amended at 51 FR 25207, July 11, 1986; 53
FR 4626, Feb. 17, 1988; 53 FR 5982, Feb. 29, 1988; 56 FR 36111, July 31,
1991; 73 FR 31034, May 30, 2008; 78 FR 54590, Sept. 5, 2013]

[[Page 206]]

Sec. 1150.34 Caption summary--transactions that involve creation of
Class III carriers.

The caption summary must be in the following form. The information
symbolized by numbers is identified in the key below:

Surface Transportation Board

Notice of Exemption

Finance Docket No.

(1)--Exemption (2)-(3)

(1) Has filed a notice of exemption to (2) (3)'s line between (4).
Comments must be filed with the Board and served on (5). (6).

Key to symbols:

(1) Name of entity acquiring or operating the line, or both.
(2) The type of transaction, e.g., to acquire, operate, or both.
(3) The transferor.
(4) Describe the line.
(5) Petitioners representative, address, and telephone number.
(6) Cross reference to other class exemptions being used.
The notice is filed under Sec. 1150.31. If the notice contains
false or misleading information, the exemption is void ab initio.
Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed
at any time. The filing of a petition to revoke will not automatically
stay the transaction.

[47 FR 8199, Feb. 25, 1982. Redesignated at 47 FR 49581, Nov. 1, 1982,
as amended at 53 FR 5982, Feb. 29, 1988; 69 FR 58366, Sept. 30, 2004]

Sec. 1150.35 Procedures and relevant dates--transactions that involve
creation of Class I or Class II carriers.

(a) To qualify for this exemption, applicant must serve a notice of
intent to file a notice of exemption no later than 14 days before the
notice of exemption is filed with the Board, and applicant must comply
with the notice requirement of Sec. 1150.32(e).
(b) The notice of intent must contain all of the information
required in Sec. 1150.33, exclusive of Sec. 1150.33(g), plus:
(1) A general statement of service intentions; and
(2) A general statement of labor impacts.
(c) The notice of intent must be served on:
(1) The Governor of each State in which track is to be sold;
(2) The State(s) Department of Transportation or equivalent agency;
(3) The national offices of the labor unions with employees on the
affected line(s); and
(4) Shippers representing at least 50 percent of the volume of local
traffic and traffic originating or terminating on the line(s) in the
most recent 12 months for which data is available (beginning with the
largest shipper and working down).
(d) Applicant must also file a verified notice of exemption
conforming to the requirements of (b) above and of Sec. 1150.34, and
certify compliance with Sec. 1150.35 (a), (b), and (c), attaching a
copy of the notice of intent.
(e) The exemption will be effective 45 days after the notice is
filed. The Board, through the Director of the Office of Proceedings,
will publish a notice in the Federal Register within 16 days of the
filing.
(f) If the notice contains false or misleading information, the
exemption is void ab initio. A petition to revoke under 49 U.S.C.
10502(d) does not automatically stay the transaction. Stay petitions
must be filed within 7 days of the filing of the notice of exemption.
Stay petitions must be filed at least 14 days before the exemption
becomes effective. To be considered, stay petitions must be timely
served on the applicant.
(g) Applicant must comply with Sec. 1150.32(d) regarding section
106 of the National Historic Preservation Act, 16 U.S.C. 470.

[53 FR 5982, Feb. 29, 1988, as amended at 53 FR 31341, Aug. 18, 1988; 62
FR 47584, Sept. 10, 1997; 69 FR 58366, Sept. 30, 2004; 71 FR 62213, Oct.
24, 2006; 81 FR 8855, Feb. 23, 2016]

Editorial Note: At 81 FR 8855, Feb. 23, 2016, Sec. 1150.35 was
amended; however, a portion of the amendment could not be incorporated
due to inaccurate amendatory instruction.

[[Page 207]]

Sec. 1150.36 Exempt construction of connecting track.

(a) Scope. This class exemption applies to proceedings involving the
construction and operation of connecting lines of railroad within
existing rail rights-of-way, or on land owned by connecting railroads,
under 49 U.S.C. 10901 (a), (b), and (c). (See the reference to
connecting track in 49 CFR 1105.6(b)(1).) This class exemption is
designed to expedite and facilitate connecting track construction while
ensuring full and timely environmental review. The Surface
Transportation Board (Board) has found that its prior review of
connecting track construction and operation is not necessary to carry
out the rail transportation policy of 49 U.S.C. 10101; that continued
regulation is not necessary to protect shippers from abuse of market
power; and that the construction of connecting track would be of limited
scope. See 49 U.S.C. 10502. To use this class exemption, a pre-filing
notice, environmental report, historic report, and notice of exemption
must be filed that complies with the procedures in Sec. 1150.36 (b) and
(c), and the Board's environmental rules, codified at 49 CFR part 1105.
(b) Environmental requirements. The environmental regulations at 49
CFR part 1105 must be complied with fully. An environmental report
containing the information specified at 49 CFR 1105.7(e), as well as an
historic report containing the information specified at 49 CFR
1105.8(d), must be filed either before or at the same time as the notice
of exemption is filed. See 49 CFR 1105.7(a). The entity seeking the
exemption authority must also serve copies of the environmental report
on the agencies listed at 49 CFR 1105.7(b). Because the environmental
report must include a certification that appropriate agencies have been
consulted in its preparation (see 49 CFR 1105.7(c)), parties should
begin environmental and historic consultations well before the notice of
exemption is filed. Environmental requirements may be waived or modified
where a petitioner demonstrates in writing that such action is
appropriate. See 49 CFR 1105.10(c). It is to the advantage of parties to
consult with the Board's Office of Environmental Analysis (OEA) at the
earliest possible date to begin environmental review.
(c) Procedures and dates. (1) At least 20 days prior to the filing
of a notice of exemption with the Board, the party seeking the exemption
authority must notify in writing: the State Public Service Commission,
the State Department of Transportation (or equivalent agency), and the
State Clearinghouse (if there is no clearinghouse, the State
Environmental Protection Agency), of each State involved. The pre-filing
notice shall include: the name and address of the railroad (or other
entity proposing to construct the line) and the proposed operator; a
complete description of the proposed construction and operation,
including a map; an indication that the class exemption procedure is
being used; and the approximate date that construction is proposed to
begin. This pre-filing notice shall include a certification that the
petitioner will comply with the Board's environmental regulations,
codified at 49 CFR part 1105, and a statement that those regulations
generally require the Board to:
(i) Prepare an environmental assessment (EA) (or environmental
impact statement (EIS) if necessary),
(ii) Make the document (EA or EIS, as appropriate) available to the
parties (and to the public, upon request to OEA); and
(iii) Accept for filing and consideration comments on the
environmental document as well as petitions for stay and
reconsideration.
(2) Petitioner must file a verified notice of exemption with the
Board at least 90 days before the construction is proposed to begin. In
addition to the information contained in Sec. 1150.36(c)(1), the notice
shall include a statement certifying compliance with the environmental
rules at 49 CFR part 1105 and the pre-filing notice requirements of 49
CFR 1150.36(c)(1).
(3) The Board, through the Director of the Office of Proceedings,
shall publish a notice in the Federal Register within 20 days after the
notice of exemption is received that describes the construction project
and invites comments. OEA will then prepare an EA (or, if necessary, an
EIS). The EA generally will be made available 15 days

[[Page 208]]

after the Federal Register notice. It will be served on all parties and
appropriate agencies. Others may request a copy from OEA. The deadline
for submission of comments on the EA will generally be within 30 days of
its availability (see 49 CFR 1105.10(b)). If an EIS is prepared, the
time frames and procedures set forth in 49 CFR 1105.10(a) generally will
apply.
(4) The Board's environmental document (together with any comments
and OEA's recommendations) shall be used in deciding whether to allow
the particular construction project to proceed under the class exemption
and whether to impose appropriate mitigating conditions upon its use
(including use of an environmentally preferable route). If the Board
concludes that a particular project will result in serious adverse
environmental consequences that cannot be adequately mitigated, it may
deny authority to proceed with the construction under the class
exemption (the ``no-build'' alternative). Persons believing that they
can show that the need for a particular line outweighs the adverse
environmental consequences can file an application for approval of the
proposed construction under 49 U.S.C. 10901.
(5) No construction may begin until the Board has completed its
environmental review and issued a final decision.
(6) Petitions to stay the effective date of the notice of exemption
on other than environmental and/or historic preservation grounds must be
filed within 10 days of the Federal Register publication. Petitions to
stay the effective date of the notice on environmental and/or historic
preservation grounds may be filed at any time but must be filed
sufficiently in advance of the effective date to allow the Board to
consider and act on the petition before the notice becomes effective.
Petitions for reconsideration must be filed within 20 days of the
Federal Register publication.
(7) The exemption generally will be effective 70 days after
publication in the Federal Register, unless stayed. If the notice of
exemption contains false or misleading information, the exemption is
void ab initio and the Board shall summarily reject the exemption
notice.
(8) Where significant environmental issues have been raised or
discovered during the environmental review process, the Board shall
issue, on or before the effective date of the exemption, a final
decision allowing the exemption to become effective and imposing
appropriate mitigating conditions or taking other appropriate action
such as selecting the ``no build'' alternative.
(9) Where there has been full environmental review and no
significant environmental issues have been raised or discovered, the
Board, through the Director of the Office of Proceedings, shall issue,
on or before the effective date of the exemption, a final decision
consisting of a Finding of No Significant Impact (FONSI) to show that
the environmental record has been considered (see 49 CFR 1105.10(g)).
(10) The Board, on its own motion or at the request of a party to
the case, will stay the effective date of individual notices of
exemption when an informed decision on environmental issues cannot be
made prior to the date that the exemption authority would otherwise
become effective. Stays will be granted initially for a period of 60
days to permit resolution of environmental issues and issuance of a
final decision. The Board expects that this 60-day period will usually
be sufficient for these purposes unless preparation of an EIS is
required. If, however, environmental issues remain unresolved upon
expiration of this 60-day period, the Board, upon its own motion, or at
the request of a party to the case, will extend the stay, as necessary
to permit completion of environmental review and issuance of a final
decision. The Board's order will specify the duration of each extension
of the initial stay period. In cases requiring the preparation of an
EIS, the Board will extend the stay for a period sufficient to permit
compliance with the procedural guidelines established by the Board's
environmental regulations.
(d) Third-Party Consultants. An environmental and historic report
required under 49 CFR 1105.7 and 1105.8 will not be required where a
petitioner engages a third-party consultant who is approved by OEA and
acts under OEA's

[[Page 209]]

direction and supervision in preparing the EA or EIS. In such a case,
the third-party consultant must act on behalf of the Board, working
under OEA's direction to collect the environmental information that is
needed and to compile it into a draft EA or EIS, which is prepared under
OEA's direction and then submitted to OEA for its final review and
approval. See 49 CFR 1105.10(d).

[61 FR 29974, June 13, 1996, as amended at 64 FR 53268, Oct. 1, 1999; 83
FR 15079, Apr. 9, 2018]

Subpart E_Exempt Transactions Under 49 U.S.C. 10902 for Class III Rail
Carriers

Source: 61 FR 32355, June 24, 1996, unless otherwise noted.

Sec. 1150.41 Scope of exemption.

Except as indicated in paragraphs (a) through (d) of this section,
this exemption applies to acquisitions or operations by Class III rail
carriers under section 10902. This exemption also includes:
(a) Acquisition by a Class III rail carrier of rail property that
would be operated by a third party;
(b) Operation by a Class III carrier of rail property acquired by a
third party;
(c) A change in operators on such a line; and
(d) Acquisition of incidental trackage rights. Incidental trackage
rights include the grant of trackage rights by the seller, or the
acquisition of trackage rights to operate over the line of a third
party, that occurs at the time of the purchase.

Sec. 1150.42 Procedures and relevant dates for small line acquisitions.

(a) This exemption applies to the acquisition of rail lines with
projected annual revenues which, together with the acquiring carrier's
projected annual revenue, do not exceed the annual revenue of a Class
III railroad. To qualify for this exemption, the Class III rail carrier
applicant must file a verified notice providing details about the
transaction, and a brief caption summary, conforming to the format in
Sec. 1150.44, for publication in the Federal Register.
(b) The exemption will be effective 30 days after the notice is
filed. The Board, through the Director of the Office of Proceedings,
will publish a notice in the Federal Register within 16 days of the
filing. A change in operators must follow the provisions at Sec.
1150.44, and notice must be given to shippers.
(c) If the notice contains false or misleading information, the
exemption is void ab initio. A petition to revoke under 49 U.S.C.
10502(d) does not automatically stay the exemption. Stay petitions must
be filed at least 7 days before the exemption becomes effective.
(d) Applicant must preserve intact all sites and structures more
than 50 years old until compliance with the requirements of section 106
of the National Historic Preservation Act, 16 U.S.C. 470f, is achieved.
(e) If the projected annual revenue of the rail lines to be acquired
or operated, together with the acquiring carrier's projected annual
revenue, exceeds $5 million, the applicant must, at least 60 days before
the exemption becomes effective, post a notice of applicant's intent to
undertake the proposed transaction at the workplace of the employees on
the affected line(s) and serve a copy of the notice on the national
offices of the labor unions with employees on the affected line(s),
setting forth the types and numbers of jobs expected to be available,
the terms of employment and principles of employee selection, and the
lines that are to be transferred, and certify to the Board that it has
done so.

[61 FR 32355, June 24, 1996, as amended at 62 FR 47584, Sept. 10, 1997;
71 FR 62213, Oct. 24, 2006; 81 FR 8855, Feb. 23, 2016]

Sec. 1150.43 Information to be contained in notice for small line
acquisitions.

(a) The full name and address of the Class III rail carrier
applicant;
(b) The name, address, and telephone number of the representative of
the applicant who should receive correspondence;
(c) A statement that an agreement has been reached or details about
when an agreement will be reached;
(d) The operator of the property;

[[Page 210]]

(e) A brief summary of the proposed transaction, including:
(1) The name and address of the railroad transferring the subject
property to the Class III rail carrier applicant;
(2) The proposed time schedule for consummation of the transaction;
(3) The mileposts of the subject property, including any branch
lines; and
(4) The total route miles being acquired;
(f) A map that clearly indicates the area to be served, including
origins, termini, stations, cities, counties, and states; and
(g) A certificate that applicant's projected revenues as a result of
the transaction will not result in the creation of a Class II or Class I
rail carrier so as to require processing under Sec. 1150.45.
(h) Interchange Commitments. (1) The filing party must certify
whether or not a proposed acquisition or operation of a rail line
involves a provision or agreement that may limit future interchange with
a third-party connecting carrier, whether by outright prohibition, per-
car penalty, adjustment in the purchase price or rental, positive
economic inducement, or other means (``interchange commitment''). If
such a provision exists, the following additional information must be
provided (the information in paragraphs (h)(1)(ii), (iv), (vii) of this
section may be filed with the Board under 49 CFR 1104.14(a) and will be
kept confidential without need for the filing of an accompanying motion
for a protective order under 49 CFR 1104.14(b)):
(i) The existence of that provision or agreement and identification
of the affected interchange points; and
(ii) A confidential, complete version of the document(s) containing
or addressing that provision or agreement;
(iii) A list of shippers that currently use or have used the line in
question within the last two years;
(iv) The aggregate number of carloads those shippers specified in
paragraph (h)(1)(iii) of this section originated or terminated
(confidential);
(v) A certification that the filing party has provided notice of the
proposed transaction and interchange commitment to the shippers
identified in paragraph (h)(1)(iii) of this section;
(vi) A list of third party railroads that could physically
interchange with the line sought to be acquired or leased;
(vii) An estimate of the difference between the sale or lease price
with and without the interchange commitment (confidential);
(viii) A change in the case caption so that the existence of an
interchange commitment is apparent from the case title.
(2) To obtain information about an interchange commitment for use in
a proceeding before the Board, a shipper or other affected party may be
granted access to the confidential documents filed pursuant to paragraph
(h)(1) of this section by filing, and serving upon the petitioner, a
``Motion for Access to Confidential Documents,'' containing:
(i) An explanation of the party's need for the information; and
(ii) An appropriate draft protective order and confidentiality
undertaking(s) that will ensure that the documents are kept
confidential.
(3) Deadlines. (i) Replies to a Motion for Access are due within 5
days after the motion is filed.
(ii) The Board will rule on a Motion for Access within 30 days after
the motion is filed.
(iii) Parties must produce the relevant documents within 5 days of
receipt of a Board approved, signed confidentiality agreement.

[61 FR 32355, June 24, 1996, as amended at 73 FR 31035, May 30, 2008; 78
FR 54591, Sept. 5, 2013]

Sec. 1150.44 Caption summary.

The caption summary must be in the following form. The information
symbolized by numbers is identified in the key as follows:

Surface Transportation Board

Notice of Exemption

STB Finance Docket No.

(1)--Exemption (2)-(3)

(1) Has filed a notice of exemption to (2) (3)'s line between (4).
Comments must be filed with the Board and served on (5). (6). Key to
symbols:

[[Page 211]]

(1) Name of carrier acquiring or operating the line.

(2) The type of transaction, e.g., to acquire or operate.

(3) The transferor.

(4) Describe the line.

(5) Petitioner's representative, address, and telephone number.

(6) Cross reference to other class exemptions being used.
The notice is filed under 49 CFR 1150.41. If the notice contains
false or misleading information, the exemption is void ab initio. The
filing of a petition to revoke will not automatically stay the
transaction.

[61 FR 32355, June 24, 1996; 61 FR 36965, July 15, 1996]

Sec. 1150.45 Procedures and relevant dates--transactions under
section 10902 that involve creation of Class I or Class II rail carriers.

(a) To qualify for this exemption, applicant must serve a notice of
intent to file a notice of exemption no later than 14 days before the
notice of exemption is filed with the Board, and applicant must comply
with the notice requirement of Sec. 1150.42(e).
(b) The notice of intent must contain all the information required
in Sec. 1150.43 plus:
(1) A general statement of service intentions; and
(2) A general statement of labor impacts.
(c) The notice of intent must be served on:
(1) The Governor of each state in which track is to be sold;
(2) The state(s) Department of Transportation or equivalent agency;
(3) The national offices of the labor unions with employees on the
affected line(s); and
(4) Shippers representing at least 50 percent of the volume of local
traffic and traffic originating or terminating on the line(s) in the
most recent 12 months for which data are available (beginning with the
largest shipper and working down).
(d) Applicant must also file a verified notice of exemption
conforming to the requirements of paragraph (b) of this section and of
Sec. 1150.44, and certify compliance with paragraphs (a), (b), and (c)
of this section, attaching a copy of the notice of intent.
(e) The exemption will be effective 45 days after the notice is
filed. The Board, through the Director of the Office of Proceedings,
will publish a notice in the Federal Register within 16 days of the
filing.
(f) If the notice contains false or misleading information, the
exemption is void ab initio. A petition to revoke under 49 U.S.C.
10502(d) does not automatically stay the transaction. Stay petitions
must be filed at least 14 days before the exemption becomes effective.
Replies will be due 7 days thereafter. To be considered, stay petitions
must be timely served on the applicant.
(g) Applicant must preserve intact all sites and structures more
than 50 years old until compliance with the requirements of section 106
of the National Historic Preservation Act, 16 U.S.C. 470f, is achieved.

[61 FR 32355, June 24, 1996, as amended at 62 FR 47584, Sept. 10, 1997;
71 FR 62213, Oct. 24, 2006; 84 FR 12945, Apr. 3, 2019]

PART 1151_FEEDER RAILROAD DEVELOPMENT PROGRAM--Table of Contents

Sec.
1151.1 Scope.
1151.2 Procedures.
1151.3 Contents of application.
1151.4 Board determination.

Authority: 49 U.S.C. 10907.

Source: 48 FR 9654, Mar. 8, 1983, unless otherwise noted.

Sec. 1151.1 Scope.

This part governs applications filed under 49 U.S.C. 10907. The
Board can require the sale of a rail line to a financially responsible
person. A rail line is eligible for a forced sale if it appears in
category 1 or 2 of the owning railroad's system diagram map (but the
railroad has not filed an application to abandon the line), or the
public convenience and necessity, as defined in 49 U.S.C. 10907(c)(1),
permit or require the sale of the line.

[48 FR 9654, Mar. 8, 1983, as amended at 56 FR 37861, Aug. 9, 1991; 64
FR 53268, Oct. 1, 1999]

[[Page 212]]

Sec. 1151.2 Procedures.

(a) Service. When an application is filed, applicant must
concurrently serve a copy of the application by first class mail on:
(1) The owning railroad;
(2) All rail patrons who originated and/or received traffic on the
line during the 12-month period preceding the month in which the
application is filed;
(3) The designated State agency in the State(s) where the property
is located;
(4) County governments where the line is located;
(5) The National Railroad Passenger Corporation (Amtrak) (if Amtrak
operates on the line);
(6) And the national offices of rail unions with employees on the
line.
(b) Acceptance or rejection of an application.
(1) The Board, through the Director of the Office of Proceedings,
will accept a complete application no later than 30 days after the
application is filed by publishing a notice in the Federal Register. An
application is complete if it has been properly served and contains
substantially all information required by Sec. 1151.3, except as
modified by advance waiver. The notice will also announce the schedule
for filing of competing applications and responses.
(2) The Board, through the Director of the Office of Proceedings,
will reject an incomplete application by serving a decision no later
than 30 days after the application is filed. The decision will explain
specifically why the application was incomplete. A revised application
may be submitted, incorporating portions of the prior application by
reference.
(c) Competing applications.
(1) Unless otherwise scheduled in the notice, competing applications
by other parties seeking to acquire all or any portion of the line
sought in the initial application are due within 30 days after the
initial application is accepted.
(2) The Board, through the Director of the Office of Proceedings,
will issue a decision accepting or rejecting a competing application no
later than 15 days after it is filed. A competing application will be
rejected if it does not substantially contain the information required
by Sec. 1151.3, except as modified by advance waiver.
(d) Incomplete applications.
(1) If an applicant seeking to file an initial or competing
application is unable to obtain required information that is primarily
or exclusively within the personal knowledge of the owning carrier, the
applicant may file an incomplete application if it files at the same
time a request for discovery under 49 CFR part 1114 to obtain the needed
information from the owning carrier.
(2) The Board, through the Director of the Office of Proceedings,
will by decision conditionally accept incomplete initial or competing
applications, if the Director determines that the discovery sought is
necessary for the application and primarily or exclusively within the
knowledge of the owning carrier.
(3) When the information sought through discovery has been filed for
an initial application, Federal Register notice under paragraph (b) of
this section will be published.
(4) When the information sought through discovery has been filed for
a competing application, a decision will be issued under paragraph (c)
of this section.
(e) Comments. Unless otherwise scheduled in the notice, verified
statements and comments addressing both the initial and competing
applications must be filed within 60 days after the initial application
is accepted.
(f) Replies. Unless otherwise scheduled in the notice, verified
replies by applicants and other interested parties must be filed within
80 days after the initial application is accepted.
(g) Publication. If the Board finds that the public convenience and
necessity require or permit sale of the line, the Board shall
concurrently publish this finding in the Federal Register.
(h) Acceptance or rejection. If the Board concludes that sale of the
line should be required, the applicant(s) must file a notice with the
Board and the owning railroad accepting or rejecting the Board's
determination. The notice must be filed within 10 days of the service
date of the decision.
(i) Selection. If two or more applicants timely file notices
accepting the

[[Page 213]]

Board's determination, the owning railroad must select the applicant to
which it will sell the line and file notice of its selection with the
Board and serve a copy on the applicants within 15 days of the service
date of the Board decision.
(j) Waiver. Prior to filing an initial or competing application, an
applicant may file a petition to waive or clarify specific portions of
part 1151. A decision by the Director of the Office of Proceedings
granting or denying a petition for waiver or clarification will be
issued within 30 days of the date the petition is filed. Appeals from
the Director's decision will be decided by the entire Board.
(k) Extension. Extensions of filing dates may be granted for good
cause.

[56 FR 37861, Aug. 9, 1991]

Sec. 1151.3 Contents of application.

(a) The initial application and all competing applications must
include the following information in the form of verified statements:
(1) Identification of the line to be purchased including:
(i) The name of the owning carrier; and
(ii) The exact location of the line to be purchased including
milepost designations, origin and termination points, stations located
on the line, and cities, counties and States traversed by the line.
(2) Identification of applicant including:
(i) The applicant's name and address;
(ii) The name, address, and phone number of the representative to
receive correspondence concerning this application;
(iii) A description of applicant's affiliation with any railroad;
and
(iv) If the applicant is a corporation, the names and addresses of
its officers and directors.
(3) Information sufficient to demonstrate that the applicant is a
financially responsible person. In this regard, the applicant must
demonstrate its ability:
(i) To pay the higher of the net liquidation value (NLV) or going
concern value (GCV) of the line; and
(ii) To cover expenses associated with providing services over the
line (including, but not limited to, operating costs, rents, and taxes)
for at least the first 3 years after acquisition of the line.
(4) An estimate of the NLV and the GCV of the line and evidence in
support of these estimates.
(5) An offer to purchase the line at the higher of the two estimates
submitted pursuant to paragraph (a)(4) of this section.
(6) The dates for the proposed period of operation of the line
covered by the application.
(7) An operating plan that identifies the proposed operator;
attaches any contract that the applicant may have with the proposed
operator; describes in detail the service that is to be provided over
the line, including all interline connections; and demonstrates that
adequate transportation will be provided over the line for at least 3
years from the date of acquisition.
(8) A description of the liability insurance coverage carried by
applicant or any proposed operator. If trackage rights are requested,
the insurance must be at a level sufficient to indemnify the owning
railroad against all personal and property damage that may result from
negligence on the part of the operator in exercising the trackage
rights.
(9) Any preconditions (such as assuming a share of any subsidy
payments) that will be placed on shippers in order for them to receive
service, and a statement that if the application is approved, no further
preconditions will be placed on shippers without Board approval. (This
statement will be binding upon applicant if the application is
approved.)
(10) The name and address of any person(s) who will subsidize the
operation of the line.
(11) A statement that the applicant will seek a finding by the Board
that the public convenience and necessity permit or require acquisition,
or a statement that the line is currently in category 1 or 2 of the
owning railroad's system diagram map.
(i) If the applicant seeks a finding of public convenience and
necessity, the application must contain detailed evidence that permits
the Board to find that:

[[Page 214]]

(A) The rail carrier operating the line refused within a reasonable
time to make the necessary efforts to provide adequate service to
shippers who transport traffic over the line;
(B) The transportation over the line is inadequate for the majority
of shippers who transport traffic over the line;
(C) The sale of the line will not have a significantly adverse
financial effect on the rail carrier operating the line;
(D) The sale of the line will not have an adverse effect on the
overall operational performance of the rail carrier operating the line;
and
(E) The sale of the line will be likely to result in improved
railroad transportation for shippers who transport traffic over the
line.
(ii) If the applicant seeks a finding that the line is currently in
category 1 or 2 of the owning carrier's system diagram map, the relevant
portion of the current map must be attached to the application.
(12) A statement detailing applicant's election of exemption from
the provisions of Title 49, United States Code, and a statement that if
the application is approved, no further exemptions will be elected.
(This statement will be binding upon applicant if the application is
approved.)
(13) A description of any trackage rights sought over the owning
railroad that are required to allow reasonable interchange or to move
power equipment or empty rolling stock between noncontiguous feeder
lines operated by the applicant, and an estimate of the reasonable
compensation for such rights, including full explanation of how the
estimate was reached. The description of the trackage rights shall
include the following information: Milepost or other identification for
each segment of track; the need for the trackage rights (interchange of
traffic, movement of equipment, etc.); frequency of operations; times of
operation; any alternative to the use of trackage rights; and any other
pertinent data. Trackage rights that are necessary for the interchange
of traffic shall be limited to the closest point to the junction with
the owning railroad's line that allows the efficient interchange of
traffic. A statement shall be included that the applicant agrees to have
its train and crew personnel take the operating rules examination of the
railroad over which the operating rights are exercised.
(14) If applicant requests Board-prescribed joint rates and
divisions in the feeder line proceeding, a description of any joint rate
and division agreement must be included in the application. The
description must contain the following information:
(i) The railroad(s) involved;
(ii) The estimated revenues that will result from the division(s);
(iii) The total costs of operating the line segment purchased
(including any trackage rights fees).
(iv) Information sufficient to allow the Board to determine that the
line sought to be acquired carried less than 3 million gross ton-miles
of traffic per mile in the preceding calendar year \1\; and
---------------------------------------------------------------------------

\1\ Gross ton-miles are calculated by adding the ton-miles of the
cargo and the ton-miles related to the tare (empty) weight of the
freight cars used to transport the cargo in the loaded movement. In
calculating the gross ton-miles, only those related to the portion of
the segment purchased shall be included.
---------------------------------------------------------------------------

(v) Any other pertinent information.
(15) The extent to which the owning railroad's employees who
normally service the line will be used.
(16) A certificate stating that the service requirements of Sec.
1151.2(a) have been met.
(b) Applicant must make copies of the application available to
interested parties upon request.

[48 FR 9654, Mar. 8, 1983, as amended at 56 FR 37862, Aug. 9, 1991; 64
FR 53268, Oct. 1, 1999; 81 FR 8855, Feb. 23, 2016]

Sec. 1151.4 Board determination.

(a) The Board shall determine whether each applicant is a
financially responsible person. To be a financially responsible person,
the Board must find that:
(1) The applicant is capable of paying the constitutional minimum
value of the line and able to assure that adequate transportation will
be provided over the line for at least 3 years;

[[Page 215]]

(2) The applicant is not a class I or class II railroad or an entity
affiliated with a class I or class II railroad.
(b) If the Board finds that one or more applicants are financially
responsible parties, it shall determine whether the involved line or
line segment is a qualified line. A line is a qualified line if:
(1) Either
(i) The public convenience and necessity require or permit the sale
of line or line segment; or
(ii) The line or line segment is classified in category 1 or 2 of
the owning carrier's system diagram map; and
(2) The traffic level on the line or line segment sought to be
acquired was less than 3 million gross ton-miles of traffic per mile in
the preceding calendar year (Note: This finding will not be required for
applications filed after October 1, 1983).
(c) If the Board finds that one or more financially responsible
parties have offered to buy a qualifying line of railroad, the Board
shall set the acquisition cost of the line at the higher of NLV or GCV,
order the owning carrier to sell the rail line to one of the financially
responsible applicants, and resolve any related issues raised in the
application. If an applicant and the owning railroad agree on an
acquisition price, that price shall be the final price.
(d) If trackage rights are sought in the application, the Board
shall, based on the evidence of record, set the adequate compensation
for such rights, if the parties have not agreed.
(e) If the applicant requests the Board to set joint rates or
divisions and the line carried less than 3 million gross ton-miles of
traffic per mile during the preceding calendar year, the Board shall,
pursuant to 49 U.S.C. 10705(a), establish joint rates and divisions
based on the evidence of record in the proceeding. Unless specifically
requested to do so by the selling carrier, the Board will not set the
rate for the selling railroad's share of the joint rate at less than the
applicable level (for the year in which the acquisition is made) set by
49 U.S.C. 10707, which limits Board maximum ratemaking jurisdiction to
rates above certain cost/price ratios.

[48 FR 9654, Mar. 8, 1983, as amended at 81 FR 8855, Feb. 23, 2016]

PART 1152_ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL
TRANSPORTATION UNDER 49 U.S.C. 10903--Table of Contents

Subpart A_General

Sec.
1152.1 Purpose and scope.
1152.2 Definitions.

Subpart B_System Diagram

1152.10 System diagram map.
1152.11 Description of lines to accompany the system diagram map or
information to be contained in the narrative.
1152.12 Filing and publication.
1152.13 Amendment of the system diagram map or narrative.
1152.14 Availability of data.
1152.15 Reservation of jurisdiction.

Subpart C_Procedures Governing Notice, Applications, Financial
Assistance, Acquisition for Public Use, and Trail Use

1152.20 Notice of intent to abandon or discontinue service.
1152.21 Form of notice.
1152.22 Contents of application.
1152.23 [Reserved]
1152.24 Filing and service of application.
1152.25 Participation in abandonment or discontinuance proceedings.
1152.26 Board determination under 49 U.S.C. 10903.
1152.27 Financial assistance procedures.
1152.28 Public use procedures.
1152.29 Prospective use of rights-of-way for interim trail use and rail
banking.

Subpart D_Standards for Determining Costs, Revenues, and Return on Value

1152.30 General.
1152.31 Revenue and income attributable to branch lines.
1152.32 Calculation of avoidable costs.
1152.33 Apportionment rules for the assignment of expenses to on-branch
costs.
1152.34 Return on investment.
1152.35 [Reserved]
1152.36 Submission of revenue and cost data.
1152.37 Financial status reports.

[[Page 216]]

Subpart E [Reserved]

Subpart F_Exempt Abandonments and Discontinuances of Service and
Trackage Rights

1152.50 Exempt abandonments and discontinuances of service and trackage
rights.

Subpart G_Special Rules Applicable to Petitions for Abandonments or
Discontinuances of Service or Trackage Rights Filed Under the 49 U.S.C.
10502 Exemption Procedure

1152.60 Special rules.

Authority: 11 U.S.C. 1170; 16 U.S.C. 1247(d) and 1248; 45 U.S.C.
744; and 49 U.S.C. 1301, 1321(a), 10502, 10903-10905, and 11161.

Source: 61 FR 67883, Dec. 24, 1996, unless otherwise noted.

Subpart A_General

Sec. 1152.1 Purpose and scope.

(a) 49 U.S.C. 10903 et seq. governs abandonment of rail lines and
discontinuance of rail service by common carriers. Section 10903(d)
provides that no line of railroad may be abandoned and no rail service
discontinued unless the Board finds that the present or future public
convenience and necessity require or permit the abandonment or
discontinuance.
(b) Part 1152 contains regulations governing abandonment of, and
discontinuance of service over, rail lines. This part also sets forth
procedures for providing financial assistance to assure continued rail
freight service under 49 U.S.C. 10904, for acquiring rail lines for
alternate public use under 49 U.S.C. 10905, and for acquiring or using a
rail right-of-way for interim trail use and rail banking.

Sec. 1152.2 Definitions.

Unless otherwise provided in the text of the regulations, the
following definitions apply in this part:
(a) Account means an account in the Board's Uniform System of
Accounts for Railroad Companies (49 CFR part 1201).
(b) Act means the ICC Termination Act of 1995 (Pub. L. 104-88, 109
Stat. 803), as amended.
(c) Base year means the latest 12-month period, ending no earlier
than 6 months prior to the filing of the abandonment or discontinuance
application, for which data have been collected at the branch level as
prescribed in Sec. 1152.30(b).
(d) Board means the Surface Transportation Board.
(e) Branch means a segment of line for which an application for
abandonment or discontinuance, pursuant to 49 U.S.C. 10903, has been
filed.
(f) Carrier means a railroad company or the trustee or trustees of a
railroad company subject to regulation under 49 U.S.C., Subtitle IV,
chapter 105.
(g) Designated state agency means the instrumentality created by a
state or designated by appropriate authority to administer or coordinate
its state rail plan.
(h) Forecast Year means the 12-month period, beginning with the
first day of the month in which the application is filed with the Board,
for which future revenues and costs are estimated.
(i) Form R-1 means the railroad's annual report filed with the Board
in accordance with the requirements of 49 U.S.C. 11145.
(j) Offeror means a shipper, a state, the United States, a local or
regional transportation authority, or any financially responsible person
offering rail service continuation assistance under 49 U.S.C. 10904.
(k) URCS means the Uniform Railroad Costing System.
(l) Significant user means:
(1) Each of the 10 rail patrons which originated and/or received the
largest number of carloads (or each patron if there are less than 10);
and
(2) Any other rail patron which originated and/or received 50 or
more carloads, on the line proposed for abandonment or discontinuance,
during the 12-month period preceding the month in which notice is given
of the abandonment or discontinuance application.
(m) Subsidy year means any 12-month period for which a subsidy
agreement has been negotiated and is in operation.

[[Page 217]]

Subpart B_System Diagram

Sec. 1152.10 System diagram map.

(a) Each carrier shall prepare a diagram of its rail system on a
map, designating all lines in its system by the categories established
in paragraph (b) of this section. A Class III carrier shall either
prepare the aforementioned map of its rail system or file only a
narrative description of its lines that provides all of the information
required in this subpart.
(b) All lines in each carrier's rail system shall be separated into
the following categories:
(1) All lines or portions of lines which the carrier anticipates
will be the subject of an abandonment or discontinuance application to
be filed within the 3-year period following the date upon which the
diagram or narrative, or any amended diagram or narrative, is filed with
the Board;
(2) All lines or portions of lines which are potentially subject to
abandonment, defined as those which the carrier has under study and
believes may be the subject of a future abandonment application because
of either anticipated operating losses or excessive rehabilitation
costs, as compared to potential revenues;
(3) All lines or portions of lines for which an abandonment or
discontinuance application is pending before the Board on the date upon
which the diagram or narrative, or any amended diagram or narrative, is
filed with the Board;
(4) All lines or portions of lines which are being operated under
the rail service continuation provisions of 49 U.S.C. 10904 (and former
49 U.S.C. 10905) on the date upon which the diagram or narrative, or any
amended diagram or narrative, is filed with the Board; and
(5) All other lines or portions of lines which the carrier owns and
operates, directly or indirectly.
(c) The system diagram map shall be color-coded to show the 5
categories of lines as follows:
(1) Red shall designate those lines described in Sec.
1152.10(b)(1);
(2) Green shall designate those lines described in Sec.
1152.10(b)(2);
(3) Yellow shall designate those lines described in Sec.
1152.10(b)(3);
(4) Brown shall designate those lines described in Sec.
1152.10(b)(4); and
(5) Black or dark blue shall designate those lines described in
Sec. 1152.10(b)(5).
(d) The system diagram map shall also identify, and shall be drawn
to a scale sufficient to depict clearly, the location of:
(1) All state boundary lines;
(2) Boundaries of every county in which is situated a rail line
owned or operated by the carrier which is listed in categories 1 thru 4
(Sec. 1152.10(b)(1) thru (4));
(3) Every Standard Metropolitan Statistical Area (SMSA) any portion
of which is located within 5 air miles of a rail line owned or operated
by the carrier; and
(4) Every city outside an SMSA which has a population of 5,000 or
more persons (according to the latest published United States census
reports) and which has any portion located within 5 air miles of a rail
line owned or operated by the carrier. A series of interrelated maps may
be used where the system serves a very large or congested area. An
explanation of the interrelationship must be furnished.

Sec. 1152.11 Description of lines to accompany the system diagram map
or information to be contained in the narrative.

Each carrier required to file a system diagram map or narrative
shall list and describe, separately by category and within each category
by state, all lines or portions of lines identified on its system
diagram map or to be included in its narrative as falling within
categories 1 thru 3 (Sec. 1152.10(b)(1) thru (3)) as follows:
(a) Carrier's designation for each line (for example, the Zanesville
Secondary Track);
(b) State or states in which each line is located;
(c) County or counties in which each line is located;
(d) Mileposts delineating each line or portion of line; and
(e) Agency or terminal stations located on each line or portion of
line with milepost designations.

[[Page 218]]

Sec. 1152.12 Filing and publication.

(a) Each carrier required to file a system diagram map or a
narrative shall file with the Board three copies of a complete and up-
dated color-coded system diagram map or narrative (identified by its
``AB number'') and the accompanying line descriptions in conformance
with the filing and publication requirements of this section. If a
revised map or narrative is filed, the line descriptions for the lines
which were revised must be filed.
(b) The color-coded system diagram map or narrative, any amendments,
and accompanying line descriptions shall be served upon the Governor,
the Public Service Commission (or equivalent agency) and the designated
state agency of each state within which the carrier operates or owns a
line of railroad.
(c) The carrier shall: (1) Publish in a newspaper of general
circulation in each county containing category 1 through 3 lines or
lines being revised, a notice containing:
(i) A black-and-white copy of the system diagram map (or a portion
of the map clearly depicting its lines in that county); and
(ii) A description of each line (in the case of Class III carriers
only the line description is required);
(2) Post a copy of the newspaper notice:
(i) In each agency station or terminal on each line in categories 1
through 3 and on each line which has been revised; or
(ii) If there is no agency station on the line, at any station
through which business for the line is received or forwarded;
(3) Furnish, at reasonable cost, upon request of any interested
person, a copy of its system diagram map (either color-coded or black-
and-white) or narrative; and
(4) Notify interested persons of this availability through its
publication in the appropriate county newspaper.
(d) Each carrier required to file a system diagram map or narrative
shall file with the Board an affidavit of service and publication
stating the date each was accomplished. A copy of each newspaper notice
published shall be attached to the affidavit. The effective date of the
filing of the initial system diagram map or narrative and each amended
system diagram map or narrative as required in paragraph (a) of this
section shall be deemed to be the date upon which the Board receives the
affidavit required in this paragraph.
(e) The Board shall require republication of the notice if it is
found to be inadequate.

[61 FR 67883, Dec. 24, 1996, as amended at 64 FR 53268, Oct. 1, 1999]

Sec. 1152.13 Amendment of the system diagram map or narrative.

(a) Each carrier shall be responsible for maintaining the continuing
accuracy of its system diagram map and the accompanying line
descriptions or narrative. Amendments may be filed at any time and will
be subject to all carrier filing and publication requirements of Sec.
1152.12.
(b) By March 24, 1997, each carrier shall file with the Board a
revised and updated color-coded system diagram map and line descriptions
or narrative which shall be subject to the filing and publication
requirements of Sec. 1152.12. Thereafter, each carrier shall file
amendments as line designations change and update its map or narrative,
as appropriate. Also, each carrier shall file an updated or amended map
or narrative upon order of the Board. Each new rail carrier shall comply
with the requirements of this subsection within 60 days after it becomes
a carrier.
(c) The Board will reject an abandonment or discontinuance
application filed by a rail carrier if any part of the application
includes a line that has not been identified and described, by amendment
or otherwise, on the carrier's system diagram map or narrative, as
appropriate, as a line in category 1 (Sec. 1152.10(b)(1)) for at least
60 days.

Sec. 1152.14 Availability of data.

Each carrier shall provide to the designated state agency, upon
request, information concerning the net liquidation value (as defined in
Sec. 1152.34(c)) of any line placed in category 1 (Sec. 1152.10(b)(1))
on its system diagram

[[Page 219]]

map or narrative together with a description of such a line and any
appurtenant facilities and of their condition.

Sec. 1152.15 Reservation of jurisdiction.

49 U.S.C. 10903(c)(1) authorizes the Board, at its discretion, to
provide for designation of lines as ``potentially subject to
abandonment'' under standards which vary by region of the United States,
by railroad, or by group of railroads. The Board expressly reserves the
right to adopt such varying standards in the future.

Subpart C_Procedures Governing Notice, Applications, Financial
Assistance, Acquisition for Public Use, and Trail Use

Sec. 1152.20 Notice of intent to abandon or discontinue service.

(a) Filing and publication requirements. An applicant shall give
Notice of Intent to file an abandonment or discontinuance application by
complying with the following procedures:
(1) Filing. Applicant must serve its Notice of Intent on the Board,
by certified letter, in the format prescribed in Sec. 1152.21. The
Notice shall be filed in accordance with the time requirements of
paragraph (b) of this section.
(2) Service. Applicant must serve, by first-class mail (unless
otherwise specified), its Notice of Intent upon:
(i) Significant users of the line;
(ii) The Governor (by certified mail) of each state directly
affected by the abandonment or discontinuance. (For the purposes of this
section ``states directly affected'' are those in which any part of the
line sought to be abandoned is located).
(iii) The Public Service Commission (or equivalent agency) in these
states;
(iv) The designated state agency in these states;
(v) The State Cooperative Extension Service in these states;
(vi) The U.S. Department of Transportation (Federal Railroad
Administration);
(vii) Department of Defense (Military Surface Deployment and
Distribution Command, Transportation Engineering Agency, Railroads for
National Defense Program);
(viii) The U.S. Department of Interior (Recreation Resources
Assistance Division, National Park Service);
(ix) The U.S. Railroad Retirement Board;
(x) The National Railroad Passenger Corporation (``Amtrak'') (if
Amtrak operates over the involved line);
(xi) The U.S. Department of Agriculture, Chief of the Forest
Service; and
(xii) The headquarters of all duly certified labor organizations
that represent employees on the affected rail line.
(3) Posting. Applicant must post a copy of its Notice of Intent at
each agency station and terminal on the line to be abandoned. (If there
are no agency stations on the line, the Notice of Intent should be
posted at any agency station through which business for the involved
line is received or forwarded.)
(4) Newspaper publication. Applicant must publish its Notice of
Intent at least once during each of 3 consecutive weeks in a newspaper
of general circulation in each county in which any part of the involved
line is located.
(b) Time limits. (1) The Notice of Intent must be served at least 15
days, but not more than 30 days, prior to the filing of the abandonment
application;
(2) The Notice must be posted and fully published within the 30-day
period prior to the filing of the application; and
(3) The Notice must be filed with the Board either concurrently with
service or when the Notice is first published (whichever occurs first).
(c) Environmental and Historic Reports. Applicant must also submit
the Environmental and Historic Reports described at Sec. Sec. 1105.7
and 1105.8 at least 20 days prior to filing an application.

[61 FR 67883, Dec. 24, 1996, as amended at 68 FR 67810, Dec. 4, 2003; 83
FR 15079, Apr. 9, 2018]

Sec. 1152.21 Form of notice.

The Notice of Intent to abandon or to discontinue service shall be
in the following form:

STB No. AB ___(Sub-No. ___)

[[Page 220]]

Notice of Intent To Abandon or To Discontinue Service

(Name of Applicant) gives notice that on or about (insert date
application will be filed with the Board) it intends to file with the
Surface Transportation Board, Washington, DC 20423, an application for
permission for the abandonment of (the discontinuance of service on), a
line of railroad known as ___ extending from railroad milepost near
(station name) to (the end of line or rail milepost) near (station
name), which traverses through United States Postal Service ZIP Codes
(ZIP Codes), a distance of ___ miles, in [County(ies), State(s)]. The
line includes the stations of (list all stations on the line in order of
milepost number, indicating milepost location). The reason(s) for the
proposed abandonment (or discontinuance) is (are) ___ (explain briefly
and clearly why the proposed action is being undertaken by the
applicant). Based on information in our possession, the line (does)
(does not) contain federally granted rights-of-way. Any documentation in
the railroad's possession will be made available promptly to those
requesting it. This line of railroad has appeared on the system diagram
map or included in the narrative in category 1 since (insert date).
The interest of railroad employees will be protected by (specify the
appropriate conditions). The application will include the applicant's
entire case for abandonment (or discontinuance) (case in chief). Any
interested person, after the application is filed on (insert date), may
file with the Surface Transportation Board written comments concerning
the proposed abandonment (or discontinuance) or protests to it. These
filings are due 45 days from the date of filing of the application. All
interested persons should be aware that following any abandonment of
rail service and salvage of the line, the line may be suitable for other
public use, including interim trail use. Any request for a public use
condition under 49 U.S.C. 10905 (Sec. 1152.28 of the Board's rules) and
any request for a trail use condition under 16 U.S.C. 1247(d) (Sec.
1152.29 of the Board's rules) must also be filed within 45 days from the
date of filing of the application. Persons who may oppose the
abandonment or discontinuance but who do not wish to participate fully
in the process by appearing at any oral hearings or by submitting
verified statements of witnesses, containing detailed evidence, should
file comments. Persons interested only in seeking public use or trail
use conditions should also file comments. Persons opposing the proposed
abandonment or discontinuance that do wish to participate actively and
fully in the process should file a protest. Protests must contain that
party's entire case in opposition (case in chief) including the
following:
(1) Protestant's name, address and business.
(2) A statement describing protestant's interest in the proceeding
including:
(i) A description of protestant's use of the line;
(ii) If protestant does not use the line, information concerning the
group or public interest it represents; and
(iii) If protestant's interest is limited to the retention of
service over a portion of the line, a description of the portion of the
line subject to protestant's interest (with milepost designations if
available) and evidence showing that the applicant can operate the
portion of the line profitably, including an appropriate return on its
investment for those operations.
(3) Specific reasons why protestant opposes the application
including information regarding protestant's reliance on the involved
service [this information must be supported by affidavits of persons
with personal knowledge of the fact(s)].
(4) Any rebuttal of material submitted by applicant.
In addition, a commenting party or protestant may provide a
statement of position and evidence regarding:
(i) Intent to offer financial assistance pursuant to 49 U.S.C.
10904;
(ii) Environmental impact;
(iii) Impact on rural and community development;
(iv) Recommended provisions for protection of the interests of
employees;
(v) Suitability of the properties for other public purposes pursuant
to 49 U.S.C. 10905; and
(vi) Prospective use of the right-of-way for interim trail use and
rail banking under 16 U.S.C. 1247(d) and Sec. 1152.29.
A protest may demonstrate that: (1) the protestant filed a feeder
line application under 49 U.S.C. 10907; (2) the feeder line application
involves any portion of the rail line involved in the abandonment or
discontinuance application; (3) the feeder line application was filed
prior to the date the abandonment or discontinuance application was
filed; and (4) the feeder line application is pending before the Board.
Written comments and protests will be considered by the Board in
determining what disposition to make of the application. The commenting
party or protestant may participate in the proceeding as its interests
may appear.
If an oral hearing is desired, the requester must make a request for
an oral hearing and provide reasons why an oral hearing is necessary.
Oral hearing requests must be filed with the Board no later than 10 days
after the application is filed.
Those parties filing protests to the proposed abandonment (or
discontinuance)

[[Page 221]]

should be prepared to participate actively either in an oral hearing or
through the submission of their entire opposition case in the form of
verified statements and arguments at the time they file a protest.
Parties seeking information concerning the filing of protests should
refer to Sec. 1152.25.
Written comments and protests, including all requests for public use
and trail use conditions, should indicate the proceeding designation STB
No. AB ___ (Sub-No. ___) and must be filed with the Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board,
Washington, DC 20423-0001, no later than (insert the date 45 days after
the date applicant intends to file its application). Interested persons
may file a written comment or protest with the Board to become a party
to this abandonment (or discontinuance) proceeding. A copy of each
written comment or protest shall be served upon the representative of
the applicant (insert name, address, and phone number). Every comment or
protest shall be filed with the Board with a certificate of service.
Except as otherwise set forth in part 1152, each document filed with the
Board must be served on all parties to the abandonment proceeding. 49
CFR 1104.12(a).
The line sought to be abandoned (or discontinued) will be available
for subsidy or sale for continued rail use, if the Board decides to
permit the abandonment (or discontinuance), in accordance with
applicable laws and regulations (49 U.S.C. 10904 and 49 CFR 1152.27). No
subsidy arrangement approved under 49 U.S.C. 10904 shall remain in
effect for more than 1 year unless otherwise mutually agreed by the
parties (49 U.S.C. 10904(f)(4)(B)). Applicant will promptly provide upon
request to each interested party an estimate of the subsidy and minimum
purchase price required to keep the line in operation. The carrier's
representative to whom inquiries may be made concerning sale or subsidy
terms is (insert name and business address). Persons seeking further
information concerning abandonment procedures may contact the Surface
Transportation Board or refer to the full abandonment or discontinuance
regulations at 49 CFR part 1152. Questions concerning environmental
issues may be directed to the Board's Office of Environmental Analysis.
A copy of the application will be available for public inspection on
or after (insert date abandonment application is to be filed with Board)
at each agency station or terminal on the line proposed to be abandoned
or discontinued [if there is no agency station on the line, the
application shall be deposited at any agency station through which
business for the line is received or forwarded (insert name, address,
location, and business hours)]. The carrier shall furnish a copy of the
application to any interested person proposing to file a protest or
comment, upon request.
An environmental assessment (EA) (or environmental impact statement
(EIS), if necessary) prepared by the Office of Environmental Analysis
will be served upon all parties of record and upon any agencies or other
persons who commented during its preparation. Any other persons who
would like to obtain a copy of the EA (or EIS) may contact the Office of
Environmental Analysis. EAs in these abandonment proceedings normally
will be made available within 33 days of the filing of the application.
The deadline for submission of comments on the EA will generally be
within 30 days of its service. The comments received will be addressed
in the Board's decision. A supplemental EA or EIS may be issued where
appropriate.

[75 FR 30712, June 2, 2010, as amended at 83 FR 15079, Apr. 9, 2018; 84
FR 12945, Apr. 3, 2019]

Sec. 1152.22 Contents of application.

Applications for the abandonment of railroad lines or the
discontinuance of rail service shall contain the following information,
including workpapers and supporting documents, and each paragraph (a)
through (j) of this section shall be attested to by a person having
personal knowledge of the matters contained therein:
(a) General. (1) Exact name of applicant.
(2) Whether applicant is a common carrier by railroad subject to 49
U.S.C. Subtitle IV, chapter 105.
(3) Relief sought (abandonment of line or discontinuance of
service).
(4) Detailed map of the subject line on a sheet not larger than 8 x
10\1/2\ inches, drawn to scale, and with the scale shown thereon. The
map must show, in clear relief, the exact location of the rail line to
be abandoned or over which service is to be discontinued and its
relation to other rail lines in the area, highways, water routes, and
population centers.
(5) Reference to inclusion of the rail line to be abandoned or over
which service is to be discontinued on the carrier's system diagram map
or narrative, in compliance with Sec. Sec. 1152.10 through 1152.13, and
the date upon which such line was first listed on the system diagram map
or included in the narrative in category 1 in accordance with Sec.
1152.10(b)(1). A copy of the line

[[Page 222]]

description which accompanies the system diagram map shall also be
submitted.
(6) Detailed statement of reasons for filing application.
(7) Name, title, and address of representative of applicant to whom
correspondence should be sent.
(8) List of all United States Postal Service ZIP Codes that the line
proposed for abandonment traverses.
(b) Condition of properties. The present physical condition of the
line including any operating restrictions and estimate of deferred
maintenance and rehabilitation costs (e.g., number of ties that need
replacing, miles of rail that need replacing and/or new ballast, bridge
repairs or replacement needed, and estimated labor expenses necessary to
upgrade the line to minimum Federal Railroad Administration class 1
safety standards). The bases for the estimates shall be stated with
particularity, and workpapers shall be filed with the application.
(c) Service provided. Description of the service performed on the
line during the Base Year (as defined by Sec. 1152.2(c)), including the
actual:
(1) Number of trains operated and their frequency.
(2) Miles of track operated (include main line and all railroad-
owned sidings).
(3) Average number of locomotive units operated.
(4) Total tonnage and carloads by each commodity group on the line.
(5) Overhead or bridge traffic by carload commodity group that will
not be retained by the carrier.
(6) Average crew size.
(7) Level of maintenance.
(8) Any important changes in train service undertaken in the 2
calendar years immediately preceding the filing of the application.
(9) Reasons for decline in traffic, if any, in the best judgment of
applicant.
(d) Revenue and cost data. (1) Computation of the revenues
attributable and avoidable costs for the line to be abandoned for the
Base Year (as defined by Sec. 1152.2(c) and to the extent such branch
level data are available), in accordance with the methodology prescribed
in Sec. Sec. 1152.31 through 1152.33, as applicable, and submitted in
the form called for in Sec. 1152.36, as Exhibit 1.
(2) The carrier shall compute an estimate of the future revenues
attributable, avoidable costs and reasonable return on the value for the
line to be abandoned, for the Forecast Year (as defined in Sec.
1152.2(h)) in the form called for in Exhibit 1. The carrier shall fully
support and document all dollar amounts shown in the Forecast Year
column including an explanation of the rationale and key assumptions
used to determine the Forecast Year amounts.
(3) The carrier shall also compute an ``Estimated Subsidy Payment''
for the Base Year in the form called for in Exhibit 1 and an alternate
payment to reflect:
(i) Increases or decreases in attributable revenues and avoidable
costs projected for the subsidy year; and
(ii) An estimate, in reasonable detail, of the cash income tax
reductions, Federal and state, to be realized in the subsidy year. The
bases for the adjustment, e.g., rate increase, changes in traffic level,
necessary maintenance to comply with minimum Federal Railroad
Administration class 1 safety standards, shall be stated with
particularity.
(e) Rural and community impact. (1) The name and population
(identify source and date of figures) of each community in which a
station on the line is located.
(2) Identification of significant users, as defined in Sec.
1152.2(l), by name, address, principal commodity, and by tonnage and
carloads for each of the 2 calendar years immediately preceding the
filing of the abandonment or discontinuance application, for that part
of the current year for which information is available, and for the Base
Year. In addition, the total tonnage and carloads for each commodity
group originating and/or terminating on the line segment shall also be
shown for the same time periods as those of the significant users.
(3) General description of the alternate sources of transportation
service (rail, motor, water, air) available, and the highway network in
the proximate area.

[[Page 223]]

(4) Statement of whether the properties proposed to be abandoned are
appropriate for use for other public purposes, including roads or
highways, other forms of mass transportation, conservation, energy
production or transmission, or recreation. If the applicant is aware of
any restriction on the title to the property, including any reversionary
interest, which would affect the transfer of title or the use of
property for other than rail purposes, this shall be disclosed.
(f) Environmental impact. The applicant shall submit information
regarding the environmental impact of the proposed abandonment or
discontinuance in compliance with Sec. Sec. 1105.7 and 1105.8. If
certain information required by the environmental regulations duplicates
information required elsewhere in the application, the environmental
information requirements may be met by a specific reference to the
location of the information elsewhere in the application.
(g) Passenger service. If passenger service is provided on the line,
the applicant shall state whether appropriate steps have been taken for
discontinuance pursuant to the Rail Passenger Service Act. (45 U.S.C.
501 et seq.)
(h) Additional information. The applicant shall submit such
additional information to support its application as the Board may
require.
(i) Draft Federal Register notice. The applicant shall submit a
draft notice of its application to be published by the Board. The Board
will publish the notice in the Federal Register within 20 days of the
application's filing with the Board. The draft notice shall be in the
form set forth below:

STB No. AB-____ (Sub-No. ____)
Notice of Application to Abandon or to Discontinue Service

On (insert date application was filed with the Board) (name of
applicant) filed with the Surface Transportation Board, Washington, D.C.
20423, an application for permission for the abandonment of (the
discontinuance of service on) a line of railroad known as ______
extending from railroad milepost near (station name) to (the end of line
or rail milepost) near (station name), a distance of ______ miles, in
[County(ies), State(s)]. The line includes the stations of (list all
stations on the line in order of milepost number, indicating milepost
location) and traverses through ______ (ZIP Codes) United States Postal
Service ZIP Codes.

The line (does) (does not) contain federally granted rights-of-way.
Any documentation in the railroad's possession will be made available
promptly to those requesting it. The applicant's entire case for
abandonment (or discontinuance) (case in chief) was filed with the
application.
This line of railroad has appeared on the applicant's system diagram
map or has been included in its narrative in category 1 since (insert
date).
The interest of railroad employees will be protected by (specify the
appropriate conditions).
Any interested person may file with the Surface Transportation Board
written comments concerning the proposed abandonment (or discontinuance)
or protests (including the protestant's entire opposition case), within
45 days after the application is filed. All interested persons should be
aware that following any abandonment of rail service and salvage of the
line, the line may be suitable for other public use, including interim
trail use. Any request for a public use condition under 49 U.S.C. 10905
(Sec. 1152.28 of the Board's rules) and any request for a trail use
condition under 16 U.S.C. 1247(d) (Sec. 1152.29 of the Board's rules)
must be filed within 45 days after the application is filed. Persons who
may oppose the abandonment or discontinuance but who do not wish to
participate fully in the process by appearing at any oral hearings or by
submitting verified statements of witnesses, containing detailed
evidence should file comments. Persons interested only in seeking public
use or trail use conditions should also file comments. Persons opposing
the proposed abandonment or discontinuance that do wish to participate
actively and fully in the process should file a protest.
In addition, a commenting party or protestant may provide:
(i) An offer of financial assistance, pursuant to 49 U.S.C. 10904
(due 120 days after the application is filed or 10 days after the
application is granted by the Board, whichever occurs sooner);
(ii) Recommended provisions for protection of the interests of
employees;
(iii) A request for a public use condition under 49 U.S.C. 10905;
and
(iv) A statement pertaining to prospective use of the right-of-way
for interim trail use and rail banking under 16 U.S.C. 1247(d) and Sec.
1152.29.
Parties seeking information concerning the filing of protests should
refer to Sec. 1152.25.
Written comments and protests, including all requests for public use
and trail use conditions, must indicate the proceeding designation STB
No. AB __ (Sub-No. __) and should be filed with the Chief, Section of
Administration, Office of Proceedings, Surface

[[Page 224]]

Transportation Board (Board), Washington, DC 20423-0001, no later than
(insert the date 45 days after the date applicant intends to file its
application). Interested persons may file a written comment or protest
with the Board to become a party to this abandonment (or discontinuance)
proceeding. A copy of each written comment or protest shall be served
upon the representative of the applicant (insert name, address, and
phone number). Every comment or protest shall be filed with the Board
with a certificate of service. Except as otherwise set forth in part
1152, every document filed with the Board must be served on all parties
to the abandonment proceeding. 49 CFR 1104.12(a).
The line sought to be abandoned (or discontinued) will be available
for subsidy or sale for continued rail use, if the Board decides to
permit the abandonment (or discontinuance), in accordance with
applicable laws and regulations (49 U.S.C. 10904 and 49 CFR 1152.27). No
subsidy arrangement approved under 49 U.S.C. 10904 shall remain in
effect for more than 1 year unless otherwise mutually agreed by the
parties (49 U.S.C. 10904(f)(4)(B)). Applicant will promptly provide upon
request to each interested party an estimate of the subsidy and minimum
purchase price required to keep the line in operation. The carrier's
representative to whom inquiries may be made concerning sale or subsidy
terms is (insert name and business address).
Persons seeking further information concerning abandonment
procedures may contact the Surface Transportation Board or refer to the
full abandonment or discontinuance regulations at 49 CFR part 1152.
Questions concerning environmental issues may be directed to the Board's
Office of Environmental Analysis.
An environmental assessment (EA) (or environmental impact statement
(EIS), if necessary) prepared by the Office of Environmental Analysis
will be served upon all parties of record and upon any agencies or other
persons who commented during its preparation. Any other persons who
would like to obtain a copy of the EA (or EIS) may contact the Office of
Environmental Analysis. EAs in these abandonment proceedings normally
will be made available within 33 days of the filing of the application.
The deadline for submission of comments on the EA will generally be
within 30 days of its service. The comments received will be addressed
in the Board's decision. A supplemental EA or EIS may be issued where
appropriate.

(j) Verification. The original application shall be executed and
verified in the form set forth below by an officer of the carrier having
knowledge of the facts and matters relied upon.

Verification

State of ______ ss.
County of ______________
_________________ (Name of affiant) makes oath and says that (s)he
is the ______ (title of affiant) of the ______ (name of applicant)
applicant herein; that (s)he has been authorized by the applicant (or as
appropriate, a court) to verify and file with the Surface Transportation
Board the foregoing application in STB AB-__ (Sub-No. __); that (s)he
has carefully examined all of the statements in the application as well
as the exhibits attached thereto and made a part thereof; that (s)he has
knowledge of the facts and matters relied upon in the application; and
that all representations set forth therein are true and correct to the
best of his(her) knowledge, information, and belief.
(Signature)

Subscribed and sworn to before me ______ in and for the State and
County above named, this ______ day of __________, 19__.

My Commission expires

[61 FR 67883, Dec. 24, 1996, as amended at 74 FR 52909, Oct. 15, 2009;
83 FR 15079, Apr. 9, 2018; 84 FR 12945, Apr. 3, 2019]

Sec. 1152.23 [Reserved]

Sec. 1152.24 Filing and service of application.

(a) The application shall be filed with the Chief, Section of
Administration, Office of Proceedings, Washington, DC 20423-0001. The
application shall bear the date and signature and shall be complete in
itself. The applicable filing fee must be paid by check, money order, or
through the Board's electronic payment system (see 49 CFR part 1002). If
the applicant carrier is in bankruptcy, the application shall also be
filed on the bankruptcy court.
(b) The applicant shall tender with its application an affidavit
attesting to its compliance with the notice requirement of Sec.
1152.20. The affidavit shall include the dates of service, posting, and
publication of the notice.
(c) When the application is filed with the Board, the applicant
shall serve, by first class mail, a copy on the Governor, the Public
Service Commission (or equivalent agency), and the designated state
agency of each state in which any part of the line of railroad sought to
be abandoned or discontinued is situated. A copy of the application will
be available for public inspection, on or after the date the abandonment

[[Page 225]]

application is filed with the Board, at each agency station or terminal
on the line proposed to be abandoned or discontinued (if there is no
agency station on the line, the application shall be deposited at any
agency station through which business for the line is received or
forwarded). A certificate of service shall be promptly filed with the
Board.
(d) The applicant shall promptly furnish by first class mail a copy
of the application to any interested person proposing to file a written
comment or protest upon request. A certificate of service shall promptly
be filed with the Board.
(e)(1) The Board shall reject any abandonment or discontinuance
application which does not substantially conform to the regulations in
this subpart C regarding notice, form, and content, or which applies to
a line which has not properly been published on the carrier's system
diagram map (or included in a narrative in the case of a Class III
carrier), in conformance with the regulations of subpart B of this part.
(2) Upon the filing of an abandonment or discontinuance application,
the Board will review the application and determine whether it conforms
with all applicable regulations. If the application is substantially
incomplete or its filing otherwise defective, the Board shall reject the
application for stated reasons by order (which order will be
administratively final) within 20 days from the date of filing of the
application. If the Board does not reject the application, notice of the
filing of the application shall be published in the Federal Register by
the Board, through the Director of the Office of Proceedings, within 20
days of the filing of the application.
(3) If the application is rejected, a revised application may be
submitted, and the Board will determine whether the resubmitted
application conforms with all prescribed regulations. A properly revised
application submitted within 60 days of the order rejecting the
incomplete or improper application need not be subjected to new notice
and publication under Sec. 1152.20, unless the defect causing the
rejection was in the notice and/or publication. A revised application
submitted after such 60-day period must be newly published and noticed.
(4) The resubmission of an abandonment or discontinuance application
shall be considered a de novo filing for the purposes of computation of
the time period for filing an offer of financial assistance under 49
U.S.C. 10904, and for other time periods prescribed in the regulations
contained in this part (49 CFR part 1152), provided, that a resubmitted
application is deemed complete and proper.
(5) An applicant may seek waiver of specific regulations listed in
subpart C of this part by filing a petition for waiver with the Board. A
decision by the Director of the Office of Proceedings granting or
denying a waiver petition will be issued within 30 days of the date the
petition is filed. Appeals from the Director's decision will be decided
by the entire Board. If waiver is not obtained prior to the filing of
the application, the application may be subject to rejection under
paragraphs (e) (1) and (2) of this section.
(f) As provided in Sec. 1152.29(e)(2), rail carriers authorized to
abandon a line under 49 U.S.C. 10903 must file with the Board a notice
that abandonment has been consummated.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34669, June 27, 1997;
64 FR 53268, Oct. 1, 1999; 74 FR 52909, Oct. 15, 2009; 84 FR 12945, Apr.
3, 2019]

Sec. 1152.25 Participation in abandonment or discontinuance proceedings.

(a) Public participation--(1) Protests and comments. Interested
persons may become parties to an abandonment or discontinuance
proceeding by filing written comments or protests with the Board. Any
request for a public use condition under 49 U.S.C. 10905 (Sec. 1152.28
of the Board's rules) and any request for a trail use condition under 16
U.S.C. 1247(d) (Sec. 1152.29 of the Board's rules) must be included in
these filings. Persons who may oppose the abandonment or discontinuance,
but who do not wish to participate fully in the process by appearing at
any oral hearings or by submitting verified statements of witnesses
containing detailed evidence, should file comments. Persons interested
only in seeking public use or trail

[[Page 226]]

use conditions should also file comments. Persons opposing the proposed
abandonment or discontinuance that do wish to participate actively and
fully in the process should file a protest. Protests shall include all
evidence and argument in support of protestant's position (protestant's
case in chief). Protests must contain the following information:
(i) Protestant's name, address and business.
(ii) A statement describing protestant's interest in the proceeding
including:
(A) A description of protestant's use of the line;
(B) If protestant does not use the line, information concerning the
group or public interest it represents; and
(C) If protestant's interest is limited to the retention of service
over a portion of the line, a description of the portion of the line
subject to protestant's interest (with milepost designations if
available) and evidence showing that the applicant can operate the
portion of the line profitably, including an appropriate return on its
investment for those operations.
(iii) Specific reasons why protestant opposes the application
including information regarding protestant's reliance on the involved
service (this information must be supported by affidavits of persons
with personal knowledge of the fact(s)).
(iv) Any rebuttal of material submitted by applicant.
(v) Any request for a public use condition under 49 U.S.C. 10905
(Sec. 1152.28 of the Board's rules) and any request for a trail use
condition under 16 U.S.C. 1247(d) (Sec. 1152.29 of the Board's rules).
(2) Additional information. In addition to the information required
in paragraph (a)(1) of this section, a commenting party or protestant
may provide a statement of position and a summary of evidence regarding:
(i) Intent to offer financial assistance under 49 U.S.C. 10904;
(ii) Environmental impact;
(iii) Impact on rural and community development;
(iv) Recommended provisions for protection of the interests of
employees;
(v) A request for a public use condition under 49 U.S.C. 10905; and
(vi) Prospective use of the right-of-way for interim trail use and
rail banking under 16 U.S.C. 1247(d) and 49 CFR 1152.29.
(3) Feeder line application for all or part of the line subject to
the abandonment application. In addition to the information required in
paragraphs (a)(1) and (2) of this section, a commenting party or
protestant must provide information that:
(i) The protestant filed a feeder line application under 49 U.S.C.
10907 (or former 49 U.S.C. 10910);
(ii) The feeder line application involves any portion of the rail
line involved in the abandonment or discontinuance application;
(iii) The feeder line application was filed prior to the date the
abandonment or discontinuance application was filed; and
(iv) The feeder line application is pending before the Board.
(b) Employee or employee representative participation. Employees or
their representatives may file protests or comments to an application.
However, because the Board will impose employee protective conditions
under 49 U.S.C. 10903(b)(2) if an application is granted, employees and
their representatives need not file comments or protests seeking this
protection.
(c) Filing and service of written comments, protests, along with
evidence and argument, and replies. (1) Written comments and protests,
as well as public use and trail use requests, shall be filed with the
Board (the Chief, Section of Administration, Office of Proceedings,
Surface Transportation Board, Washington, DC 20423-0001) within 45 days
of the filing with the Board of an abandonment or discontinuance
application.
(2) A copy of each written comment or protest shall be served on
applicant or its representative at the time of filing with the Board. If
the applicant carrier is in bankruptcy, each comment or protest shall
also be filed on the Bankruptcy Court. Each filing shall contain a
certificate of service.
(3) Replies or rebuttal to written comments and protests shall be
filed and served by applicants no later than 60 days after the filing of
the application.

[[Page 227]]

(d) Time limits. (1) Pleadings, requests or other papers or
documents (including any comments or protests and any appeal from a
Board decision) required or permitted to be filed under this part must
be received for filing at the Board's Offices at Washington, DC within
the time limits, if any, for such filing. The date of receipt at the
Board and not the date of deposit in the mail is determinative,
provided, however, that if such document is mailed by certified,
registered, or express mail, postmarked at least 3 days prior to the due
date, it will be accepted as timely filed.
(2) In computing any time period prescribed or allowed by this part,
the day of the act, event, or default after which the designated period
of time begins to run is not to be included.
(3) Any filing under this part which falls due on a Saturday,
Sunday, or a legal holiday in the District of Columbia, may be filed at
the Board by the end of the next day which is neither a Saturday,
Sunday, nor a holiday, except as indicated in paragraph (d)(4) of this
section. A half holiday shall not be considered as a holiday.
(4) Offers of financial assistance made pursuant to Sec. 1152.27(c)
must be filed on or before their statutory or regulatory due date as
computed in paragraph (d)(2) of this section, regardless of whether that
date is a Saturday, Sunday, or a legal holiday in the District of
Columbia.
(5) The Board will reject any pleading filed after its due date
unless good cause is shown why the pleading is filed late.
(6) Oral hearings. (i) Any oral hearing request is due 10 days after
the filing of the application. The Board, through the Director of the
Office of Proceedings, will issue a decision on any oral hearing request
within 15 days after the filing of the application. If the Board decides
to hold an oral hearing, the oral hearing shall be for the primary
purpose of cross examination of witnesses filing verified statements in
the proceeding. Any direct testimony, other than applicant's rebuttal
evidence, shall be received at the discretion of the hearing officer.
(ii) In addition to that contained in the application, the
submission of written evidence prior to the commencement of the hearing
shall be established by the Board.
(iii) Post hearing legal briefs shall be due 10 days after the close
of the oral hearing, or at an earlier date if established at the hearing
by the hearing officer.
(e) Appellate procedures--(1) Scope of rule. Except as specifically
indicated below, these appellate procedures are to be followed in
abandonment and discontinuance proceedings in lieu of the general
procedures at 49 CFR 1115. Appeals of initial decisions of the Director
of the Office of Proceedings determining:
(i) Whether offers of financial assistance satisfy the standard of
49 U.S.C. 10904(d) for purposes of instituting negotiations or, in
exemption proceedings, for purposes of partial revocation and
instituting negotiations;
(ii) Whether partially to revoke or to reopen abandonment exemptions
authorized, respectively, under 49 U.S.C. 10502 and 49 CFR part 1152
subpart F for the purpose of imposing public use conditions under the
criteria in 49 CFR 1152.28 and/or conditions limiting salvage of the
rail properties for environmental and historic preservation purposes;
and
(iii) The applicability and administration of the Trails Act [16
U.S.C. 1247(d)] in abandonment proceedings under 49 U.S.C. 10903 (and
abandonment exemption proceedings), issued pursuant to delegations of
authority at 49 CFR 1011.7(a)(2)(iv) and (v), will be acted on by the
entire Board as set forth at 49 CFR 1011.2(a)(7). Any appeals, and
replies to appeals, under this section must be filed with the Board.
(2) Appeals criteria. Appeals to the Board's decision in abandonment
or discontinuance proceedings will not be entertained. Those decisions
are administratively final upon the date they are served.
(i) Parties seeking further administrative action may file a
petition to reopen the proceeding under paragraph (e)(4) of this
section. If an abandonment or discontinuance is granted and a party
wishes the Board to have the opportunity to consider a petition to
reopen before the abandonment or discontinuance authorization becomes
effective, it must file its petition within

[[Page 228]]

15 days after the administratively final decision is served together
with a request for a stay of effectiveness under paragraph (e)(7) of
this section. If such a petition to reopen and stay request is received
within that 15-day period, any replies to the petition to reopen must be
filed no later than 25 days after the date the decision is served, and
any reply to the stay request must reach the Board no later than 5 days
after the stay request is filed.
(ii) The Board will grant a petition to reopen only upon a showing
that the action would be affected materially because of new evidence,
changed circumstances, or material error.
(3) Form. A petition to reopen and any reply shall not exceed 30
pages in length, including the index of subject matter, argument, and
appendices or other attachments.
(4) Petitions to reopen administratively final actions. A person may
file with the Board a petition to reopen any administratively final
action of the Board. A petition to reopen shall state in detail the
respects in which the proceeding involves material error, new evidence,
or substantially changed circumstances.
(5) Judicial review. (i) Parties may seek judicial review of a Board
action in an abandonment or discontinuance proceeding on the day the
action of the Board becomes final.
(ii) If a petition seeking reopening is filed under this section,
before or after a petition seeking judicial review is filed with the
courts, the Board will act upon the petition after advising the court of
its pendency unless action might interfere with the court's
jurisdiction.
(6) Petitions to vacate. In the event of procedural defects (such as
the loss of a properly filed protest, the failure of the applicant to
afford the public the requisite notice of its proposed abandonment,
etc.), the Board will entertain petitions to vacate the abandonment or
discontinuance authorization. Any petitions to vacate must be filed with
the Board.
(7) Petitions to stay. (i) The filing of a petition to reopen shall
not stay the effect of a prior action. Any petition to stay must be
filed with the Board.
(ii) A petition to reopen an administratively final action may be
accompanied by a petition for a stay of the effectiveness of the
abandonment or discontinuance. As provided in paragraph (e)(2) of this
section, a petition to reopen must be accompanied by a stay request if
the party wishes the Board to have the opportunity to consider the
petition to reopen before the abandonment or discontinuance
authorization becomes final.
(iii) A party may petition for a stay of the effectiveness of
abandonment or discontinuance authorization pending a request for
judicial review. The reasons for the desired relief shall be stated in
the petition, and the petition shall be filed not less than 15 days
prior to the effective date of the abandonment authorization. No reply
need be filed. If a party elects to file a reply, the reply must reach
the Board no later than 5 days after the petition is filed.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34669, June 27, 1997;
74 FR 52909, Oct. 15, 2009; 84 FR 12945, Apr. 3, 2019]

Sec. 1152.26 Board determination under 49 U.S.C. 10903.

(a) The following schedule shall govern the process for Board
consideration and decisions in abandonment and discontinuance
application proceedings from the time the application is filed until the
time of the Board's decision on the merits:

Day 0--Application filed, including applicant's case in chief.
Day 10--Due date for oral hearing requests.
Day 15--Due date for Board decision on oral hearing requests.
Day 20--Due date for Notice of Application to be published in the
Federal Register.
Day 45--Due date for protests and comments, including opposition case in
chief, and for public use and trail use requests.
Day 60--Due date for applicant's reply to opposition case and for
applicant's response to trail use requests.
Day 110--Due date for service of decision on the merits.
Day 120--Due date for offers of financial assistance, except that if an
application has been granted by decision issued sooner than Day 110, the
offer of financial assistance shall be due 10 days after service of the
decision granting the application.

[[Page 229]]

(b) If an application for abandonment or discontinuance is filed by
a bankrupt railroad, the Board shall base its decision (Report to the
Bankruptcy Court) on the application and any responses to the
application that are filed. In each such instance, the Board shall
establish a reasonable period of time for filing responses to the
application so that public input can be included in the Board's decision
(Report) and so that the Board will be able to meet a deadline imposed
or requested by the Bankruptcy Court. Because Board action on
abandonment applications by bankrupt railroads is advisory only, no
environmental filings or analysis is necessary. See 49 CFR 1105.5(c).

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997]

Sec. 1152.27 Financial assistance procedures.

(a) Provision of information. An applicant must provide promptly
upon request to a party considering an offer of financial assistance to
continue existing rail service that has proven itself preliminarily
financially responsible under paragraph (c)(1)(ii) of this section, and
concurrently to the Board, the following:
(1)(i) In an application or petition for exemption proceeding, an
estimate of the annual subsidy and minimum purchase price required to
keep the line or a portion of the line in operation;
(ii) In a class exemption proceeding, either an estimate of the
annual subsidy or the minimum purchase price, depending upon the type of
financial assistance indicated in the potential offeror's formal
expression of intent submitted under paragraph (c)(2)(i) of this
section;
(2) Its most recent reports on the physical condition of the
involved line; and
(3) Traffic, revenue, and other data necessary to determine the
amount of annual financial assistance that would be required to continue
rail transportation over that part of the railroad line. In an exemption
proceeding, the data to be provided must at a minimum include the
carrier's estimate of the net liquidation value of the line, with
supporting data reflecting available real estate appraisals, assessments
of the quality and quantity of track materials in a line, and removal
cost estimates (including the cost of transporting removed materials to
point of sale or point of storage for relay use), and, if an offer of
subsidy is contemplated, an estimate of the cost of rehabilitating the
line to Federal Railroad Administration class 1 Safety Standards (49 CFR
part 213).
(b) Federal Register notice--(1) Abandonment and discontinuance
applications. The Federal Register publication, which gives notice of
the filing of the application 20 days after the application is filed,
will serve as notice to persons intending to offer financial assistance
to assure continued rail service under 49 U.S.C. 10904 and these
regulations as they relate to abandonment and discontinuance
applications. Offers of financial assistance will be due 120 days after
the application is filed or 10 days after a decision granting the
application is served, whichever occurs sooner.
(2) Exemption proceedings. (i) If a petition for individual
exemption from the prior approval requirements of 49 U.S.C. 10903 is
filed with the Board for abandonment or discontinuance of a line of
railroad, the Board will publish notice of the petition in the Federal
Register within 20 days of the filing of the petition. The Federal
Register publication will serve as notice to persons with a potential
interest in providing financial assistance to assure continued rail
service on the line under 49 U.S.C. 10904 and these regulations as they
relate to exempt abandonments and discontinuances. Offers of financial
assistance will be due 120 days after the filing of the petition for
exemption or 10 days after service of a Board decision granting the
exemption, whichever occurs sooner.
(ii) If a notice of exemption is filed under the class exemption,
the Board will publish notice of the exemption in the Federal Register
within 20 days of filing. The Federal Register publication will serve as
notice to persons with a potential interest in providing financial
assistance to assure continued rail service on the line under 49 U.S.C.
10904 and these regulations as they relate to exempt abandonments and
discontinuances. Offers of financial

[[Page 230]]

assistance will be due no later than 30 days after the date of the
Federal Register publication giving notice of the exemption.
(c) Submission of financial assistance offer--(1) Abandonment and
discontinuance applications and petitions for exemption--(i) Expression
of intent to file offer. Persons with a potential interest in providing
financial assistance must, no later than 45 days after the Federal
Register publication described in paragraph (b)(1) of this section or no
later than 10 days after the Federal Register publication described in
paragraph (b)(2)(i) of this section, submit to the carrier and the Board
a formal expression of their intent to file an offer of financial
assistance, indicating the type of financial assistance they wish to
provide (i.e., subsidy or purchase) and demonstrating that they are
preliminarily financially responsible as described in paragraph
(c)(1)(ii) of this section. Such submissions are subject to the filing
requirements of Sec. 1152.25(d)(1) through (d)(3).
(ii) Preliminary financial responsibility. Persons submitting an
expression of intent to file an offer of financial assistance as
described in paragraph (c)(1)(i) or paragraph (c)(2)(i) of this section
must demonstrate that they are financially responsible, under the
definition set forth in paragraph (c)(1)(iv)(B) of this section, for the
calculated preliminary financial responsibility amount of the rail line
they seek to subsidize or purchase. If they seek to subsidize, the
preliminary financial responsibility amount shall be $4,000
(representing a standard annual per-mile maintenance cost) times the
number of miles of track. If they seek to purchase, the preliminary
financial responsibility amount shall be the sum of the rail steel scrap
price per ton (dated within 30 days of the submission of the expression
of intent), times 132 short tons per track mile or 117.857 long tons per
track mile, times the length of the line in miles, plus $4,000 times the
number of miles of track times two. Persons submitting an expression of
intent must provide evidentiary support for their calculations. If the
Board does not issue a decision regarding the preliminary financial
responsibility demonstration within 10 days of receipt of the expression
of intent, the party submitting the expression of intent will be
presumed to be preliminarily financially responsible and, upon request,
the applicant must provide the information required under paragraph (a)
of this section. This presumption does not create a presumption that the
party will be financially responsible for an offer submitted under
paragraph (c)(1)(iv) of this section.
(iii) Service and filing. An offeror must serve its offer of
assistance on the carrier owning and operating the line and all parties
to the abandonment or discontinuance application or exemption
proceeding. The offer must be filed concurrently with the Chief, Section
of Administration, Office of Proceedings, Surface Transportation Board,
Washington, DC 20423-0001.
(A) An offer may be filed and served at any time after the filing of
the abandonment or discontinuance application or petition for exemption.
Once a decision is served granting an application or petition for
exemption, however, the Board must be notified that an offer has
previously been submitted.
(B) An offer, or notification of a previously filed offer, must be
filed and served no later than 10 days after service of the Board
decision granting the application or petition for exemption. This filing
and service is subject to the requirements of 49 CFR 1152.25 (d)(1),
(d)(2), and (d)(4).
(C) If, after a bona fide request, applicant or petitioner has
failed to provide a potential offeror promptly with the information
required under paragraph (a) of this section and if that information is
not contained in the application or petition, the Board will entertain
petitions to toll the 10-day period for submitting offers of financial
assistance under paragraph (c)(1) of this section. Petitions must be
filed with the Board within 5 days after service of the decision
granting the application or petition for exemption. Petitions should
include copies of the prior written request for information or an
accurate outline of the specific information that was orally requested.
Replies to these petitions must be filed within 10 days after service of
the decision granting the application or petition for exemption. These
petitions and replies must

[[Page 231]]

be filed on or before their actual due date under 49 CFR 1152.25(d)(4).
The Board will issue a decision on petitions within 15 days after
service of the decision granting the application or petition for
exemption.
(iv) Contents of offer. The offeror shall set forth its offer in
detail. The offer must:
(A) Identify the line, or the portion of the line, in question;
(B) Demonstrate that the offeror is financially responsible; that
is, that it has or within a reasonable time will have the financial
resources to fulfill proposed contractual obligations. Examples of
documentation the Board will accept as evidence of financial
responsibility include income statements, balance sheets, letters of
credit, profit and loss statements, account statements, financing
commitments, and evidence of adequate insurance or ability to obtain
adequate insurance. Examples of documentation the Board will not accept
as evidence of financial responsibility include the ability to borrow
money on credit cards and evidence of non-liquid assets an offeror
intends to use as collateral. Governmental entities will be presumed to
be financially responsible;
(C) Explain the disparity between the offeror's purchase price or
subsidy if it is less than the carrier's estimate under paragraph (a)(1)
of this section, and explain how the offer of subsidy or purchase is
calculated.
(D) Demonstrate that the offeror has placed in escrow with a
reputable financial institution funds equaling 10% of the preliminary
financial responsibility amount calculated pursuant to paragraph
(c)(1)(ii) of this section. Governmental entities are exempt from this
requirement;
(E) Demonstrate that there is a continued need for rail service on
the line, or portion of the line, in question. Examples of evidence to
be provided include: Evidence of a demonstrable commercial need for
service (as reflected by support from shippers or receivers on the line
or other evidence of an immediate and significant commercial need);
evidence of community support for continued rail service; evidence that
acquisition of freight operating rights would not interfere with current
and planned transit services; and evidence that continued service is
operationally feasible;
(F) Identify the offeror and provide a mailing address, either
business or personal, and other contact information including phone
number and email address as available, for the offeror or a
representative;
(G) If the offeror is a legal entity, include the entity's full
name, state of organization or incorporation, and a description of the
ownership of the entity; and
(H) If multiple parties seek to make a single offer of financial
assistance, clearly identify which entity or individual will assume the
common carrier obligation if the offer is successful, and clearly
describe how the parties will allocate responsibility for financing the
subsidy or purchase of the line and, if purchased, the operation of the
line.
(2) Class exemption proceedings--(i) Expression of intent to file
offer. Persons with a potential interest in providing financial
assistance must, no later than 10 days after the Federal Register
publication described in paragraph (b)(2)(ii) of this section, submit to
the carrier and the Board a formal expression of their intent to file an
offer of financial assistance, indicating the type of financial
assistance they wish to provide (i.e., subsidy or purchase) and
demonstrating that they are preliminarily financially responsible as
described in paragraph (c)(1)(ii) of this section. Such submissions are
subject to the filing requirements of Sec. 1152.25(d)(1) through
(d)(3). Submission of a formal expression of intent under this
subsection will automatically stay the effective date of the notice of
exemption under the class exemption for 40 days (normally, this will be
10 days beyond the date stated in the Federal Register publication).
(ii) Service and filing. An offeror must serve its offer of
assistance on the carrier that instituted the exempt filing as well as
all other parties to the proceeding. The offer must be filed
concurrently with the Chief, Section of Administration, Office of
Proceedings, Surface Transportation Board, Washington, DC 20423-0001.

[[Page 232]]

(A) An offer may be filed and served at any time after the filing of
the notice of exemption. Once a notice of exemption is published in the
Federal Register, however, the Board must be notified that an offer has
previously been submitted.
(B) An offer, or notification of a previously filed offer, must be
filed and served no later than 30 days after the Federal Register
publication described in paragraph (b)(2)(ii) of this section. This
filing and service is subject to the requirements of 49 CFR
1152.25(d)(1), (d)(2), and (d)(4).
(C) If, after a bona fide request, applicant has failed to provide a
potential offeror promptly with the information required under paragraph
(a) of this section and if that information is not contained in the
notice of exemption, the Board will entertain petitions to toll the 30-
day period for submitting offers of financial assistance under paragraph
(c)(2) of this section. Petitions must be filed with the Board within 25
days after publication in the Federal Register (as described in
paragraph (b)(2)(ii) of this section). Petitions should include copies
of the prior written request for information or an accurate outline of
the specific information that was orally requested. Replies to these
petitions must be filed within 30 days after publication. These
petitions and replies must be filed on or before their actual due date
under 49 CFR 1152.25(d)(4). The Board will issue a decision on petitions
to toll the offer period within 35 days after publication.
(D) Upon receipt of a formal expression of intent to file an offer
under paragraph (c)(2)(i) of this section, the rail carrier applicant
may advise the Board and the potential offeror that additional time is
needed to develop the information required under paragraph (a) of this
section. Applicant shall expressly indicate the amount of time it
considers necessary (not to exceed 60 days) to develop and submit the
required information to the potential offeror. For the duration of the
time period so indicated by the applicant, the 30-day period for
submitting offers of financial assistance under paragraph (c)(2) of this
section shall be tolled without formal Board action.
(iii) Contents of offer. The offeror shall set forth its offer in
detail. The offer must meet the requirements of paragraph (c)(1)(iv) of
this section.
(d) Access to documents. Upon receipt by the carrier of a written
comment under Sec. 1152.25, or satisfaction of the preliminary
financial responsibility requirement under paragraph (c)(1)(ii) of this
section or upon receipt by the carrier of an offer of financial
assistance, whichever occurs earlier, the carrier must make available to
that party or offeror the records, accounts, appraisals, working papers,
and other documents used in preparing Exhibit 1 (Sec. 1152.36) or, if
an exemption proceeding, those documents that would have been used in
preparing Exhibit 1 had an abandonment or discontinuance application
been filed, or other records, reports, and data in the possession of the
carrier seeking the exemption that provide comparable data. These
documents shall be made available during regular business hours at a
time and place mutually agreeable to the parties.
(e) Review of offers--(1) Abandonment and discontinuance
applications. The Board will review each offer submitted to determine if
a financially responsible person has offered assistance. If that
criterion is met, the Board will issue a decision postponing the
effective date of the authorization for abandonment or discontinuance.
This decision will be issued within 15 days of the service of the
decision granting the application (or within 5 days after the offer is
filed if the time for filing has been tolled under paragraph
(c)(1)(iii)(C) of this section, or within 5 days after expiration of the
120 day (4 month) period described in 49 U.S.C. 10904, if that occurs
first). Under the delegation of authority at Sec. 1011.7(a), the
Director of the Office of Proceedings will make the initial
determination whether offers of financial assistance satisfy the
standards of 49 U.S.C. 10904(d) for purposes of instituting
negotiations. Appeals of initial decisions determining whether offers of
financial assistance satisfy the standards of 49 U.S.C. 10904(d) for
purposes of instituting negotiations will be acted upon by the entire
Board pursuant to 49 CFR 1011.2(a)(7).

[[Page 233]]

(2) Exemption proceedings. The Board will review each offer
submitted to determine if a financially responsible person has offered
assistance. If that criterion is met, the Board will postpone the
effective date either of the decision granting a petition for individual
exemption or the notice of exemption under the class exemption and
partially revoke the exemption or (in the case of a class exemption) the
notice of exemption to the extent it applies to 49 U.S.C. 10904. The
decision to postpone and partially revoke will be issued within 15 days
of the service date of a decision granting a petition for exemption, or
within 35 days of the Federal Register publication described in
paragraph (b)(2)(ii) of this section (or within 5 days after the offer
is filed if the time for filing has been tolled under paragraph
(c)(1)(iii)(C) or (c)(2)(ii) (C) or (D) of this section). Under the
delegation of authority at section 1011.7(a), the Director of the Office
of Proceedings will make the initial determination whether offers of
financial assistance satisfy the standards of 49 U.S.C. 10904(d) for
purposes of partial revocation and institution of negotiations. Appeals
of initial decisions determining whether offers of financial assistance
satisfy the standards of 49 U.S.C. 10904(d) for purposes of partial
revocation and institution of negotiations will be acted upon by the
entire Board pursuant to 49 CFR 1011.2(a)(7).
(f) Agreement on financial assistance. (1) If the carrier and a
person offering financial assistance enter into a subsidy agreement
designed to provide for continued rail service, the Board will postpone
the effective date of the abandonment or discontinuance. If a decision
granting a petition for individual exemption, or a notice of exemption,
has been issued, the Board will postpone the effective date of the
decision or notice of exemption. The postponement will be for as long as
the subsidy agreement is in effect.
(2) If the carrier and a person offering to purchase a line enter
into a purchase agreement which will result in continued rail service,
the Board will approve the transaction and dismiss the application for
abandonment or discontinuance, or the petition for exemption or notice
of exemption. Board approval is not required under 49 U.S.C. 10901,
10902, or 11323 for the parties to consummate the transaction or for the
purchaser to institute service and operate as a railroad subject to 49
U.S.C. 10501(a).
(g) Failure to reach agreement on financial assistance. (1) If the
carrier and a financially responsible person fail to agree on the amount
or terms of subsidy or purchase, either party may request the Board to
establish the conditions and amount of compensation. This request must
be filed with the Board within 30 days after the offer is made and
served concurrently by overnight mail on all parties to the proceeding.
The request must be accompanied by the appropriate fee, codified at 49
CFR 1002.2(f)(26). Replies will be due 5 days later.
(2) If no agreement is reached within 30 days after the offer of
purchase or subsidy is made, and no request is made to the Board to set
the conditions and amount of compensation under paragraph (g)(1) of this
section, the Board will serve a decision vacating the prior decision,
which postponed the effective date of the decision granting the
application, the decision granting the exemption, or the notice of
exemption and, which, if applicable, partially revoked either the
decision granting the exemption or (in the case of a class exemption)
the notice of exemption. The Board will issue the decision to vacate
within 10 days of the due date for requesting the Board to set the
conditions and amount of compensation, and the Board will make the
decision to vacate effective on its date of service.
(h) Request to establish conditions and compensation for financial
assistance. (1) If the Board is requested to establish conditions and
compensation for financial assistance under paragraph (g)(1) of this
section, the Board will issue a decision within 30 days after the
request is due.
(2) If the applicant receives multiple offers of financial
assistance, requests to establish conditions and compensation will not
be permitted before the applicant selects the offeror with whom it
wishes to transact business. (See paragraph (l)(1) of this section.)

[[Page 234]]

(3) A party requesting the Board to establish conditions and
compensation for financial assistance must, within the time period set
forth in paragraph (h)(4) of this section, provide its case in chief,
including reasons why its estimates are correct and the other
negotiating party's estimates are incorrect, points of agreement and
points of disagreement between the negotiating parties, and evidence
substantiating these allegations. The offeror has the burden of proof as
to all issues in dispute.
(4) The offeror must submit all evidence and information supporting
the terms it seeks within 30 days after the offer is made. The carrier's
reply to this evidence and support for the terms it seeks are due within
35 days after the offer is made. No rebuttal evidence will be permitted
and evidence and information submitted after these dates will be
rejected.
(5) If requested, the Board will determine the amount and terms of
subsidy based on the avoidable cost of providing continued rail
transportation, plus a reasonable return on the value of the line. Under
49 U.S.C. 10904(f)(4)(B), no subsidy arrangement approved under section
10904 shall remain in effect for more than one year unless mutually
agreed by the parties.
(6) If requested, the Board will determine the price and other terms
of sale. The Board will not set a price below the fair market value of
the line (including, unless otherwise agreed upon by the parties, all
facilities on the line or portion necessary to provide effective
transportation services). Fair market value equals constitutional
minimum value which is the greater of the net liquidation value of the
line or the going concern value of the line. The constitutional minimum
value is computed without regard to labor protection costs.
(7) Within 10 days of the service date of the Board's decision, the
offeror must accept or reject the Board's terms and conditions with a
written notification to the Board and all parties to the proceeding. If
the offeror accepts the terms and conditions set by the Board, the
Board's decision is binding on both parties. If the offeror withdraws
its offer or does not accept the terms and conditions set by the Board
with a timely written notification, the Board will serve, within 20 days
after the service date of the Board decision setting the terms and
conditions, a decision vacating the prior decision, which postponed the
effective date of either the decision granting the application or
exemption or the notice of exemption, and which, if applicable,
partially revoked the exemption or (in the case of a class exemption)
the notice of exemption (unless other offers are being considered under
paragraph (l) of this section). The decision to vacate will be effective
on its date of service.
(i) Substitution of purchasers and disposition after sale. (1) Prior
to the consummation of a purchase under this section, an offeror may
substitute its corporate affiliate as the purchaser under an agreement,
provided the Board has determined either:
(i) The original offeror has guaranteed the financial responsibility
of its affiliate; or
(ii) The affiliate has demonstrated financial responsibility in its
own right.
(2) Except as provided in paragraph (i)(3) of this section, a
purchaser under this section may not:
(i) Transfer the line or discontinue service over the line prior to
the end of the second year after consummation of the original sale under
these provisions; or
(ii) Transfer the line, except to the carrier from whom the line was
purchased, prior to the end of the fifth year after consummation.
(3) Paragraph (i)(2) of this section does not preclude a purchaser
under this section from transferring the line to a corporate affiliate
following the consummation of the original sale. Prior Board approval of
the affiliate's acquisition and operation, however, is required under 49
U.S.C. 10901, 10902, or 11323. A corporate affiliate acquiring a line
under this section is prohibited from discontinuing service over the
line or transferring the line to a party that is not a corporate
affiliate during the time periods prescribed in paragraph (i)(2) of this
section.
(j) Discontinuance of subsidy. A subsidizer may discontinue a
subsidy

[[Page 235]]

under this section by giving 60 days notice of the discontinuance to the
applicant and all other parties to the proceeding. Unless another
financially responsible party enters into a subsidy agreement as
beneficial to the carrier as the discontinued subsidy agreement in a
situation where the 1-year time limit of 49 U.S.C. 10904(f)(4)(B) has
not yet run, the carrier may by filing a request with the Board and
serving the request on all parties to the abandonment or exemption
proceeding obtain a decision vacating the decision postponing the
effective date of either the decision granting the application, or
petition for individual exemption, or the notice of exemption. The Board
will issue a decision to vacate within 10 days after the filing and
service of the request. This decision to vacate will be effective on its
service date.
(k) Default on agreement. If any party defaults on its obligations
under a financial assistance agreement, any other party to the agreement
may promptly inform the Board of that default. Upon notification, the
Board will take appropriate action.
(l) Multiple offers of financial assistance. (1) If an applicant
receives more than one offer to purchase or subsidize the line from
offerors found to be financially responsible, the applicant must select
the offeror from those with whom it wishes to transact business. In
abandonment and discontinuance application and petition for exemption
proceedings within 25 days after service of the decision granting the
application or petition for exemption, and in class exemption
proceedings within 45 days after the Federal Register publication
described in paragraph (b)(2)(ii) of this section, the railroad must:
(i) File a written notification of its selection with the Board; and
(ii) Serve a copy of the notification on all parties to the
proceeding.
(2)(i) Abandonment and discontinuance applications and petitions for
exemption. If the applicant has received multiple offers of financial
assistance from persons found to be financially responsible and has
selected the offeror with whom it wishes to transact business, the
negotiating parties shall complete the sale or subsidy agreement or
request the Board to establish the conditions and amount of compensation
within 40 days after the service date of the decision granting the
application or petition for exemption. A request to the Board to set
terms and conditions must be served concurrently on all parties to the
proceeding. If no agreement on subsidy or sale is reached within the 40-
day period and the Board has not been requested to establish the
conditions and amount of compensation, any other financially responsible
offeror may request the Board to establish the conditions and amount of
compensation. This request must be filed at the Board within 50 days of
the service date of the decision granting the application or petition
for exemption and served concurrently on all parties to the proceeding.
If no other request is filed, the Board will issue a decision
authorizing abandonment or discontinuance within 60 days of the service
date of the decision granting the application or petition for exemption.
This decision will be effective on the date of service.
(ii) Class exemption proceedings. If the carrier seeking the
exemption has received multiple offers of financial assistance from
persons found to be financially responsible and has selected the offeror
with whom it wishes to transact business, the negotiating parties shall
complete the sale or subsidy agreement or request the Board to establish
the conditions and amount of compensation within 60 days after the
Federal Register publication described in paragraph (b)(2)(ii) of this
section. A request to the Board to set terms and conditions must be
served concurrently on all parties to the proceeding. If no agreement on
subsidy or sale is reached within the 60-day period and the Board has
not been requested to establish the conditions and amount of
compensation, any other financially responsible offeror may request the
Board to establish the conditions and amount of compensation. This
request must be filed at the Board within 70 days of the Federal
Register publication described in paragraph (b)(2)(ii) of this section
and served concurrently on all parties to the proceeding. If no other
request is filed, the Board will issue a decision vacating the decision

[[Page 236]]

postponing the effective date of the notice of exemption within 80 days
of the Federal Register publication described in paragraph (b)(2)(ii) of
this section. The decision to vacate will be effective on the date of
service.
(3) If the Board has established the conditions and amount of
compensation, and the original offer is withdrawn under paragraph (h)(7)
of this section, any other offeror found to be financially responsible
may accept the Board's decision within 20 days after the service date of
the Board's decision setting terms and conditions. If the decision is
accepted by another such offeror, the Board will require the applicant
to accept the terms incorporated in the Board's decision.
(m) Additional time for filing. Notwithstanding the deadlines
previously set forth in part 1152 for filing an offer of financial
assistance, parties that can show that they would be materially
prejudiced by having less than the full 4 months for filing an offer of
financial assistance provided in 49 U.S.C. 10904(c) for application
proceedings may seek relief under 49 CFR part 1117.
(n) Special provisions for summary discontinuance and abandonment of
lines not part of the Final System Plan. (1) Board authorization is not
needed for the cessation of service on a line of railroad formerly in
reorganization that was not included in the Final System Plan (Plan)
under the Regional Rail Reorganization Act of 1973, 45 U.S.C. 701 et
seq., as amended by the Railroad Revitalization and Regulatory Reform
Act of 1976, if the line has been continuously subsidized since the
inception of the Plan. To provide an opportunity for rail service
continuation through offers of financial assistance, however, the owner
of the line must give not less than 60 days' notice of a discontinuance,
and beginning 120 days after discontinuance, not less than 30 days'
notice of abandonment. Designated operators need only comply with the
notice requirements of Sec. 1150.11 of this title. In instances of
discontinuance by a designated operator, the line owner is not obligated
to operate the line. Notice is to be sent by the line owner to the
Board, the governor and transportation agencies and the government of
each political subdivision of each state in which such rail properties
are located and to each shipper who has used the rail service during the
previous 12 months. The Board will generally apply the OFA procedures in
this section (49 CFR 1152.27) for class exemptions to summary
abandonment and discontinuance notices (except that the Board will not
postpone the effective date of a summary discontinuance). For example,
notice of summary abandonment or discontinuance will be published by the
Board in the Federal Register within 20 days of filing. Paragraph
(b)(2)(ii) of this section. Expressions of intent to file an offer must
be filed no later than 10 days after the Federal Register publication.
Paragraph (c)(2)(i) of this section. An offer must be filed within 30
days of the Federal Register publication. Paragraphs (b)(2)(ii) and
(c)(2)(ii)(B) of this section. The Board will review offers to determine
if a financially responsible person has offered assistance. If this
criterion is met, the Board will postpone the effective date of the
summary abandonment (but not the discontinuance) within 35 days of the
Federal Register publication. Paragraph (e)(2) of this section. If the
carrier and financially responsible person fail to agree on the amount
or terms of subsidy or purchase, either party may request the Board to
establish the conditions and amount of the compensation. This request
must be filed within 30 days after the offer of purchase or subsidy is
made, and the Board will issue a decision within 30 days after the
request is due. Paragraphs (g)(1) and (h)(1) of this section.
(2) Where a designated operator is being used, it shall be paid a
reasonable management fee. If the parties cannot agree on this fee, it
shall be four and one-half percent of the total annual revenues
attributable to the branch.

[61 FR 67883, Dec. 24, 1996, as amended at 63 FR 28290, May 22, 1998; 74
FR 52909, Oct. 15, 2009; 75 FR 30713, June 2, 2010; 82 FR 31007, July 5,
2017]

Sec. 1152.28 Public use procedures.

(a)(1) If the Board finds that the present or future public
convenience and necessity require or permit abandonment or
discontinuance, the Board will determine if the involved rail

[[Page 237]]

properties are appropriate for use for other public purposes.
(2) A request for a public use condition under 49 U.S.C. 10905 must
be in writing and set forth:
(i) The condition sought;
(ii) The public importance of the condition;
(iii) The period of time for which the condition would be effective
(up to the statutory maximum of 180 days); and
(iv) Justification for the imposition of the time period. A copy of
the request shall be mailed to the applicant.
(3) For applications filed under part 1152, subpart C, a request for
a public use condition must be filed not more than 45 days after the
application is filed. A decision on the public use request will be
issued by the Board or the Director of the Office of Proceedings prior
to the effective date of the abandonment. For abandonment exemptions
under part 1152, subpart F or exemptions granted on the basis of an
individual petition for exemption filed under 49 U.S.C. 10502, a request
for a public use condition must be filed not more than 20 days from the
date of publication of the notice of exemption in the Federal Register
in the case of class exemptions under subpart F of this part, or not
more than 20 days from the date of publication of notice of the filing
of the petition for individual exemption in the Federal Register.
(b) If the Board finds that the rail properties are appropriate for
use for other public purposes, the railroad may dispose of the rail
properties only under the conditions described in the Board's decision.
The conditions imposed by the Board may include a prohibition against
the disposal of the rail assets for a period of not more than 180 days
from the effective date of the decision authorizing the abandonment or
discontinuance, unless the properties have first been offered, on
reasonable terms, for sale for public purposes. This period will run
concurrently with any other postponements. Jurisdiction to impose such
conditions expires after 180 days from the effective date of the
decision authorizing the abandonment or discontinuance.

Sec. 1152.29 Prospective use of rights-of-way for interim trail use
and rail banking.

(a) Contents of request for interim trail use.If any state,
political subdivision, or qualified private organization is interested
in acquiring or using a right-of-way of a rail line proposed to be
abandoned for interim trail use and rail banking pursuant to 16 U.S.C.
1247(d), it must file a comment or otherwise include a request in its
filing (in a regulated abandonment proceeding) or a petition (in an
exemption proceeding) indicating that it would like to do so. The
comment/request or petition must include:
(1) A map depicting, and an accurate description of, the right-of-
way, or portion thereof (including mileposts), proposed to be acquired
or used;
(2) A statement indicating the trail sponsor's willingness to assume
full responsibility for:
(i) Managing the right-of-way;
(ii) Any legal liability arising out of the transfer or use of the
right-of-way (unless the user is immune from liability, in which case it
need only indemnify the railroad against any potential liability); and
(iii) The payment of any and all taxes that may be levied or
assessed against the right-of-way; and
(3) An acknowledgment that interim trail use is subject to the
sponsor's continuing to meet its responsibilities described in paragraph
(a)(2) of this section, and subject to possible future reconstruction
and reactivation of the right-of-way for rail service. The statement
must be in the following form:

Statement of Willingness To Assume Financial Responsibility

In order to establish interim trail use and rail banking under 16
U.S.C. 1247(d) and 49 CFR 1152.29 with respect to the right-of-way owned
by ________ (Railroad) and operated by ________ (Railroad), ________
(Interim Trail Sponsor) is willing to assume full responsibility for:
(1) Managing the right-of-way, (2) any legal liability arising out of
the transfer or use of the right-of-way (unless the sponsor is immune
from liability, in which case it need only indemnify the railroad
against any potential liability), and (3) the payment of any and all
taxes that may be levied or assessed against the right of way. The
property, known as ________ (Name of Branch Line), extends from railroad
milepost

[[Page 238]]

________ near ________ (Station Name), to railroad milepost ______, near
________ (Station name), a distance of ______ miles in [County(ies),
(State(s)]. The right-of-way is part of a line of railroad proposed for
abandonment in Docket No. STB AB ________ (Sub-No. ________). A map of
the property depicting the right-of-way is attached.
________ (Interim Trail Sponsor) acknowledges that use of the right-
of-way is subject to the sponsor's continuing to meet its
responsibilities described above and subject to possible future
reconstruction and reactivation of the right-of-way for rail service. A
copy of this statement is being served on the railroad(s) on the same
date it is being served on the Board.

(b) When to file. (1) In abandonment application proceedings under
49 U.S.C. 10903, interim trail use statements are due within the 45-day
protest and comment period following the date the abandonment
application is filed. See Sec. 1152.25(c). The applicant carrier's
response notifying the Board whether and with whom it intends to
negotiate a trail use agreement is due within 15 days after the close of
the protest and comment period (i.e., 60 days after the abandonment
application is filed).
(i) In every proceeding where a Trails Act request is made, the
Board will determine whether the Trails Act is applicable.
(ii) If the Trails Act is not applicable because of failure to
comply with paragraph (a) of this section, or is applicable but the
carrier either does not intend to negotiate an agreement, or does not
timely notify the Board of its intention to negotiate, a decision on the
merits will be issued and no Certificate of Interim Trail Use or
Abandonment (CITU) will be issued. If the carrier is willing to
negotiate an agreement, and the public convenience and necessity permit
abandonment, the Board will issue a CITU.
(2) In exemption proceedings, a petition containing an interim trail
use statement is due within 10 days after the date the notice of
exemption is published in the Federal Register in the case of a class
exemption and within 20 days after publication in the Federal Register
of the notice of filing of a petition for exemption in the case of a
petition for exemption. When an interim trail use comment(s) or
petition(s) is filed in an exemption proceeding, the railroad's reply to
the Board (indicating whether and with whom it intends to negotiate an
agreement) is due within 10 days after the date a petition requesting
interim trail use is filed.
(3) Late-filed trail use statements must be supported by a statement
showing good cause for late filing.
(c) Abandonment application proceedings. (1) In abandonment
application proceedings, if continued rail service does not occur
pursuant to 49 U.S.C. 10904 and Sec. 1152.27, and a railroad agrees to
negotiate an interim trail use/railbanking agreement, then the Board
will issue a CITU to the railroad and to the interim trail sponsor for
that portion of the right-of-way as to which both parties are willing to
negotiate.
(i) The CITU will permit the railroad to discontinue service, cancel
any applicable tariffs, and salvage track and material consistent with
interim trail use and railbanking, as long as such actions are
consistent with any other Board order, 30 days after the date the CITU
is issued; and permit the railroad to fully abandon the line if no
interim trail use agreement is reached within one year from the date on
which the CITU is issued, subject to appropriate conditions, including
labor protection and environmental matters.
(ii) Parties may request a Board order to extend, for one-year
periods, the interim trail use negotiation period. Up to three one-year
extensions of the initial period may be granted if the trail sponsor and
the railroad agree. Additional one-year extensions, beyond three
extensions of the initial period, are not favored but may be granted if
the trail sponsor and the railroad agree and extraordinary circumstances
are shown.
(2) The CITU will indicate that any interim trail use is subject to
future restoration of rail service and to the sponsor's continuing to
meet its responsibilities described in paragraph (a)(2) of this section.
The CITU will also provide that, if an interim trail use agreement is
reached (and thus interim trail use established), the parties shall file
the notice described in paragraph (h) of this section. Additionally, the
CITU will provide that if the sponsor intends to terminate interim trail
use on all or any portion of the right-

[[Page 239]]

of-way covered by the interim trail use agreement, it must send the
Board a copy of the CITU and request that it be vacated on a specified
date. If a party requests that the CITU be vacated for only a portion of
the right-of-way, the Board will issue an appropriate replacement CITU
covering the remaining portion of the right-of-way subject to the
interim trail use agreement. The Board will reopen the abandonment
proceeding, vacate the CITU, and issue a decision permitting immediate
abandonment for the involved portion of the right-of-way. Copies of the
decision will be sent to:
(i) The abandonment applicant;
(ii) The owner of the right-of-way; and
(iii) The current trail sponsor.
(3) If an application to construct and operate a rail line over the
right-of-way is authorized under 49 U.S.C. 10901 and part 1150 of this
title, or exempted under 49 U.S.C. 10502, then the CITU will be vacated
accordingly.
(d) Abandonment exemption proceedings. (1) In abandonment exemption
proceedings, if continued rail service does not occur under 49 U.S.C.
10904 and Sec. 1152.27, and a railroad agrees to negotiate an interim
trail use/railbanking agreement, then the Board will issue a Notice of
Interim Trail Use or Abandonment (NITU) to the railroad and to the
interim trail sponsor for the portion of the right-of-way as to which
both parties are willing to negotiate.
(i) The NITU will permit the railroad to discontinue service, cancel
any applicable tariffs, and salvage track and materials, consistent with
interim trail use and railbanking, as long as such actions are
consistent with any other Board order, 30 days after the date the NITU
is issued; and permit the railroad to fully abandon the line if no
interim trail use agreement is reached within one year from the date on
which the NITU is issued, subject to appropriate conditions, including
labor protection and environmental matters.
(ii) Parties may request a Board order to extend, for one-year
periods, the interim trail use negotiation period. Up to three one-year
extensions of the initial period may be granted if the trail sponsor and
railroad agree. Additional one-year extensions, beyond three extensions
of the initial period, are not favored but may be granted if the trail
sponsor and railroad agree and extraordinary circumstances are shown.
(2) The NITU will indicate that interim trail use is subject to
future restoration of rail service and to the sponsor's continuing to
meet its responsibilities described in paragraph (a)(2) of this section.
The NITU will also provide that, if an interim trail use agreement is
reached (and thus interim trail use established), the parties shall file
the notice described in paragraph (h) of this section. Additionally, the
NITU will provide that if the sponsor intends to terminate interim trail
use on all or any portion of the right-of-way covered by the interim
trail use agreement, it must send the Board a copy of the NITU and
request that it be vacated on a specific date. If a party requests that
the NITU be vacated for only a portion of the right-of-way, the Board
will issue an appropriate replacement NITU covering the remaining
portion of the right-of-way subject to the interim trail use agreement.
The Board will reopen the exemption proceeding, vacate the NITU, and
issue a decision reinstating the exemption for that portion of the
right-of-way. Copies of the decision will be sent to:
(i) The abandonment exemption applicant;
(ii) The owner of the right-of-way; and
(iii) The current trail sponsor.
(3) If an application to construct and operate a rail line over the
right-of-way is authorized under 49 U.S.C. 10901 and part 1150 of this
title, or exempted under 49 U.S.C. 10502, then the NITU will be vacated
accordingly.
(e) Late-filed requests; notices of consummation. (1) Where late-
filed trail use statements are accepted, the Director (or designee) will
telephone the railroad to determine whether abandonment has been
consummated and, if not, whether the railroad is willing to negotiate an
interim trail use agreement. The railroad shall confirm, in writing, its
response, within 5 days. If abandonment has been consummated, the trail
use request will be dismissed. If abandonment has not been consummated
but the railroad refuses to

[[Page 240]]

negotiate, then trail use will be denied. If abandonment has not been
consummated and the railroad is willing to negotiate, the abandonment
proceeding will be reopened, the abandonment decision granting an
application, petition for exemption or notice of exemption will be
vacated, and an appropriate CITU or NITU will be issued. The effective
date of the CITU or NITU will be the same date as the vacated decision
or notice.
(2) A railroad that receives authority from the Board to abandon a
line (in a regulated abandonment proceeding under 49 U.S.C. 10903, or by
individual or class exemption issued under 49 U.S.C. 10502) shall file a
notice of consummation with the Board to signify that it has exercised
the authority granted and fully abandoned the line (e.g., discontinued
operations, salvaged the track, canceled tariffs, and intends that the
property be removed from the interstate rail network). The notice shall
provide the name of the STB proceeding and its docket number, a brief
description of the line, and a statement that the railroad has
consummated, or fully exercised, the abandonment authority on a certain
date. The notice shall be filed within 1 year of the service date of the
decision permitting the abandonment (assuming that the railroad intends
to consummate the abandonment). Notices will be deemed conclusive on the
point of consummation if there are no legal or regulatory barriers to
consummation (such as outstanding conditions, including Trails Act
conditions). If, after 1 year from the date of service of a decision
permitting abandonment, consummation has not been effected by the
railroad's filing of a notice of consummation, and there are no legal or
regulatory barriers to consummation, the authority to abandon will
automatically expire. In that event, a new proceeding would have to be
instituted if the railroad wants to abandon the line. Copies of the
railroad's notice of consummation shall be filed with the Chief, Section
of Administration, Office of Proceedings. In addition, the notice of
consummation shall be sent to the State Public Service Commission (or
equivalent agency) of every state through which the line passes. If,
however, any legal or regulatory barrier to consummation exists at the
end of the 1-year time period, the notice of consummation must be filed
not later than 60 days after satisfaction, expiration or removal of the
legal or regulatory barrier. For good cause shown, a railroad may file a
request for an extension of time to file a notice so long as it does so
sufficiently in advance of the expiration of the deadline for notifying
the Board of consummation to allow for timely processing.
(f) Substitution of trail user. (1) When a trail user intends to
terminate trail use and another person intends to become a trail user by
assuming financial responsibility for the right-of-way, then the
existing and future trail users shall file, jointly:
(i) A copy of the extant CITU or NITU; and
(ii) A Statement of Willingness to Assume Financial Responsibility
by the new trail user.
(iii) An acknowledgement that interim trail use is subject to
possible future reconstruction and reactivation of the right-of-way for
rail service.
(2) The parties shall indicate the date on which responsibility for
the right-of-way is to transfer to the new trail user. The Board will
reopen the abandonment or exemption proceeding, vacate the existing NITU
or CITU; and issue an appropriate replacement NITU or CITU to the new
trail user.
(g) Consent after Board decision or notice. In proceedings where a
timely trail use statement is filed, but due to either the railroad's
indication of its unwillingness to negotiate interim trail use
agreement, or its failure to timely notify the Board of its willingness
to negotiate, a decision authorizing abandonment or an exemption notice
or decision is issued instead of a CITU or NITU, and subsequently the
railroad and trail use proponent nevertheless determine to negotiate an
interim trail use agreement under the Trails Act, then the railroad and
trail use proponent must file a joint pleading requesting that an
appropriate CITU or NITU be issued. If the abandonment has not been
consummated, the Board will reopen the proceeding, vacate the
outstanding decision or notice (or portion thereof), and issue an

[[Page 241]]

appropriate CITU or NITU that will permit the parties to negotiate for a
period agreed to by the parties in their joint filing, but not to exceed
one year, at the end of which, the CITU or NITU will convert into a
decision or notice permitting abandonment.
(h) Notice of interim trail use agreement reached. When the parties
negotiating for rail banking/interim trail use reach an agreement, the
trail sponsor and railroad shall jointly notify the Board within 10 days
that the agreement has been reached. The notice shall include a map
depicting, and an accurate description of, the involved right-of-way or
portion thereof (including mileposts) that is subject to the parties'
interim trail use agreement and a certification that the interim trail
use agreement includes provisions requiring the sponsor to fulfill the
responsibilities described in paragraph (a)(2) of this section.
Additionally, if the interim trail use agreement establishes interim
trail use over less of the right-of-way than is covered by the CITU or
NITU, the notice shall also include a request that the Board vacate the
CITU or NITU and issue a replacement CITU/NITU for only the portion of
the right-of-way covered by the interim trail use agreement. The Board
will reopen the abandonment proceeding, vacate the CITU or NITU, issue
an appropriate replacement CITU or NITU for only the portion of the
right-of-way covered by the interim trail use agreement, and issue a
decision permitting immediate abandonment of the portion of the right-
of-way not subject to the interim trail use agreement. Copies of the
decision will be sent to:
(1) The rail carrier that sought abandonment authorization;
(2) The owner of the right-of-way; and
(3) The current trail sponsor.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997;
64 FR 53268, Oct. 1, 1999; 74 FR 52910, Oct. 15, 2009; 77 FR 25914, May
2, 2012; 84 FR 66325, Dec. 4, 2019]

Subpart D_Standards for Determining Costs, Revenues, and Return on Value

Sec. 1152.30 General.

(a) Contents of subpart. (1) 49 U.S.C. 10904 directs the Board to
determine the extent to which the avoidable costs of providing rail
service plus a reasonable return on the value of the line exceed the
revenues attributable to the line. This subpart contains the methodology
for such determinations and the standards necessary for application of
those terms in the context of a particular proceeding. Such data will be
used in reaching the Board's findings on the merits of an abandonment or
discontinuance proceeding and in making the necessary financial
assistance determinations.
(2) This subpart also sets forth a method by which the carrier may
establish its Forecast Year estimates and Estimated Subsidy Payment to
be included in its application (Sec. 1152.22(d) of this part).
Furthermore, an offeror of financial assistance may use this method to
formulate a subsidy offer and/or Proposed Subsidy Payment under 49
U.S.C. 10904 and Sec. 1152.27 of subpart C of this part.
(b) Data collection. The owning or operating carrier shall establish
a system to collect at branch level the data necessary to compute the
base year data and the final subsidy payment. The collection and
compilation of such data shall be in accordance with the Branch Line
Accounting System (49 CFR part 1201, subpart B).
(c) Final payment of financial assistance. (1) When a financial
assistance agreement to subsidize is concluded, the final payment will
be adjusted to reflect the actual revenues derived, avoidable costs
incurred, and value of the properties used in the subsidy year.
(2) Where an adjustment results in an increase in the Estimated
Subsidy Payment upon which the financial assistance agreement is based,
the amount of such increase is limited to 15 percent of the estimated
payment. However, if the railroad notifies the subsidizer that the
estimate will be exceeded by more than 15 percent in one of the
Financial Status Reports (Sec. 1152.37) issued during the first 10
months of the subsidy year or

[[Page 242]]

the increase results from an expense preapproved by the subsidizer, the
adjusted amount shall be included in the final payment.

[61 FR 67883, Dec. 24, 1996, as amended at 81 FR 8855, Feb. 23, 2016]

Sec. 1152.31 Revenue and income attributable to branch lines.

The revenue attributable to the rail properties is the total of the
revenues assigned to the branch in accordance with this section, plus
any subsidy payments that would cease upon discontinuance of service on
the branch, for the subsidy year. The revenues assigned shall be derived
from the following accounts:
(a) Account 101--Freight. The revenue assigned under this account
shall be the actual revenues, including transit revenues, accruing to
the railroad, derived from waybills and other source documents, for all
traffic that:
(1) Originates and terminates on the branch;
(2) Originates or terminates on the branch and is handled off the
branch on the system but not on another carrier; and
(3) Originates or terminates on the branch and is handled on another
carrier. All traffic that is received or forwarded through interchange
at a point on the branch, including ferry operations, shall be
considered as originating or terminating on the branch. The revenues of
all other bridge or overhead traffic that will not be retained by the
carrier shall be attributed to the branch on the ratio of miles moved on
the branch to miles moved on the system, provided, however, that the
parties may agree on a mutually acceptable usage charge for bridge
traffic in lieu of the mileage apportionment.
(b) Account 104--Switching; Account 105--Water transfers; Account
106--Demurrage; Account 110--Incidental; Account 121--Joint Facility-
Credit; Account 122--Joint Facility-Debt; Account 506--Revenues from
Properties Used in Other Than Carrier Operations; Account 510--
Miscellaneous Rent Income; Account 519--Miscellaneous Income. The
revenues assigned under these accounts shall be the actual revenues
accruing to the railroad that are directly attributable to the branch.
(c) Chart for revenue accounts.

------------------------------------------------------------------------
Revenue account title Account No.
------------------------------------------------------------------------
Freight................................... 101
Switching................................. 104
Water transfers........................... 105
Demurrage................................. 106
Incidental................................ 110
Joint facility-credit..................... 121
Joint facility-debt....................... 122
Revenues from property used in other than 506, 534
carrier operations, less expenses.
Miscellaneous rent income................. 510
Miscellaneous income...................... 519
------------------------------------------------------------------------

Sec. 1152.32 Calculation of avoidable costs.

This section defines: Which cost elements are eligible for inclusion
in the calculation of avoidable costs; the conditions under which
certain cost elements become eligible for inclusion; and the basis of
apportioning those cost elements which are not assigned to the branch on
an actual expense basis. The avoidable costs of providing freight
service on a branch shall be the total of the costs assigned to the
branch in accordance with this section. The avoidable costs of providing
freight service on a branch shall be just and reasonable, and shall not
exceed those necessary for an honest and efficient operation. Those
expenses apportioned under this section shall be derived from the latest
Form R-1 Annual Report for Class I railroads filed with the Board prior
to the conclusion of the subsidy year, and company records for all non-
Class I railroads, and assigned to the branch according to the
procedures set forth in Sec. 1152.33 of these regulations. When the
term ``Actual'' is specified as the basis for assigning an expense, it
shall mean that the only costs which can be assigned to the account are
those costs which are incurred solely as a result of the continuation of
rail freight service on the branch. The accounts in the following
charts, which list only the ``freight-only'' account numbers, shall
include the portion of common expenses that have been apportioned to
freight service.

[[Page 243]]

------------------------------------------------------------------------
Operating expense group and Basis of assignment
accounts Account No. to on-branch costs
------------------------------------------------------------------------
(a) Maintenance of way and
structures:
(1) Administration: Track:
Salaries and wages............ 11-13-02 Actual.
Materials..................... 21-13-02 Do.
Purchased services............ 41-13-02 Do.
Other expenses................ 61-13-02 Do.
Bridges and buildings
Salaries and wages............ 11-13-03 Do.
Materials..................... 21-13-03 Do.
Purchased services............ 41-13-03 Do.
Other expenses................ 61-13-03 Do.
Signals
Salaries and wages............ 11-13-04 Do.
Materials..................... 21-13-04 Do.
Purchased services............ 41-13-04 Do.
Other expenses................ 61-13-04 Do.
Communications
Salaries and wages............ 11-13-05 Do.
Materials..................... 21-13-05 Do.
Purchased services............ 41-13-05 Do.
Other expenses................ 61-13-05 Do.
Other
Salaries and wages............ 11-13-06 Do.
Materials..................... 21-13-06 Do.
Purchased services............ 41-13-06 Do.
Other expenses................ 61-13-06 Do.
(2) Repair maintenance and other
roadway--running:
Salaries and wages............ 11-11-10 Do.
Materials..................... 21-11-10 Do.
Repairs by others--DR......... 39-11-10 Do.
Repairs for others--CR........ 40-11-10 Do.
Purchased services............ 41-11-10 Do.
Other expenses................ 61-11-10 Do.
Roadway--switching
Salaries and wages............ 11-12-10 Do.
Materials..................... 21-12-10 Do.
Repairs by others--DR......... 39-12-10 Do.
Repairs for others--CR........ 40-12-10 Do.
Purchased services............ 41-12-10 Do.
Other expenses................ 61-12-10 Do.
Tunnels and subways--running
Salaries and wages............ 11-11-11 Do.
Materials..................... 21-11-11 Do.
Repairs by others--DR......... 39-11-11 Do.
Repairs for others--CR........ 40-11-11 Do.
Purchased services............ 41-11-11 Do.
Other expenses................ 61-11-11 Do.
Tunnels and subways--
switching
Salaries and wages............ 11-12-11 Do.
Materials..................... 21-12-11 Do.
Repairs by others--DR......... 39-12-11 Do.
Repairs for others--CR........ 40-12-11 Do.
Purchased services............ 41-12-11 Do.
Other expenses................ 61-12-11 Do.
Bridges and culverts--
running
Salaries and wages............ 11-11-12 Do.
Materials..................... 21-11-12 Do.
Repairs by others--DR......... 39-11-12 Do.
Repairs for others--CR........ 40-11-12 Do.
Purchased services............ 41-11-12 Do.
Other expenses................ 61-11-12 Do.
Bridges and culverts--
switching
Salaries and wages............ 11-12-12 Do.
Materials..................... 21-12-12 Do.
Repairs by others--DR......... 39-12-12 Do.
Repairs for others--CR........ 40-12-12 Do.
Purchased services............ 41-12-12 Do.
Other expenses................ 61-12-12 Do.
Ties--running--material........... 21-11-13 Do.
Ties--switching--material......... 21-12-13 Do.
Rails--running--material.......... 21-11-14 Do.
Rails--switching--material........ 21-12-14 Do.
Other track material--running-- 21-11-15 Do.
material.

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Other track material--switching-- 21-12-15 Do.
material.
Ballast--running--material........ 21-11-16 Do.
Ballast--switching--material...... 21-12-16 Do.
Track laying and surfacing--
running
Salaries and wages............ 11-11-17 Do.
Materials..................... 21-11-17 Do.
Repairs by others--DR......... 39-11-17 Do.
Repairs for others--CR........ 40-11-17 Do.
Purchased services............ 41-11-17 Do.
Other expenses................ 61-11-17 Do.
Track laying and surfacing--
switching
Salaries and wages............ 11-12-17 Do.
Materials..................... 21-12-17 Do.
Repairs by others--DR......... 39-12-17 Do.
Repairs for others--CR........ 40-12-17 Do.
Purchased services............ 41-12-17 Do.
Other expenses................ 61-12-17 Do.
Road property damaged--
running
Salaries and wages............ 11-11-48 Do.
Materials..................... 21-11-48 Do.
Repairs by others--DR......... 39-11-48 Do.
Repairs for others--CR........ 40-11-48 Do.
Purchased services............ 41-11-48 Do.
Other expenses................ 61-11-48 Do.
Road property damaged--
switching
Salaries and wages............ 11-12-48 Do.
Materials..................... 21-12-48 Do.
Repairs by others--DR......... 39-12-48 Do.
Repairs for others--CR........ 40-12-48 Do.
Purchased services............ 41-12-48 Do.
Other Expenses................ 61-12-48 Do.
Road property damaged--other
Salaries and wages............ 1-13-48 Do.
Materials..................... 21-13-48 Do.
Repairs by others--DR......... 39-13-48 Do.
Repairs for others--CR........ 40-13-48 Do.
Purchased services............ 41-13-48 Do.
Other expenses................ 61-13-48 Do.
Signals and interlockers--
running
Salaries and wages............ 11-11-19 Do.
Materials..................... 21-11-19 Do.
Repairs by others--DR......... 39-11-19 Do.
Repairs for others--CR........ 40-11-19 Do.
Purchased services............ 41-11-19 Do.
Other expenses................ 61-11-19 Do.
Signals and interlockers--
switching
Salaries and wages............ 11-12-19 Do.
Materials..................... 21-12-19 Do.
Repairs by others--DR......... 39-12-19 Do.
Repairs for others--CR........ 40-12-19 Do.
Purchased services............ 41-12-19 Do.
Other expenses................ 61-12-19 Do.
Communications systems
Salaries and wages............ 11-13-20 Do.
Materials..................... 21-13-20 Do.
Repairs by others--DR......... 39-13-20 Do.
Repairs for others--CR........ 40-13-20 Do.
Purchased services............ 41-13-20 Do.
Other expenses................ 61-13-20 Do.
Electric power systems
Salaries and wages............ 11-13-21 Do.
Materials..................... 21-13-21 Do.
Repairs by others--DR......... 39-13-21 Do.
Repairs for others--CR........ 40-13-21 Do.
Purchased services............ 41-13-21 Do.
Other expenses................ 61-13-21 Do.
Highway grade crossings--
running
Salaries and wages............ 11-11-22 Do.
Materials..................... 21-11-22 Do.
Repairs by others--DR......... 39-11-22 Do.
Repairs for others--CR........ 40-11-22 Do.
Purchased services............ 41-11-22 Do.
Other expenses................ 61-11-22 Do.
Highway grade crossings--
switching
Salaries and wages............ 11-12-22 Do.

[[Page 245]]

Materials..................... 21-12-22 Do.
Repairs by others--DR......... 39-12-22 Do.
Repairs for others--CR........ 40-12-22 Do.
Purchased services............ 41-12-22 Do.
Other expenses................ 61-12-22 Do.
Station and office buildings
Salaries and wages............ 11-13-23 Do.
Materials..................... 21-13-23 Do.
Repairs by others--DR......... 39-13-23 Do.
Repairs for others--CR........ 40-13-23 Do.
Purchased services............ 41-13-23 Do.
Other expenses................ 61-13-23 Do.
Station buildings--
locomotives
Salaries and wages............ 11-13-24 Do.
Materials..................... 21-13-24 Do.
Repairs by others--DR......... 39-13-24 Do.
Repairs for others--CR........ 40-13-24 Do.
Purchased services............ 41-13-24 Do.
Other expenses................ 61-13-24 Do.
Shop buildings--freight cars
Salaries and wages............ 11-13-25 Do.
Materials..................... 21-13-25 Do.
Repairs by others--DR......... 39-13-25 Do.
Repairs for others--CR........ 40-13-25 Do.
Purchased services............ 41-13-25 Do.
Other expenses................ 61-13-25 Do.
Shop buildings--other
equipment
Salaries and wages............ 11-13-26 Do.
Materials..................... 21-13-26 Do.
Repairs by others--DR......... 39-13-26 Do.
Repairs for others--CR........ 40-13-26 Do.
Purchased services............ 41-13-26 Do.
Other expenses................ 61-13-26 Do.
Locomotive servicing
facilities
Salaries and wages............ 11-13-27 Do.
Materials..................... 21-13-27 Do.
Repairs by others--DR......... 39-13-27 Do.
Repairs for others--CR........ 40-13-27 Do.
Purchased services............ 41-13-27 Do.
Other expenses................ 61-13-27 Do.
Miscellaneous buildings and
structures
Salaries and wages............ 11-13-28 Do.
Materials..................... 21-13-28 Do.
Repairs by others--DR......... 39-13-28 Do.
Repairs for others--CR........ 40-13-28 Do.
Purchased services............ 41-13-28 Do.
Other expenses................ 61-13-28 Do.
Coal terminals
Salaries and wages............ 11-13-29 Do.
Materials..................... 21-13-29 Do.
Repairs by others--DR......... 39-13-29 Do.
Repairs for others--CR........ 40-13-29 Do.
Purchased services............ 41-13-29 Do.
Other expenses................ 61-13-29 Do.
Ore terminals
Salaries and wages............ 11-13-30 Do.
Materials..................... 21-13-30 Do.
Repairs by others--DR......... 39-13-30 Do.
Repairs for others--CR........ 40-13-30 Do.
Purchased services............ 41-13-30 Do.
Other expenses................ 61-13-30 Do.
TOFC/COFC terminals
Salaries and wages............ 11-13-31 Do.
Materials..................... 21-13-31 Do.
Repairs by others--DR......... 39-13-31 Do.
Repairs for others--CR........ 40-13-31 Do.
Purchased services............ 41-13-21 Do.
Other expenses................ 61-13-31 Do.
Other marine terminals
Salaries and wages............ 11-13-32 Do.
Materials..................... 21-13-32 Do.
Repairs by others--DR......... 39-13-32 Do.
Repairs for others--CR........ 40-13-32 Do.
Purchased services............ 41-13-32 Do.

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Other expenses................ 61-13-32 Do.
Motor vehicle loading and
distribution facilities
Salaries and wages............ 11-13-33 Do.
Materials..................... 21-13-33 Do.
Repairs by others--DR......... 39-13-33 Do.
Repairs for others--CR........ 40-13-33 Do.
Purchased services............ 41-13-33 Do.
Other expenses................ 61-13-33 Do.
Facilities for other
specialized service
operations
Salaries and wages............ 11-13-35 Do.
Materials..................... 21-13-35 Do.
Repairs by others--DR......... 39-13-35 Do.
Repairs for others--CR........ 40-13-35 Do.
Purchased services............ 41-13-35 Do.
Other expenses................ 61-13-35 Do.
Roadway machines
Salaries and wages............ 11-13-36 Daily repair costs
per GMA, for each
type of machine
used on the branch
line sec.
1152.33(a)(1).
Materials..................... 21-13-36 Do.
Repairs by others--DR......... 39-13-36 Do.
Repairs for others--CR........ 40-13-36 Do.
Purchased services............ 41-13-36 Do.
Other expenses................ 61-13-36 Do.
Small tools and supplies
Other expenses................ 11-13-37 Assign supplies on
the daily costs per
GMA, for each type
of machine used on
the branch; small
tool assign to
maintenance of way
11- 11/12-10
through 17, and 48,
sec. 1152.33(a)(2).
Materials..................... 21-13-37 Do.
Repairs by others--DR......... 39-13-37 Do.
Repairs for others--CR........ 40-13-37 Do.
Purchased services............ 41-13-37 Do.
Other expenses................ 61-13-37 Do.
Snow removal
Salaries and wages............ 11-13-38 Actual.
Materials..................... 21-13-38 Do.
Repairs by others--DR......... 39-13-38 Do.
Repairs for others--CR........ 40-13-38 Do.
Purchased Services............ 41-13-38 Do.
Other expenses................ 61-13-38 Do.
Fringe benefits--running.......... 12-11-00 11-11-XX, sec.
1152.33(a)(3)(i).
Fringe benefits--switching........ 12-12-00 11-12-XX, sec.
1152.33(a)(3)(ii).
Fringe benefits--other............ 12-13-00 11-13-XX, sec.
1152.33(a)(3)(iii).
Casualties and insurance--
running
Other casualties.............. 52-11-00 Actual.
Insurance..................... 53-11-00 Do.
Casualties and insurance--
switching
Other casualties.............. 52-12-00 Do.
Insurance..................... 53-12-00 Do.
Lease rentals--debit--running..... 31-11-00 Do.
Lease rentals--debit--switching... 31-12-00 Do.
Lease rentals--debit--other....... 31-13-00 Do.
Lease rentals--credit--running.... 32-11-00 Do.
Lease rentals--credit--switching.. 32-12-00 Do.
Lease rentals--credit--other...... 32-13-00 Do.
Joint facility rent--debit-- 33-11-00 Do.
running.
Joint facility rent--debit-- 33-12-00 Do.
switching.
Casualties and insurance--
other
Other casualties.............. 52-13-00 Do.
Insurance..................... 53-13-00 Do.
Joint facility--debit--other...... 33-13-00 Do.
Joint facility rent--credit-- 34-11-00 Do.
running.
Joint facility rent--credit-- 34-12-00 Do.
switching.
Joint facility rent--credit--other 34-13-00 Do.
Other rents--debit--running....... 35-11-00 Do.
Other rents--debit--switching..... 35-12-00 Do.
Other rents--debit--other......... 35-13-00 Do.
Other rents--credit--running...... 36-11-00 Do.
Other rents--credit--switching.... 36-12-00 Do.
Other rents--credit--other........ 36-13-00 Do.
Depreciation--running............. 62-11-00 Do.
Depreciation--switching........... 62-12-00 Do.

[[Page 247]]

Depreciation--other............... 62-13-00 Do.
Joint facility--debit--running.... 37-11-00 Do.
Joint facility--debit--switching.. 37-12-00 Do.
Joint facility--debit--other...... 37-13-00 Do.
Joint facility--credit--running... 38-11-00 Do.
Joint facility--credit--switching. 38-12-00 Do.
Joint facility--credit--other..... 38-13-00 Do.
Dismantling retired road
property--running
Salaries and wages............ 11-11-39 Do.
Materials..................... 21-11-39 Do.
Purchased services............ 41-11-39 Do.
Other expenses................ 61-11-39 Do.
Dismantling retired road
property--switching
Salaries and wages............ 11-12-39 Do.
Materials..................... 21-12-39 Do.
Purchased services............ 41-12-39 Do.
Other expenses................ 61-12-39 Do.
Dismantling retired road
property--other
Salaries and wages............ 11-13-39 Do.
Materials..................... 21-13-39 Do.
Purchased services............ 41-13-39 Do.
Other expenses................ 61-13-39 Do.
Other--running
Salaries and wages............ 11-11-99 Do.
Materials..................... 21-11-99 Do.
Purchased services............ 41-11-99 Do.
Other expenses................ 61-11-99 Do.
Other--switching
Salaries and wages............ 11-12-99 Do.
Materials..................... 21-12-99 Do.
Purchased Services............ 41-12-99 Do.
Other Expenses................ 61-12-99 Do.
Other--other
Salaries and wages............ 11-13-99 Do.
Materials..................... 21-13-99 Do.
Purchased services............ 41-13-99 Do.
Other expenses................ 61-13-99 Do.
(b) Maintenance of equipment:
(1) Locomotives: Administration
Salaries and wages............ 11-21-01 Do.
Materials..................... 21-21-01 Do.
Purchased services............ 41-21-01 Do.
Other expenses................ 61-21-01 Do.
Repairs and maintenance
Salaries and wages............ 11-21-41 Road diesel and road
electric locomotive
gross ton miles.
Yard diesel and
yard electric
locomotive unit
hours, Sec.
1152.33(b)(1).
Materials..................... 21-21-41 Do.
Repairs by others--DR......... 39-21-41 Do.
Repairs for others--CR........ 40-21-41 Do.
Purchased services............ 41-21-41 Do.
Other expenses................ 61-21-41 Do.
Machinery repair
Salaries and wages............ 11-21-40 Actual.
Materials..................... 21-21-40 Do.
Repairs by others--DR......... 39-21-40 Do.
Repairs for others--CR........ 40-21-40 Do.
Purchased services............ 41-21-40 Do.
Other expenses................ 61-21-40 Do.
Equipment damaged
Salaries and wages............ 11-21-48 Do.
Materials..................... 21-21-48 Do.
Repairs by others--DR......... 39-21-48 Do.
Repairs for others--CR........ 40-21-48 Do.
Purchased services............ 41-21-48 Do.
Other expenses................ 61-21-48 Do.
Equipment damaged
Fringe benefits................... 12-21-00 11-21-XX, sec.
1152.33(b)(3)(i).
Other casualties and
insurance
Other casualties.............. 52-21-00 Actual.
Insurance..................... 53-21-00 Do.
Lease rentals--debit.............. 31-21-00 Do.

[[Page 248]]

Lease rentals--credit............. 32-21-00 Do.
Joint facility rent--debit........ 33-21-00 Do.
Joint facility rent--credit....... 34-21-00 Do.
Other rents--debit................ 35-21-00 Do.
Other rents--credit............... 36-21-00 Do.
Joint facility--debit............. 37-21-00 Do.
Joint facility--credit............ 38-21-00 Do.
Depreciation...................... 62-21-00 All locomotives,
locomotive unit
hours, sec.
1152.33(b)(2).
Dismantling retired property
Salaries and wages............ 11-21-39 Actual.
Materials..................... 21-21-39 Do.
Purchased services............ 41-21-39 Do.
Other expenses................ 61-21-39 Do.
Other
Salaries and wages............ 11-21-99 Do.
Materials..................... 21-21-99 Do.
Purchased services............ 41-21-99 Do.
Other expenses................ 61-21-99 Do.
(2) Freight cars:
Administration:
Salaries and wages............ 11-22-01 Do.
Materials..................... 21-22-01 Do.
Purchased services............ 41-22-01 Do.
Other expenses................ 61-22-01 Do.
Machinery repair
Salaries and wages............ 11-22-40 Do.
Materials..................... 21-22-40 Do.
Repairs by others--DR......... 39-22-40 Do.
Repairs for others--CR........ 40-22-40 Do.
Purchased services............ 41-22-40 Do.
Other expenses................ 61-22-40 Do.
Equipment damage
Salaries and wages............ 11-22-48 Do.
Materials..................... 21-22-48 Do.
Repairs by others--DR......... 39-22-48 Do.
Repairs for others--CR........ 40-22-48 Do.
Purchased services............ 41-22-48 Do.
Other expenses................ 61-22-48 Do.
Fringe benefits................... 12-22-00 11-22-XX, sec.
1152.33-(b)(3)(iii)
.
Other casualties and
insurance
Other casualties.............. 52-22-00 Actual.
Insurance..................... 53-22-00 Do.
Joint facility rent--DR........... 33-22-00 Do.
Joint facility rent--CR........... 34-22-00 Do.
Joint facility--DR................ 37-22-00 Do.
Joint facility--CR................ 38-22-00 Do.
Dismantling retired property
Salaries and wages............ 11-22-39 Do.
Materials..................... 21-22-39 Do.
Purchased services............ 41-22-39 Do.
Other expenses................ 61-22-39 Do.
Other
Salaries and wages............ 11-22-99 Do.
Materials..................... 21-22-99 Do.
Purchased services............ 41-22-99 Do.
Other expenses................ 61-22-99 Do.
Freight car costs per day and per
mile:
Repair and maintenance
Salaries and wages............ 11-22-42 These accounts are
used to develop the
cost per car day
and per car mile
for each type of
car, sec.
1152.32(g).
Materials..................... 21-22-42 Do.
Repairs by others--DR......... 39-22-42 Do.
Repairs for others--CR........ 40-22-42 Do.
Purchased services............ 41-22-42 Do.
Other expenses................ 61-22-42 Do.
Lease rentals--DR................. 31-22-00 ....................
Lease rentals--CR................. 32-22-00 ....................
Depreciation...................... 62-22-00 ....................
Other rents--DR................... 35-22-00 ....................
Other rents--CR................... 36-22-00 ....................
(3) Other equipment:
Administration
Salaries and wages............ 11-23-01 Actual.
Materials..................... 21-23-01 Do.

[[Page 249]]

Purchased services............ 41-23-01 Do.
Other expenses................ 61-23-01 Do.
Repair and maintenance: Trucks,
trailers and containers--revenue
service
Salaries and wages............ 11-23-43 Do.
Materials..................... 21-23-43 Do.
Repairs by others--DR......... 39-23-43 Do.
Repairs for others--CR........ 40-23-43 Do.
Purchased services............ 41-23-43 Do.
Other expenses................ 61-23-43 Do.
Floating equipment--revenue
service
Salaries and wages............ 11-23-44 Do.
Materials..................... 21-23-44 Do.
Repairs by others--DR......... 39-23-44 Do.
Repairs for others--CR........ 40-23-44 Do.
Purchased services............ 41-23-44 Do.
Other expenses................ 61-23-44 Do.
Computer and data processing
Salaries and wages............ 11-23-46 Do.
Materials..................... 21-23-46 Do.
Repairs by others--DR......... 39-23-46 Do.
Repairs for others--CR........ 40-23-46 Do.
Purchased services............ 41-23-46 Do.
Other expenses................ 61-23-46 Do.
Machinery
Salaries and wages............ 11-23-40 Do.
Materials..................... 21-23-40 Do.
Repairs by others--DR......... 39-23-40 Do.
Repairs for others--CR........ 40-23-40 Do.
Purchased services............ 41-23-40 Do.
Other expenses................ 61-23-40 Do.
Work and other non revenue
equipment
Salaries and wages............ 11-23-47 Do.
Materials..................... 21-23-47 Do.
Repairs by others--DR......... 39-23-47 Do.
Repairs for others--CR........ 40-23-47 Do.
Purchased services............ 41-23-47 Do.
Other expenses................ 61-23-47 Do.
Equipment damaged
Salaries and wages............ 11-23-48 Do.
Materials..................... 21-23-48 Do.
Repairs by others--DR......... 39-23-48 Do.
Repairs for others--CR........ 40-23-38 Do.
Purchased services............ 41-23-48 Do.
Other expenses................ 61-23-48 Do.
Equipment damaged
Fringe benefits................... 12-23-00 11-23-XX, sec.
1152.33(b)(3)(ii).
Other casualties and
insurance
Other casualties.............. 52-23-00 Actual.
Insurance................... 53-23-00 Do.
Lease rentals--DR............. 31-23-00 Do.
Lease rentals--CR............. 32-23-00 Do.
Joint facility rent--DR....... 33-23-00 Do.
Joint facility rent--CR....... 34-23-00 Do.
Other rents--DR............... 35-23-00 Do.
Other rents--CR............... 36-23-00 Do.
Depreciation.................. 62-23-00 Do.
Joint facility--DR............ 37-23-00 Do.
Joint facility--CR............ 38-23-00 Do.
Dismantling retired property
Salaries and wages............ 11-23-39 Do.
Materials..................... 21-23-39 Do.
Purchased services............ 41-23-39 Do.
Other expenses................ 61-23-39 Do.
Other
Salaries and wages............ 11-23-99 Do.
Materials..................... 21-23-99 Do.
Purchased services............ 41-23-99 Do.
Other expenses................ 61-23-99 Do.
(c) Transportation:
(1) Train operations:
Administration:
Salaries and wages............ 11-31-01 Do.
Materials..................... 21-31-01 Do.
Purchased services............ 41-31-01 Do.

[[Page 250]]

Other expenses................ 61-31-01 Do.
Engine crews
Salaries and wages............ 11-31-56 Do.
Materials..................... 21-31-56 Train hours, sec.
1152.33(c)(1)(i).
Purchased services............ 41-31-56 Actual.
Other expenses................ 61-31-56 Do.
Train crews
Salaries and wages............ 11-31-57 Do.
Materials..................... 21-31-57 Train hours, sec.
1152.33(c)(1)(i).
Purchased services............ 41-31-57 Actual.
Other expenses................ 61-31-57 Do.
Dispatching trains
Salaries and wages............ 11-31-58 Do.
Materials..................... 21-31-58 Do.
Purchased services............ 41-31-58 Do.
Other expenses................ 61-31-58 Do.
Operating signals and
interlockers
Salaries and wages............ 11-31-59 Do.
Materials..................... 21-31-59 Do.
Purchased services............ 41-31-59 Do.
Other expenses................ 61-31-59 Do.
Operating drawbridges
Salaries and wages............ 11-31-60 Do.
Materials..................... 21-31-60 Do.
Purchased services............ 41-31-60 Do.
Other expenses................ 61-31-60 Do.
Highway crossing protection
Salaries and wages............ 11-31-61 Do.
Materials..................... 21-31-61 Do.
Purchased services............ 41-31-61 Do.
Other expenses................ 61-31-61 Do.
Train and inspection and
lubrication
Salaries and wages............ 11-31-62 Train hours, Sec.
1152.33(c)(1)(i).
Materials..................... 21-31-62 Do.
Purchased services............ 41-31-62 Actual.
Other expenses................ 61-31-62 Do.
Locomotive fuel
Salaries and wages............ 11-31-67 Diesel locomotive
unit hours, Sec.
1152.33(c)(1)(ii).
Materials..................... 21-31-67 Do.
Purchased services............ 41-31-67 Do.
Other expenses................ 61-31-67 Do.
Electric power purchased or
produced for motive power
Salaries and wages............ 11-31-68 Electric locomotive
unit hours, sec.
1152.33(c)(1)(iii).
Materials..................... 21-31-68 Do.
Purchased services............ 41-31-68 Do.
Other expenses................ 61-31-68 Do.
Servicing locomotives
Salaries and wages............ 11-31-69 Locomotive unit
miles, sec.
1152.33(c)(1)(iv).
Materials..................... 21-31-69 Do.
Purchased services............ 41-31-69 Do.
Other expenses................ 61-31-69 Do.
Freight lost or damaged--solely 51-31-00 Actual.
related.
Clearing wrecks
Salaries and wages............ 11-31-63 Do.
Materials..................... 21-31-63 Do.
Purchased services............ 41-31-63 Do.
Other expenses................ 61-31-63 Do.
Fringe benefits................... 12-31-00 11-31-XX, sec.
1152.33 (c)(4)(i).
Other casualties and
insurance
Other casualties.............. 52-31-00 Actual.
Insurance..................... 53-31-00 Do.
Joint facility--DR............ 37-31-00 Do.
Joint facility--CR............ 38-31-00 Do.
Other
Salaries and wages............ 11-31-99 Do.
Materials..................... 21-31-99 Do.
Purchased services............ 41-31-99 Do.
Other expenses................ 61-31-99 Do.
(2) Yard operations:
Administration:
Salaries and wages............ 11-32-01 Do.
Materials..................... 21-32-01 Do.
Purchased services............ 41-32-01 Do.
Other expenses................ 61-32-01 Do.

[[Page 251]]

Switch crews
Salaries and wages............ 11-32-64 Do.
Materials..................... 21-32-64 Locomotive unit
hours, sec.
1152.33(c)(2)(i)
Purchased services............ 41-32-64 Actual.
Other expenses................ 61-32-64 Do.
Controlling operations
Salaries and wages............ 11-32-65 Do.
Materials..................... 21-32-65 Do.
Purchased services............ 41-32-65 Do.
Other expenses................ 61-32-65 Do.
Yard and terminal clerical
Salaries and wages............ 11-32-66 Do.
Materials..................... 21-32-66 Do.
Purchased services............ 41-32-66 Do.
Other expenses................ 61-32-66 Do.
Operating switches, signals,
retarders and humps
Salaries and wages............ 11-32-59 Do.
Materials..................... 21-32-59 Do.
Purchased services............ 41-32-59 Do.
Other expenses................ 61-32-59 Do.
Locomotive fuel
Salaries and wages............ 11-32-67 Dieselloco motive
unit hours, sec.
1152.33(c)(2)(ii)
Materials..................... 21-32-67 Do.
Purchased services............ 41-32-67 Do.
Other expenses................ 61-32-67 Do.
Electric power purchased or
produced for motive power
Salaries and wages............ 11-32-68 Electric locomotive
unit hours, sec.
1152.33(c)(2)(iii).
Materials..................... 21-32-68 Do.
Purchased services............ 41-32-68 Do.
Other expenses................ 61-32-68 Do.
Servicing locomotives
Salaries and wages............ 11-32-69 Locomotive unit
hours, sec.
1152.33(c)(2)(i).
Materials..................... 21-32-69 Do.
Purchased services............ 41-32-69 Do.
Other expenses................ 61-32-69 Do.
Freight lost or damaged--solely 51-32-00 Actual.
related.
Clearing wrecks
Salaries and wages............ 11-32-63 Do.
Materials..................... 21-32-63 Do.
Purchased services............ 41-32-63 Do.
Other expenses................ 61-32-63 Do.
Fringe benefits............... 12-32-00 11-32-XX, sec.
1152.33(c)(4)(ii).
Other casualties and
insurance
Other casualties.............. 52-32-00 Actual.
Insurance..................... 53-32-00 Do.
Joint facility--DR............ 37-32-00 Do.
Joint facility--CR............ 38-32-00 Do.
Other
Salaries and wages............ 11-32-99 Do.
Materials..................... 21-32-99 Do.
Purchased services............ 41-32-99 Do.
Other expenses................ 61-32-99 Do.
(3) Train and yard operations
common:
Cleaning car interiors
Salaries and wages............ 11-33-70 Do.
Materials..................... 21-33-70 Do.
Purchased services............ 41-33-70 Do.
Adjusting and transferring
loads
Salaries and wages............ 11-33-71 Do.
Materials..................... 21-33-71 Do.
Purchased services............ 41-33-71 Do.
Carloading devices and grain
doors
Salaries and wages............ 11-33-72 Do.
Materials..................... 21-33-72 Do.
Purchased services............ 41-33-72 Do.
Freight lost or damaged--all other 51-33-00 Do.
Fringe benefits................... 12-33-00 11-33-XX, sec.
1152.33(c)(4)(iii).
(4) Specialized service
operations: Administration:
Salaries and wages............ 11-34-01 Actual.
Materials..................... 21-34-01 Do.
Purchased services............ 41-34-01 Do.
Other expenses................ 61-34-01 Do.

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Pick-up and delivery, marine
line haul, and rail
substitute service
Salaries and wages............ 11-34-73 Do.
Materials..................... 21-34-73 Do.
Purchased services............ 41-34-73 Do.
Other expenses................ 61-34-73 Do.
Loading and unloading and
local marine
Salaries and wages............ 11-34-74 Do.
Materials..................... 21-34-74 Do.
Purchased services............ 41-34-74 Do.
Other expenses................ 61-34-74 Do.
Protective services
Salaries and wages............ 11-34-75 Do.
Materials..................... 21-34-75 Do.
Purchased services............ 41-34-75 Do.
Other expenses................ 61-34-75 Do.
Freight lost or damaged--Solely 51-34-00 Do.
related.
Fringe benefits................... 12-34-00 11-34-XX, sec.
1152.33(c)(4)(iv).
Casualties and insurance
Other casualties.............. 52-34-00 Actual.
Insurance..................... 53-34-00 Do.
Joint facility--DR............ 37-34-00 Do.
Joint facility--CR............ 38-34-00 Do.
Other
Salaries and wages............ 11-34-99 Do.
Materials..................... 21-34-99 Do.
Purchased services............ 41-34-99 Do.
Other expenses................ 61-34-99 Do.
(5) Administrative support
operations: Administration :
Salaries and wages............ 11-35-01 Do.
Materials..................... 21-35-01 Do.
Purchased services............ 41-35-01 Do.
Other expenses................ 61-35-01 Do.
Employees performing
clerical and accounting
functions
Salaries and wages............ 11-35-76 Do.
Materials..................... 21-35-76 Do.
Purchased services............ 41-35-76 Do.
Other expenses................ 61-35-76 Do.
Communication systems
operation
Salaries and wages............ 11-35-77 Do.
Materials..................... 21-35-77 Do.
Purchased services............ 41-35-77 Do.
Other expenses................ 61-35-77 Do.
Loss and damage claims
processing
Salaries and wages............ 11-35-78 Number of claims,
sec.
1152.33(c)(3)(i).
Materials..................... 21-35-78 Do.
Purchased services............ 41-35-78 Do.
Other expenses................ 61-35-78 Do.
Fringe benefits................... 12-35-00 11-35-XX. sec.
1152.33(c)(4)(v).
Joint facility--DR................ 37-35-00 Actual.
Joint facility--CR................ 38-35-00 Do.
Casualties and insurance......
Other casualties.............. 52-35-00 Do.
Insurance..................... 53-35-00 Do.
Other
Salaries and wages............ 11-35-99 Do.
Materials..................... 21-35-99 Do.
Purchased services............ 41-35-99 Do.
Other expenses................ 61-35-99 Do.
(d) General Administrative
Officers--general administration:
Salaries and wages............ 11-61-01 Do.
Materials..................... 21-61-01 Do.
Purchased services............ 41-61-01 Do.
Other expenses................ 61-61-01 Do.
Accounting, auditing and
finance
Salaries and wages............ 11-61-86 Do.
Materials..................... 21-61-86 Do.
Purchased services............ 41-61-86 Do.
Other expenses................ 61-61-86 Do.
Management services and data
processing
Salaries and wages............ 11-61-87 Do.

[[Page 253]]

Materials..................... 21-61-87 Do.
Purchased services............ 41-61-87 Do.
Other expenses................ 61-61-87 Do.
Marketing:
Salaries and wages............ 11-61-88 Do.
Materials..................... 21-61-88 Do.
Purchased services............ 41-61-88 Do.
Other expenses................ 61-61-88 Do.
Sales
Salaries and wages............ 11-61-89 Do.
Materials..................... 21-61-89 Do.
Purchased services............ 41-61-89 Do.
Other expenses................ 61-61-89 Do.
Industrial development
Salaries and wages............ 11-61-90 Do.
Materials..................... 21-61-90 Do.
Purchased services............ 41-61-90 Do.
Other expenses................ 61-61-90 Do.
Personnel and labor
relations
Salaries and wages............ 11-61-91 Do.
Materials..................... 21-61-91 Do.
Purchased services............ 41-61-91 Do.
Other expenses................ 61-61-91 Do.
Legal and secretarial
Salaries and wages............ 11-61-92 Do.
Materials..................... 21-61-92 Do.
Purchased services............ 41-61-92 Do.
Other expenses................ 61-61-92 Do.
Public relations and
advertising
Salaries and wages............ 11-61-93 Do.
Materials..................... 21-61-93 Do.
Purchased services............ 41-61-93 Do.
Other expenses................ 61-61-93 Do.
Research and development
Salaries and wages............ 11-61-94 Do.
Materials..................... 21-61-94 Do.
Purchased services............ 41-61-94 Do.
Other expenses................ 61-61-94 Do.
Fringe benefits................... 12-61-00 11-61-XX, sec.
1152.33(d)(1).
Casualties and insurance
Other casualties.............. 52-61-00 Actual
Insurance..................... 53-61-00 Do.
Writedown of uncollectible 63-61-00 Do.
accounts.
Other taxes except on corporate 65-61-00 Do.
income or payroll.
Joint facility--DR................ 37-61-00 Do.
Joint facility--CR................ 38-61-00 Do.
Other
Salaries and wages............ 11-61-99 Do.
Materials..................... 21-61-99 Do.
Purchased services............ 41-61-99 Do.
Other expenses................ 61-61-99 Do.
------------------------------------------------------------------------

(e) Deadheading, taxi, and hotel costs. The costs assigned under
this subsection shall be the actual costs incurred as a result of
providing service to the branch line for deadheading, taxi, and hotel
costs. The amounts included under this subsection shall not be included
under other subsections of these regulations.
(f) Overhead movement costs. The costs assigned under this
subsection shall be the actual costs incurred in moving over any other
rail line solely to reach and provide service to the branch. The amounts
shown under this subsection shall not be included under other
subsections of these regulations.
(g) Freight car costs. For Class I railroads, the on-segment costs
for time-mileage freight cars shall be calculated on the basis of the
carrier's average cost per day and per mile. Those freight cars that are
rented on a straight mileage basis are to be costed on the carrier's
average cost per mile for each type of car rented on this basis. No
costs are to be included in the calculation for private line (shipper
owned) or other cars for which the railroad does not make payments. The
cost

[[Page 254]]

per day and per mile shall be calculated separately for each type of car
specified in Ex Parte No. 334, Car Service Compensation--Basic Per Diem
Charges, 362 I.C.C. 884 (1980). The freight car costs shall be separated
between ``return on value-freight cars'' and ``freight car costs other
than return on freight cars''. The costs assigned to a line under this
subsection are to be derived from the accounts listed below.

------------------------------------------------------------------------
Operating expense group--Repair and maintenance Account No.
------------------------------------------------------------------------
Salaries and wages........................................ 11-22-42
Materials................................................. 21-22-42
Repairs by others--DR..................................... 39-22-42
Repairs for others--CR.................................... 40-22-42
Purchased services........................................ 41-22-42
Other expenses............................................ 61-22-42
Lease rentals--DR......................................... 31-22-00
Lease rentals--CR......................................... 32-22-00
Depreciation
Other rents--DR......................................... 35-22-00
Other rents--CR......................................... 36-22-00
------------------------------------------------------------------------

The system total of the repair and maintenance accounts, all
accounts designated XX-XX-42, and depreciation shall be divided into
time-related costs and mileage-related costs on the basis of 50 percent
time and 50 percent mileage for repairs, and 60 percent time and 40
percent mileage for depreciation. Freight car costs shall not include
depreciation as determined in Account No. 62-22-00. Freight car
depreciation shall be calculated in the manner set forth in paragraph
(g)(3)(i) of this section. The system total receipts and payments for
the hire of time-mileage cars, and the basic data used in the
development of the car-day and car-mile factors, shall be taken from the
carrier's latest Form R-1 and company records. The specific steps to
complete the calculation are as follows:
(1) The total system car days by car type shall be calculated by:
(i) Averaging the carrier's freight car ownership at the beginning
and end of the year (Form R-1, schedule 710, columns (b) and (k);
(ii) Multiplying the average by the standard active number of car
days (346) as developed in ICC Docket No. 31358;
(iii) Subtracting car days on foreign lines (source: Company
records); and
(iv) Adding the foreign car days on home line (source: Company
records). This procedure shall be followed for each car type specified
in Ex Parte No. 334, supra.
(2) The total railroad car miles shall be calculated by adding the
loaded car miles for the railroad owned and leased cars (R-1, Schedule
755) to empty car miles for the railroad owned or leased cars (R-1,
Schedule 755). The total car miles, loaded and empty, shall be
calculated for each car type specified in Ex Parte No. 334, supra.
(3) The cost per car day shall be calculated for each type of time-
mileage car by adding 50 percent of total freight car repair costs for
each type (Form R-1, schedule 415, column (b)), and 60 percent of the
depreciation shall be developed as follows:
(i) The current value for each type of car shall be calculated by
first arriving at the current cost per car using the most recent
purchase of this type by the railroad indexed to the midpoint of the
year or a price quote from the manufacturer. This unit price shall be
applied to the average number of this type of car owned by the carrier
during the year. The current value developed for each car type is then
multiplied by the composite depreciation rate for that type of car as
shown in the latest annual report filed with the Board or company
records.
(ii) Add 100 percent of the return on investment. Return on
investment shall be determined by multiplying the current value of each
type of car, developed in paragraph (g)(3)(i) of this section, by 1
minus the ratio of accumulated depreciation to the total original cost
investment. This will determine the net current value for each type of
car. The net current value for each type of car shall then be multiplied
by the nominal rate of return calculated in Sec. 1152.34(d) to obtain
nominal return on investment for each type of car. The total return on
investment shall then be calculated by deducting the projected holding
gain (loss) for the forecast and/or subsidy year from the nominal return
on investment for each type of car. In any instance where the holding
gain is not specifically determined for freight cars, the Gross Domestic
Product deflator calculated by the U.S. Department of Commerce shall be
used. The total return on investment for each type of car shall

[[Page 255]]

then be divided by total car-days for each car-type developed in
paragraph (g)(1) of this section.
(iii) To the amounts for repairs and depreciation, add the time
portion of the railroad's payment for hire of time-mileage freight cars
(Form R-1, schedule 414, column (g)), and subtract the time portion of
the railroad's receipts for hire of time mileage freight cars (Form R-1,
schedule 414, column (d)). The total of these costs is divided by the
total car days for each type developed in paragraph (g)(1) of this
section.
(4) The cost per mile shall be calculated for each type of time-
mileage car as follows. First, add:
(i) 50 percent of the total freight train car repair cost for each
car type (Form R-1, schedule 415, column (b));
(ii) 40 percent of the total depreciation costs for each car type
developed in paragraph (g)(3)(i) of this section; and
(iii) The mileage portion of the carrier's payments for the hire of
time-mileage freight cars (Form R-1, schedule 414, column (f)).

Second, subtract the mileage portion of the carrier's receipts for hire
of time-mileage freight cars (Form R-1, schedule 414, column (c)).
Finally, divide the result by the total car-miles for each car-type
developed in paragraph (g)(2) of this section.
(5) The costs per car day and per car mile developed in paragraphs
(g) (3) and (4) of this section shall be applied to the total car days
and total car miles for each car type accumulated on the line segment
for all traffic originated and/or terminated on the segment plus those
freight cars that bridge the line segment which are attributed to time-
mileage freight train cars. The on-segment costs for freight cars rented
on a straight mileage basis shall be the railroad's total payments for
mileage cars (Form R-1, schedule 414, column (e)) for each car type
divided by the total miles on which the charges were based.
(6) For Class II and III railroads, the on-segment costs for time-
mileage and straight mileage freight cars shall be calculated in the
same manner prescribed for Class I railroads, using the latest data
available.
(h) Return on investment--locomotive (line). The return on
investment shall be calculated for each type of classification of
locomotive that is actually used to provide service to the line segment.
The return for the locomotive(s) used shall be calculated in accordance
with the following procedure:
(1) The current replacement cost for each type of locomotive used to
serve the line segment shall be based on the most recent purchase of
that particular type and size locomotive by the carrier, indexed to the
midpoint of the forecast and/or subsidy year, or on an amount quoted by
the manufacturer. The amount must be substantiated. This unit cost shall
be multiplied by 1 minus the ratio of total accumulated depreciation to
original total cost of that type of equipment owned by applicant-
carrier, as shown by company records.
(2) The current nominal cost of capital shall be used in the
calculation of return on investment for locomotives and shall be
calculated as provided in Sec. 1152.34(d).
(3) The return on investment for each category or type of locomotive
shall be the nominal return less the holding gain (loss). The nominal
return is calculated by multiplying the replacement cost determined in
paragraph (h)(1) of this section by the nominal rate of return
determined in paragraph (h)(2) of this section. The holding gain (loss)
shall be the gain (loss) projected to occur during the forecast and/or
subsidy year. In any instance where the holding gain is not specifically
determined for locomotives, the Gross Domestic Product deflator
calculated by the U.S. Department of Commerce shall be used.
(4) The return on investment for each type of locomotive shall be
assigned to the line segment on a ratio of the locomotive unit hours on
the segment to average locomotive unit hours per unit for each type of
locomotive in the system. This ratio will be developed as follows:
(i) The carrier shall keep and maintain records of the number of
hours that each type of locomotive incurred in serving the segment
during the subsidy period.

[[Page 256]]

(ii) The railroad shall develop the system average locomotive unit
hours per unit for each of the following types of locomotives; yard
diesel; yard-other; road diesel; and road-other.
(iii) The ratio applied to the return on investment is calculated by
dividing the hours that each type or class of locomotive is used to
serve the segment, as developed in paragraph (h)(4)(i) of this section,
by the system average locomotive unit hours per unit for the applicable
type developed in paragraph (h)(4)(ii) of this section.
(5) The cost assigned to the segment for each type of locomotive
shall be calculated by multiplying the annual return on investment
developed in paragraph (h)(3) of this section by the ratio(s) developed
in paragraph (h)(4) of this section.
(i) Revenue taxes. The amount of revenue taxes shall be computed
based on the amounts directly paid in those states that subject the
railroad to a revenue tax.
(j) Property taxes (Line). (1) The assigned costs under this
subsection shall be the net systemwide property tax savings resulting
from the abandonment, calculated as set out below, if the applicant-
carrier intends subsequently to sell or otherwise dispose of the
abandoned properties. If the applicant-carrier expresses an intent to
dispose of the properties, it will be presumed that the properties will
ultimately be sold or otherwise disposed of after abandonment.
Protestants may rebut this presumption by showing that it would be
financially beneficial to retain ownership of the property for
investment purposes.
(2) In states where a true ad valorem tax is levied on real property
(such as track, land, buildings, and other facilities), applicant must
affirm that the ad valorem method applies and must substantiate the
amount of property taxes levied against the property on the line
segment.
(3) In states where the ad valorem method is not employed, applicant
must describe the applicable property tax methodology if it is claiming
the local property tax as an avoidable cost of operations. Additionally,
it must substantiate with evidence and computations the actual statewide
tax savings attributable to the abandonment.
(4) Any property tax properly substantiated under paragraphs (j)(2)
or (3) of this section shall be presumed to represent systemwide savings
to the carrier. Protestants may rebut this presumption by presenting
evidence:
(i) That property taxes in those states where the carrier operates
that are not involved in the abandonment will increase significantly
because of reassessments attributable to the abandonment; or
(ii) That a significantly higher property tax will be levied against
a retained portion of the abandoned property. If applicant does not
refute protestant's evidence, it may claim avoidable property taxes only
if, and to the extent, it proves systemwide property tax savings.
(5) In states where real property taxes are assessed and levied
against the owner of the property but the tax on rolling stock is
assessed to the railroad operating the service on the basis of a formula
of a statewide valuation of property, the tax on rolling stock
attributable to each line segment shall be determined as follows:
(i) Using ratio of the cost of equipment (as used in the formula) to
the total of all property costs (as used in formula);
(ii) Apply that ratio to the total state assessment to determine the
portion of the assessment attributable to rolling stock;
(iii) Allocate the rolling stock assessment thus determined to each
line segment on the basis of car and locomotive unit miles on the
segment to total car and locomotive unit miles in the state; and
(iv) Apply the appropriate tax rate or rates to the allocated
assessment thus determined.
(k) Administrative costs. The costs assigned under this account
shall be the actual costs directly attributable to the administration of
the subsidy program or at the option of the carrier, one percent of the
total annual revenues attributed to the branch shall be allowable to
cover all costs of administering the subsidy program. Either method may
be used, but not both.

[[Page 257]]

(l) Casualty reserve account. The costs assigned under this account
shall be any payments mutually agreed to by the person offering the
subsidy and the railroad for the purpose of holding the subsidizer
harmless from any liability under those accounts that are used to record
any costs incurred by the railroad as a result of an accident.
(m) Rehabilitation. (1) For abandonment purposes the applicant
carrier shall project the amounts necessary to permit efficient
operations over the line segment. The carrier shall indicate the level
of FRA class safety standard to be attained with the amount of
expenditure. See 49 CFR part 213. Applicant, in making its projection of
rehabilitation costs, shall give consideration to:
(i) The cost to attain the lowest operationally feasible track
level;
(ii) The cost to attain the rehabilitation level resulting in the
lowest operating and rehabilitation expenditures; or
(iii) The cost to attain the rehabilitation level resulting in the
lowest loss, or highest profit, from operations.
(2) For subsidy purposes rehabilitation costs shall not be included
unless:
(i) The track fails to meet minimum Federal Railroad Administrative
class 1 safety standards (49 CFR part 213), in which case the railroad
will furnish, with the abandonment application, a detailed estimate of
the costs to rehabilitate the track to the minimum level; or
(ii) The potential subsidizer requests a level of service which
requires expenditures for rehabilitation.
(n) Off-branch costs. The off-branch costs developed in this section
shall be separated between ``off-branch costs other than return on
freight cars'' and ``return on value-freight cars''. The off-branch
costs shall be developed in the following manner:
(1) Terminal costs, line-haul costs, interchange costs, and modified
terminal costs shall be considered as the off-branch avoidable costs of
providing service over the remainder of the railroad's system. These
costs shall be computed by applying the variable unit costs to the
service units attributed to the branch line's traffic for the time
periods specified in Sec. 1152.22(d) of this part.
(2) The procedure for determining the off-branch costs shall be
based upon the URCS cost formula. This formula shall be applied to the
latest Annual Report Form R-1 filed by the railroad, with two
exceptions. First, the amount used in the formula for freight car
depreciation shall be calculated using the procedure discussed in
paragraph (g)(3)(iii) of this section applied to the average total car
fleet of the railroad. Second, the return on investment in freight cars
shall be computed using the procedure set forth in paragraph (g)(3)(ii)
of this section. In addition, the application of URCS shall include the
use of the nominal cost of capital for all return on investment
determinations.
(3) The Class I Procedure: A Class I railroad shall calculate its
off-branch costs using the Class I procedure as set forth below in this
paragraph.
(i) The unit costs developed by applying URCS in the manner
specified in paragraph (n)(2) of this section shall be applied to the
service characteristics of each movement of traffic that is attributed
to the branch line. This application shall result in the total off-
branch cost associated with this traffic for normal terminal handlings,
line-haul mileage, and interchange events.
(ii) The modified terminal cost per carload shall be calculated
separately for each type of freight car and applied to each car that is
attributed to the branch line. The modified terminal cost shall consist
of clerical costs, two days of freight car cost, and an inter-intra
train switching cost (locomotive engine minute cost only). The clerical
cost and inter-intra train switching cost shall be calculated from unit
costs developed within the individual URCS application.
(A) The unit costs for the clerical cost per carload calculation are
located in URCS Worktable E1, Part 1: Line 106, columns 1, 2, and 3;
line 107, column 1; line 108, column 1; line 109, column 1; and line
110, column 1.
(B) The inter-intra train switching cost shall be calculated by
multiplying the total switch engine minute cost from URCS Worktable E1,
Part 1, line 111, columns 1, 2, and 3 by the total

[[Page 258]]

minutes specified in the next sentence. The total minutes specified in
this sentence shall equal the sum of:
(1) The minutes per switch event from Worktable E2, Part 1, line
118, column 29; and
(2) The product of the minutes per switch event from Worktable E2,
Part 1, line 118, column 29 and the ratio of loaded to total car miles
for the particular type of freight car being costed.
(C) The freight car cost shall be the car ownership costs per car
day for 2 days developed in accordance with the procedures set forth in
paragraph (g)(3) of this section for the type of freight car being
costed.
(iii) For a Class I railroad, the total costs calculated using the
procedures set forth in paragraphs (n)(3)(i) and (n)(3)(ii) of this
section shall constitute the off-branch costs attributable to the branch
line's traffic.
(4) A Class II or Class III railroad shall calculate its off-branch
costs using any one of three different procedures. The Class I
Procedure: A Class II or Class III railroad may calculate its off-branch
costs using the Class I procedure set forth in paragraph (n)(3) of this
section, if the necessary data are available from the railroad's own
records. If the data necessary to complete the Class I procedure set
forth in paragraph (n)(3) of this section are not available from the
railroad's own records, the Class II or Class III railroad shall
calculate its off-branch costs using either one of the following
procedures based on the latest regional URCS data and the railroad's own
records. The Class II/III Simplified Costing Procedure: A Class II or
Class III railroad may calculate its off-branch costs using the Class I
procedure set forth in paragraph (n)(3) of this section, with regional
URCS data of the Class I railroads used in lieu of individual URCS data
of the Class II or Class III railroad. Costs developed through the use
of the Class II/III simplified costing procedure shall enjoy a
rebuttable presumption of correctness. The Class II/III Standard Costing
Procedure: A Class II or Class III railroad may calculate its off-branch
costs using the Class II/III standard costing procedure set forth in
paragraphs (n)(4)(i) through (n)(4)(xiv) of this section. Costs
developed through the use of the Class II/III standard costing procedure
shall be given preference over costs developed through the use of the
Class II/III simplified costing procedure. The Class II/III standard
costing procedure is set forth in paragraphs (n)(4)(i) through
(n)(4)(xiv) of this section.
(i) The Class II or Class III railroad shall first determine which
URCS regional application will be used based on its geographical
location. The railroad's total estimated system variable expenses are
calculated by multiplying its total operating expenses by the ratio of
variable expenses to total expenses; this ratio is located in Worktable
D8, Part 6, line 615, column 1 of the URCS printout for the appropriate
region. If a railroad has passenger and freight service, the freight
portion of the total estimated system variable expenses shall be
calculated by multiplying the total estimated system variable expenses,
calculated as above, by the ratio of freight related operating expenses
to total railway operating expenses.
(ii) The total number of revenue carload terminal handlings, as
determined from the railroad's records, shall be calculated as the sum
of:
(A) Originated and terminated (local) revenue carloads multiplied by
2; plus
(B) Interchanged and either originated or terminated (interline)
revenue carloads.
(iii) The total number of revenue carload interchange handlings, as
determined from the railroad's records, shall be calculated as the sum
of:
(A) Bridge (interchange to interchange) revenue carloads multiplied
by 2; plus
(B) Revenue carloads that are interchanged and either originated or
terminated (interline).
(iv) The system average shipment weight per car, as determined from
the railroad's records, shall be calculated by dividing:
(A) Ton-miles-revenue freight by
(B) Loaded freight car miles.
(v) The system average loaded car miles per car, as determined from
the railroad's records, shall be calculated by dividing:
(A) Revenue ton-miles by

[[Page 259]]

(B) Revenue tons.
(vi) The railroad shall complete a URCS Phase III ``Movement Costing
Program'' based on the application of URCS data for the appropriate
region. The following data shall be inputs to the Phase III program
application.
(A) The carrier code, either ``REG 4'' or ``REG 7'', shall
correspond to the appropriate region.
(B) The type of shipment shall be designated as ``OD'' in order for
the movement to be costed as an interline movement.
(C) The distance shall be the system average loaded car miles per
car as developed in paragraph (n)(4)(v) of this section.
(D) The type of freight car shall be identified as a Box, General
Service Equipped, which has an input user code of ``3''. If all of the
traffic on the branch line is transported in a single type of car, and
it is not a Box, General Service Equipped, the code for that type of car
may be substituted.
(E) The number of freight cars shall be ``1''.
(F) The car ownership factor shall be designated as ``R'' for
railroad owned cars unless all of the branch line traffic is moved in
privately owned cars, in which case the code ``P'' for privately owned
cars would be the input.
(G) The program requires a loss and damage input. The code ``48'',
representing the average of all commodities, shall be used.
(H) The input for shipment weight shall be the system average
shipment weight per car developed in paragraph (n)(4)(iv) of this
section.
(I) The input for type of movement shall be ``1'', representing an
individual car movement.
(vii) The ratios employed to separate the total estimated system
variable expenses, as determined in paragraph (n)(4)(i) of this section,
among terminal, interchange, and line-haul operations shall be based on
the procedures outlined in this paragraph (n)(4)(vii). This separation
shall reflect the variable costs resulting from the application of the
URCS Phase III program based on the input factors specified in paragraph
(n)(4)(vi) of this section. The ratios shall be calculated in the
following manner:
(A) The terminal expenses calculated by the application of the Phase
III program shall consist of the following:
(1) ``Carload and Clerical Costs'' shall be calculated as the sum of
lines 256, 258, 260, 262, 264, 266, and 268.
(2) Switching expenses based on ``Total SEM-Industry'' shall be
calculated by multiplying:
(i) The sum of lines 315, 317, and 319, by
(ii) Line 311.
(3) Car mile yard cost ``CM(Y)-Industry'' shall be calculated by
multiplying:
(i) The sum of lines 426, 428, and 430, by
(ii) Line 422.
(4) Car day yard cost ``CD(Y)-Industry'' and ``CD(Y)-L&UL'' shall be
calculated by multiplying:
(i) The sum of lines 452, 454, and 456, by
(ii) The sum of lines 446 and 450.
(5) The expenses for accessorial services for railroad owned cars
shall be calculated as the sum of:
(i) The product of line 422 and the sum of lines 464, 466, and 468;
plus
(ii) The product of the sum of lines 446 and 450 and the sum of
lines 476, 478, and 480.
(B) The interchange expenses calculated by the application of the
Phase III program shall consist of the following:
(1) Switching expenses based on ``Total SEM-Interchange'' shall be
calculated by multiplying
(i) The sum of lines 315, 317, and 319, by
(ii) Line 312.
(2) Car mile cost in interchange ``CM(Y)-Interchange'' shall be
calculated by multiplying:
(i) The sum of lines 426, 428, and 430, by
(ii) Line 423.
(3) Car day cost in interchange ``CD(Y)-Interchange (L&E)'' shall be
calculated by multiplying:
(i) The sum of lines 452, 454, and 456, by
(ii) Line 447.
(4) The expenses for accessorial services for railroad owned cars
shall be calculated as the sum of:
(i) The product of line 423 and the sum of lines 464, 466, and 468;
plus.

[[Page 260]]

(ii) The product of line 447 and the sum of lines 476, 478, and 480.
(C) The line-haul expenses resulting from the application of the
Phase III program shall be calculated by subtracting the sum of:
(1) The terminal expenses as determined in paragraph (n)(4)(vii)(A)
of this section, and
(2) The interchange expenses as determined in paragraph
(n)(4)(vii)(B) of this section, from
(3) The total variable cost excluding loss and damage as calculated
in the Phase III program at line 696.
(D) The ratio for terminal expenses shall be calculated by dividing
the terminal expenses as determined in paragraph (n)(4)(vii)(A) of this
section by the total variable cost excluding loss and damage as
calculated in the Phase III program at line 696.
(E) The ratio for interchange expenses shall be calculated by
dividing the interchange expenses as determined in paragraph
(n)(4)(vii)(B) of this section by the total variable cost excluding loss
and damage as calculated in the Phase III program at line 696.
(F) The ratio for line-haul expenses shall be calculated by dividing
the line-haul expenses as determined in paragraph (n)(4)(vii)(C) of this
section by the total variable cost excluding loss and damage as
calculated in the Phase III program at line 696.
(viii) The railroad's total estimated system variable expenses shall
be separated as follows:
(A) The total terminal variable expenses shall be calculated by
multiplying the total estimated system variable expenses as determined
in paragraph (n)(4)(i) of this section by the ratio for terminal
expenses as determined in paragraph (n)(4)(vii)(D) of this section.
(B) The total interchange variable expenses shall be calculated by
multiplying the total estimated system variable expenses as determined
in paragraph (n)(4)(i) of this section by the ratio for interchange
expenses as determined in paragraph (n)(4)(vii)(E) of this section.
(C) The total line-haul variable expenses shall be calculated by
multiplying the total estimated system variable expenses as determined
in paragraph (n)(4)(i) of this section by the ratio for line-haul
expenses as determined in paragraph (n)(4)(vii)(F) of this section.
(ix) The railroad's unit costs shall be determined for terminal,
interchange, and line-haul operations as follows:
(A) The terminal cost per carload shall be calculated by dividing
the total terminal variable expenses as determined in paragraph
(n)(4)(viii)(A) of this section by the total number of revenue carload
terminal handlings as determined in paragraph (n)(4)(ii) of this
section.
(B) The interchange cost per carload shall be calculated by dividing
the total interchange variable expenses as determined in paragraph
(n)(4)(viii)(B) of this section by the total number of revenue carload
interchange handlings as determined in paragraph (n)(4)(iii) of this
section.
(C) The line-haul cost per car mile shall be calculated by dividing
the total line-haul variable expenses as determined in paragraph
(n)(4)(viii)(C) of this section by the total system freight car miles,
loaded and empty, as determined from the railroad's records.
(x) The modified terminal cost per carload is a composite of costs
developed in the Phase III program and costs determined in accordance
with paragraph (g) of this section and this paragraph. The modified
terminal cost per carload shall be calculated for each type of car as
follows:
(A) The station clerical cost per carload shall be developed in the
following manner:
(1) The station clerical expense ratio shall be calculated by
dividing the total clerical cost (the sum of lines 256, 258, 260, 262,
264, 266, and 268) by the terminal expenses as determined in paragraph
(n)(4)(vii)(A) of this section.
(2) The station clerical cost per carload shall be calculated by
multiplying the terminal cost per carload as determined in paragraph
(n)(4)(ix)(A) of this section by the station clerical expense ratio.
(B) The interchange switching cost per carload shall be developed in
the following manner:

[[Page 261]]

(1) The total interchange switching expense shall be calculated by
multiplying the sum of lines 315, 317, and 319 by line 312.
(2) The interchange switching ratio shall be calculated by dividing
the total interchange switching expense by the interchange expenses as
determined in paragraph (n)(4)(vii)(B) of this section.
(3) The interchange switching cost per carload shall be calculated
by multiplying the interchange cost per carload as determined in
paragraph (n)(4)(ix)(B) of this section by the interchange switching
ratio.
(C) The freight car cost element shall be the freight car cost per
car day for 2 days as developed for each car type in paragraph (g)(3) of
this section.
(D) The modified terminal cost per carload shall be the total of the
costs developed in paragraphs (n)(4)(x)(A), (n)(4)(x)(B), and
(n)(4)(x)(C) of this section.
(xi) The terminal costs shall be calculated by multiplying the
terminal cost per carload as determined in paragraph (n)(4)(ix)(A) of
this section by the number of carloads that both:
(A) Originated or terminated on the branch, and
(B) Are local to the railroad serving the branch.
(xii) The interchange costs shall be calculated by multiplying the
interchange cost per carload as determined in paragraph (n)(4)(ix)(B) of
this section by the number of carloads that both:
(A) Originated or terminated on the branch; and
(B) Are received in or forwarded through interchange with other
railroads.
(xiii) The line-haul costs shall be calculated by multiplying the
line-haul cost per car mile as determined in paragraph (n)(4)(ix)(C) of
this section by the total loaded and empty car miles generated on the
railroad's system off the branch by cars that originated or terminated
on the branch.
(xiv) The modified terminal costs shall be calculated by multiplying
the modified terminal cost per carload as determined in paragraph
(n)(4)(x)(D) of this section by the number of carloads that originated
or terminated on the branch.
(o) Locomotive depreciation. The depreciation expense for
locomotives used on the line shall be calculated using the following
procedure:
(1) The current replacement cost for each type of locomotive used to
serve the line will be based on the most recent purchase of that
particular type and size locomotive by the carrier indexed to the
midpoint of the year or on an amount quoted by the manufacturer.
(2) The depreciation rate that will be applied to the replacement
cost shall be the carrier's component rate for each type of locomotive
as reported in the latest Annual Report Form R-1 submitted to the Board
or from the company records. Carriers using depreciation rates based on
company records must explain why composite rates are inappropriate;
provide a detailed explanation of the methodology used to compute the
alternate depreciation rate; and demonstrate that these rates have been
used consistently.
(3) The annual depreciation cost for each type of locomotive shall
be calculated by multiplying the replacement cost(s) developed in
paragraph (o)(1) of this section by the rate from paragraph (o)(2) of
this section.
(4) The depreciation expense for each type of locomotive shall be
assigned to the line on the ratio of the hours incurred serving the line
to the average system locomotive unit hours in service by each of the
following categories of locomotives: yard-diesel; yard-other; road-
diesel; and road-other. The ratio for each type of locomotive used to
serve the line shall be the same as that developed in paragraph (h)(4)
of this section.
(5) The depreciation shall be calculated by multiplying the annual
depreciation expense for each type of locomotive developed in paragraph
(o)(3) of this section by the ratio(s) developed in paragraph (o)(4) of
this section.
(p) Opportunity costs. Applicant-carrier may, at its discretion,
present evidence of its opportunity costs, if the assets engaged in the
line proposed to be abandoned could be used more profitably in some
other capacity.

[[Page 262]]

Opportunity costs may be calculated in accordance with the
methodology established in Sec. 1152.34 of this part, or by using any
other reasonable, fully explained method. Opportunity costs are not
included as costs on Exhibit 1 described at Sec. 1152.36. These costs
should be submitted as a separate exhibit to the application.
(q) Labor costs. (1) The salaries, wages and fringe benefits of
personnel exclusively assigned to the line segment shall be deemed
attributable costs of the segment. The salaries, wages, and fringe
benefits of personnel not exclusively assigned to the line segment shall
be deemed attributable costs of the segment to the extent they are shown
to be apportionable to the segment to be abandoned.
(2) These costs shall be deemed attributable notwithstanding any
obligation of applicant to provide employee protection for employees
after the abandonment.

[61 FR 67883, Dec. 24, 1996, as amended at 81 FR 8855, Feb. 23, 2016]

Sec. 1152.33 Apportionment rules for the assignment of expenses to
on-branch costs.

The accounts specified under Sec. 1152.32 (a), (b), (c), and (d) as
having an assignment basis other than ``Actual'' shall be apportioned
according to the rules contained in this section.
(a) Maintenance of way and structures--(1) Roadway machines. All
accounts designated XX-13-36 shall be assigned to the branch on the
basis of the average repair costs, for each type of machine, included in
the daily rental fees charged by the operating railroad or as published
by the General Manager's Association of Chicago (GMA), based on the
actual number of days each type of machine is used on the branch.
(2) Small tools and supplies. All accounts designated XX-13-37 shall
be assigned to the branch as follows:
(i) The costs of supplies, consumed in the operation of roadway
machines, shall be assigned to the branch on the basis of the average
costs of supplies per day, included in the daily rental fees charged by
the operating railroad or as published by the GMA, multiplied by the
actual number of days that the machine is used on the branch;
(ii) The costs of small tools shall be assigned to the branch on the
basis of the ratio that the branch amounts in Accounts 11-11-10 through
11-11-17 and 11-11-48, plus 11-12-10 through 11-12-17 and 11-12-48, bear
to the railroad's system total for the same accounts.
(3) Fringe benefits. Fringe benefits shall be assigned to the branch
separated between running, switching and other, on the ratio that the
total branch salary and wages bear to the total system salaries and
wages for each activity as follows:
(i) Fringe benefits--Running, Account 12-11-00, total of all 11-11-
XX accounts branch to system;
(ii) Fringe benefits--Switching, Account 12-12-00, total of all 11-
12-XX accounts branch to system; and
(iii) Fringe benefits--Other, Account 12-13-00, total of all 11-13-
XX accounts branch to system.
(b) Maintenance of equipment--(1) Locomotive repairs and
maintenance. All accounts designated XX-21-41 shall be separated between
yard and road with a further separation between diesel and other
(electric). The costs for these accounts for yard locomotives shall be
assigned to the branch separately for diesel and electric locomotives on
the basis of the ratio of branch diesel and electric yard locomotive
unit-hours to the total system diesel and electric yard locomotive unit-
hours. The costs for these accounts for road locomotives shall be
assigned to the branch separately for diesel and electric locomotives on
the basis of the ratio of branch diesel and electric locomotive gross
ton-miles in road service to the total system diesel and electric
locomotive gross ton-miles in road service. The costs assigned under
these accounts for specialized equipment devoted exclusively to branch
line service shall be the actual costs for the specific equipment used.
(2) Locomotive depreciation. Locomotive depreciation shall be
calculated and assigned in accordance with the procedures set forth in
Sec. 1152.32(o).
(3) Fringe Benefits. Fringe benefits for locomotives and other
equipment shall be assigned to the branch on the ratio that the total
branch salary and wages

[[Page 263]]

bear to the system total salaries and wages for each type of equipment
as follows:
(i) Locomotives--Account 12-21-00, total of all 11-21-XX accounts
branch to system.
(ii) Other Equipment--Account 12-23-00, total of all 11-23-XX
accounts branch to system.
(iii) Fringe benefits for freight cars shall be calculated by first
estimating the total in Account 11-22-42, Freight car repairs--salaries
and wages, that is included in the total on branch costs for freight
cars as determined from the car-day and car-mile cost calculations in
Sec. 1152.32(g) of these regulations. To this amount is added the
branch totals in the balance of all 11-22-XX accounts. The ratio of this
total branch account to the system total for all 11-22-XX accounts is
applied to Account 12-22-00, Fringe Benefits--Freight Cars.
(c) Transportation--(1) Train operations--(i) Engine Crews-
Materials. Account 21-31-56; Train Crews-Materials, Account 21-31-57;
Train Inspection and Lubrication-Salaries and Wages, Account 11-31-62;
and Train Inspection and Lubrication-Materials, Account 21-31-62. If the
branch is served by a local/way or through train, the costs in these
accounts shall be assigned to the branch on the weighted ratio of the
loaded freight train cars on the branch to the total system loaded
freight train cars, and the loaded and empty car-miles on the branch to
the total system loaded and empty car-miles. This shall be calculated as
follows:
(A) To determine the car-mile portion of these accounts:
(1) Multiply the total amounts in these accounts (from the R-1
Annual Report, Schedule 410) by 69 percent, which is the ratio of train-
mile and running expenses;
(2) Divide the amount in paragraph (c)(1)(i)(A)(1) of this section
by the total system loaded and empty car-miles; and
(3) Multiply the car-mile unit cost factor from paragraph
(c)(1)(i)(A)(2) of this section by the on-branch car-miles (loaded and
empty).
(B) To determine the carload portion of these accounts:
(1) Multiply the total amounts in these accounts by 31 percent,
which is the ratio of terminal expenses;
(2) Divide the amount in paragraph (c)(1)(i)(B)(1) of this section
by the total system carloads; and
(3) Multiply the carload unit cost factor from paragraph
(c)(1)(i)(B)(2) of this section by the on-branch carloads.
(C) To determine the total costs assignable to the branch for these
accounts, add the amounts developed in paragraphs (c)(1)(i)(A)(3) and
(c)(1)(i)(B)(3) of this section.
(ii) All accounts designated xx-31-67 shall be assigned to the
branch in accordance with the following procedure. The dollar amounts
used in the determination of locomotive fuel costs shall be based on
data contained in the most recent publication issued by the General
Managers Association (GMA) relating to the rental of locomotives. The
total number of locomotive unit hours incurred by the locomotive(s)
shall then be categorized according to the applicable GMA horsepower
classification group. The fuel cost is derived from the Repairs and
Supplies Expenses element of the locomotive rental rates published by
the GMA. The fuel cost per locomotive unit hour shall be determined for
each GMA horsepower classification group by multiplying the latest GMA
fuel cost percentage by the Repairs and Supplies Expense per hour
included in each group. The fuel cost update ratio is determined by
using the indices for fuel from the Association of American Railroad's
(AAR's) Railroad Cost Recovery Index (RCR). The indices shall be taken
from the district to which the railroad is assigned by the Board. The
index for the current period is divided by the index of the period
representative of the GMA publication to develop the fuel update ratio.
The fuel cost per locomotive unit hour developed for each GMA horsepower
group shall be multiplied by the fuel update ratio to determine the fuel
cost per locomotive hour for each horsepower group. The updated fuel
cost per locomotive unit hour for each applicable GMA group shall be
multiplied by the number of locomotive unit hours incurred in serving
the branch by locomotives of that GMA horsepower classification group.

[[Page 264]]

The total cost developed under this procedure for each horsepower
classification shall be the locomotive fuel cost assignable to the
branch line.
(iii) Electric power purchased or produced for motive power--All
accounts designated XX-31-68 shall be assigned to the branch on the
ratio of road electric locomotive unit hours on the branch to the total
system road electric locomotive unit hours.
(iv) Servicing locomotives--All accounts designated XX-31-69 shall
be assigned to the branch on the ratio of road locomotive unit miles on
the branch to the total system road locomotive unit miles.
(2) Yard operations--(i) Switch Crews--Materials, Account 21-32-64,
and Servicing Locomotives, all accounts designated XX-32-69. The costs
for these accounts shall be assigned to the branch on the ratio of yard
locomotive unit hours on the branch to the system total yard locomotive
unit hours.
(ii) Locomotive fuel--All accounts designated XX-32-67 shall be
assigned to the branch on the ratio of yard diesel locomotive unit hours
on the branch to the total system yard diesel locomotive unit hours.
(iii) Electric power purchased or produced for motive power--All
accounts designated XX-32-68 shall be assigned to the branch on the
ratio of yard electric locomotive unit hours on the branch to the total
system yard electric locomotive unit hours.
(3) Administrative support operations--(i) Loss and damage claims
processing--All accounts designated XX-35-78 shall be assigned to the
branch on the ratio of the number of claims processed for loss or damage
occurring on the branch to the total number of claims processed by the
railroad.
(ii) [Reserved]
(4) Transportation fringe benefits. Fringe benefits shall be
assigned to the branch separated between train operations, yard
operations, train and yard operations common, specialized service
operations, and administrative support operations. The costs for each
activity shall be assigned to the branch on the ratio that the total
branch salary and wages bear to the total system salary and wages for
each activity shown below.
(i) Train Operations, Account 12-31-00, total of all 11-31-XX
accounts branch to system.
(ii) Yard Operations, Account 12-32-00, total of all 11-32-XX
accounts branch to system.
(iii) Train and Yard Operations Common, Account 12-33-00, total of
all 11-33-XX accounts branch to system.
(iv) Specialized Service Operations, Account 12-34-00, total of all
11-34-XX accounts branch to system.
(v) Administrative Support, Account 12-35-00, total of all 11-35-XX
accounts branch to system.
(d) General administrative. (1) Fringe Benefits, Account 12-61-00,
shall be assigned to the branch on the ratio that the total branch
salary and wages in all 11-61-XX accounts bear to the system total
salary and wages in all 11-61-XX accounts.
(2) [Reserved]

Sec. 1152.34 Return on investment.

Return on investment for road property shall be computed according
to the procedures set forth in this section.
(a)-(b) [Reserved]
(c) Return on investment--road properties. Return on investment--
road properties shall be computed according to the following procedures:
(1) The investment base to which the nominal return element shall
apply shall be the sum of:
(i) The allowable working capital computed at 15 days on-branch cash
avoidable costs (on branch avoidable costs less depreciation).
(ii) The amount of current income tax benefits resulting from
abandonment of the line which would have been applicable to the period
of the subsidy agreement. (Conversely, if the railroad would incur an
income tax liability from abandonment, the liability should be deducted
from the investment base.) This information is to be furnished by the
railroad and subject to audit by the person offering the subsidy.
(iii) The net liquidation value for the highest and best use for
non-rail purposes of the rail properties on the line to be subsidized
which are used and required for performance of the services requested by
the persons offering the subsidy. This value shall be determined by
computing the current appraised

[[Page 265]]

market value of such properties for other than rail transportation
purposes, less all costs of dismantling and disposition of improvements
necessary to make the remaining properties available for their highest
and best use and complying with applicable zoning, land use, and
environmental regulations. If rehabilitation has been performed along
the line during a subsidy year and rehabilitation expenses have been
paid by the subsidizer under 49 CFR 1152.32(m)(2), the investment base
shall exclude the increment to the net liquidation value of the line
caused by the rehabilitation project. For these purposes:
(A) In calculating the net liquidation values for the Forecast Year,
no asset on the line shall be excluded from the determination of net
liquidation value because it contributes negatively to that value, i.e.,
the removal costs exceed the market value after removal. All such assets
shall be included in the net liquidation value determination if the
carrier is required by law to remove them or if the carrier intends to
remove them, even if it is not required to do so. The parties shall
fully support and explain the exclusion for net liquidation purposes of
all assets having a negative salvage value.
(1) In calculating the net liquidation value of railroad properties
for the purpose of determining the operating subsidy under an offer of
financial assistance, any asset with a negative salvage value shall be
included at a value of zero (0).
(2) Determination of the net liquidation value of rail properties
for the purpose of purchasing the rail properties under an offer of
financial assistance shall include any asset with a negative salvage
value at a value of zero (0).
(B) All adjustments to the appraised fair market value of right-of-
way land, including a downward adjustment to reflect an imputed real
estate Board or selling expense, shall be fully supported and explained.
(C) Parties shall fully support and explain their use of unadjusted
across-the-fence (ATF) values as a surrogate for the value of railroad
right-of-way land, given that the physical and economic characteristics
(grading and elevation) usually are different from those of surrounding
parcels. All adjustments to ATF values to arrive at the right-of-way
values shall also be supported and explained.
(2) [Reserved]
(d) Reasonable return. A rail carrier shall furnish to the Board,
and to any financially responsible person considering making an offer of
a rail service continuation payment, a substantiated statement showing
its current nominal cost of capital. The railroad's nominal cost of
capital shall be the current before tax cost of capital, weighted to the
capital structure, and adjusted for the effects of the combined
statutory Federal and state income tax rates. This rate of return
expressed as a percent, shall be calculated as follows:
(1) The railroad shall determine its permanent capital structure
ratio for debt and equity capital such that the two numbers total 100
percent. This capital structure will be the actual capital structure of
the railroad. If this calculation is not possible or also not
representative because the railroad is part of a conglomerate, the debt-
equity ratio from the Board's latest Determination of Adequate Railroad
Revenues will be used. However, if the debt-equity ratio for the
railroad industry is used then the industry average equity and debt rate
from the Board's latest revenue adequacy finding must also be used in
paragraphs (d)(2) and (d)(3) of this section.
(2) The current nominal cost of debt shall be determined by taking
the average of all debt instruments (including bonds, equipment trust
certificates, financial lease arrangements, et cetera) issued by the
carrier in the most recent 12-month period. The debt cost calculated by
this procedure is a before-tax rate and is not adjusted for inflation or
income taxes.
(3) The current nominal after tax cost of equity shall be an amount
equal to that which a prudent investor would expect to earn through
investment in the market place. The current after tax nominal cost of
equity is divided by 1 minus the combined statutory Federal and state
income tax rates. This will develop the nominal cost of equity on a
before tax basis.

[[Page 266]]

(4) The current nominal before-tax cost of debt is multiplied by the
current percentage of debt to total capital to obtain a weighted before-
tax nominal cost of current debt.
(5) The current nominal before-tax cost of equity is multiplied by
the current percentage of equity to total capital to obtain a weighted
nominal before-tax cost of current equity.
(6) The results of paragraphs (d)(4) and (d)(5) of this section are
added together to determine the current nominal cost of capital.
(e) Holding gain (loss)-road properties. The railroad shall
determine the holding gain (loss) that is projected to occur during the
forecast and/or subsidy year. In any instance where the holding gain is
not specifically determined for road properties, the Gross Domestic
Product deflator calculated by the U.S. Department of Commerce shall be
used.

Sec. 1152.35 [Reserved]

Sec. 1152.36 Submission of revenue and cost data.

The following information shall be submitted by applicant as Exhibit
1 to an abandonment or discontinuance application (Sec. 1152.22(d)) and
shall be developed in accordance with the methodology established in
Sec. Sec. 1152.31 through 1152.35, as applicable. Such information,
form and methodology shall also be used by an offeror of financial
assistance to formulate a Proposed Subsidy Payment (Sec. 1152.27).

------------------------------------------------------------------------
Forecast Projected
Base year year subsidy year
operations operations operations
------------------------------------------------------------------------
Revenues attributable for:
1. Freight originated and/
or terminated on branch
2. Bridge traffic
3. All other revenue and
income
4. Total revenues
attributable (lines 1
through 3)
Avoidable costs for:
5. On-branch costs (lines
5a through 5k)
a. Maintenance of way
and structures
b. Maintenance of
equipment
c. Transportation
d. General
administrative
e. Deadheading, taxi,
and hotel
f. Overhead movement
g. Freight car costs
(other than return on
freight cars)
h. Return on value-
locomotives
i. Return on value-
freight cars
j. Revenue taxes
k. Property taxes
6. Off-branch costs
a. Off-branch costs
(other than return on
freight cars)
b. Return on value-
freight cars
7. Total avoidable costs
(line 5 plus line 6)
Subsidization costs for:
8. Rehabilitation \1\
9. Administration costs
(subsidy year only) \2\
10. Casualty reserve
account \2\
11. Total subsidization
costs (lines 8 through
10)
Return on value:
12. Valuation of property
(lines 12a through 12c)
a. Working capital.... XXXX........
b. Income tax XXXX........
consequences.
c. Net liquidation XXXX........
value.
13. Nominal rate of return XXXX........
14. Nominal return on XXXX........
value (line 12 times line
13) \3\.
15. Holding gain (loss)... XXXX........
16. Total return on value XXXX........
(line 14 minus 15) \3\.
17. Avoidable loss from
operations (line 4 minus
line 7)
18. Estimated forecast
year loss from operations
(line 4 minus lines 7 and
16)
19. Estimated subsidy
(line 4 minus lines 7, 11
and 16)
------------------------------------------------------------------------
\1\ This projection shall be computed in accordance with Sec.
1152.32(m).
\2\ Omit in applications pursuant to Sec. Sec. 1152.22 and 1152.23.
\3\ If the amount in line 12c is a negative for the ``Forecast Year
operations'' insert ``0'' in this line.

[[Page 267]]

Sec. 1152.37 Financial status reports.

Within 30 days after the end of each quarter of the subsidy year,
each carrier which is party to the financial assistance agreement shall
submit to the subsidizer a Financial Status Report for each line
operated under subsidy. Such Financial Status Report shall be in the
form prescribed below. Significant deviations from the negotiated
estimates must be explained. All data shall be developed in accordance
with the methodology set forth in Sec. Sec. 1152.31 through 1152.35. In
the quarterly reports, the actual data for the year to date and a
projection to the end of the subsidy year shall be shown for each item.

----------------------------------------------------------------------------------------------------------------
Actual Projected
----------------------------------------------------------------------------------------------------------------
Revenues for:
1. Freight originated and/or
terminated on branch
2. Bridge traffic
3. All other revenue and income
4. Total revenues (lines 1 through 3)
Avoidable costs for:
5. On-branch costs (lines 5a through
5j)
a. Maintenance of way and
structures
b. Maintenance of equipment
c. Transportation
d. General administrative
e. Deadheading, taxi, and hotel
f. Overhead movement
g. Freight car costs
h. Return on investment--
locomotives
i. Revenue taxes
j. Property taxes
6. Off-branch costs
7. Total avoidable costs (line 5 plus
line 6)
Subsidization costs for:
8. Rehabilitation
9. Administrative costs
10. Casualty
11. Total subsidization costs (lines
8 through 10)
Return on value:
12. Valuation of property (lines 12a
through 12c)
a. Working capital
b. Income tax consequences
c. Net liquidation value
13. Rate of return
14. Total return on value (line 12
times line 13)
Subsidy payment:
15. Subsidy payment (line 4 minus
lines 7, 11, and 14)
----------------------------------------------------------------------------------------------------------------

Subpart E [Reserved]

Subpart F_Exempt Abandonments and Discontinuances of Service and
Trackage Rights

Sec. 1152.50 Exempt abandonments and discontinuances of service and
trackage rights.

(a)(1) A proposed abandonment or discontinuance of service or
trackage rights over a railroad line is exempt from the provisions of 49
U.S.C. 10903 if the criteria in this section are satisfied.
(2) Whenever the Board determines a proposed abandonment to be
exempt from the requirements of 49 U.S.C. 10903, whether under this
section or on the basis of the merits of an individual petition, the
provisions of Sec. Sec. 1152.27, 1152.28, and 1152.29 as they relate to
exemption proceedings shall be applicable.
(b) An abandonment or discontinuance of service or trackage rights
is exempt if the carrier certifies that no local traffic has moved over
the line for at least 2 years and any overhead traffic on the line can
be rerouted over other lines and that no formal complaint filed by a
user of rail service on the line (or a state or local government entity
acting on behalf of such user) regarding cessation of service over the
line either is pending with the Board or

[[Page 268]]

any U.S. District Court or has been decided in favor of the complainant
within the 2-year period. The complaint must allege (if pending), or
prove (if decided) that the carrier has imposed an illegal embargo or
other unlawful impediment to service.
(c) The Board has found:
(1) That its prior review and approval of these abandonments and
discontinuances is not necessary to carry out the rail transportation
policy of 49 U.S.C. 10101; and
(2) That these transactions are of limited scope and continued
regulation is unnecessary to protect shippers from abuse of market
power. 49 U.S.C. 10502. A notice must be filed to use this class
exemption. The procedures are set out in Sec. 1152.50(d). This class
exemption does not relieve a carrier of its statutory obligation to
protect the interests of employees. 49 U.S.C. 10502(g) and 10903(b)(2).
This also does not preclude a carrier from seeking an exemption of a
specific abandonment or discontinuance that does not fall within this
class.
(d) Notice of exemption. (1) At least 10 days prior to filing a
notice of exemption with the Board, the railroad seeking the exemption
must notify in writing:
(i) The Public Service Commission (or equivalent agency) in the
state(s) where the line will be abandoned or the service or trackage
rights discontinued;
(ii) Department of Defense (Military Surface Deployment and
Distribution Command, Transportation Engineering Agency, Railroads for
National Defense Program);
(iii) The National Park Service, Recreation Resources Assistance
Division; and
(iv) The U.S. Department of Agriculture, Chief of the Forest
Service.
The notice shall name the railroad, describe the line involved,
including United States Postal Service ZIP Codes, indicate that the
exemption procedure is being used, and include the approximate date that
the notice of exemption will be filed with the Board. The notice shall
include the following statement ``Based on information in our
possession, the line (does) (does not) contain federally granted rights-
of-way. Any documentation in the railroad's possession will be made
available promptly to those requesting it.''
(2) The railroad must file a verified notice using its appropriate
abandonment docket number and subnumber (followed by the letter ``X'')
with the Board at least 50 days before the abandonment or discontinuance
is to be consummated. The notice shall include the proposed consummation
date, the certification required in Sec. 1152.50(b), the information
required in Sec. Sec. 1152.22(a) (1) through (4), (7) and (8), and
(e)(4), the level of labor protection, and a certificate that the notice
requirements of Sec. Sec. 1152.50(d)(1) and 1105.11 have been complied
with.
(3) The Board, through the Director of the Office of Proceedings,
shall publish a notice in the Federal Register within 20 days after the
filing of the notice of exemption. The notice shall include a statement
to alert the public that following any abandonment of rail service and
salvage of the line, the line may be suitable for other public use,
including interim trail use. Petitions to stay the effective date of the
notice on other than environmental or historic preservation grounds must
be filed within 10 days of the publication. Petitions to stay the
effective date of the notice on environmental or historic preservation
grounds may be filed at any time but must be filed sufficiently in
advance of the effective date in order to allow the Board to consider
and act on the petition before the notice becomes effective. Petitions
for reconsideration, comments regarding environmental, energy and
historic preservation matters, and requests for public use conditions
under 49 U.S.C. 10905 and 49 CFR 1152.28(a)(2) must be filed within 20
days after publication. Requests for a trail use condition under 16
U.S.C. 1247(d) and 49 CFR 1152.29 must be filed within 10 days after
publication. The exemption will be effective 30 days after publication,
unless stayed. If the notice of exemption contains false or misleading
information, the use of the exemption is void ab initio and the Board
shall summarily reject the exemption notice.
(4) In out-of-service rail line exemption proceedings under 49 CFR
1152.50, the Board, on its own motion, will stay

[[Page 269]]

the effective date of individual notices of exemption when an informed
decision on pending environmental and historic preservation issues
cannot be made prior to the date that the exemption authority would
otherwise become effective.
(5) A notice or decision to all parties will be issued if use of the
exemption is made subject to environmental, energy, historic
preservation, public use and/or interim trail use and rail banking
conditions.
(6) To address whether the standard labor protective conditions set
forth in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91
(1979), adequately protect affected employees, a petition for partial
revocation of the exemption under 49 U.S.C. 10502(d) must be filed.
(e) Consummation notice. As provided in Sec. 1152.29(e)(2), rail
carriers that receive authority to abandon a line under Sec. 1152.50
must file with the Board a notice that abandonment has been consummated.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997;
83 FR 15079, Apr. 9, 2018]

Subpart G_Special Rules Applicable to Petitions for Abandonments or
Discontinuances of Service or Trackage Rights Filed Under the 49 U.S.C.
10502 Exemption Procedure

Sec. 1152.60 Special rules.

(a) This section contains special rules applicable to any proceeding
instituted under the 49 U.S.C. 10502 exemption procedure for either the
abandonment of a rail line or the discontinuance of service or trackage
rights over a rail line. General rules applicable to any proceeding
filed under the 49 U.S.C. 10502 exemption procedure may be found at 49
CFR part 1121, but the rules in part 1152 control in case of any
conflict with the general exemption rules. In the case of petitions for
exemption for abandonment, notice of the filing of the petition will be
published by the Board, through the Director of the Office of
Proceedings, in the Federal Register 20 days after the petition is
filed. There will be no further Federal Register publication later if
and when a petition is granted.
(b) Any petition filed under the 49 U.S.C. 10502 exemption procedure
for either the abandonment of a rail line or the discontinuance of
service or trackage rights over a rail line must be accompanied by a map
that meets the requirements of Sec. 1152.22(a)(4) of this part.
(c) A petitioner for an abandonment exemption shall submit, with its
petition, a draft Federal Register notice of its petition according to
the form prescribed below:

Draft Federal Register Notice. The petitioner shall submit a draft
notice of its petition to be published by the Board within 20 days of
the petition's filing with the Board. The draft notice shall be in the
form set forth below:

STB No. AB-___ (Sub-No.___)

Notice of Petition for Exemption To Abandon or To Discontinue Service

On (insert date petition was filed with the Board) (name of
petitioner) filed with the Surface Transportation Board, Washington,
D.C. 20423, a petition for exemption for the abandonment of (the
discontinuance of service on) a line of railroad known as___, extending
from railroad milepost near (station name) to (the end of line or rail
milepost) near (station name), which traverses through ___ (ZIP Codes)
United States Postal Service ZIP Codes, a distance of ___ miles, in
[County(ies), State(s)]. The line for which the abandonment (or
discontinuance) exemption request was filed includes the stations of
(list all stations on the line in order of milepost number, indicating
milepost location).
The line (does) (does not) contain federally granted rights-of-way.
Any documentation in the railroad's possession will be made available
promptly to those requesting it.
The interest of railroad employees will be protected by (specify the
appropriate conditions).
Any offer of financial assistance will be due no later than 10 days
after service of a decision granting the petition for exemption.
All interested persons should be aware that following abandonment of
rail service and salvage of the line, the line may be suitable for other
public use, including interim trail use.
Any request for a public use condition and any request for trail
use/rail banking will be due no later than 20 days after notice of the
filing of the petition for exemption is published in the Federal
Register.

[[Page 270]]

Persons seeking further information concerning abandonment
procedures may contact the Surface Transportation Board or refer to the
full abandonment or discontinuance regulations at 49 CFR part 1152.
Questions concerning environmental issues may be directed to the Board's
Office of Environmental Analysis.
An environmental assessment (EA) (or environmental impact statement
(EIS), if necessary) prepared by the Office of Environmental Analysis
will be served upon all parties of record and upon any agencies or other
persons who commented during its preparation. Any other persons who
would like to obtain a copy of the EA (or EIS) may contact the Office of
Environmental Analysis. EAs in these abandonment proceedings normally
will be made available within 60 days of the filing of the petition. The
deadline for submission of comments on the EA will generally be within
30 days of its service.

(d) A petitioner for an abandonment exemption must serve a copy of
the petition on the persons receiving notices of exemption under Sec.
1152.50(d). The petition must include the following statement: ``Based
on information in our possession, the line (does) (does not) contain
federally granted right-of-way. Any documentation in petitioner's
possession will be made available promptly to those requesting it.''
(e) As Provided in Sec. 1152.29(e)(2), rail carriers that receive
authority to abandon a line by individual exemption under 49 U.S.C.
10502 must file with the Board a notice that abandonment has been
consummated.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997;
83 FR 15079, Apr. 9, 2018; 84 FR 12945, Apr. 3, 2019]

PART 1155_SOLID WASTE RAIL TRANSFER FACILITIES--Table of Contents

Subpart A_General

Sec.
1155.1 Purpose and scope.
1155.2 Definitions.

Subpart B_Procedures Governing Petitions To Require a Facility in
Existence on October 16, 2008, To Apply for a Land-Use-Exemption Permit

1155.10 Contents of petition.
1155.11 Filing and service of petition.
1155.12 Participation in petition procedures.
1155.13 Board determination with respect to a Governor's petition.

Subpart C_Procedures Governing Applications for a Land-Use-Exemption
Permit

1155.20 Notice of intent to apply for a land-use-exemption permit.
1155.21 Contents of application.
1155.22 Filings and service of application.
1155.23 Participation in application proceedings.
1155.24 Environmental review.
1155.25 Transfer and termination of a land-use-exemption permit.
1155.26 Board determinations under 49 U.S.C. 10909.
1155.27 Petitions to modify, amend, or revoke a land-use-exemption
permit.

Appendix A to Part 1155--Form Notice of Intent To Apply
Appendix B to Part 1155--Form Federal Register Notice

Authority: 49 U.S.C. 1321(a), 10908, 10909, 10910.

Source: 77 FR 69774, Nov. 21, 2012, unless otherwise noted.

Subpart A_General

Sec. 1155.1 Purpose and scope.

49 U.S.C. 10501(c)(2)(B) excludes solid waste rail transfer
facilities from the Board's jurisdiction except as provided under 49
U.S.C. 10908 and 10909. Sections 10908 and 10909 provide the Board
authority to issue land-use-exemption permits for solid waste rail
transfer facilities when certain conditions are met. The regulations in
this part concern land-use-exemption permits and the Board's standard
for review.

Sec. 1155.2 Definitions.

(a) Unless otherwise provided in the text of these regulations, the
following definitions apply in this part:
(1) Commercial and retail waste means material discarded by stores,
offices, restaurants, warehouses, nonmanufacturing activities at
industrial facilities, and other similar establishments or facilities.
(2) Construction and demolition debris means waste building
materials, packaging, and rubble resulting from construction,
remodeling, repair, and demolition operations on pavements, houses,
commercial buildings, and other structures.

[[Page 271]]

(3) Environmental Impact Statement or ``EIS'' means the detailed
written statement required by the National Environmental Policy Act, 42
U.S.C. 4332(2)(c), for a major federal action significantly affecting
the quality of the human environment.
(4) Household waste means material discarded by residential
dwellings, hotels, motels, and other similar permanent or temporary
housing establishments or facilities.
(5) Industrial waste means the solid waste generated by
manufacturing and industrial and research and development processes and
operations, including contaminated soil, nonhazardous oil spill cleanup
waste and dry nonhazardous pesticides and chemical waste, but does not
include hazardous waste regulated under subtitle C of the Solid Waste
Disposal Act (42 U.S.C. 6921 et seq.), mining or oil and gas waste.
(6) Institutional waste means material discarded by schools,
nonmedical waste discarded by hospitals, material discarded by
nonmanufacturing activities at prisons and government facilities, and
material discarded by other similar establishments or facilities.
(7) Municipal solid waste means household waste, commercial and
retail waste, and institutional waste.
(8) Office of Environmental Analysis or ``OEA'' means the Board
staff that prepares the Board's environmental documents and analyses.
(9) Solid waste means construction and demolition debris; municipal
solid waste; household waste; commercial and retail waste; institutional
waste; sludge; industrial waste; and other solid waste, as determined
appropriate by the Board, but not waste generated by a rail carrier
during track, track structure, or right-of-way construction,
maintenance, or repair (including railroad ties and line-side poles), or
waste generated as a result of a railroad accident, incident, or
derailment.
(10) Solid waste rail transfer facility--
(i) Means the portion of a facility owned or operated by or on
behalf of a rail carrier (as defined in 49 U.S.C. 10102) where solid
waste, as a commodity to be transported for a charge, is collected,
stored, separated, processed, treated, managed, disposed of, or
transferred, when the activity takes place outside of original shipping
containers; but
(ii) Does not include--
(A) The portion of a facility to the extent that activities taking
place at such portion are comprised solely of the railroad
transportation of solid waste after the solid waste is loaded for
shipment on or in a rail car, including railroad transportation for the
purpose of interchanging railroad cars containing solid waste shipments;
or
(B) A facility where solid waste is solely transferred or
transloaded from a tank truck directly to a rail tank car.
(11) Sludge means any solid, semi-solid, or liquid waste generated
from a municipal, commercial, or industrial wastewater treatment plant,
water supply treatment plant, or air pollution control facility
exclusive of the treated effluent from a wastewater treatment plant.
(b) Exceptions. Notwithstanding paragraph (a) of this section, the
terms household waste, commercial and retail waste, and institutional
waste do not include yard waste and refuse-derived fuel; used oil; wood
pallets; clean wood; medical or infectious waste; or motor vehicles
(including motor vehicle parts or vehicle fluff).
(c) Land-use-exemption permit means the authorization issued by the
Board pursuant to the authority of 49 U.S.C. 10909(a) and includes the
term ``siting permit'' in 49 U.S.C. 10909(e).
(d) State laws, regulations, orders, or other requirements affecting
the siting of a facility, as used in 49 U.S.C. 10909(f) and 49 CFR
1155.27(d), include the requirements of a state or a political
subdivision of a state, including a locality or municipality, affecting
the siting of a facility.
(e) State requirement, as used in 49 U.S.C. 10908 does not include
the laws, regulations, ordinances, orders, or other requirements of a
political subdivision of a state, including a locality or municipality,
unless a state expressly delegates such authority to such political
subdivision.

[[Page 272]]

Subpart B_Procedures Governing Petitions To Require a Facility in
Existence on October 16, 2008, To Apply for a Land-Use-Exemption Permit

Sec. 1155.10 Contents of petition.

A petition to require a solid waste rail transfer facility in
existence on October 16, 2008, to apply for a land-use-exemption permit,
submitted by the Governor of the state or that Governor's designee,
shall contain the following information:
(a) The Governor's name.
(b) The state's name and the name of any agency filing on behalf of
the Governor.
(c) The full address of the solid waste rail transfer facility, or,
if not available, the city, state, and United States Postal Service ZIP
code.
(d) The name of the rail carrier that owns or operates the facility
or the rail carrier on whose behalf the facility is operated.
(e) A good-faith certification that the facility qualified as a
solid waste rail transfer facility as defined in 49 U.S.C.
10908(e)(1)(H) and 49 CFR 1155.2, on October 16, 2008.
(f) Relief sought (that the rail carrier that owns or operates the
facility be required to apply for a land-use-exemption permit).
(g) Name, title, and address of representative of petitioner to whom
correspondence should be sent.

Sec. 1155.11 Filing and service of petition.

(a) When the petition is filed with the Board, the petitioner shall
serve concurrently, by first class mail, a copy of the petition on the
rail carrier that owns or operates the solid waste rail transfer
facility and on the facility if the address is different than the rail
carrier's address. A copy of the certificate of service shall be filed
with the Board at the same time.
(b) Upon the filing of a petition, the Board will review the
petition and determine whether it conforms to all applicable
regulations. If the petition is substantially incomplete or is otherwise
defective, the Board will reject the petition without prejudice for
stated reasons by order within 15 days from the date of filing of the
petition.
(c) If the petition is rejected, a revised petition may be
resubmitted, and the Board will determine whether the resubmitted
application conforms with all prescribed regulations.

Sec. 1155.12 Participation in petition proceedings.

(a) An interested person may file a reply to the petition
challenging any of the information contained in the petition that is
required by 49 CFR 1155.10(c) through (e) and may offer evidence to
support its contention. The petitioner will have an opportunity to file
a rebuttal.
(b) A facility can acknowledge that it was a solid waste rail
transfer facility on October 16, 2008, but no longer operates as such
and therefore is not required to seek a land-use-exemption permit. To do
so, a facility must file with the Board a certification stating that it:
(1) No longer operates as a solid waste transfer facility;
(2) Understands that by certifying that it no longer operates as a
solid waste transfer facility, it no longer qualifies as a facility in
existence on October 16, 2008 for purposes of the Clean Railroad Act and
these regulations; and
(3) Understands that if it seeks a land-use-exemption permit in the
future, it would be required to do so as a proposed facility.
(c) Filing and service of replies. (1) Any reply shall be filed with
the Board (the Chief, Section of Administration, Office of Proceedings,
Surface Transportation Board, 395 E Street SW., Washington, DC 20423)
within 20 days of the filing with the Board of the petition.
(2) A copy of the reply shall be served on petitioner or its
representative at the time of filing with the Board. Each filing shall
contain a certificate of service.
(3) Any rebuttal to a reply shall be filed and served by petitioner
no later than 30 days after the filing of the petition.

[[Page 273]]

Sec. 1155.13 Board determination with respect to a Governor's petition.

The Board shall accept the Governor's complete petition on a finding
that the facility qualified as a solid waste rail transfer facility, as
defined in 49 U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2, on October 16,
2008. If the Board finds that the facility currently does not qualify
for or require a land-use-exemption permit, any future use of the
facility as a solid waste rail transfer facility would require an
application for a land-use-exemption permit as a proposed facility and/
or the proper state permits. In a decision granting the Governor's
petition, the Board shall require that the rail carrier that owns or
operates the facility, or the operator of the facility, file a land-use-
exemption-permit application within 120 days of the service date of the
decision.

Subpart C_Procedures Governing Applications for a Land-Use-Exemption
Permit

Sec. 1155.20 Notice of intent to apply for a land-use-exemption permit.

(a) Filing and publication requirements. An applicant (i.e., a solid
waste rail transfer facility, or the rail carrier that owns or operates
the facility) shall give its Notice of Intent to file a land-use-
exemption-permit application by complying with the following procedures:
(1) Filing. Applicant must serve its Notice of Intent on the Board
in the format prescribed in Appendix A to this part. The Notice of
Intent shall be filed in accordance with the time requirements of
paragraph (b) of this section.
(2) Service. Applicant must serve, by first-class mail (unless
otherwise specified), its Notice of Intent upon:
(i) The Governor of the state where the facility is located;
(ii) The municipality, the state, and any relevant political
subdivision of a state or federal or state regional planning entity in
the jurisdiction of which the solid waste rail transfer facility is
located or proposed to be located; and
(iii) The appropriate managing government agencies responsible for
the groups of land listed in 49 U.S.C. 10909(c)(2).
(3) Newspaper publication. Applicant must publish its Notice of
Intent at least once during each of 3 consecutive weeks in a newspaper
of general circulation in each county in which any part of the proposed
or existing facility is located.
(b) Time limits. (1) The Notice of Intent must be served on the
parties discussed above at least 15 days, but not more than 30 days,
prior to the filing of the land-use-exemption-permit application;
(2) The three required newspaper Notices must be published within
the 30-day period prior to the filing of the application; and
(3) The Notice of Intent must be filed with the Board either
concurrently with service on the required parties or when the Notice is
first published (whichever occurs first).
(c) Environmental and Historic Reports. Applicant must also submit
an Environmental and/or Historic Report containing the information
described at 49 CFR 1155.24(b), 1105.7, and 1105.8, to the extent
applicable, at least 45 days prior to filing an application. OEA may
reject any report that it deems inadequate. The environmental and
historic reporting requirements that would otherwise apply are waived,
however, if the applicant or the Board hires a third-party consultant,
OEA approves the scope of the consultant's work, and the consultant
works under OEA's supervision to prepare an EIS or other environmental
documentation. In such a case, the consultant acts on behalf of the
Board, working under OEA's direction to collect the needed environmental
information and compile it into an EIS or other appropriate
environmental documentation. See 49 U.S.C. 10909(h); 49 CFR 1155.24(c).

Sec. 1155.21 Contents of application.

Applications for land-use-exemption permits for the facility, and
any proposed future expansion within 10 years of the application date,
shall contain the following information, including supporting
documentation:
(a) General. (1) Exact name of applicant.

[[Page 274]]

(2) Whether applicant is a common carrier by railroad subject to 49
U.S.C. Subtitle IV, chapter 105.
(3) Summary of why a land-use-exemption permit is being sought.
(4) The full address of the solid waste rail transfer facility, or,
if not available, the city, state, and United States Postal Service ZIP
code.
(5) The name of the rail carrier that owns or operates the facility
or the rail carrier on whose behalf the facility is operated, the line
of railroad serving the facility, the milepost location of the facility,
and the milepost and names of the stations that the facility is located
between.
(6) Name, title, and address of representative of applicant to whom
comments should be sent.
(7) Copies of the specific state, local, or municipal laws,
regulations, orders, or other requirements affecting the siting of the
solid waste rail transfer facility from which the applicant requests
entire or partial exemption, any publicly available material providing
the criteria for the application of the state, local, or municipal laws,
regulations, orders, or other requirements affecting the siting, and a
description of any action that the state, local, or municipal authority
has taken affecting the siting of the facility. The applicant shall
state whether each law, regulation, order or other requirement from
which an exemption is sought is an environmental, public health, or
public safety standard that falls under the traditional police powers of
the state. If the applicant states that the requirement is not such a
standard, it shall explain the reasons for its statement.
(8) Certification that the laws, regulations, orders or other
requirements from which the applicant requests exemption are not based
on federal laws, regulations, orders, or other requirements.
(9) Certification that the facility complies with all state, local,
or municipal laws, regulations, orders, or other requirements affecting
the siting of the facility except for those from which it seeks
exemption.
(10) Certification that the applicant has applied or will apply for
the appropriate state permits not affecting siting.
(11) For facilities not in existence as of October 16, 2008,
certification that the facility is not proposed to be located on land
within any unit of or land affiliated with the National Park System, the
National Wildlife Refuge System, the National Wilderness Preservation
System, the National Trails System, the National Wild and Scenic Rivers
System, a National Reserve, or a National Monument. For facilities in
existence as of October 16, 2008, state whether the facility is located
in any of these types of lands.
(12) For facilities not in existence as of October 16, 2008,
certification that the facility is not proposed to be located on lands
referenced in The Highlands Conservation Act, Public Law No. 108-421,
for which a state has implemented a conservation management plan, or,
that the facility is consistent with the restrictions implemented by the
applicable state under The Highlands Conservation Act, Public Law No.
108-421, placed on its proposed location. For facilities in existence as
of October 16, 2008, state whether the facility is located on any of
these lands, and, if so, address whether the facility is consistent with
the restrictions placed on the location by the applicable state under
that law.
(13) An explanation of how the facility comes within the Board's
jurisdiction under 49 U.S.C. 10501.
(14) The owner and operator of the facility.
(15) The interest of the rail carrier in the facility.
(16) An explanation of how the facility meets the definition of a
solid waste rail transfer facility at 49 U.S.C. 10909(e)(1)(H).
(17) A statement whether the applicant has sought permission from
the applicable state, local, or municipal authority with respect to some
or all of the facility in its application and received an unsatisfactory
result affecting the siting of the facility. The applicant shall provide
information about the unsatisfactory result and shall include all
relevant orders, decisions, or other notices of the denial.
(18) A detailed description of the operations and activities that
will occur/are occurring at the facility.

[[Page 275]]

(19) Detailed map showing the subject facility on sheets not larger
than 11x17 inches, drawn to scale, and with the scale shown thereon. The
map must show, in clear relief, the exact location of the facility on
the rail line and its relation to other rail lines in the area,
highways, water routes, population centers, and any geographic features
that should be considered in determining whether the facility would pose
an unreasonable risk to public health, safety, or the environment,
pursuant to 49 U.S.C. 10909(c)(1).
(20) Detailed drawing of the subject facility on sheets not larger
than 11x17 inches, drawn to scale, and with the scale shown thereon. The
drawing must show, in clear relief, the exact boundaries of the
facility, structures at the facility, the location and type of the
operations taking place at the facility, the proposed traffic
configuration for the solid waste entering and leaving the facility,
reasonable future expansion planned for the next 10 years that the
applicant requests to be included in the land-use-exemption permit, any
geographic features that should be considered in determining whether the
facility would pose an unreasonable risk to public health, safety, or
the environment, pursuant to 49 U.S.C. 10909(c)(1), and any other
information that the applicant believes would be relevant.
(21) A detailed justification for why any future expansion planned
for the next 10 years should be covered by the land-use-exemption
permit.
(b) Statement. A statement that sets forth, based on currently
available information, the reasons why the Board should grant a land-
use-exemption permit to the applicant under the standards in 49 U.S.C.
10909(c), (d) and the regulations in this part. Specifically, the
applicant shall include an explanation of whether the laws, regulations,
or other requirements affecting siting of the facility from which
exemption is sought, on their face or as applied, unreasonably burden
the interstate transportation of solid waste by railroad or discriminate
against the railroad transportation of solid waste and a solid waste
rail transfer facility, and, if so, why.
(c) Environmental impact. The applicant shall certify that it has
submitted an Environmental and/or Historic Report containing the
information in 49 CFR 1155.24(b), 1105.7, and 1105.8, to the extent
applicable, if an Environmental and/or Historic Report is required. See
49 CFR 1155.20(c).
(d) Additional information. The applicant shall submit such
additional information to support its application as the Board may
require.
(e) Draft Federal Register Notice. The applicant shall submit a
draft notice of its application to be published by the Board. The Board
will publish the notice in the Federal Register within 20 days of the
application's filing with the Board. The draft notice shall be in the
form set forth in appendix B to this part.
(f) Verification. The original application shall be executed and
verified in the form set forth below by an officer of the applicant
having knowledge of the facts and matters relied upon.

Verification

State of ____ ss.
County of ____
______ (Name of affiant) makes oath and says that (s)he is the ____
(title of affiant) of the ____ (name of applicant) applicant herein;
that (s)he has been authorized by the applicant (or as appropriate, a
court) to verify and file with the Surface Transportation Board the
foregoing application in Finance Docket No. __ (Sub-No. __); that (s)he
has carefully examined all of the statements in the application as well
as the exhibits attached thereto and made a part thereof; that (s)he has
knowledge of the facts and matters relied upon in the application; and
that all representations set forth therein are true and correct to the
best of his/her knowledge, information, and belief.

(Signature)

Subscribed and sworn to before me ____ in and for the State and
County above named, this __ day of __, 20__.

My commission expires ____

[77 FR 69774, Nov. 21, 2012, as amended at 84 FR 12945, Apr. 3, 2019]

Sec. 1155.22 Filings and service of application.

(a) The applicant shall tender with its application an affidavit
attesting to its compliance with the notice requirements of 49 CFR
1155.20. The affidavit shall include the dates of service, posting, and
newspaper publication of the Notice of Intent.

[[Page 276]]

(b) When the application is filed with the Board, the applicant
shall serve concurrently, by first-class mail, a copy on the Governor of
the state where the facility is located; the municipality, the state,
and any relevant political subdivision of a state or federal or state
regional planning entity of the jurisdiction in which the solid waste
rail transfer facility is located or proposed to be located; and the
appropriate managing government agencies responsible for the groups of
land listed in 49 U.S.C. 10909(c)(2). A copy of the certificate of
service shall be filed with the Board at the same time.
(c) The applicant shall promptly furnish by first class mail a copy
of the application to any interested person proposing to file a comment
upon request. A copy of the certificate of service shall be filed with
the Board at the same time.
(d)(1) Upon the filing of a land-use-exemption-permit application,
the Board will review the application and determine whether it conforms
to all applicable regulations. If the application is substantially
incomplete or is otherwise defective, the Board shall reject the
application for stated reasons by order within 20 days from the date of
filing of the application. If the Board does not reject the application,
notice of the filing of the application shall be published in the
Federal Register by the Board, through the Director of the Office of
Proceedings, within 20 days of the filing of the application.
(2) If the application is rejected, a revised application may be
submitted and the Board will determine whether the resubmitted
application conforms with all prescribed regulations. A properly revised
application submitted within 60 days of the order rejecting the
incomplete or improper application need not be subject to new notice and
publication under Sec. 1155.20, unless the defect causing the rejection
was in the notice and/or publication. A revised application submitted
after such 60-day period must be newly published and noticed.
(3) The resubmission of a complete and properly filed land-use-
exemption-permit application shall be considered a de novo filing for
the purposes of computation of the time periods prescribed in the
regulations contained in this part.
(4) An applicant may seek waiver of specific regulations listed in
subpart C of this part by filing a petition for waiver with the Board.
When the petition is filed with the Board, the applicant shall serve, by
first-class mail, a copy on the Governor of the state where the facility
is located; the municipality, the state, and any relevant political
subdivision of a state or federal or state regional planning entity of
the jurisdiction in which the solid waste rail transfer facility is
located or proposed to be located; and the appropriate managing
government agencies responsible for the groups of land listed in 49
U.S.C. 10909(c)(2). A copy of the certificate of service shall be filed
with the Board at the same time. A decision by the Director of the
Office of Proceedings granting or denying a waiver petition will be
issued within 30 days of the date the petition is filed. Appeals from
the Director's decision will be decided by the entire Board. If waiver
is not obtained prior to the filing of the application, the application
may be subject to rejection.

Sec. 1155.23 Participation in application proceedings.

(a) Initial comments. Interested persons may become parties to a
land-use-exemption-permit proceeding by filing initial comments with the
Board within 45 days of the filing of the application. Comments should
contain the following information, as appropriate:
(1) Name, address, and organizational affiliation.
(2) A statement describing commenter's interest in the proceeding,
including information concerning any organization or public interest it
represents.
(3) Reasons, in general, why commenter supports or opposes the
application, taking into account the standards for the Board's review
and consideration set forth in 49 U.S.C. 10909(c), (d) and this part.
(4) Any rebuttal to the evidence and argument submitted by
applicant.
(b) Final comments. Interested persons, including the applicant,
within 30 days after the close of OEA's environmental review, may
comment on how

[[Page 277]]

the information developed during OEA's environmental review concerning
the considerations at 49 U.S.C. 10909(d)(1) through (5) should be
weighed with the remaining transportation and other relevant
considerations at 49 U.S.C. 10909(d)(6) through (7). The parties will
have an additional 15 days to respond to other parties' arguments. All
pleadings shall be limited to weighing the information developed during
OEA's environmental review with transportation and other concerns, and
should not be directed towards the adequacy of OEA's environmental
review. (Interested persons may comment on the adequacy of OEA's
environmental review during the normal comment period for the EIS as
provided in 49 CFR 1105.10(a)(4). See 49 CFR 1155.24(a).) All comments
under this paragraph shall contain the information required in
paragraphs (a)(1) through (2) of this section.
(c) Filing and service of comments and replies (including evidence
and argument). (1) Initial comments shall be filed with the Board
(addressed to the Chief, Section of Administration, Office of
Proceedings, Surface Transportation Board, 395 E Street SW., Washington,
DC 20423) within 45 days of the filing with the Board of a land-use-
exemption-permit application. A copy of each comment shall be served on
applicant or its representative at the time of filing with the Board.
Each filing shall contain a certificate of service.
(2) Final comments shall be filed and served on all parties within
30 days of the close of the environmental review. A copy of each comment
shall be served on applicant or its representative at the time of filing
with the Board. Each filing shall contain a certificate of service.
(3) Replies to final comments shall be filed and served on all
parties no later than 45 days after the close of the environmental
review. A copy of each reply to comments shall be served on applicant or
its representative at the time of filing with the Board. Each filing
shall contain a certificate of service.

[77 FR 69774, Nov. 21, 2012, as amended at 84 FR 12945, Apr. 3, 2019]

Sec. 1155.24 Environmental review.

(a) A land-use-exemption permit generally will require the
preparation of an EIS. OEA may reclassify the environmental review
requirements of land-use-exemption proceedings on a case-by-case basis,
pursuant to 49 CFR 1105.6(d).
(b) An applicant for a land-use-exemption permit must submit an
Environmental Report, at least 45 days prior to filing a land-use-
exemption-permit application, containing the information described at 49
CFR 1105.7 to the extent applicable to solid waste rail transfer
facilities. Applicants shall concurrently file a Historic Report
containing the information at 49 CFR 1105.8 if applicable. The
Environmental Report must also contain a discussion of the five factors
for consideration listed at 49 U.S.C. 10909(d)(1) through (5) and
address any associated environmental impacts as they relate to the
facility for which a land-use-exemption permit is sought.
(c) The Board strongly encourages applicants to use third-party
contractors to assist OEA in preparing the appropriate environmental
documentation in land-use-exemption-permit proceedings. See 49 CFR
1105.10(d). The environmental reporting requirements outlined above that
would otherwise apply are waived if an applicant hires a third-party
contractor, OEA approves the scope of the contractor's work, and the
contractor works under OEA's direct supervision. See 49 CFR 1105.10(d).
If an applicant does not hire an independent third-party contractor, the
Board may hire a third-party contractor and charge the costs for the
contractor to the applicant. See 49 U.S.C. 10909(h).
(d) The Board's procedures set forth in 49 CFR 1105.10 for
implementation of environmental laws are controlling unless superseded
by provisions in this Part.
(e) An applicant for a land-use-exemption permit must follow the
Board's procedures at 49 CFR 1105.9 for compliance with the Coastal Zone
Management Act, 16 U.S.C. 1451 through 1465, if that act is applicable.

[[Page 278]]

Sec. 1155.25 Transfer and termination of a land-use-exemption permit.

(a) A land-use-exemption permit may be transferred from a rail
carrier to an acquiring rail carrier without the need for a new
application for a land-use-exemption permit if the rail line associated
with the solid waste rail transfer facility is transferred to another
rail carrier or to an entity formed to become a rail carrier pursuant to
authority granted by the Board under 49 U.S.C. 10901, 10902, or 11323.
When seeking Board authority under 49 U.S.C. 10901, 10902, or 11323, the
applicant(s) shall specifically advise the Board, the municipality, the
state, and any relevant political subdivision of a state or federal or
state regional planning entity of the jurisdiction in which the solid
waste rail transfer facility is located, of the intended transfer. The
Federal Register notice concerning the acquisition shall include a
statement that a solid waste rail transfer facility with a Board-issued
land-use-exemption permit is included in the acquisition.
(b) When a carrier plans to cease using a facility as a solid waste
rail transfer facility, or when a facility is transferred to any party
in any manner other than that described in paragraph (a) of this
section, the entity that received the land-use-exemption permit must
notify the Board, the municipality, the state, and any relevant
political subdivision of a state or federal or state regional planning
entity of the jurisdiction in which the solid waste rail transfer
facility is located, in writing no later than 60 days prior to the
proposed cessation or transfer. Upon receipt of that notice, the Board
will publish notice in the Federal Register that the land-use-exemption
permit will be terminated on the 60th day unless otherwise ordered by
the Board.

Sec. 1155.26 Board determinations under 49 U.S.C. 10909.

(a) Schedule. (1) The schedule in paragraph (a)(2) of this section
shall govern the process for Board consideration and decisions in land-
use-exemption-permit application proceedings from the time the
application is filed until the time of the Board's decision on the
merits:
(2) At least 45 days prior to filing of application--Environmental
Report (and/or Historic Report, if applicable) filed and environmental
process initiated pursuant to 49 CFR 1155.24. Within 30 days prior to
filing of application--Notice of Intent filed with the Board pursuant to
the deadlines and requirements described in 49 CFR 1155.20(b)(3).
(i) Day 0--Application filed.
(ii) Day 20--Due date for Notice of Application to be published in
the Federal Register.
(iii) Day 45--Due date for initial comments.
(iv) 30 days after the Final EIS (or other final environmental
documentation) is issued by OEA--Due date for final comments.
(v) 45 days after the Final EIS (or other final environmental
documentation) is issued by OEA--Due date for replies to final comments.
(3) A decision on the merits will be due 90 days after a full record
is developed.
(b) Standard for review. (1) The Board will issue a land-use-
exemption permit only if it determines that the facility at the existing
or proposed location would not pose an unreasonable risk to public
health, safety, or the environment. In deciding whether a solid waste
rail transfer facility that is or proposed to be constructed or operated
by or on behalf of a rail carrier poses an unreasonable risk to public
health, safety, or the environment, the Board shall weigh the particular
facility's potential benefits to and the adverse impacts on public
health, public safety, the environment, interstate commerce, and
transportation of solid waste by rail.
(2) The Board will not grant a land-use-exemption permit for a solid
waste rail transfer facility proposed to be located on land within any
unit of or land affiliated with the National Park System, the National
Wildlife Refuge System, the National Wilderness Preservation System, the
National Trails System, the National Wild and Scenic Rivers System, a
National Reserve, or a National Monument.
(3) The Board will not grant a land-use-exemption permit for a solid
waste rail transfer facility proposed to be located on land within any
unit of or land affiliated with lands referenced in

[[Page 279]]

The Highlands Conservation Act, Public Law No. 108-421, for which a
state has implemented a conservation management plan, if operation of
the facility would be inconsistent with restrictions placed on such
land.
(4) The Board will reject an application from a person who is not a
rail carrier, but is instead operating on behalf of a rail carrier
unless;
(i) The applicant has sought permission from the applicable state,
local, or municipal authority with respect to some or all of the
property in the application and received an unsatisfactory result
affecting the siting of the facility, or
(ii) The Governor of the state has petitioned the Board to require
the facility to apply under subpart B of this part.
(5) The Board will issue a land-use-exemption permit to an applicant
that has received an unsatisfactory result from a state, local or
municipal authority affecting the siting of the facility only if it
finds that the laws, regulations, or other requirements affect the
siting of the facility, on their face or as applied, either;
(i) Unreasonably burden the interstate transportation of solid waste
by railroad, or
(ii) Discriminate against the railroad transportation of solid waste
and a solid waste rail transfer facility.
(6) A land-use-exemption permit will only exempt state, local, or
municipal laws, regulations, orders, other requirements, or portions
thereof, affecting the siting of the solid waste rail transfer facility.
(c) Considerations. As required by 49 U.S.C. 10909(d), the Board
will consider and give due weight to the following, as applicable:
(1) The land-use, zoning, and siting regulations or solid waste
planning requirements of the state or state subdivision in which the
facility is or will be located that are applicable to solid waste
transfer facilities, including those that are not owned or operated by
or on behalf of a rail carrier;
(2) The land-use, zoning, and siting regulations or solid waste
planning requirements applicable to the property where the solid waste
rail transfer facility is proposed to be located;
(3) Regional transportation planning requirements developed pursuant
to federal and state law;
(4) Regional solid waste disposal plans developed pursuant to
federal or state law;
(5) Any federal and state environmental protection laws or
regulations applicable to the site;
(6) Any unreasonable burdens imposed on the interstate
transportation of solid waste by railroad, or the potential for
discrimination against the railroad transportation of solid waste, a
solid waste rail transfer facility, or a rail carrier that owns or
operates such a facility; and
(7) Any other relevant factors, as determined by the Board.
(d) Permits. If the Board grants a land-use-exemption permit for a
solid waste rail transfer facility, such permit will only exempt a
facility from complying with state laws, regulations, orders, or other
requirements affecting the siting of the facility that are specified
therein. The permit will require compliance with all other state laws,
regulations, orders, or other requirements not otherwise expressly
exempted in the permit.

Sec. 1155.27 Petitions to modify, amend, or revoke a
land-use-exemption permit.

General rule. Petitions to modify, amend, or revoke land-use-
exemption permits shall be decided in accordance with the Board's normal
standard of review for petitions to reopen administratively final Board
actions at 49 CFR 1115.4. The petition must demonstrate material error,
new evidence, or substantially changed circumstances that warrant the
requested action, and is subject to these additional conditions:
(a) An entity that petitions for a modification or amendment
requesting an expansion of federal preemption or the facility's
operations or physical size is subject to the notice and application
requirements in this subpart C. The language of the notifications shall
be modified to note that the petition is for a modification or
amendment.
(b) The Board will approve or deny petitions to modify, amend, or
revoke a land-use-exemption permit within 90

[[Page 280]]

days after the full record for the petition is developed.

Sec. Appendix A to Part 1155--Form Notice of Intent To Apply

Docket No. FD __(Sub-No. __)
Notice of Intent to apply for a land-use-exemption permit for a
solid waste rail transfer facility.
(Name of Applicant) gives notice that on or about (insert date
application will be filed with the Board) it intends to file with the
Surface Transportation Board, 395 E Street SW., Washington, DC 20423, an
application for a land-use-exemption permit for a solid waste rail
transfer facility as defined in 49 U.S.C. 10908(e)(1)(H) and 49 CFR
1155.2. The solid waste rail transfer facility, owned by (name of
owner), and operated by (name of operator), is located at (full address,
or, if not available, provide city, state, and United States Postal
Service ZIP code). The solid waste rail transfer facility is located on
a (name of rail carrier) line of railroad known as ____ at milepost ____
between (station name) at milepost ____ and (station name) at milepost
____.
The reason(s) for the proposed permit application is (are) ____
(explain briefly and clearly the activities undertaken, or proposed to
be undertaken, by the applicant at the solid waste rail transfer
facility. Describe the specific state and local laws, regulations,
orders or other requirements affecting siting from which the applicant
requests entire or partial exemption and any action that the state,
local, or municipal authority has taken affecting the siting of the
facility. Also, if applicant is not the rail carrier, provide the name
of the rail carrier that owns or operates the facility or has the
facility operated on its behalf.)
(Include this paragraph for facilities not in existence on October
16, 2008). Applicant certifies that, based on information in its
possession, the facility is not proposed to be located on land within
any unit of or land affiliated with the National Park System, the
National Wildlife Refuge System, the National Wilderness Preservation
System, the National Trails System, the National Wild and Scenic Rivers
System, a National Reserve, or a National Monument. Applicant further
certifies that the facility is not proposed to be located on lands
referenced in The Highlands Conservation Act, Public Law 108-421, for
which a state has implemented a conservation management plan (or, The
facility is consistent with the restrictions implemented by (state)
under The Highlands Conservation Act, Public Law 108-421, placed at its
proposed location). Any relevant documentation in the railroad's
possession on these issues will be made available promptly to those
requesting it.
(For facilities already in existence on October 16, 2008, address
the extent to which the facility is or is not located in any of these
types of lands, and to the extent that it is so located address any
relevant criteria, and so certify.)
The application containing the information set forth at 49 CFR
1155.21 will include the applicant's case for the granting of the land-
use-exemption permit. Any interested person, after the application is
filed on (insert date), may file with the Surface Transportation Board
initial comments concerning the application within 45 days after the
application is filed.
The party's initial comments should contain that party's initial
arguments in support or opposition based on the information available at
that point including the following, as appropriate:
(1) Name, address, and organizational affiliation.
(2) A statement describing commenter's interest in the proceeding,
including information concerning the organization or public interest the
commenter represents.
(3) Specific reasons why commenter supports or opposes the
application, taking into account the standards for the Board's review
and consideration provided in 49 U.S.C. 10909(c), (d), and the Board's
regulations at 49 CFR 1155.27.
(4) If the applicant files under 49 CFR 1155.22, specific reasons
why commenter supports or opposes the Board's accepting the application.
(5) Any rebuttal of material submitted by applicant.
The parties' initial comments will be considered by the Board in
determining what disposition to make of the application. Parties seeking
further information concerning the filing of comments should refer to 49
CFR 1155.24.
Interested persons also will have the opportunity to provide
detailed comments during the Board's environmental review under the
National Environmental Policy Act. 49 CFR 1105.10 and 49 CFR 1155.25.
Questions concerning the environmental review process or potential
environmental issues may be directed to the Board's Office of
Environmental Analysis (OEA). After the close of the environmental
review, interested parties may file final comments on how the
information developed during the environmental review should be weighed
by the Board in determining whether to grant the requested land-use-
exemption permit. See 49 CFR part 1155 for details on these processes.
All comments should indicate the proceeding designation Docket No.
FD __ (Sub-No. __). Initial comments must be filed with the Chief,
Section of Administration, Office of Proceedings, Surface Transportation
Board, 395 E Street SW., Washington, DC 20423, no later than (insert the
date 45 days

[[Page 281]]

after the date applicant intends to file its application). A copy of
each comment shall be served upon the representative of the applicant
(insert name, address, and phone number). Except as otherwise set forth
in 49 CFR part 1155, each document filed with the Board must be served
on all parties to the land-use-exemption-permit proceeding. See 49 CFR
1104.12(a).
Persons seeking further information concerning land-use-exemption-
permit procedures may contact the Surface Transportation Board or refer
to 49 U.S.C. 10908, 10909, and the full land-use-exemption-permit
regulations at 49 CFR part 1155.
A copy of the application will be available for public inspection on
or after (insert date the land-use-exemption-permit application is to be
filed with Board) and will be available on the Board's Web site at
www.stb.gov. The applicant shall furnish a copy of the application to
any interested person proposing to file a comment, upon request.

[77 FR 69774, Nov. 21, 2012, as amended at 83 FR 15080, Apr. 9, 2018]

Sec. Appendix B to Part 1155--Form Federal Register Notice

Docket No. FD __ (Sub-No. __)
Notice of Application for a land-use-exemption permit for a solid
waste rail transfer facility.
On (insert date application was filed with the Board) (name of
applicant) filed with the Surface Transportation Board, 395 E Street
SW., Washington, DC 20423, an application for a land-use-exemption
permit for a solid waste rail transfer facility. The solid waste rail
transfer facility, owned by (name of owner), and operated by (name of
operator), is located at (full address, or, if not available, provide
city, state, and United States Postal Service ZIP code). The solid waste
rail transfer facility is located on a line of (name of rail carrier)
railroad known as ____ at milepost ____ between (station name) at
milepost ____ and (station name) at milepost ____. The application
explains why applicant believes its request for a land-use-exemption
permit should be granted.
(Include this paragraph for facilities not in existence on October
16, 2008). The facility is not proposed to be located on land within any
unit of or land affiliated with the National Park System, the National
Wildlife Refuge System, the National Wilderness Preservation System, the
National Trails System, the National Wild and Scenic Rivers System, a
National Reserve, or a National Monument. The facility is not proposed
to be located on lands referenced in The Highlands Conservation Act,
Public Law No. 108-421, for which a state has implemented a conservation
management plan (or, The facility is consistent with the restrictions
implemented by (state) under The Highlands Conservation Act, Public Law
108-421, placed on its proposed location). Any relevant documentation in
the railroad's possession will be made available promptly to those
requesting it.
(For facilities already in existence on October 16, 2008, address
the extent to which the facility is or is not located in any of these
types of lands, and to the extent that it is so located address any
relevant criteria, and so certify.)
Any interested person may file with the Surface Transportation Board
initial comments concerning the application within 45 days of the filing
of the application. Persons seeking information concerning the filing of
initial comments should refer to 49 CFR 1155.23.
All comments should indicate the proceeding designation Finance
Docket No. __ (Sub-No. __). Initial comments must be filed with the
Chief, Section of Administration, Office of Proceedings, Surface
Transportation Board, 395 E Street SW., Washington, DC 20423, no later
than (insert the date 45 days after the date applicant intends to file
its application). A copy of each comment shall be served upon the
representative of the applicant (insert name, address, and phone
number). Except as otherwise set forth in 49 CFR part 1155, each
document filed with the Board must be served on all parties to the land-
use-exemption-permit proceeding. 49 CFR 1104.12(a).
Persons seeking further information concerning land-use-exemption-
permit procedures may contact the Surface Transportation Board or refer
to 49 U.S.C. 10908, 10909, 10910, and the Board's implementing land-use-
exemption-permit regulations at 49 CFR part 1155.
A copy of the application is available for public inspection. The
applicant shall furnish a copy of the application to any interested
person proposing to file a comment, upon request.
Questions concerning the environmental review process or potential
environmental issues may be directed to the Board's Office of
Environmental Analysis (OEA). After the close of the environmental
review, interested parties may file final comments on how the
information developed during the environmental review should be weighed
by the Board in determining whether to grant the requested land-use-
exemption permit. See 49 CFR part 1155 for details on these processes.

PARTS 1156 1176 [RESERVED]

Parts 1177 1199_Finance Procedures

[[Page 282]]

Parts 1177 1179_Securities, Security Interests and Financial Structures

PART 1177_RECORDATION OF DOCUMENTS--Table of Contents

Sec.
1177.1 Definitions and classifications of documents.
1177.2 To whom documents should be submitted for recordation.
1177.3 Requirements for submission.
1177.4 Sample forms.
1177.5 Administrative procedure.

Authority: 49 U.S.C. 1321, 11301.

Source: 46 FR 54946, Nov. 5, 1981, unless otherwise noted.
Redesignated at 47 FR 49592, Nov. 1, 1982.

Sec. 1177.1 Definitions and classifications of documents.

(a) A ``primary document'' is a mortgage (excluding those under the
Ship Mortgage Act of 1920, as amended--46 U.S.C. et seq.), lease,
equipment trust agreement, conditional sales agreement, assignment of a
lease or leases which have not previously been filed, or other
instrument evidencing the mortgage, lease, conditional sale, or bailment
of one or more vessels operated subject to Surface Transportation Board
jurisdiction, railroad cars, locomotives, or other rolling stock for a
use related to interstate commerce.
(b) A ``secondary document'' is any assignment of rights or
interest, supplement, or amendment to any primary or other secondary
document. These include releases, discharges, or satisfactions, either
total or partial.

Sec. 1177.2 To whom documents should be submitted for recordation.

Documents to be recorded shall be submitted in person, via the
Board's website, or by mail addressed to the Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board,
Washington, DC 20423-0001. All documents submitted by mail should
clearly state ``Documents for Recordation'' on the envelope.

[74 FR 52910, Oct. 15, 2009]

Sec. 1177.3 Requirements for submission.

In order to be accepted for recordation, an original of any primary
or secondary document must:
(a) Be in writing and executed by the parties to the document, and
acknowledged or verified either in a form:
(1) Authorized by the law of the state, territory, district or
possession where executed for the acknowledgement or verification of
deeds of land; or
(2) Substantially as follows:

Individual Form of Acknowledgement

I, (name of signor), certify that I am the person described in and
who executed the foregoing instrument and that I acknowledge that I
executed the same as my free act and deed. I further declare (certify,
verify or state) under penalty of perjury (``under the laws of the
United States of America'' if executed outside the United States) that
the foregoing is true and correct. Executed on (date).

Signature.

or;

Corporate Form of Acknowledgement

I, (name of signor), certify that I am (title of office) of (name of
corporation), that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, that the instrument was signed and
sealed on behalf of the corporation by authority of its Board of
Directors, and that I acknowledge that the execution of the foregoing
instrument was the free act and deed of the corporation. I further
declare (certify, verify or state) under penalty of perjury (``under the
laws of the United States of America'' if executed outside the United
States of America) that the foregoing is true and correct. Executed on
(date).

Signature.

or;

(3) Substantially as follows:

Individual Form of Acknowledgement

State of ______________

County of _____________, ss:

On this _______ day of ________, 19__, before me, personally
appeared (name of signor), to me known to be the person described in and
who executed the foregoing instrument and (s)he acknowledged that (s)he
executed the same as his/her free act and deed.
(SEAL)
________________________________________________________________________

Signature of Notary Public

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My Commission expires___________________________________________________

Corporate Form of Acknowledgement

State of _______________________________________________________________
County of _____________, ss:____________________________________________

On this _______ day of ___________, 19__ before me personally
appeared (name of signor), to me personally known, who being by me duly
sworn, says that (s)he is the (title of office) of (name of
corporation), that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of
Directors, and (s)he acknowledged that the execution of the foregoing
instrument was the free act and deed of said corporation.
(SEAL)
________________________________________________________________________
Signature of Notary Public
My Commission expires___________________________________________________

(b) Be accompanied by at least one fully executed and acknowledged
or verified counterpart, or if no counterpart has been executed and
acknowledged by the parties, one certified true copy. A certified true
copy of an original document is a complete and identical copy in all
respects to the original attached with:
(1) A certificate executed by a notary public, stating that he or
she has compared the copy with the original and has found the copy to be
complete and identical in all respects to the original document; or
(2) A certification of the filer stating that he or she has compared
the copy with the original and found the copy to be complete and
identical in all respects to the original document and that he or she
declares under penalty of perjury (``under the laws of the United States
of America'' if executed outside the United States) that the foregoing
is true and correct; or
(3) There may be attached to the copy, affidavits, wherein the
affidavit states that he or she has compared the copy with the original
document and found the copy to be complete and identical in all respects
to the original documents.
(c) Be accompanied by the fee set forth in 49 CFR 1002.2(f)(83).
However, assignments which are executed prior to the filing of the
primary document and which are submitted concurrently will be treated
along with the primary document as one for fee purposes and will be
assessed only one fee. A lease and agreement (Philadelphia Plan) shall
be similarly treated.
(d) Be accompanied by a letter of transmittal requesting the
recording of the document. For a sample of a letter, see Sec. 1177.4.
Documents submitted concurrently under the same recordation number may
be included in a single transmittal letter. Otherwise, each document
must have its own letter of transmittal. The letter should be addressed
to the Chief, Section of Administration, Office of Proceedings and
include the following information:
(1) Type of Agreement. (equipment trust, mortgage, assignment,
etc.).
(2) Whether document is a primary document or a secondary document
(see Sec. 1177.1). If the document is a secondary document, it must
contain the recordation number of the primary document to which it is
connected, unless it is being filed concurrently with a primary document
to which a recordation number has not yet been assigned.
(3) A request for cross-indexing. If the document is an assignment,
parties may request the listing of the assignment in the index under the
name(s) of parties with continuing interest not involved in this
particular assignment.
(4) A description of the equipment covered in the document--(i) For
railway equipment--The type of equipment; whether locomotives, cars, or
other rolling stock; with any A.A.R. mechanical designation; the number
of each type; any identifying marks such as the name or initials of the
lessee, mortgagee, or vendee, and the road or serial number, or if more
than one for each type of equipment, the first and last inclusive
numbers.
(ii) For water carrier equipment--Whether tow boats, barges or other
vessels; type of equipment; description as contained in the United
States Coast Guard certificate of enrollment; number of each type of
equipment; and any identifying marks such as the name or initial of the
lessee, mortgagee, or vendee.
(5) Parties to the agreement, as follows:
(i) Conditional sale-vendor, purchaser, guarantor.
(ii) Mortgage--mortgagor, mortgagee, guarantor.

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(iii) Equipment Trust--vendor, trustee, lessor, lessee, guarantor of
lease.
(iv) Lease--lessee, lessor, guarantor.
(v) Bailment--bailor, bailee, guarantor.
(vi) Other transactions--principal debtor, trustee, guarantor, and
other parties.
(6) Parties to whom original document should be returned.
(7) The amount of the enclosed fee.
(8) A short summary (1 or 2 sentences) of the type of document and a
very brief description of the equipment and identifying numbers. This
summary will be entered into the index as an aid to researching the
encumbrances to title. (For a sample of a summary, see Sec. 1177.4).
(9) The letter must be signed by an executive officer of one of the
parties having knowledge of the matters described in the letter, or
their attorney or representative in fact.

Note: If the document is a mortgage or deed of trust which contains
a ``hereafter acquired'' or similar clause, the following statement may
be included in the letter of transmittal in lieu of the equipment
description above:

``Included in the property covered by the aforesaid mortgage (or
deed of trust) are (here identify generally the equipment such as
``barges, tow boats, or other vessels, railroad cars, locomotives and
other rolling stock'') intended for use related to interstate commerce,
or interests therein, owned by (name of mortgagor) at the date of said
mortgage or thereafter acquired by it or its successors as owners of the
water carriers or the lines of railway covered by the mortgage.''

When such a mortgage or deed of trust is filed, it is not necessary to
refile the document whenever additional rolling stock is acquired in
order to perfect the lien of the document upon the addition of vessels
or rolling stock.

(Authority: 5 U.S.C. 553, 31 U.S.C. 9701; 49 U.S.C. 10321)

[46 FR 54946, Nov. 5, 1981. Redesignated at 47 FR 49592, Nov. 1, 1982
and amended at 52 FR 46484, Dec. 8, 1987; 56 FR 10520, Mar. 13, 1991; 56
FR 12423, Mar. 25, 1991; 64 FR 53268, Oct. 1, 1999; 74 FR 52910, Oct.
15, 2009]

Sec. 1177.4 Sample forms.

(a) Sample short summary for the Index. (1) Primary documents. [Type
of document] between [name and address of lessor, mortgagor, bailor,
etc.] and [name and address of lessee, mortgagee, bailee, etc.] dated
[date], and covering [briefly list amount and types of equipment].
(2) Secondary documents. (i) If an assignment--Assignment between
[name and address of assignor] and [name and address of assignee] dated
[date of assignment] and covering [list amount and types of equipment],
and connected to [type of document primary document is] with Recordation
No. [recordation number of the primary document if known, at time
recorded].
(ii) Other secondary documents--[Type of document] to [type of
primary document] with Recordation No. [Recordation number of the
primary document], dated [date of amendment, supplement, release, etc.]
and covering [list amount and types of equipment].
(b) Sample Letter of Transmittal.

[Chief, Section of Administration, Office of Proceedings' Name] Chief,
Section of Administration, Office of Proceedings, Surface Transportation
Board, Washington, DC.

Dear Section Chief: I have enclosed an original and one copy/
counterpart of the document(s) described below, to be recorded pursuant
to Section 11301 of Title 49 of the U.S. Code.
This document is a [mortgage, lease, equipment trust, supplement,
etc.], a [primary or secondary] document, dated [date].
(If a secondary document)--The primary document to which this is
connected is recorded under Recordation No. __.
(If an assignment)--We request that this assignment be cross-
indexed.
The names and addresses of the parties to the documents are as
follows:

Vendor, Lessor, Mortgagor, etc: [name and address]
Vendee, Lessee, Mortgagee, etc: [name and address].

A description of the equipment covered by the document follows:

[Type of equipment, amount of each, AAR designation if any,
identifying marks, road or serial numbers, etc., as outlined in
1177.3(d)(4).]

A fee of ______ is enclosed. Please return the original and any
extra copies not needed by the Board for recordation to [party to whom
documents should be returned].
A short summary of the document to appear in the index follows: [a
short summary as described in 1177.4(a).).
Very truly yours,

________________________________________________________________________

[[Page 285]]

________________________________________________________________________
[signature of an executive officer of one of the parties, their
attorney, or representative in fact.]

[46 FR 54946, Nov. 5, 1981, as amended at 64 FR 53268, Oct. 1, 1999; 74
FR 52910, Oct. 15, 2009]

Sec. 1177.5 Administrative procedure.

(a) At the time of filing of a document with the Board for
recordation, a consecutive number will be stamped upon the original
document and upon the copies or the counterparts, with the date and hour
of the filing. A notation acknowledging that the document has been filed
pursuant to 49 U.S.C. 11303 will be made. The original document, along
with the notation, will be returned to the party named in the
transmittal letter and a copy or counterpart will be retained by the
Board. For a secondary document, the number assigned will be the
recordation number of the primary document plus the next available
letter suffix.
(b) The Board will maintain an index for public use as required by
49 U.S.C 11303(b). There will be an index of parties to documents
recorded at the Board in alphabetical order by the party's name. If
requested by the letter of transmittal, this index will also be amended
to reflect an assignment under the name of the party other than the
assignor or assignee to the document. There will also be an index of
documents by number, which will list secondary documents referenced to
the primary ones. The indexes will contain the pertinent information
furnished by the parties in the transmittal letter.
(c) The Board cannot judge the validity of documents, nor judge the
status of encumbrances to property as reflected by documents recorded at
the Board. The public is welcome to research the records or use an agent
or attorney to do so, provided that Board rules concerning handling of
the documents are respected.
(d) The public should note that filing documents with the Board is
discretionary and encumbrances exist which are not on file with the
Board.

PARTS 1178 1179 [RESERVED]

Parts 1180 1189_Combinations and Ownership

PART 1180_RAILROAD ACQUISITION, CONTROL, MERGER, CONSOLIDATION PROJECT,
TRACKAGE RIGHTS, AND LEASE PROCEDURES--Table of Contents

Subpart A_General Acquisition Procedures

Sec.
1180.0 Scope and purpose.
1180.1 General policy statement for merger or control of at least two
Class I railroads.
1180.2 Types of transactions.
1180.3 Definitions.
1180.4 Procedures.
1180.5 [Reserved]
1180.6 Supporting information.
1180.7 Market analyses.
1180.8 Operational data.
1180.9 Financial information.
1180.10 Service assurance plans.
1180.11 Transnational and other informational requirements.

Subpart B_Transfer or Operation of Lines of Railroads in Reorganization

1180.20 Procedures.

Authority: 5 U.S.C. 553 and 559; 11 U.S.C. 1172; 49 U.S.C. 1321,
10502, 11323-11325.

Subpart A_General Acquisition Procedures

Source: 47 FR 9844, Mar. 8, 1982, unless otherwise noted.
Redesignated at 47 FR 49592, Nov. 1, 1982.

Sec. 1180.0 Scope and purpose.

(a) General. The regulations in this subpart set out the information
to be filed and the procedures to be followed in control, merger,
acquisition, lease, trackage rights, and any other consolidation
transaction involving more than one railroad that is initiated under 49
U.S.C. 11323. Section 1180.2 separates these transactions into four
types: Major, significant, minor, and exempt. The informational
requirements for these types of transactions differ. Before an
application is filed, the designation of type of transaction may be
clarified or certain of the information required may be waived upon
petition to the Board. This procedure is explained in Sec. 1180.4. The
required contents of an application are set out in

[[Page 286]]

Sec. Sec. 1180.6 (general information supporting the transaction),
1180.7 (competitive and market information), 1180.8 (operational
information), 1180.9 (financial data), 1180.10 (service assurance
plans), and 1180.11 (transnational and other informational
requirements). A major application must contain the information required
in Sec. Sec. 1180.6(a), 1180.6(b), 1180.7(a), 1180.7(b), 1180.8(a),
1180.8(b), 1180.9, 1180.10, and 1180.11. A significant application must
contain the information required in Sec. Sec. 1180.6(a), 1180.6(c),
1180.7(a), 1180.7(c), and 1180.8(b). A minor application must contain
the information required in Sec. Sec. 1180.6(a) and 1180.8(c).
Procedures (including time limits, filing requirements, participation
requirements, and other matters) are contained in Sec. 1180.4. All
applications must comply with the Board's Rules of General
Applicability, 49 CFR parts 1100 through 1129, unless otherwise
specified. These regulations may be cited as the Railroad Consolidation
Procedures.
(b) Waiver. We will waive application of the regulations contained
in this subpart for a consolidation involving The Kansas City Southern
Railway Company and another Class I railroad and instead will apply the
regulations in this subpart A in effect before July 11, 2001 and
contained in the 49 CFR, Parts 1000 to 1199, edition revised as of
October 1, 2000, unless we are shown why such a waiver should not be
allowed. Interested parties must file any objections to this waiver
within 10 days after the applicants' prefiling notification (see 49 CFR
Sec. 1180.4(b)(1)).

[66 FR 32583, June 15, 2001]

Sec. 1180.1 General policy statement for merger or control of at least
two Class I railroads.

(a) General. To meet the needs of the public and the national
defense, the Surface Transportation Board (Board) seeks to ensure
balanced and sustainable competition in the railroad industry. The Board
recognizes that the railroad industry (including Class II and III
carriers) is a network of competing and complementary components, which
in turn is part of a broader transportation infrastructure that also
embraces the nation's highways, waterways, ports, and airports. The
Board welcomes private-sector initiatives that enhance the capabilities
and the competitiveness of this transportation infrastructure. Although
mergers of Class I railroads may advance our nation's economic growth
and competitiveness through the provision of more efficient and
responsive transportation, the Board does not favor consolidations that
reduce the transportation alternatives available to shippers unless
there are substantial and demonstrable public benefits to the
transaction that cannot otherwise be achieved. Such public benefits
include improved service, enhanced competition, and greater economic
efficiency. The Board also will look with disfavor on consolidations
under which the controlling entity does not assume full responsibility
for carrying out the controlled carrier's common carrier obligation to
provide adequate service upon reasonable demand.
(b) Consolidation criteria. The Board's consideration of the merger
or control of at least two Class I railroads is governed by the public
interest criteria prescribed in 49 U.S.C. 11324 and the rail
transportation policy set forth in 49 U.S.C. 10101. In determining the
public interest, the Board must consider the various goals of effective
competition, carrier safety and efficiency, adequate service for
shippers, environmental safeguards, and fair working conditions for
employees. The Board must ensure that any approved transaction would
promote a competitive, efficient, and reliable national rail system.
(c) Public interest considerations. The Board believes that mergers
serve the public interest only when substantial and demonstrable gains
in important public benefits--such as improved service and safety,
enhanced competition, and greater economic efficiency--outweigh any
anticompetitive effects, potential service disruptions, or other merger-
related harms. Although further consolidation of the few remaining Class
I carriers could result in efficiency gains and improved service, the
Board believes additional consolidation in the industry is also likely
to result in a number of anticompetitive effects, such as loss of
geographic competition,

[[Page 287]]

that are increasingly difficult to remedy directly or proportionately.
Additional consolidations could also result in service disruptions
during the system integration period. Accordingly, to assure a balance
in favor of the public interest, merger applications should include
provisions for enhanced competition, and, where both carriers are
financially sound, the Board is prepared to use its conditioning
authority as necessary under 49 U.S.C. 11324(c) to preserve and/or
enhance competition. In addition, when evaluating the public interest,
the Board will consider whether the benefits claimed by applicants could
be realized by means other than the proposed consolidation. The Board
believes that other private-sector initiatives, such as joint marketing
agreements and interline partnerships, can produce many of the
efficiencies of a merger while risking less potential harm to the
public.
(1) Potential benefits. By eliminating transaction cost barriers
between firms, increasing the productivity of investment, and enabling
carriers to lower costs through economies of scale, scope, and density,
mergers can generate important public benefits such as improved service,
more competition, and greater economic efficiency. A merger can
strengthen a carrier's finances and operations. To the extent that a
merged carrier continues to operate in a competitive environment, its
new efficiencies would be shared with shippers and consumers. Both the
public and the consolidated carrier can benefit if the carrier is able
to increase its marketing opportunities and provide better service. A
merger transaction can also improve existing competition or provide new
competitive opportunities, and such enhanced competition will be given
substantial weight in our analysis. Applicants shall make a good faith
effort to calculate the net public benefits their proposed merger would
generate, and the Board will carefully evaluate such evidence. To ensure
that applicants have no incentive to exaggerate these projected benefits
to the public, the Board expects applicants to propose additional
measures that the Board might take if the anticipated public benefits
fail to materialize in a timely manner. In this regard, the Board
recognizes, however, that applicants require the flexibility to adapt to
changing marketplace or other circumstances and that it is inevitable
that an approved merger may not necessarily be implemented in precisely
the manner anticipated in the application. Applicants will be held
accountable, however, if they do not act reasonably in light of changing
circumstances to achieve promised merger benefits.
(2) Potential harm. The Board recognizes that consolidation can
impose costs as well as benefits. It can reduce competition both
directly and indirectly in particular markets, including product markets
and geographic markets. Consolidation can also threaten essential
services and the reliability of the rail network. In analyzing these
impacts we must consider, but are not limited by, the policies embodied
in the antitrust laws.
(i) Reduction of competition. Although in specific markets railroads
operate in a highly competitive environment with vigorous intermodal
competition from motor and water carriers, mergers can deprive shippers
of effective options. Intramodal competition can be reduced when two
carriers serving the same origins or destinations merge. Competition
arising from shippers' build-out, transloading, plant siting, and
production shifting choices can be eliminated or reduced when two
railroads serving overlapping areas merge. Competition in product and
geographic markets can also be eliminated or reduced by mergers,
including end-to-end mergers. Any railroad combination entails a risk
that the merged carrier would acquire and exploit increased market
power. Applicants shall propose remedies to mitigate and offset
competitive harms. Applicants shall also explain how they would at a
minimum preserve competitive and market options such as those involving
the use of major existing gateways, build-outs or build-ins, and the
opportunity to enter into contracts for one segment of a movement as a
means of gaining the right separately to pursue rate relief for the
remainder of the movement.
(ii) Harm to essential services. The Board must ensure that
essential freight, passenger, and commuter rail

[[Page 288]]

services are preserved wherever feasible. An existing service is
essential if there is sufficient public need for the service and
adequate alternative transportation is not available. The Board's focus
is on the ability of the nation's transportation infrastructure to
continue to provide and support essential services. Mergers should
strengthen, not undermine, the ability of the rail network to advance
the nation's economic growth and competitiveness, both domestically and
internationally. The Board will consider whether projected shifts in
traffic patterns could undermine the ability of the various network
links (including Class II and Class III rail carriers and ports) to
sustain essential services.
(iii) Transitional service problems. Experience shows that
significant service problems can arise during the transitional period
when merging firms integrate their operations, even after applicants
take extraordinary steps to avoid those disruptions. Because service
disruptions harm the public, the Board, in its determination of the
public interest, will weigh the likelihood of transitional service
problems. In addition, under paragraph (h) of this section, the Board
will require applicants to provide a detailed service assurance plan.
Applicants also should explain how they would cooperate with other
carriers in overcoming serious service disruptions on their lines during
the transitional period and afterwards.
(iv) Enhanced competition. To offset harms that would not otherwise
be mitigated, applicants should explain how the transaction and
conditions they propose would enhance competition.
(d) Conditions. The Board has broad authority under 49 U.S.C.
11324(c) to impose conditions on consolidations, including requiring
divestiture of parallel tracks or the granting of trackage rights and
access to other facilities. The Board will condition the approval of
Class I combinations to mitigate or offset harm to the public interest,
and will carefully consider conditions proposed by applicants in this
regard. The Board may impose conditions that are operationally feasible
and produce net public benefits, but will not impose conditions that
undermine or defeat beneficial transactions by creating unreasonable
operating, financial, or other problems for the combined carrier.
Conditions are generally not appropriate to compensate parties who may
be disadvantaged by increased competition. The Board anticipates that
mergers of Class I carriers would likely create some anticompetitive
effects that would be difficult to mitigate through appropriate
conditions, and that transitional service disruptions might temporarily
negate any shipper benefits. To offset such potential harms and improve
the prospect that their proposal would be found to be in the public
interest, applicants should propose conditions that would not simply
preserve but also enhance competition. The Board seeks to enhance
competition in ways that strengthen and sustain the rail network as a
whole (including that portion of the network operated by Class II and
III carriers).
(e) Employee protection. The Board is required to provide a fair
arrangement for the protection of the rail employees of applicants who
are affected by a consolidation. The Board supports early notice and
consultation between management and the various unions, leading to
negotiated implementing agreements, which the Board strongly favors.
Otherwise, the Board respects the sanctity of collective bargaining
agreements and will look with extreme disfavor on overrides of
collective bargaining agreements except to the very limited extent
necessary to carry out an approved transaction. The Board will review
negotiated agreements to ensure fair and equitable treatment of all
affected employees. Absent a negotiated agreement, the Board will
provide for protection at the level mandated by law (49 U.S.C.
11326(a)), and if unusual circumstances are shown, more stringent
protection will be provided to ensure that employees have a fair and
equitable arrangement.
(f) Environment and safety. (1) The National Environmental Policy
Act, 42 U.S.C. 4321 et seq. (NEPA), requires the Board to take
environmental considerations into account in railroad consolidation
cases. To meet its responsibilities under NEPA and related environmental
laws, the Board must consider

[[Page 289]]

significant potential beneficial and adverse environmental impacts in
deciding whether to approve a transaction as proposed, deny the
proposal, or approve it with conditions, including appropriate
environmental mitigation conditions addressing concerns raised by the
parties, including federal, state, and local government entities. The
Board's Office of Environmental Analysis (OEA) ensures that the agency
meets its responsibilities under NEPA and the implementing regulations
at 49 CFR part 1105 by providing the Board with an independent
environmental review of merger proposals. In preparing the necessary
environmental documentation, OEA focuses on the potential environmental
impacts resulting from merger-related changes in activity levels on
existing rail lines and rail facilities. The Board generally will
mitigate only those impacts that would result directly from an approved
transaction, and will not require mitigation for existing conditions and
existing railroad operations.
(2) During the environmental review process, railroad applicants
have negotiated agreements with affected communities, including groups
of communities and other entities such as state and local agencies. The
Board encourages voluntary agreements of this nature because they can be
extremely helpful and effective in addressing specific local and
regional environmental and safety concerns, including the sharing of
costs associated with mitigating merger-related environmental impacts.
Generally, these privately negotiated solutions between an applicant
railroad and some or all of the communities along particular rail
corridors or other appropriate entities are more effective, and in some
cases more far-reaching, than any environmental mitigation options the
Board could impose unilaterally. Therefore, when such agreements are
submitted to it, the Board generally will impose these negotiated
agreements as conditions to approved mergers, and these agreements
generally will substitute for specific local and site-specific
environmental mitigation for a community that otherwise would be
imposed. Moreover, to encourage and give effect to negotiated solutions
whenever possible, the opportunity to negotiate agreements will remain
available throughout the oversight process to replace local and site-
specific environmental mitigation imposed by the agency. The Board will
require compliance with the terms of all negotiated agreements submitted
to it during oversight by imposing appropriate environmental conditions
to replace the local and site-specific mitigation previously imposed.
(3) Applicants will be required to work with the Federal Railroad
Administration, on a case-by-case basis, to formulate Safety Integration
Plans (SIPs) to ensure that safe operations are maintained throughout
the merger implementation process. As part of the environmental review
process, applicants will be required to submit:
(i) A SIP and
(ii) Evidence about potentially blocked grade crossings as a result
of merger-related traffic increases or operational changes.
(g) Oversight. As a condition to its approval of any major
transaction, the Board will establish a formal oversight process. For at
least the first 5 years following approval, applicants will be required
to present evidence to the Board, on no less than an annual basis, to
show that the merger conditions imposed by the Board are working as
intended, that the applicants are adhering to the various
representations they made on the record during the course of their
merger proceeding, that no unforeseen harms have arisen that would
require the Board to alter existing merger conditions or impose new
ones, and that the merger benefit projections accepted by the Board are
being realized in a timely fashion. Parties will be given the
opportunity to comment on applicants' submissions, and applicants will
be given the opportunity to reply to the parties' comments. During the
oversight period, the Board will retain jurisdiction to impose any
additional conditions it determines are necessary to remedy or offset
adverse consequences of the underlying transaction.
(h) Service assurance and operational monitoring. (1) The quality of
service is

[[Page 290]]

of vital importance. Accordingly, applicants must file, with their
initial application and operating plan, a Service Assurance Plan
identifying the precise steps they would take to ensure adequate service
and to provide for improved service. This plan must include the specific
information set forth at Sec. 1180.10 on how shippers, connecting
railroads (including Class II and III carriers), and ports across the
new system would be affected and benefitted by the proposed
consolidation. As part of this plan, applicants will be required to
provide service benchmarks, describe the extent to which they have
entered into any arrangements with shippers and shipper groups to
compensate for service failures, and establish contingency plans that
would be available to mitigate any unanticipated service disruption.
(2) The Board will conduct significant post-approval operational
monitoring to help ensure that service levels after a merger are
reasonable and adequate.
(3) The Board also will require applicants to establish problem
resolution teams and specific procedures for problem resolution to
ensure that any unanticipated post-merger problems related to service or
any other transportation matters, including claims, are promptly
addressed. These teams should include representatives of all appropriate
employee categories. Also, the Board envisions the establishment of a
Service Council made up of shippers, railroads, passenger service
representatives, ports, rail labor, and other interested parties to
provide an ongoing forum for the discussion of implementation issues.
(4) Loss and damage claims handling. Shippers or shortlines who have
freight claims under 49 CFR part 1005 during merger implementation shall
file such claims, in writing or electronically, with the merged carrier.
The claimant shall provide supporting documentation regarding the effect
on the claimant, and the specific damages (in a determinable amount)
incurred. Pursuant to 49 CFR part 1005, the merged carrier shall
acknowledge each claim within 30 days and successively number each
claim. Within 120 days of carrier receipt of the claim, the merged
carrier shall respond to each claim by paying, declining, or offering a
compromise settlement. The Board will take notice of these claims and
their disposition as a matter of oversight. During each annual oversight
period, the merged carrier shall report on claims received, their type,
and their disposition for each quarterly period covered by oversight.
While shippers and shortlines may also contract with the applicants for
specific remedies with respect to claims, final adjudication of contract
issues as well as unresolved claims will remain a matter for the courts.
(5) Service failure claims. Applicants must suggest a protocol for
handling claims related to failure to provide reasonable service due to
merger implementation problems. Commitments to submit all such claims to
arbitration will be favored.
(6) Alternative rail service. Where shippers and connecting
railroads require relief from extended periods of inadequate service,
the procedures at 49 CFR parts 1146 and 1147 are available for the Board
to review the documented service levels and to consider shipper
proposals for alternative service relief when other avenues of relief
have already been explored with the merged carrier in an effort to
restore adequate service.
(i) Cumulative impacts and crossover effects. Because there are so
few remaining Class I carriers and the railroad industry constitutes a
network of competing and complementary components, the Board cannot
evaluate the merits of a major transaction in isolation. The Board must
also consider the cumulative impacts and crossover effects likely to
occur as rival carriers react to the proposed combination. The Board
expects applicants to explain how additional Class I mergers would
affect the eventual structure of the industry and the public interest.
Applicants should generally discuss the likely impact of such future
mergers on the anticipated public benefits of their own merger proposal.
Applicants will be expected to discuss whether and how the type or
extent of any conditions imposed on their proposed merger would have to
be altered, or any new conditions imposed, should we approve any future
consolidation(s).

[[Page 291]]

(j) Inclusion of other carriers. The Board will consider requiring
inclusion of another carrier as a condition to approval only where there
is no other reasonable alternative for providing essential services, the
facilities fit operationally into the new system, and inclusion can be
accomplished without endangering the operational or financial success of
the new company.
(k) Transnational and other informational issues. (1) All applicants
must submit ``full system'' competitive analyses and operating plans--
incorporating any operations in Canada or Mexico--from which we can
determine the competitive, service, employee, safety, and environmental
impacts of the prospective operations within the United States, and
explain how cooperation with the Federal Railroad Administration would
be maintained to address potential impacts on operations within the
United States of operations or events elsewhere on their systems. All
applicants must further provide information concerning any restrictions
or preferences under foreign or domestic law and policies that could
affect their commercial decisions. Applicants must also address how any
ownership restrictions might affect our public interest assessment.
(2) The Board will consult with relevant officials, as appropriate,
to ensure that any conditions it imposes on an approved transaction are
consistent with the North American Free Trade Agreement and other
pertinent international agreements to which the United States is a
party. In addition, the Board will cooperate with those Canadian and
Mexican agencies charged with approval and oversight of a proposed
transnational railroad combination.
(l) National defense. Rail mergers must not detract from the ability
of the United States military to rely on rail transportation to meet the
nation's defense needs. Applicants must discuss and assess the national
defense ramifications of their proposed merger.
(m) Public participation. To ensure a fully developed record on the
effects of a proposed railroad consolidation, the Board encourages
public participation from federal, state, and local government
departments and agencies; affected shippers, carriers, and rail labor;
and other interested parties.

[66 FR 32583, June 15, 2001, as amended at 83 FR 15080, Apr. 9, 2018]

Sec. 1180.2 Types of transactions.

Transactions proposed under 49 U.S.C. 11323 involving more than one
common carrier by railroad are of four types: Major, significant, minor,
and exempt.
(a) A major transaction is a control or merger involving two or more
class I railroads.
(b) A significant transaction is a transaction not involving the
control or merger of two or more class I railroads that is of regional
or national transportation significance as that phrase is used in 49
U.S.C. 11325(a)(2) and (c). A transaction not involving the control or
merger of two or more class I railroads is not significant if a
determination can be made either:
(1) That the transaction clearly will not have any anticompetitive
effects, or
(2) That any anticompetitive effects of the transaction will clearly
be outweighed by the transaction's anticipated contribution to the
public interest in meeting significant transportation needs.
A transaction not involving the control or merger of two or more
class I railroads is significant if neither such determination can
clearly be made.
(c) A minor transaction is one which involves more than one railroad
and which is not a major, significant, or exempt transaction.
(d) A transaction is exempt if it is within one of the nine
categories described in paragraphs (d)(1) through (9) of this section.
The Board has found that its prior review and approval of these
transactions is not necessary to carry out the rail transportation
policy of 49 U.S.C. 10101; and is of limited scope or unnecessary to
protect shippers from market abuse. See 49 U.S.C. 10502. A notice must
be filed to use one of these class exemptions. The procedures are set
out in Sec. 1180.4(g). These class exemptions do not relieve a carrier
of its statutory obligation to protect the interests of employees. See
49 U.S.C. 10502(g) and 11326. The enumeration of the following
categories of

[[Page 292]]

transactions as exempt does not preclude a carrier from seeking an
exemption of specific transactions not falling into these categories.
(1) Acquisition of a line of railroad which would not constitute a
major market extension where the Board has found that the public
convenience and necessity permit abandonment.
(2) Acquisition or continuance in control of a nonconnecting carrier
or one of its lines where (i) the railroads would not connect with each
other or any railroads in their corporate family, (ii) the acquisition
or continuance in control is not part of a series of anticipated
transactions that would connect the railroads with each other or any
railroad in their corporate family, and (iii) the transaction does not
involve a class I carrier.
(3) Transactions within a corporate family that do not result in
adverse changes in service levels, significant operational changes, or a
change in the competitive balance with carriers outside the corporate
family.
(4) Renewal of leases and any other matters where the Board has
previously authorized the transaction, and only an extension in time is
involved.
(5) Joint projects involving the relocation of a line of railroad
which does not disrupt service to shippers.
(6) Reincorporation in a different State.
(7) Acquisition of trackage rights and renewal of trackage rights by
a rail carrier over lines owned or operated by any other rail carrier or
carriers that are: (i) based on written agreements, and (ii) not filed
or sought in responsive applications in rail consolidation proceedings.
(8) Acquisition of temporary trackage rights by a rail carrier over
lines owned or operated by any other rail carrier or carriers that are:
{i{time} based on written agreements, {ii{time} not filed or sought in
responsive applications in rail consolidation proceedings, {iii{time}
for overhead operations only, and {iv{time} scheduled to expire on a
specific date not to exceed 1 year from the effective date of the
exemption. If the operations contemplated by the exemption will not be
concluded within the 1-year period, the parties may, prior to expiration
of the period, file a request for a renewal of the temporary rights for
an additional period of up to 1 year, including the reason(s) therefor.
Rail carriers acquiring temporary trackage rights need not seek
authority from the Board to discontinue the trackage rights as of the
expiration date specified under 49 CFR 1180.4(g)(1)(ii). All
transactions under this paragraph (d)(8) will be subject to applicable
statutory labor protective conditions.
(9) Acquisition of emergency temporary trackage rights by a rail
carrier over lines owned or operated by any other rail carrier or
carriers that are: {i{time} Based on written agreements, {ii{time} not
filed or sought in responsive applications in rail consolidation
proceedings, {iii{time} for overhead operations only, {iv{time}
scheduled to expire on a specific date not to exceed three months from
the effective date of the exemption, and {v{time} sought in response to
an unforeseen track outage and expected to last more than seven days
where there is no reasonable alternative to maintain pre-outage levels
of service. If during the exemption period, the outage is resolved and
use of the temporary emergency trackage rights ceases to be necessary to
maintain service at pre-outage levels, the rail carrier must file a
notice stating that the outage has been resolved and that use of the
trackage rights has ceased and identifying the date on which use of the
trackage rights ceased. Such a notice should be filed within 5 business
days of the date on which use of the trackage rights ceased. The
emergency temporary trackage rights authority expires upon the official
filing date of the notice. If the operations contemplated by the
exemption will not be concluded within the initial exemption period, the
rail carrier may, prior to expiration of the period, file a request for
a renewal of the temporary rights for an additional period of up to 3
months, including the reason(s) therefor. Rail carriers acquiring
temporary trackage rights need not seek authority from the Board to
discontinue the trackage rights as of the expiration date specified
under Sec. 1180.4(g)(1)(ii). All transactions under this paragraph

[[Page 293]]

(d)(9) will be subject to applicable statutory labor protective
conditions.

[47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982,
and amended at 50 FR 15751, Apr. 22, 1985; 51 FR 24669, July 8, 1986; 58
FR 63104, Nov. 30, 1993; 62 FR 9716, Mar. 4, 1997; 68 FR 28140, May 23,
2003; 86 FR 68930, Dec. 6, 2021]

Sec. 1180.3 Definitions.

(a) Applicant. The term applicant means the parties initiating a
transaction, but does not include a wholly owned direct or indirect
subsidiary of an applicant if that subsidiary is not a rail carrier.
Parties who are considered applicants, but for whom the information
normally required of an applicant need not be submitted, are:
(1) In minor trackage rights applications, the transferor and
(2) In responsive applications, a primary applicant.
(b) Applicant carriers. The term applicant carriers means: any
applicant that is a rail carrier; any rail carrier operating in the
United States, Canada, and/or Mexico in which an applicant holds a
controlling interest; and all other rail carriers involved in the
transaction. Because the service provided by these commonly controlled
carriers can be an important competitive aspect of the transactions that
we approve, applicant carriers are subject to the full range of our
conditioning power. Carriers that are involved in an application only by
virtue of an existing trackage rights agreement with applicants are not
applicant carriers.
(c) Major market extension. A major market extension is a
transaction which may significantly increase competition by extending
service into a new market, expanding service in a currently served
market when another carrier concurrently contracts its service to that
market as part of the same transaction, or providing significantly more
efficient and effective competitive service to a market presently being
served. Criteria which can be used to determine if a railroad is
proposing to provide a more competitive service to a currently served
area include: (1) Creating a shorter route; (2) providing enhanced
service capabilities (speed is not the only factor); (3) entering an
interchange or market generating more than 5,000 cars per year or 5
percent of applicant's traffic; (4) filing the application as a
condition of relief to a pending proceeding; and (5) permitting a
carrier to become more competitive (extending its length of haul) See.
Burlington Northern, Inc.--Control & Merger--St. L., 354 I.C.C. 616, 617
(1978).
(d) Petition for clarification. A request that the Board clarify the
applicability of any part of these regulations to a particular situation
or explain the type of material needed to comply with these regulations.
(e) Petition for waiver. A request that the Board either dispense
with material required by the regulations, or accept material in place
of that required by these regulations.
(f) Primary application. A proposal for approval filed under 49
U.S.C. 11323 which begins a new proceeding and is not proposed either as
a condition to or as an alternative to Board approval of another pending
application.
(g) Railroad. Any common carrier by railroad as defined in 49 U.S.C.
10102(5)-(6).
(h) Responsive applications. Applications filed in response to a
primary application are those seeking affirmative relief either as a
condition to or in lieu of the approval of the primary application.
Responsive applications include inconsistent applications, inclusion
applications, and any other affirmative relief that requires an
application, petition, notice, or any other filing to be submitted to
the Board (such as trackage rights, purchases, constructions, operation,
pooling, terminal operations, abandonments, and other types of
proceedings not otherwise covered). For fees covering inconsistent
applications or responsive applications not otherwise covered in the
Board's fee schedule, see 49 CFR 1002.2(f) (38)-(41) and 1180.4(d)(2).
The fees for all other responsive applications are set forth in 49 CFR
1002.2(f).
(i) Transferee. The transferee is:
(1) The acquiring corporation in a control proceeding,
(2) The surviving corporation in a merger,
(3) The resulting corporation in a consolidation,
(4) The leasee in a lease,

[[Page 294]]

(5) The purchaser in an acquisition, and
(6) The grantee of trackage rights in a trackage rights proceeding.
(j) Transferor. The transferor is:
(1) The corporation acquired in a control proceeding,
(2) The merging corporation in a merger,
(3) All corporations to be consolidated in a consolidation,
(4) The lessor in a lease,
(5) The seller in an acquisition, and
(6) The grantor of trackage rights in a trackage rights proceeding.

[47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982, as
amended at 62 FR 9716, Mar. 4, 1997; 62 FR 28376, May 23, 1997; 66 FR
32586, June 15, 2001; 81 FR 8856, Feb. 23, 2016]

Sec. 1180.4 Procedures.

(a) General. (1) The original and 25 copies of all documents shall
be filed in major proceedings. The original and 10 copies shall be filed
in significant and minor proceedings.
(2) Each party to a proceeding shall choose a unique acronym of four
letters or less for itself. It shall number each document filed in the
proceeding consecutively, prefixed by its acronym.
(3) Any document filed with the Board (including applications,
pleadings, etc.) shall be promptly furnished to interested persons on
request, unless subject to a protective order. At any time, the Board
may require the submission of additional copies of any document
previously filed by any party to the proceeding.
(b) Prefiling notification. (1) Between 3 to 6 months prior to the
proposed filing of an application in a major transaction, and 2 to 4
months prior to the proposed filing of an application in a significant
transaction, applicant shall file a notice with the Board. The notice
shall:
(i) Briefly describe the transaction,
(ii) Indicate the year to be used for the impact analysis,
(iii) Indicate the approximate filing date of the application, and
(iv) Indicate why the transaction is major or significant.
(2) The Board will publish a notice in the Federal Register within
30 days of receipt of the applicant's notice. The publication shall
contain:
(i) A brief description of the transaction,
(ii) The year to be used for the impact analysis,
(iii) The approximate filing date,
(iv) A determination that the transaction is major, significant, or
minor, and
(v) A statement of any additional information which must be filed
with the application in order for the application to be considered
complete.
(3) A prefiling notice may be amended to indicate a change in the
anticipated filing date.
(4) Prefiling notification. When filing the notice of intent
required by paragraph (b)(1) of this section, applicants also must file:
(i) A proposed procedural schedule. In any proceeding involving
either a major transaction or a significant transaction, the Board will
publish a Federal Register notice soliciting comments on the proposed
procedural schedule, and will, after review of any comments filed in
response, issue a procedural schedule governing the course of the
proceeding.
(ii) A proposed draft protective order. The Board will issue, in
each proceeding in which such an order is requested, an appropriate
protective order.
(iii) A statement of waybill availability for major transactions.
Applicants must indicate, as soon as practicable after the issuance of a
protective order, that they will make their 100% traffic tapes available
(subject to the terms of the protective order) to any interested party
on written request. The applicants may require that, if the requesting
party is itself a railroad, applicants will make their 100% traffic
tapes available to that party only if it agrees, in its written request,
to make its own 100% traffic tapes available to applicants (subject to
the terms of the protective order) when it receives access to
applicants' tapes.
(iv) Applicants may also propose the use of a voting trust at this
stage, or at a later stage, if that becomes necessary. In each
proceeding involving a major transaction, applicants contemplating the
use of a voting trust must

[[Page 295]]

explain how the trust would insulate them from an unlawful control
violation and why their proposed use of the trust, in the context of
their impending control application, would be consistent with the public
interest. Following a brief period of public comment and replies by
applicants, the Board will issue a decision determining whether
applicants may establish and use the trust.
(c) Application. (1) The fees for filing applications, petitions, or
notices under these procedures are set forth in 49 CFR 1002.2.
(2) Filing requirements. (i) The original of all applications shall
be signed in ink by the applicant, if an individual; by all partners, if
a partnership; and if a corporation, association, or other similar form
of organization, by its president, or such other executive officer
having knowledge of the matters therein contained and duly designated
for that purpose by the applicant. Applications shall be made under oath
and shall contain an appropriate certification (if a corporation, by its
secretary) showing that the affiant is duly authorized to verify and
file the application. Any person controlling an applicant shall also
sign the application.
(ii) The application shall be filed with Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board,
Washington, DC 20423-0001.
(iii) Each copy of the application shall conform in all respects to
the original and shall be complete in itself except that the signature
in the copies may be stamped or typed and the notarial seal may be
omitted. In like manner, where certified copies of documents are filed
with the application, conformed copies thereof, showing certification in
stamped or typewritten form, will be sufficient to accompany the
additional copies of the application.
(iv) All applications required to be filed with the Board or served
on designated persons shall include all exhibits, except as otherwise
specifically noted. Information from other documents may be incorporated
by reference in the application. However, the documents must have been
filed with the Board within three years prior to filing of the
application, the information must be up to date, and applicant must be
prepared to supply copies of this information to interested persons on
specific request.
(v) The applicant shall submit such additional information to
support its application as the Board may require.
(vi) Applicant shall file concurrently all directly related
applications, e.g., those seeking authority to construct or abandon rail
lines, obtain terminal operations, acquire trackage rights, etc.
(vii) The application shall contain a certificate of service
indicating that all persons designated in Sec. 1180.4(c)(5) have been
served with a copy of the application.
(3) In a major or significant transaction, and in all responsive
applications, all of the direct testimony of applicants, in the form of
verified statements, shall be filed and served with each application.
(4) The application and all exhibits shall be considered part of the
evidentiary record upon acceptance. Any portion of an application and
exhibits will remain subject to motions to strike. However, no motion
need be made to have the application and exhibits admitted to the
evidentiary record. If a major or significant transaction is designated
for oral hearing the presiding Administrative Law Judge shall have
discretion in extraordinary circumstances to allow for the presentation
of oral or written direct testimony not previously submitted with the
application.
(5) Service. The applicant shall serve a conformed copy of an
application filed under these procedures by first-class mail upon:
(i) The Governor (or Executive Officer), Public Service Commission,
and the Department of Transportation of each State in which any part of
the properties of the applicant carriers involved in the proposed
transaction is situated;
(ii) The Secretary of the United States Department of Transportation
(Office of Chief Counsel, Federal Railroad Administration, 1200 New
Jersey Avenue SE, Washington, DC 20590.
(iii) The Attorney General of the United States;

[[Page 296]]

(iv) The Federal Trade Commission; and
(v) In major or significant transactions, all persons requesting a
copy after the prefiling notice is published in the Federal Register.
(6) Application format. (i) The application shall be in the same
sequence as the information is requested in these procedures, and shall
be numbered to correspond to the numbering in the procedures.
(ii) If any material required in the application would lend itself
to being placed in an appendix, this should be done. The appendix and
application shall be tabulated and cross-referenced in an index for ease
in locating and referring to the information. The appendixes shall be in
the same sequence as the information required by these procedures. If
certain information required in the application is not applicable,
provide an explanation. The application should be bound, and it may be
bound in more than one volume. If an application is more than one
volume, the cover of each volume should be in a different color. The
pages in each volume shall begin with 1, and be sequentially numbered.
(iii) The Board's Office of Proceedings will provide informal
opinions and interpretations, which are not binding on the Board,
regarding the format of or information to be included in the
application.
(iv) All filing, service, or other requirements of these procedures
must be complied with when filing the application. Copies of the
application filed with the Board shall be marked in red ``Railroad
Consolidation Application'' on the transmittal envelope or package.
(v) The application shall conform to the typographical
specifications of Sec. 1104.2.
(vi) The information and data required of any applicant may be
consolidated with the information and data required of the affiliated
applicant carriers.
(7) Acceptance or rejection of an application.
(i) The Board shall accept a complete application no later than 30
days after the application is filed with the Board by publishing a
notice in the Federal Register. A complete application contains all
information for all applicant carriers required by these procedures,
except as modified by advance waiver. The publication shall indicate the
applicable time limits for processing the application. (These are the
time limits of 49 U.S.C. 11325(b) for a major transaction, 49 U.S.C.
11325(c) for a significant transaction, and 49 U.S.C. 11325(d) for a
minor transaction.)
(ii) The Board shall reject an incomplete application by serving a
decision no later than 30 days after the application is filed with the
Board. The decision shall explain specifically why the application was
incomplete. A revised application may be submitted, incorporating
portions of the prior application by reference. The resubmission or
refiling of an application shall be considered a de novo filing for the
purpose of computation of the time periods, provided that the
resubmitted application is accepted as complete.
(8) The application must present a prima facie case. Applicants can
fail to meet their burden of proof and thus not present a prima facie
case either by (i) disclosing facts that, even if construed in their
most favorable light, are insufficient to support a finding that the
proposal is consistent with the public interest, or by (ii) disclosing
facts that affirmatively demonstrate that the proposal is not in the
public interest. See Railroad Consolidation Procedures, 363 I.C.C. 767
(1980).
(d) Responsive applications. (1) No responsive applications shall be
permitted to minor transactions.
(2) An inconsistent application will be classified as a major,
significant, or minor transaction as provided in Sec. 1180.2(a) through
(c). The fee for an inconsistent application will be the fee for the
type of transaction involved. See 49 CFR 1002.2(f)(38) through (41). The
fee for any other type of responsive application is the fee for the
particular type of proceeding set forth in 49 CFR 1002.2(f).
(3) Each responsive application filed and accepted for consideration
will automatically be consolidated with the primary application for
consideration.
(e) Evidentiary proceeding. (1) The Board may order an oral public
hearing, a hearing by written submissions,

[[Page 297]]

or another kind of evidentiary proceeding. The determination will
generally be made on the basis of the needs indicated by the written
comments.
(2) The evidentiary proceeding will be completed:
(i) Within 1 year after the primary application is accepted for a
major transaction;
(ii) Within 180 days for a significant transaction; and
(iii) Within 105 days for a minor transaction.
(3) A final decision on the primary application and on all
consolidated cases will be issued:
(i) Within 90 days after the conclusion of the evidentiary
proceeding for a major transaction;
(ii) Within 90 days for a significant transaction; and
(iii) Within 45 days for a minor transaction.
(4) The Secretary of Transportation may propose modifications to any
transaction and shall have standing to appear before the Board in
support of any such proposed modification.
(f) Waiver or clarification. (1) Upon petition of a prospective
applicant, the Board may waive or clarify a portion of these procedures.
A petition to waive all of the procedures will not be entertained.
(2) Except as otherwise provided in the procedural schedule adopted
by the Board in any particular proceeding, petitions for waiver or
clarification must be filed at least 45 days before the application is
filed.
(3) No replies to a petition for waiver will be permitted, except
where a proceeding involving the same parties and a related transaction
is pending before us. \1\ When a reply is permitted, the petition shall
be served by first-class mail on all parties to the pending proceedings,
with a reply due within 10 days of service. Replies to a petition for
clarification shall be permitted within 10 days of the petition's
filing.
---------------------------------------------------------------------------

\1\ See Itel Corp.--Control-Green Bay and W. R. Co., 354 I.C.C. 232,
233 (1978).
---------------------------------------------------------------------------

(4) A waiver or clarification granted to any applicant in a
proceeding shall apply to any other party to the proceeding unless
otherwise indicated.
(5) All petitions for waiver or clarification must specify the
sections for which waiver or clarification is sought and give the
specific reasons why each waiver or clarification is necessary.
(g) Notice of exemption. (1) To qualify for an exemption under Sec.
1180.2(d), a railroad must file a verified notice of the transaction
with the Board. Except for verified notices filed under Sec.
1180.2(d)(9), all verified notices under Sec. 1180.2(d) must be filed
at least 30 days before the transaction is consummated, indicating the
proposed consummation date. Verified notices filed under Sec.
1180.2(d)(9) will become effective upon service of notice of the
transaction by the Board. Before a verified notice is filed, the
railroad shall obtain a docket number from the Board's Section of
Administration, Office of Proceedings.
(i) All notices filed under Sec. 1180.2(d) shall contain the
information required in Sec. 1180.6(a)(1)(i) through (iii), (a)(5) and
(6), and (a)(7)(ii), and indicate the level of labor protection to be
imposed.
(ii) Notices filed under Sec. Sec. 1180.2(d)(7), 1180.2(d)(8), or
1180.2(d)(9) shall also contain the following information:
(A) The name of the tenant railroad;
(B) The name of the landlord railroad;
(C) A description of the trackage rights, including a description of
the track. For notices under Sec. 1180.2(d)(8) and (9), the notice must
state that the trackage rights are overhead rights. For notices under
Sec. 1180.2(d)(7), the notice must state whether the trackage rights
are local or overhead;
(D) The date the trackage rights transaction is proposed to be
consummated;
(E) The date temporary trackage rights will expire, if applicable;
and
(F) For notices under Sec. 1180.2(d)(9), a description of the
situation resulting in the outage in sufficient detail to allow the
Board to determine an emergency exits, including, to the extent
possible, the nature of the event that caused the unforeseen outage, the
location of the outage, the date that the emergency situation occurred,
the date the outage was discovered, and the expected duration of the
outage.
(iii) Except for notices filed under Sec. 1180.2(d)(9), the Board
shall publish a notice of exemption in the Federal

[[Page 298]]

Register within 16 days of the filing of the notice. For notices filed
under Sec. 1180.2(d)(9), the Board shall serve a notice of exemption on
parties of record within 5 days after the verified notice of exemption
is filed and shall publish that notice in the Federal Register. The
publication of notices under Sec. 1180.2(d) will indicate the labor
protection required.
(iv) If the notice contains false or misleading information that is
brought to the Board's attention, the Board shall summarily revoke the
exemption for that carrier and require divestiture.
(v) The filing of a petition to revoke under 49 U.S.C. 10502(d) does
not stay the effectiveness of an exemption. Except for notices filed
under Sec. 1180.2(d)(9), stay petitions must be filed at least 7 days
before the exemption becomes effective. For notices filed under Sec.
1180.2(d)(9), stay petitions should be filed as soon as possible before
the exemption becomes effective.
(vi) Other exemptions that may be relevant to a proposal under this
provision are codified at 49 CFR part 1150, subpart D, which governs
transactions under 49 U.S.C. 10901.
(2) Some transactions may be subject to environmental review
pursuant to the Board's environmental rules at 49 CFR part 1105.
(3)(i) Except for notices filed under Sec. Sec. 1180.2(d)(7),
1180.2(d)(8), or 1180.2(d)(9), the filing party must certify whether a
proposed acquisition or operation of a rail line involves a provision or
agreement that may limit future interchange with a third-party
connecting carrier, whether by outright prohibition, per-car penalty,
adjustment in the purchase price or rental, positive economic
inducement, or other means (``interchange commitment''). If such a
provision or agreement exists, the following additional information must
be provided (the information in paragraphs (g)(4)(i)(B), (D), and (G) of
this section may be filed with the Board under 49 CFR 1104.14(a) and
will be kept confidential without need for the filing of an accompanying
motion for a protective order under 49 CFR 1104.14(b)):
(A) The existence of that provision or agreement and identification
of the affected interchange points; and
(B) A confidential, complete version of the document(s) containing
or addressing that provision or agreement;
(C) A list of shippers that currently use or have used the line in
question within the last two years;
(D) The aggregate number of carloads those shippers specified in
paragraph (g)(4)(i)(C) of this section originated or terminated
(confidential);
(E) A certification that the filing party has provided notice of the
proposed transaction and interchange commitment to the shippers
identified in paragraph (g)(4)(i)(C) of this section;
(F) A list of third party railroads that could physically
interchange with the line sought to be acquired or leased;
(G) An estimate of the difference between the sale or lease price
with and without the interchange commitment (confidential);
(H) A change in the case caption so that the existence of an
interchange commitment is apparent from the case title.
(ii) To obtain information about an interchange commitment for use
in a proceeding before the Board, a shipper or other affected party may
be granted access to the confidential documents filed pursuant to Sec.
1180.4(g)(4)(i) of this section by filing, and serving upon the
petitioner, a ``Motion for Access to Confidential Documents,''
containing:
(A) An explanation of the party's need for the information; and
(B) An appropriate draft protective order and confidentiality
undertaking(s) that will ensure that the documents are kept
confidential.
(iii) Deadlines. (A) Replies to a Motion for Access are due within 5
days after the motion is filed.
(B) The Board will rule on a Motion for Access within 30 days after
the motion is filed.
(C) Parties must produce the relevant documents within 5 days of
receipt of a Board approved, signed confidentiality agreement.
(h) Official notice. In connection with any application or request
for relief under these procedures, the Board may take official notice of
any or all of the following information. These data will be presumed
valid unless discredited by

[[Page 299]]

any party. A party relying on information to be noticed officially shall
list the information. Upon request, the party shall make the official
notice material available. Any party is free to challenge the relevance
or application of any such data, or the weight that should be accorded
it.
(1) Annual STB Form R-1 Reports submitted by rail carriers.
(2) Quarterly Commodity Statistics submitted by rail carriers.
(3) STB Monthly Labor Statistics.
(4) Quarterly Financial Statements of Rail Carriers.
(5) All other reports submitted to the STB under oath.
(6) Annual 1-percent Waybill Sample.
(7) Federal Reserve Board Production Statistics.
(8) AAR compilations of bad order ratios, equipment ownership and
repair statistics, and freight car order figures.

[47 FR 9844, Mar. 8, 1982]

Editorial Note: For Federal Register citations affecting Sec.
1180.4, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.govinfo.gov.

Sec. 1180.5 [Reserved]

Sec. 1180.6 Supporting information.

(a) All applications filed under 49 U.S.C. 11323 shall show in the
title the names of the applicants and the nature of the proposed
transaction. Beneath the title indicate the name, title, business
address, and telephone number of the person(s) to whom correspondence
with respect to the application should be addressed. The following
information shall be included in all applications:
(1) A description of the proposed transaction, including appropriate
references to any supporting exhibits and statements contained in the
application and discussing the following:
(i) A brief summary of the proposed transaction, the name of
applicants, their business address, telephone number, and the name of
the counsel to whom questions regarding the transaction can be
addressed.
(ii) The proposed time schedule for consummation of the proposed
transaction.
(iii) The purpose sought to be accomplished by the proposed
transaction, e.g., operating economies, eliminating excess facilities,
improving service, or improving the financial viability of the
applicants.
(iv) The nature and amount of any new securities or other financial
arrangements.
(2) A detailed discussion of the public interest justifications in
support of the application, indicating how the proposed transaction is
consistent with the public interest, with particular regard to the
relevant statutory criteria, including
(i) The effect of the transaction on inter- and intramodal
competition, including a description of the relevant markets (see Sec.
1180.7). Include a discussion of whether, as a result of the
transaction, there is likely to be any lessening of competition,
creation of a monopoly, or restraint of trade in freight surface
transportation in any region of the United States.
(ii) The financial consideration involved in the proposed
transaction, and any economies, to be effected in operations, and any
increase in traffic, revenues, earnings available for fixed charges, and
net earnings, expected to result from the consummation of the proposed
transaction.
(iii) The effect of the increase, if any, of total fixed charges
resulting from the proposed transaction.
(iv) The effect of the proposed transaction upon the adequacy of
transportation service to the public, as measured by the continuation of
essential transportation services by applicants and other carriers.
(v) The effect of the proposed transaction upon applicant carriers'
employees (by class or craft), the geographic points where the impact
will occur, the time frame of the impact (for at least 3 years after
consolidation), and whether any employee protection agreements have been
reached.
(vi) The effect of inclusion (or lack of inclusion) in the proposed
transaction of other railroads in the territory, under 49 U.S.C. 11324.
(3) Any other supporting or descriptive statements applicants deem
material.

[[Page 300]]

(4) An opinion of applicants' counsel that the transaction meets the
requirements of the law and will be legally authorized and valid, if
approved by the Board. This should include specific references to any
pertinent provisions of applicants' bylaws or charter or articles of
incorporation. \2\
---------------------------------------------------------------------------

\2\ An opinion of counsel is not required in a control transaction
for the party sought to be controlled, or in a responsive application
for the party against whom relief is sought.
---------------------------------------------------------------------------

(5) A list of the State(s) in which any part of the property of each
applicant carrier is situated.
(6) Map (exhibit 1). Submit a general or key map indicating clearly,
in separate colors or otherwise, the line(s) of applicant carriers in
their true relations to each other, short line connections, other rail
lines in the territory, and the principal geographic points in the
region traversed. If a geographically limited transaction is proposed, a
map detailing the transaction should also be included. In addition to
the map accompanying each application, 20 unbound copies of the map
shall be filed with the Board.
(7) Explanation of the transaction.
(i) Describe the nature of the transaction (e.g., merger, control,
purchase, trackage rights), the significant terms and conditions, and
the consideration to be paid (monetary or otherwise).
(ii) Agreement (exhibit 2). Submit a copy of any contract or other
written instrument entered into, or proposed to be entered into,
pertaining to the proposed transaction. \3\ In addition, parties to
exempt trackage rights agreements and renewal of agreements described at
Sec. 1180.2(d)(7) must submit one copy of the executed agreement or
renewal agreement with the notice of exemption, or within 10 days of the
date that the agreement is executed, whichever is later.
---------------------------------------------------------------------------

\3\ A final signed contract or agreement need not be filed with a
responsive application. However, a draft contract or agreement should be
submitted containing the significant terms proposed.
---------------------------------------------------------------------------

(iii) If a consolidation or merger is proposed, indicate: (A) The
name of the company resulting from the consolidation or merger; (B) the
State or territory under the laws of which the consolidated company is
to be formed or the merged company is to file its certificate of
amendment; (C) the capitalization proposed for the resulting company;
and (D) the amount and character of capital stock and other securities
to be issued.
(iv) Court order (exhibit 3). If a trustee, receiver, assignee, or
personal representative of the real party in interest is an applicant,
submit a certified copy of the order, if any, of the court having
jurisdiction, authorizing the contemplated action.
(v) State whether the property involved in the proposed transaction
includes all the property of the applicant carriers and, if not,
describe what property is included in the proposed transaction.
(vi) Briefly describe the principal routes and termini of the lines
involved, the principal points of interchange on the routes, and the
amount of main-line mileage and branch line mileage involved.
(vii) State whether any governmental financial assistance is
involved in the proposed transaction and, if so, the form, amount,
source, and application of such financial assistance.
(8) Environmental data (exhibit 4). Submit information and data with
respect to environmental matters prepared in accordance with 49 CFR part
1105. In major and significant transaction, applicants shall, as soon as
possible, and no later than the filing of a notice of intent, consult
with the Board's Office of Environmental Analysis for the proper format
of the environmental report.
(b) In a major transaction, submit the following information:
(1) Form 10-K (exhibit 6). Submit: The most recent filing with the
Securities and Exchange Commission (SEC) under 17 CFR 249.310 made
within the year prior to the filing of the application by each applicant
or by any entity that is in control of an applicant. These shall not be
incorporated by reference, and shall be updated with any Form 10-K
subsequently filed with the SEC during the pendency of the proceeding.
(2) Form S-4 (exhibit 7). Submit: The most recent filing with the
SEC under 17 CFR 239.25 made within the year prior to the filing of the
application by each applicant or by any entity that is

[[Page 301]]

in control of an applicant. These shall not be incorporated by
reference, and shall be updated with any Form S-4 subsequently filed
with the SEC during the pendency of the proceeding.
(3) Change in control (exhibit 8). If an applicant carrier submits
an annual report Form R-1, indicate any change in ownership or control
of that applicant carrier not indicated in its most recent Form R-1, and
provide a list of the principal six officers of that applicant carrier
and of any related applicant, and also of their majority-owned rail
carrier subsidiaries. If any applicant carrier does not submit an annual
report Form R-1, list all officers of that applicant carrier, and
identify the person(s) or entity/entities in control of that applicant
carrier and all owners of 10% or more of the equity of that applicant
carrier.
(4) Annual reports (exhibit 9). Submit: The two most recent annual
reports to stockholders by each applicant, or by any entity that is in
control of an applicant, made within 2 years of the date of filing of
the application. These shall not be incorporated by reference, and shall
be updated with any annual or quarterly report to stockholders issued
during the pendency of the proceeding.
(5) Issues (exhibit 10). Submit a discussion of any other issues
relevant to the transaction.
(6) Corporate chart (exhibit 11). Submit a corporate chart
indicating all relationships between applicant carriers and all
affiliates and subsidiaries and also companies controlling applicant
carriers directly, indirectly or through another entity (with each chart
indicating the percentage ownership of every company on the chart by any
other company on the chart). For each company: include a statement
indicating whether that company is a noncarrier or a carrier; and
identify every officer and/or director of that company who is also an
officer and/or director of any other company that is part of a different
corporate family that includes a rail carrier. Such information may be
referenced through notes to the chart.
(7) If applicant is not a carrier, indicate (i) the type of business
in which it is engaged, (ii) the length of time so engaged, and (iii)
its present and prospective activities which have or may have a relation
to transportation subject to 49 U.S.C. Subtitle IV.
(8) Intercorporate or financial relationships. Indicate whether
there are any direct or indirect intercorporate or financial
relationships at the time the application is filed, not disclosed
elsewhere in the application, through holding companies, ownership of
securities, or otherwise, in which applicants or their affiliates own or
control more than 5% of the stock of a non-affiliated carrier, including
those relationships in which a group affiliated with applicants owns
more than 5% of the stock of such a carrier. Indicate the nature and
extent of any such relationships, and, if an applicant owns securities
of a carrier subject to 49 U.S.C. Subtitle IV, provide the carrier's
name, a description of securities, the par value of each class of
securities held, and the applicant's percentage of total ownership. For
purposes of this paragraph, ``affiliates'' has the same meaning as
``affiliated companies'' in Definition 5 of the Uniform System of
Accounts (49 CFR part 1201, subpart A).
(9) Employee impact exhibit. The effect of the proposed transaction
upon applicant carriers' employees (by class or craft), the geographic
points where the impacts would occur, the time frame of the impacts (for
at least 3 years after consolidation), and whether any employee
protection agreements have been reached. This information (except with
respect to employee protection agreements) may be set forth in the
following format:

Effects on Applicant Carriers' Employees
------------------------------------------------------------------------

------------------------------------------------------------------------
Current Location................................................ ......
Jobs Classification............................................. ......
Jobs Transferred to............................................. ......
Jobs Abolished.................................................. ......
Jobs Created.................................................... ......
Year............................................................ ......
------------------------------------------------------------------------

(10) Conditions to mitigate and offset merger-related harms.
Applicants are expected to propose measures to mitigate and offset
merger-related harms. These conditions should not simply preserve, but
also enhance, competition.
(i) Applicants must explain how they would preserve competitive
options for

[[Page 302]]

shippers and for Class II and III rail carriers. At a minimum,
applicants must explain how they would preserve the use of major
existing gateways, the potential for build-outs or build-ins, and the
opportunity to enter into contracts for one segment of a movement as a
means of gaining the right separately to pursue rate relief for the
remainder of the movement.
(ii) Applicants should explain how the transaction and conditions
they propose would enhance competition and improve service.
(11) Calculating public benefits. Applicants must enumerate and,
where possible, quantify the net public benefits their merger would
generate (if approved). In making this estimate, applicants should
identify the benefits that would arise from service improvements,
enhanced competition, cost savings, and other merger-related public
interest benefits, and should discuss whether the particular benefits
they are relying upon could be achieved short of merger. Applicants must
also identify, discuss, and, where possible, quantify the likely
negative effects approval would entail, such as losses of competition,
potential for service disruption, and other merger-related harms. In
addition, applicants must suggest additional measures that the Board
might take if it approves the application and the anticipated public
benefits identified by applicants fail to materialize in a timely
manner.
(12) Downstream merger applications. (i) Applicants should
anticipate whether additional Class I mergers are likely to be proposed
in response to their own proposal and explain how, taken together, these
mergers, if approved, could affect the eventual structure of the
industry and the public interest.
(ii) Applicants are expected to discuss whether any conditions
imposed on an approval of their proposed merger would have to be
altered, or any new conditions imposed, if the Board should approve
additional future rail mergers.
(13) Purpose of the proposed transaction. The purpose sought to be
accomplished by the proposed transaction, such as improving service,
enhancing competition, strengthening the nation's transportation
infrastructure, creating operating economies, and ensuring financial
viability.
(c) In a significant transaction, submit the information specified
in paragraphs (b)(3), (b)(5), (b)(6), (b)(7), and (b)(8) of this
section.

[47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982,
and amended at 50 FR 15751, Apr. 22, 1985; 56 FR 41806, Aug. 3, 1991; 57
FR 28641, June 26, 1992; 58 FR 63104, Nov. 30, 1993; 62 FR 9717, Mar. 4,
1997; 64 FR 53269, Oct. 1, 1999; 66 FR 32587, June 15, 2001; 83 FR
15080, Apr. 9, 2018]

Sec. 1180.7 Market analyses.

(a) For major and significant transactions, applicants shall submit
impact analyses (exhibit 12) describing the impacts of the proposed
transaction--both adverse and beneficial--on inter-and intramodal
competition with respect to freight surface transportation in the
regions affected and on the provision of essential services by
applicants and other carriers. An impact analysis should include
underlying data, a study of the implications of those data, and a
description of the resulting likely effects of the proposed transaction
on the transportation alternatives that would be available to the
shipping public. Each aspect of the analysis should specifically address
significant impacts as they relate to the applicable statutory criteria
(49 U.S.C. 11324(b) or (d)), essential services, and competition.
Applicants must identify and address relevant markets and issues, and
provide additional information as requested by the Board on markets and
issues that warrant further study. Applicants (and any other party
submitting analyses) must demonstrate both the relevance of the markets
and issues analyzed and the validity of their methodology. All
underlying assumptions must be clearly stated. Analyses should reflect
the consolidated company's marketing plan and existing and potential
competitive alternatives (inter- as well as intramodal). They can
address: city pairs, interregional movements, movements through a point,
or other factors; a particular commodity, group of commodities, or other
commodity factor that would be significantly affected by the
transaction; or other effects of

[[Page 303]]

the transaction (such as on a particular type of service offered).
(b) For major transactions, applicants shall submit ``full system''
impact analyses (incorporating any operations in Canada or Mexico) from
which they must demonstrate the impacts of the transaction--both adverse
and beneficial--on competition within regions of the United States and
this nation as a whole (including inter- and intramodal competition,
product competition, and geographic competition) and the provision of
essential services (including freight, passenger, and commuter) by
applicants and other network links (including Class II and Class III
rail carriers and ports). Applicants' impact analyses must at least
provide the following types of information:
(1) The anticipated effects of the transaction on traffic patterns,
market concentrations, and/or transportation alternatives available to
the shipping public. Consistent with Sec. 1180.6(b)(10), these would
incorporate a detailed examination of any competition-enhancing aspects
of the transaction and of the specific measures proposed by applicants
to preserve existing levels of competition and essential services;
(2) Actual and projected market shares of originated and terminated
traffic by railroad for each major point on the combined system.
Applicants may define points as individual stations or as larger areas
(such as Bureau of Economic Analysis statistical areas or U.S.
Department of Agriculture Crop Reporting Districts) as relevant and
indicate the extent of switching access and availability of terminal
belt railroads. Applicants should list points where the number of
serving railroads would drop from two to one and from three to two,
respectively, as a result of the proposed transaction (both before and
after applying proposed remedies for competitive harm);
(3) Actual and projected market shares of revenues and traffic
volumes for major interregional or corridor flows by major commodity
group. Origin/destination areas should be defined at relevant levels of
aggregation for the commodity group in question. The data should be
broken down by mode and (for the railroad portion) by single-line and
interline routings (showing gateways used);
(4) For each major commodity group, an analysis of traffic flows
indicating patterns of geographic competition or product competition
across different railroad systems, showing actual and projected revenues
and traffic volumes;
(5) Maps and other graphic displays where helpful in illustrating
the analyses in this section;
(6) An explicit delineation of the projected impacts of the
transaction on the ability of various network links (including Class II
and Class III rail carriers and ports) to participate in the competitive
process and to sustain essential services; and
(7) Supporting data for the analyses in this section, such as the
basis for projections of changes in traffic patterns, including shipper
surveys and econometric or other statistical analyses. If not made part
of the application, applicants shall make these data available in a
repository for inspection by other parties or otherwise supply these
data on request, for example, electronically. Access to confidential
information will be subject to protective order. For information drawn
from publicly available published sources, detailed citations will
suffice.
(8) If necessary, an explanation as to how the lack of reliable and
consistent data has limited applicants' ability to satisfy any of the
requirements in this paragraph (b).
(c) For significant transactions, specific regulations on impact
analyses are not provided so that the parties will have the greatest
leeway to develop the best evidence on the impacts of each individual
transaction. As a general guideline, applicants shall provide supporting
data that may (but need not) include: current and projected traffic
flows; data underlying sales forecasts or marketing goals; interchange
data; market share analysis; and/or shipper surveys. It is important to
note that these types of studies are neither limiting nor all-inclusive.
The parties must provide supporting data, but are free to choose the
type(s) and format. If not made part of the application, applicants
shall make these data available in a repository for inspection by other
parties or otherwise supply

[[Page 304]]

these data on request, for example, electronically. Access to
confidential information will be subject to protective order. For
information drawn from publicly available published sources, detailed
citations will suffice.

[66 FR 32588, June 15, 2001]

Sec. 1180.8 Operational data.

(a) Applications for major transactions must include a full-system
operating plan--incorporating any prospective operations in Canada and
Mexico--from which they must demonstrate how the proposed transaction
would affect operations within regions of the United States and on a
nationwide basis. As part of the environmental review process,
applicants shall submit:
(1) A Safety Integration Plan, prepared in consultation with the
Federal Railroad Administration, to ensure that safe operations would be
maintained throughout the merger implementation process.
(2) Information on what measures they plan to take to address
potentially blocked crossings as a result of merger-related changes in
operations or increases in rail traffic.
(b) For major and significant transactions: Operating plan (exhibit
13). Submit a summary of the proposed operating plan changes, based on
the impact analyses, that will result from the transaction, and their
anticipated timing, allowing for any time required to complete
rehabilitation, upgrading, yard construction, or other major operational
changes following consummation of the proposed transaction. The plan
should make clear the gains in service, operating efficiencies, and
other benefits anticipated from the merger. The plan should include:
(1) The patterns of service on the properties, including the
proposed principal routes, proposed consolidations of main-line
operations, and the anticipated traffic density and general categories
of traffic (including numbers of trains) on all main and secondary lines
in the system. Identify all yards expected to have an increase in
activity greater than 20 percent. Changes in operations may be
summarized in a pro forma density chart.
(2) If commuter or other passenger services are operated over the
lines of applicant carriers, detail any impacts anticipated on such
services, including delays which may be occasioned because a line is
scheduled to handle increased traffic due to route consolidations.
(3) The anticipated equipment requirements of the proposed system,
including locomotives, rolling stock by type, and maintenance-of-way
equipment; plans for acquisition and retirement of equipment; projected
improvements in equipment utilization and their relation to operating
changes; and how these will lead to the financial and service benefits
described in the summary.
(4) A description of the effect of any deferred maintenance or
delayed capital improvements on any road or equipment properties
involved, the schedule for eliminating such deferrals, details of
general system rehabilitation including rehabilitation relating to the
transaction (including proposed yard and terminal modifications), and
how these activities will lead to the service improvements or operating
economies anticipated from the transaction.
(5) Density charts (exhibit 14). Gross ton-mile traffic density
charts shall be filed for applicant carriers containing a map
geographically showing those lines handling 1 million gross ton-miles
per mile road or more per year and respective densities, expressed in
gross ton-miles per year, in each direction, in segments of such lines
between major freight yards and terminals, including major intramodal
and intermodal interchange points, using the corporate or political
subdivision name of the points shown as well as the railroad station
name. The mileage of each segment of line shall be provided, and should
be shown on the chart. Data shown in the density chart shall be for the
latest available full calendar year preceding the filing of the
application. At applicants' option data may be shown on the density
chart or an explanatory list.
(c) For minor transactions: Operating plan-minor (exhibit 15).
Discuss any significant changes in patterns or

[[Page 305]]

types of service as reflected by the operating plan expected to be used
after consummation of the transaction. Where relevant, submit
information related to the following:
(1) Traffic level density on lines proposed for joint operations.
(2) Impacts on commuter or other passenger service operated over a
line which is to be downgraded, eliminated, or operated on a
consolidated basis.
(3) Operating economies, which include, but are not limited to,
estimated savings.
(4) Any anticipated discontinuances or abandonments.

[47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982, as
amended at 66 FR 32589, June 15, 2001]

Sec. 1180.9 Financial information.

The following information shall be provided for major transactions,
and for carriers shall conform to the Board's Uniform System of
Accounts, 49 CFR part 1201:
(a) Pro forma balance sheet (exhibit 16). Where the transaction
involves a proceeding other than a control, a pro forma balance sheet
statement giving effect to the proposed transaction commencing for the
first year of the Impact Analysis in exhibit 12. The data shall be
presented in columnar form showing:
(1) In the first column, the balance sheet of transferee on a
corporate entity basis,
(2) In the second column, a balance sheet of transferor, on a
corporate entity basis,
(3) In the third column, pro forma adjustments and eliminations; and
(4) In the fourth column, transferee's balance sheet giving effect
to consumation of the proposed transaction. \4\
---------------------------------------------------------------------------

\4\ Where the purchase of a line or line segment is involved, a
procedure utilizing three columns should be followed. The first column
should show transferee's actual balance sheet on a corporate entity
basis for the latest available 12-month period, the second column should
show the adjustments necessitated by the purchase, and the third is a
compilation of the first two columns into a pro forma balance sheet.
The transferor shall file a balance sheet similar to the one filed
by the transferee, with the second column reflecting the adjustments
resulting from the sale.
If the parent company (if any) of the transferee or transferor is
affected, a similar balance sheet shall be filed for each.
All adjustments to these balance sheets shall be supported in
footnotes to the appropriate balance sheet.

Each adjustment and elimination shall be properly footnoted and fully
explained. A pro forma balance sheet shall be submitted for the number
of years following consummation necessary to effect the operating plan.
(b) Pro forma income statement (exhibit 17). Where the transaction
involves a proceeding other than a control, submit a pro forma income
statement showing transferee's estimate of revenues, expenses, and net
income for at least each of the 3 years following consummation of the
transaction. \5\ The pro forma data shall be presented in columnar form,
showing
---------------------------------------------------------------------------

\5\ If the operating plan requires more than 3 years to be put into
effect, the pro forma income statement shall be prepared for as many
years as necessary to implement fully the operating plan.
---------------------------------------------------------------------------

(1) in the first column, transferee's actual income statement on a
corporate entity basis for the year indicated in the impact analysis in
exhibit 12;
(2) in the second column, a similar income statement for the
transferor;
(3) in the third column, forecasted adjustments to the combined
revenues, expenses, and net income to reflect increases or decreases
anticipated under the unified operations, and
(4) in the fourth column, a compilation of the first three columns
into a pro forma income statement. \6\
---------------------------------------------------------------------------

\6\ Where the purchase of a line or line segment is involved, a
procedure utilizing three columns should be followed. The first column
should show transferee's actual income statement on a corporate entity
basis for the latest available 12-month period, the second column should
show the adjustment necessitated by the purchase, and the third column
is a compilation of the first two columns into a pro forma income
statement.
The transferor shall file an income statement similar to the one
filed by the transferee, with the second column reflecting the
adjustments resulting from the sale.
If the parent company (if any) of the transferor or transferee is
affected, a similar statement shall be filed for each.
All adjustments to these income statements shall be supported in
footnotes to the appropriate income statements.

---------------------------------------------------------------------------

[[Page 306]]

The adjustments are to be supported by a statement explaining the basis
used in determining the estimated changes in revenues, expenses, and net
income appearing in the third column. Additionally, if the major
financial advantages to be derived from the proposed transaction will
not occur within 3 years after consummation, then applicant shall
furnish additional information to reflect the number of years within
which the financial advantages will be realized. The basis for all such
data furnished shall be fully explained and supported.
(c) Sources and application of funds (exhibit 18). Transferor's and
transferee's statement of sources and application of funds for the
current year, and a forecast \7\ of sources and application of funds for
each carrier (if a merger or consolidation, the surviving or resulting
corporation) for the year following consummation of the proposed
transaction, and the years necessary to effectuate the operating plan.
\8\ The form and content of these statements should be constructed in
accordance with the schedule: ``Statement of Changes in Financial
Position'' required in the most recently filed Annual Report R-1 for
Class I railroads.
---------------------------------------------------------------------------

\7\ The forecast should reflect only changes anticipated to result
from the proposed transaction. Forecasts are not required to reflect
general economic conditions unrelated to the proposed transaction.
\8\ The pro forma balance sheets (exhibit 16), pro forma income
statements (exhibit 17), and sources and application of funds (exhibit
18) shall cover the same years.
---------------------------------------------------------------------------

(d) Property encumbrance (exhibit 19). If any of the property
covered by the application is encumbered and applicant has agreed to
assume obligation or liability in respect thereof, submit:
(1) A description of the property encumbered.
(2) Amount of encumbrance and full description thereof, including
maturity, interest rate, and other terms and conditions.
(3) Amount of encumbrance assumed or to be assumed by applicant.
(e) The Board will incorporate by reference the current balance
sheets and income statements of Class I railroads which are on file with
the Board. Class II and Class III railroads, and non-carrier entities
shall submit balance sheets (exhibit 20) and income statements (exhibit
21) covering a period ending within 6 months before the application is
filed.

[47 FR 9844, Mar. 8, 1982. Redesignated at 47 FR 49592, Nov. 1, 1982,
and amended at 58 FR 63104, Nov. 30, 1993; 62 FR 9717, Mar. 4, 1997; 64
FR 53269, Oct. 1, 1999]

Sec. 1180.10 Service assurance plans.

For major transactions: Applicants must submit a Service Assurance
Plan, which, in concert with the operating plan requirements, identifies
the precise steps to be taken by applicants to ensure that projected
service levels would be attainable and that key elements of the
operating plan would improve service. The plan shall describe with
reasonable precision how operating plan efficiencies would translate
into present and future benefits for the shipping public. The plan must
also describe any potential area of service degradation that might
result due to operational changes and how instances of degraded service
might be mitigated. Like the Operating Plan on which it is based, the
Service Assurance Plan must be a full-system plan encompassing:
(a) Integration of operations. Based on the operating plan, and
using appropriate benchmarks, applicants must develop a Service
Assurance Plan describing how the proposed transaction would result in
improved service levels and how and where service might be degraded.
This description should be a precise route level review, but not a
shipper-by-shipper review. Nonetheless, the plan should be sufficient
for individual shippers to evaluate the projected improvements and
changes, and respond to the potential areas of service degradation for
their customary traffic routings. The plan should inform Class II and
III railroads and other connecting railroads of the operational changes
or changes in service terms that might affect their operations,
including operations involving major gateways.

[[Page 307]]

(b) Coordination of freight and passenger operations. If Amtrak or
commuter services are operated over the lines of applicant carriers,
applicants must describe definitively how they would continue to
facilitate these operations so as to fulfill existing performance
agreements for those services. Whether or not the passenger services are
operated over lines of applicants or applicants' operations are on the
lines of passenger agencies, applicants must establish operating
protocols ensuring effective communications with Amtrak and/or regional
rail passenger operators to minimize any potential transaction-related
negative impacts.
(c) Yard and terminal operations. The operational fluidity of yards
and terminals is key to the successful implementation of a transaction
and effective service to shippers. Applicants must describe how the
operations of principal classification yards and major terminals would
be changed or revised and how these revisions would affect service to
customers. As part of this analysis, applicants must furnish dwell time
benchmarks for each facility described in this paragraph, and estimate
what the expected dwell time would be after the revised operations are
implemented. Also required will be a discussion of on-time performance
for the principal yards and terminals in the same terms as required for
dwell time.
(d) Infrastructure improvements. Applicants must identify potential
infrastructure impediments (using volume/capacity line and terminal
forecasts), formulate solutions to those impediments, and develop time
frames for resolution. Applicants must also develop a capital
improvement plan (to support the operating plan) for timely funding and
completion of the improvements critical to transition of operations.
They should also describe improvements related to future growth, and
indicate the relationship of the improvements to service delivery.
(e) Information technology systems. Because the accurate and timely
integration of applicants' information systems is vitally important to
service, applicants must identify the process to be used for systems
integration and training of involved personnel. This must include
identification of the principal operations-related systems, operating
areas affected, implementation schedules, the realtime operations data
used to test the systems, and pre-implementation training requirements
needed to achieve completion dates. If such systems will not be
integrated and on line prior to implementation of the transaction,
applicants must describe the interim systems to be used and the adequacy
of those systems to ensure service delivery.
(f) Customer service. To achieve and maintain customer confidence in
the transaction and to ensure the successful integration and
consolidation of existing customer service functions, applicants must
identify their plans for the staffing and training of personnel within
or supporting the customer service centers. This discussion must include
specific information on the planned steps to familiarize customers with
any new processes and procedures that they may encounter in using the
consolidated systems and/or changes in contact locations, telephone
numbers, or communication mode.
(g) Labor. Applicants must furnish a plan for reaching necessary
labor implementing agreements. Applicants must also provide evidence
that sufficient qualified employees would be available at the proper
locations to effect implementation.
(h) Training. Applicants must establish a plan for providing
necessary training to employees involved with operations, train and
engine service, operating rules, dispatching, payroll and timekeeping,
field data entry, safety and hazardous material compliance, and
contractor support functions (e.g., crew van service), as well as
training for other employees in functions that would be affected by the
acquisition.
(i) Contingency plans for merger-related service disruptions. To
address potential disruptions of service that could occur, applicants
must establish contingency plans. Those plans, based upon available
resources and traffic flows and density, must identify potential areas
of disruption and the risk of occurrence. Applicants must provide
evidence that contingency plans would be in place to promptly restore
adequate service levels. Applicants must also

[[Page 308]]

provide for the establishment of problem resolution teams and describe
the specific procedures to be utilized for problem resolution.
(j) Timetable. Applicants must identify all major functional or
system changes/consolidations that would occur and the time line for
successful completion.
(k) Benchmarking. Specific benchmarking requirements may vary with
the transaction. The minimum for benchmarking will be the 12 monthly
periods immediately preceding the filing date of the notice of intent to
file the application. Benchmarking is intended to provide an historic
monthly baseline against which actual post-transaction levels of
performance can be measured. Benchmarking data should be sufficiently
detailed and encompassing to give a meaningful picture of operational
performance for the newly merged system. Applicants will report in a
matrix structure giving the historic monthly (benchmark) data and
provide for the reporting of actual monthly data during the monitoring
period. It is important that data reflect uniformly constructed measures
of historic and post-transaction operations. Minimum benchmark data
include:
(1) Corridor performance benchmarking. Benchmarks will consist of
route level performance information including flow data for traffic
moving on the applicants' systems. These data will encompass flows to
and from major points. A major point could be a Bureau of Economic
Analysis (BEA) statistical area, or it can be a railroad-created point
based on an operational grouping of stations or interchanges, or it
could be another similar construction. It will be necessary for
applicants to define traffic points used to establish benchmarks for
purposes of monitoring. A sufficient number of corridor flows must be
reported so as to fully represent system flows, including interchanges
with short lines and other Class I's, and internal traffic of the
respective applicants before the transaction. In addition to identifying
traffic flows by areas, they also must be identified by commodity sector
(for example, merchandise, intermodal, automotive, unit coal, unit grain
etc.). Data for each flow must include: traffic volume in carloads
(units), miles (area to area), and elapsed time in hours. Only loaded
traffic need be included.
(2) Yard and terminal benchmarking--(i) Terminal dwell. Terminal
dwell for major yards will be calculated in hours for cars handled, not
including run-through and bypass trains or maintenance of way and bad
order cars.
(ii) On time originations by major yard. On time originations are
based on the departure of scheduled trains originating at a particular
yard.
(3) System benchmarking. (i) Cars on line.
(ii) Average train velocity, by train type.
(iii) Locomotive fleet size and applicable bad order ratios.
(iv) Passenger train performance for commuter and intercity
passenger services.

[66 FR 32589, June 15, 2001]

Sec. 1180.11 Transnational and other informational requirements.

(a) For applicants whose systems include operations in Canada or
Mexico, applicants must explain how cooperation with the Federal
Railroad Administration would be maintained to address potential impacts
on operations within the United States of operations or events elsewhere
on their systems.
(b) All applicants must assess whether any restrictions or
preferences under foreign or domestic law or policies could affect their
commercial decisions, and discuss any ownership restrictions applicable
to them.

[66 FR 32590, June 15, 2001]

Subpart B_Transfer or Operation of Lines of Railroads in Reorganization

Sec. 1180.20 Procedures.

(a) Transactions under 11 U.S.C. 1172, for the transfer or operation
of lines of bankrupt railroads under a plan of reorganization are
governed by the following procedures:
(1) If the buyer or operator is not a carrier, the Notice of
Exemption procedures in subpart D of part 1150 of this title.
(2) If the buyer or operator is a carrier, either:

[[Page 309]]

(i) The application procedures in subpart A of this part; or,
(ii) The procedures in part 1121 of this title for a petition to
exempt the transaction from prior approval requirements of 49 U.S.C.
11323 et seq.
(b) The Board will establish or modify its existing procedures and
deadlines as necessary in each proceeding to comply with appropriate
orders of the Bankruptcy Court.
(c) Under 11 U.S.C. 1172(c)(1), the Board is required to provide
affected employees with adequate protection. The Board will impose the
minimum levels required by 49 U.S.C. 11326, unless a need is shown for
greater levels of protection.
(d) All applications, notices, and petitions for exemption within
the scope of Sec. 1180.20(a) shall advise the Board that the proposed
transaction involves the transfer or operation of lines in
reorganization.

[57 FR 57112, Dec. 3, 1992; 57 FR 61585, Dec. 28, 1992, as amended at 62
FR 9717, Mar. 4, 1997]

PART 1182_PURCHASE, MERGER, AND CONTROL OF MOTOR PASSENGER CARRIERS-
-Table of Contents

Sec.
1182.1 Applications covered by this part.
1182.2 Content of applications.
1182.3 Filing the application.
1182.4 Board review of the application.
1182.5 Comments.
1182.6 Processing an opposed application.
1182.7 Interim approval.
1182.8 Miscellaneous requirements.
1182.9 Notices of exemption.

Authority: 5 U.S.C. 559; 21 U.S.C. 862; and 49 U.S.C. 13501,
13541(a), 13902(c), and 14303.

Source: 63 FR 46397, Sept. 1, 1998, unless otherwise noted.

Sec. 1182.1 Applications covered by this part.

The rules in this part govern applications for authority under 49
U.S.C. 14303 to consolidate, merge, purchase, lease, or contract to
operate the properties or franchises of motor carriers of passengers or
to acquire control of motor carriers of passengers. There is no
application form for these proceedings. Applicants shall file a pleading
containing the information described in 49 CFR 1182.2. See 49 CFR
1002.2(f) (2) and (5) for filing fees.

Sec. 1182.2 Content of applications.

(a) The application must contain the following information:
(1) Full name, address, and authorized signature of each of the
parties to the transaction;
(2) Copies or descriptions of the pertinent operating authorities of
all of the parties (Note: If an applicant is domiciled in Mexico or
owned or controlled by persons of that country, copies of the actual
operating authorities must be submitted.);
(3) A description of the proposed transaction;
(4) Identification of any motor passenger carriers affiliated with
the parties, a brief description of their operations, and a summary of
the intercorporate structure of the corporate family from top to bottom;
(5) A jurisdictional statement, under 49 U.S.C. 14303(g), that the
12-month aggregate gross operating revenues, including revenues of all
motor carrier parties and all motor carriers controlling, controlled by,
or under common control with any party from all transportation sources
(whether interstate, intrastate, foreign, regulated, or unregulated)
exceeded $2 million. (Note: The motor passenger carrier parties and
their motor passenger carrier affiliates may select a consecutive 12-
month period ending not more than 6 months before the date of the
parties' agreement covering the transaction. They must, however, select
the same 12-month period.)
(6) A statement indicating whether the transaction will or will not
significantly affect the quality of the human environment and the
conservation of energy resources;
(7) Information to demonstrate that the proposed transaction is
consistent with the public interest, including particularly: the effect
of the proposed transaction on the adequacy of transportation to the
public; the total fixed charges (e.g., interest) that result from the
proposed transaction; and the interest of carrier employees affected by
the proposed transaction. See 49 U.S.C. 14303(b);

[[Page 310]]

(8) Certification by applicant of the current U.S. Department of
Transportation safety fitness rating of each motor passenger carrier
involved in the transaction, whether that carrier is a party to the
transaction or is affiliated with a party to the transaction;
(9) Certification by the party acquiring any operating rights
through the transaction that it has sufficient insurance coverage under
49 U.S.C. 13906 (a) and (d) for the service it intends to provide;
(10) A statement indicating whether any party acquiring any
operating rights through the transaction is either domiciled in Mexico
or owned or controlled by persons of that country; and
(11) If the transaction involves the transfer of operating authority
to an individual who will hold the authority in his or her name, that
individual must complete the following certification:

I, _____, certify under penalty of perjury under the laws of the
United States, that I have not been convicted, after September 1, 1989,
of any Federal or State offense involving the distribution or possession
of a controlled substance, or that I have been so convicted, but I am
not ineligible to receive Federal benefits, either by court order or
operation of law, pursuant to 21 U.S.C. 862.

(b) The application shall contain applicants' entire case in support
of the proposed transaction, unless the Board finds, on its own motion
or that of a party to the proceeding, that additional evidentiary
submissions are required to resolve the issues in a particular case.
(c) Any statements submitted on behalf of an applicant supporting
the application shall be verified, as provided in 49 CFR 1182.8(e).
Pleadings consisting strictly of legal argument, however, need not be
verified.
(d) If an application or supplemental pleading contains false or
misleading information, the granted application is void ab initio.

[63 FR 46397, Sept. 1, 1998, as amended at 83 FR 15080, Apr. 9, 2018]

Sec. 1182.3 Filing the application.

(a) Each application shall be filed with the Board, complying with
the requirements set forth at 49 CFR 1182.8.
(1) One copy of the application shall be delivered, by first-class
mail, to the appropriate regulatory body in each State in which
intrastate operations are affected by the transaction.
(2) If the application involves the merger or purchase of motor
passenger carriers (contemplating transfer of operating authorities or
registrations from one or more parties to others), one copy of the
application shall be delivered, by first-class mail, to:

Federal Motor Carrier Safety Administration, Office of Registration &
Safety Information, Chief, Registration, Licensing & Insurance Division,
1200 New Jersey Ave. SE, Mail Stop W65-331, Washington, DC 20590

(b) In their application, the parties shall certify that they have
delivered copies of the application as provided in paragraph (a) of this
section.

[63 FR 46397, Sept. 1, 1998, as amended at 83 FR 15080, Apr. 9, 2018]

Sec. 1182.4 Board review of the application.

(a) All applications will be reviewed for completeness. Applicants
will be given an opportunity to correct minor errors or omissions.
Incomplete applications may be rejected, or, if omissions are corrected,
the filing date of the application, for purposes of calculating the
procedural schedule and statutory deadlines, will be deemed to be the
date on which the complete information is filed with the Board.
(b) If the application is accepted, a summary of the application
will be published in the Federal Register (within 30 days, as provided
by 49 U.S.C. 14303(c)), to give notice to the public, in the form of a
tentative grant of authority.
(c) If the published notice does not properly describe the
transaction for which approval is sought, applicants shall inform the
Board within 10 days after the publication date.
(d) A copy of the application will be available for inspection at
the Board's offices in Washington, DC. Interested persons may obtain a
copy of the application from the applicants' representative, as
specified in the published notice.

[[Page 311]]

Sec. 1182.5 Comments.

(a) Comments concerning an application must be received by the Board
within 45 days after notice of the application is published, as provided
by 49 U.S.C. 14303(d). Failure to file a timely comment waives further
participation in the proceeding. If no comments are filed opposing the
application, the published tentative grant of authority will
automatically become effective at the close of the comment period. A
tentative grant of authority does not entitle the applicant to
consummate the transaction before the end of the comment period.
(b) A comment shall be verified, as provided in 49 CFR 1182.8(e),
and shall contain all information upon which the commenter intends to
rely, including the grounds for any opposition to the transaction and
the commenter's interest in the proceeding.
(c) The docket number of the application must be conspicuously
placed at the top of the first page of the comment.
(d) A copy of the comment shall be delivered concurrently to
applicants' representative(s).

Sec. 1182.6 Processing an opposed application.

(a) If timely comments are submitted in opposition to an
application, the tentative grant of authority is void.
(b) Applicants may file a reply to opposing comments, within 60 days
after the date the application was published.
(1) The reply may include a request for an expedited decision on the
issues raised by the comments. Otherwise, the reply may not contain any
new evidence, but shall only rebut or further explain matters previously
raised.
(2) The reply shall be verified, as provided in 49 CFR 1182.8(e),
unless it consists strictly of legal argument.
(3) Applicants' reply must be served on each commenter in such
manner that it is received no later than the date it is due to be filed
with the Board.
(4) Opposing commenters may reply to a request for an expedited
decision, within 70 days after notice of the application was published.
(c) The Board may:
(1) Dispense with further proceedings and make a final determination
based on the record as developed; or
(2) Issue a procedural schedule specifying the dates by which:
applicants may submit additional evidence in support of the application,
in response to the comment(s) in opposition; and the opposing
commenter(s) may reply.
(d) Further processing of an opposed application will be handled on
a case-by-case basis, as appropriate to the particular issues raised in
the comments filed in opposition to the application. Evidentiary
proceedings must be concluded within 240 days after publication of the
notice of the application.

Sec. 1182.7 Interim approval.

(a) A party may request interim approval of the operation of the
properties sought to be acquired through the proposed transaction, for a
period of not more than 180 days pending determination of the
application. This request may be included in the application or may be
submitted separately after the application is filed (e.g., once a
comment opposing the application has been filed). An additional filing
fee is required, whether the request for interim approval is included in
the application or is submitted separately at a later time. See 49 CFR
1002.2(f)(5) for the additional filing fee.
(b) A request for interim approval of the operation of the
properties sought to be acquired in the application must show that
failure to grant interim approval may result in destruction of or injury
to those properties or substantially interfere with their future
usefulness in providing adequate and continuous service to the public.
(c) If a request for interim approval is submitted after the
application is filed, it must be served on each person who files or has
filed a comment in response to the published notice of the application.
Service must be simultaneous upon those commenters who are known when
the request for interim approval is submitted; otherwise, service must
be within 5 days after the comment is received by applicants or their
representative.

[[Page 312]]

(d) Because the basis for requesting interim approval is to prevent
destruction of or injury to motor passenger carrier properties sought to
be acquired under 49 U.S.C. 14303, the processing of such requests is
intended to promote expeditious decisions regarding interim approval.
The Board has no obligation to give public notice of requests for
interim approval, and such requests are decided without hearing or other
formal proceeding.
(1) If a request for interim approval is included in the
application, the Board's decision with regard to interim approval will
be served in conjunction with the notice accepting the application.
(2) If an application is rejected, the request for interim approval
will be denied.
(3) If an application is denied, after comments in opposition are
submitted, any interim approval will terminate 30 days after service of
the decision denying the application.
(e) A petition to reconsider a grant of interim approval may be
filed only by a person who has filed a comment in opposition to the
application.
(1) A petition to reconsider a grant of interim approval must be in
writing and shall state the specific grounds upon which the commenter
relies in opposing interim approval. The petition shall certify that a
copy has been served on applicants' representative.
(2) The petition to reconsider a grant of interim approval shall be
filed with the Board, and one copy of the petition shall be served on
applicants' representative(s).
(f) The Board may act on a petition to reconsider a grant of interim
approval either separately or in connection with the final decision on
the application.

[63 FR 46397, Sept. 1, 1998, as amended at 84 FR 12945, Apr. 3, 2019]

Sec. 1182.8 Miscellaneous requirements.

(a) If applicants wish to withdraw an application, they shall
jointly request dismissal in writing.
(b) All pleadings (including motions and replies) submitted under
this part shall be served on all other parties, concurrently and by the
same (or more expeditious) means with which they are filed with the
Board.
(c) Each pleading shall contain a certificate of service stating
that the pleading has been served in accordance with paragraph (c) of
this section.
(d) All applications and pleadings containing statements of fact
(i.e., except motions to strike, replies thereto, and other pleadings
that consist only of legal argument) must be verified by the person
offering the statement, in the following manner:

I, [Name and Title of Witness], verify under penalty of perjury,
under the laws of the United States of America, that all information
supplied in connection with this application is true and correct.
Further, I certify that I am qualified and authorized to file this
application or pleading. I know that willful misstatements or omissions
of material facts constitute Federal criminal violations punishable
under 18 U.S.C. 1001 by imprisonment up to five years and fines up to
$10,000 for each offense. Additionally, these misstatements are
punishable as perjury under 18 U.S.C. 1621, which provides for fines up
to $2,000 or imprisonment up to five years for each offense.

[Signature and Date]

(e) If completion of a transaction requires the transfer of
operating authorities or registrations from one or more parties to
others, the parties shall comply with relevant procedures of the Federal
Motor Carrier Safety Administration, and comply with ministerial
requirements of relevant State procedures.

[63 FR 46397, Sept. 1, 1998, as amended at 83 FR 15080, Apr. 9, 2018; 84
FR 12945, Apr. 3, 2019]

Sec. 1182.9 Notices of exemption.

(a) A transaction within a motor passenger corporate family is
exempt from 49 U.S.C. 14303 if it does not result in adverse changes in
service levels, significant operational changes, or a change in the
competitive balance with motor passenger carriers outside the corporate
family. The Board has found that its prior review and approval of these
transactions is not necessary to carry out the transportation policy of
49 U.S.C. 13101; regulation is not necessary to protect shippers from
abuse of market power; and an exemption is in the public interest. See
49 U.S.C. 13541(a).

[[Page 313]]

(b) To qualify for a class exemption, a party must file a verified
notice of the exempt transaction with the Board. The notice shall
contain a brief summary of the proposed transaction, the name of the
applicants, their business address and telephone number, and the name of
counsel to whom questions would be addressed. The notice shall describe
the purpose of the transaction and give the proposed consummation date
for the transaction, which must be at least 7 days after the filing of
the notice. The notice shall describe any contracts or agreements that
have been entered into, or will be entered into, concerning the
transaction, and shall indicate the impact, if any, that the transaction
would have on employees.
(c) The Board shall publish notice of the exemption in the Federal
Register within 30 days from the filing of the verified notice of
exemption. If the notice contains false or misleading information, the
Board shall summarily revoke the exemption and require divestiture.
Petitions to revoke the exemption under 49 U.S.C. 13541(d) may be filed
at any time and will be granted upon a finding that the application of
49 U.S.C. 14303 to the person, class, or transportation is necessary to
carry out the transportation policy of 49 U.S.C. 13101.

[65 FR 8281, Feb. 17, 2000]

PART 1184_MOTOR CARRIER POOLING OPERATIONS--Table of Contents

Sec.
1184.1 Scope and purpose.
1184.2 Contents of a pooling application.
1184.3 Processing pooling applications.

Authority: 49 U.S.C. 1321, 14302.

Source: 46 FR 21181, Apr. 9, 1981, unless otherwise noted.
Redesignated at 47 FR 49595, Nov. 1, 1982.

Sec. 1184.1 Scope and purpose.

This statement of policy on motor carrier pooling applications
implements section 20 of the Motor Carrier Act of 1980 [Pub. L. No. 96-
296, 94 Stat. 793]. The Act's provisions are now contained at 49 U.S.C.
14302.

[46 FR 21181, Apr. 9, 1981, as amended at 64 FR 53269, Oct. 1, 1999]

Sec. 1184.2 Contents of a pooling application.

A pooling application filed under 49 U.S.C. 14302 should include the
following information:
(a) An identification of all the carriers who are parties to the
pooling agreement;
(b) A general description of the transaction;
(c) A specific description of the operating authorities sought to be
pooled;
(d) The basis to establish that the agreement is a genuine pooling
arrangement (as opposed to a lease or interline arrangement);
(e) A description of what applicants consider to be the relevant
transportation markets affected by the proposed agreement;
(f) The competitive routing and service alternatives that would
remain if the agreement is approved, to the best of applicant's
knowledge;
(g) If there is a lessening of such alternatives, an estimate of the
public benefits that will accrue from approval, or new competition that
will arise, which would offset such lessening;
(h) A narrative assessment of how the pooling arrangement will
affect present and future competition in the area, including a
description of the projected volume of traffic, the revenues, and the
commodities which will be subject to the pooling agreement;
(i) Certification that rates set for traffic moving under the
agreement do not violate the restrictions on collective ratemaking
contained in 49 U.S.C. Subtitle IV and Board regulations;
(j) A narrative statement as to the relative transportation
importance of the pooling agreement as it would affect the public and
the national transportation system;
(k) If any known non-pooling carriers authorized to transport the
subject traffic are not included in the pooling arrangement explain why,
and explain whether inclusion would enhance or restrain competition;
(l) A statement of the energy and environmental effects of the
agreement, if any; and
(m) Certification by applicant, or its representatives, that the
representations made in the application are, to

[[Page 314]]

the best of applicant's knowledge and belief, true and complete.

As appendices, applicants must submit: (1) A copy of the pooling
agreement; (2) a copy of the specific operating authority of each
carrier which is the subject of the pooling agreement; and (3) a caption
summary (for Federal Register publication) of the pooling transaction
sought to be approved.

[46 FR 21181, Apr. 9, 1981. Redesignated and amended at 47 FR 49595,
Nov. 1, 1982; 64 FR 53269, Oct. 1, 1999]

Sec. 1184.3 Processing pooling applications.

After the pooling application is received (not less than 50 days
before the effective date specified in the pooling agreement), the Board
will either reject it or determine initially whether the pooling
agreement is of major transportation importance and whether there is a
substantial likelihood that the pooling agreement will unduly restrain
competition. If neither of these two factors is present, the application
will be granted without further hearing. Where either factor is found to
exist, the application will be published in the Federal Register using
the caption summary filed with the application, and a hearing will be
scheduled (normally to receive written verified statements) to consider
the issues further. In this second phase of the proceeding, the Board
will consider whether the pooling agreement would be in the interest of
better service to the public or of economy of operation and whether it
will unduly restrain competition.

PART 1185_INTERLOCKING OFFICERS--Table of Contents

Sec.
1185.1 Definitions and scope of regulations.
1185.2 Contents of application.
1185.3 Procedures.
1185.4 General authority.
1185.5 Common control.
1185.6 Jointly used terminal properties.

Authority: 49 U.S.C. 1321, 10502, and 11328.

Source: 62 FR 2042, Jan. 15, 1997, unless otherwise noted.

Sec. 1185.1 Definitions and scope of regulations.

(a) This part addresses the requirement of 49 U.S.C. 11328
authorization of the Surface Transportation Board (STB) needed for a
person to hold the position of officer or director of more than one rail
carrier, except where only Class III carriers are involved. STB
authorization is not needed for individuals seeking to hold the
positions of officers or directors only of Class III railroads. 49
U.S.C. 11328(b).
(b) When a person is an officer of a Class I railroad and seeks to
become an officer of another Class I railroad, an application under 49
U.S.C. 11328(a) (or petition for individual exemption under 49 U.S.C.
10502) must be filed. All other ``interlocking directorates'' have been
exempted as a class from the prior approval requirements of 49 U.S.C.
11328(a), pursuant to 49 U.S.C. 10502 and former 49 U.S.C. 10505. For
such interlocking directorates exempted as a class, no filing with the
STB is necessary to invoke the exemption.
(c) An interlocking directorate exists whenever an individual holds
the position of officer or director of one rail carrier and assumes the
position of officer or director of another rail carrier. This provision
applies to any person who performs duties, or any of the duties,
ordinarily performed by a director, president, vice president,
secretary, treasurer, general counsel, general solicitor, general
attorney, comptroller, general auditor, general manager, freight traffic
manager, passenger traffic manager, chief engineer, general
superintendent, general land and tax agent or chief purchasing agent.
(d) For purposes of this part, a rail carrier means a person
providing common carrier railroad transportation for compensation
(except a street, suburban, or interurban electric railway not operating
as part of the general system of rail transportation), and a corporation
organized to provide such transportation.

Sec. 1185.2 Contents of application.

(a) Each application shall state the following:
(1) The full name, occupation, business address, place of residence,
and post office address of the applicant.

[[Page 315]]

(2) A specification of every carrier of which the applicant holds
stock, bonds, or notes, individually, as trustee, or otherwise; and the
amount of, and accurate description of, such securities of each carrier
for which the applicant seeks authority to act. (Whenever it is
contemplated that the applicant will represent on the board of directors
of any carrier securities other than those owned by the applicant, the
application shall describe such securities, state the character of
representation, the name of the beneficial owner or owners, and the
general nature of the business conducted by such owner or owners.)
(3) Each and every position with any carrier:
(i) Which is held by the applicant at the time of the application;
and
(ii) Which the applicant seeks authority to hold, together with the
date and manner of his or her election or appointment thereto and, if
the applicant has entered upon the performance of his duties in any such
position, the nature of the duties so performed and the date when he
first entered upon their performance. (A decision authorizing a person
to hold the position of director of a carrier will be construed as
sufficient to authorize that person to serve also as chairman of its
board of directors or as a member or chairman of any committee or
committees of such board; and, therefore, when authority is sought to
hold the position of director, the applicant need not request authority
to serve in any of such other capacities.)
(4) As to each carrier covered by the requested authorization,
whether it is an operating carrier, a lessor company, or any other
corporation organized for the purpose of engaging in rail
transportation. (If any such carrier neither operates nor owns any
railroad providing transportation that is subject to 49 U.S.C. 10501,
the application shall include a copy of such carrier's charter or
certificate or articles of incorporation, with amendments to date or, if
already filed with the former Interstate Commerce Commission (ICC) or
with the STB, a reference thereto, with any intervening amendments.)
(5) A full statement of pertinent facts relative to any carrier
involved which does not make annual reports to the STB.
(6) Full information as to the relationship--operating, financial,
competitive, or otherwise--existing between the carriers covered by the
requested authorization.
(7) Every corporation--industrial, financial, or miscellaneous--of
which the applicant is an officer or director, and the general character
of the business conducted by such corporation.
(8) The reasons, fully, why the granting of the authority sought
will not affect adversely either public or private interests.
(9) Whether or not any other application for authority has been made
in behalf of the applicant and, if so, the date and docket number
thereof, by whom made, and the action thereon, if any.
(b) When application has been made on behalf of any person, a
subsequent application by that person need not repeat any statement
contained in the previous application but may incorporate the same by
appropriate reference.

Sec. 1185.3 Procedures.

The original application or petition shall be signed by the
individual applicant or petitioner and shall be verified under oath.
Petitions and applications should comply with the STB's general rules of
practice set forth at 49 CFR part 1104. Applications or petitions may be
made by persons on their own behalf.

Sec. 1185.4 General authority.

Any person who holds or seeks specific authority to hold positions
with a carrier may also request general authority to act as an
interlocking officer for all affiliated or subsidiary companies or
properties used or operated by that carrier, either separately or
jointly, with other carriers. A carrier may apply for general authority
on behalf of an individual who has already received authority to act as
an interlocking officer. However, a carrier may not apply for general
authority for an individual who holds a position with another railroad
which is not an affiliate or subsidiary of the carrier or

[[Page 316]]

whose properties are not used or operated by the carrier, either
separately or jointly with other carriers.

Sec. 1185.5 Common control.

It shall not be necessary for any person to secure authorization to
hold the position of officer or director of two or more carriers if such
carriers are operated under common control or management either:
(a) Pursuant to approval and authority of the ICC granted under
former 49 U.S.C. 11343-44 or by the STB granted under 49 U.S.C. 11323-
24; or
(b) Pursuant to an exemption authorized by the ICC under former 49
U.S.C. 10505 or by the STB under 49 U.S.C. 10502; or
(c) Pursuant to a controlling, controlled, or common control
relationship which has existed between such carriers since before June
16, 1933.

[62 FR 2042, Jan. 15, 1997, as amended at 69 FR 58366, Sept. 30, 2004]

Sec. 1185.6 Jointly used terminal properties.

Any person holding the position of officer or director of a carrier
is relieved from the provisions of this part to the extent that he or
she may also hold a directorship and any other position to which that
person may be elected or appointed with a terminal railroad the
properties of which are operated or used by the carrier jointly with
other carriers.

PARTS 1187 1199 [RESERVED]

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FINDING AIDS

--------------------------------------------------------------------

A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.

Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected

[[Page 319]]

Table of CFR Titles and Chapters

(Revised as of October 1, 2024)

Title 1--General Provisions

I Administrative Committee of the Federal Register
(Parts 1--49)
II Office of the Federal Register (Parts 50--299)
III Administrative Conference of the United States (Parts
300--399)
IV Miscellaneous Agencies (Parts 400--599)
VI National Capital Planning Commission (Parts 600--699)

Title 2--Grants and Agreements

Subtitle A--Office of Management and Budget Guidance
for Grants and Agreements
I Office of Management and Budget Governmentwide
Guidance for Grants and Agreements (Parts 2--199)
II Office of Management and Budget Guidance (Parts 200--
299)
Subtitle B--Federal Agency Regulations for Grants and
Agreements
III Department of Health and Human Services (Parts 300--
399)
IV Department of Agriculture (Parts 400--499)
VI Department of State (Parts 600--699)
VII Agency for International Development (Parts 700--799)
VIII Department of Veterans Affairs (Parts 800--899)
IX Department of Energy (Parts 900--999)
X Department of the Treasury (Parts 1000--1099)
XI Department of Defense (Parts 1100--1199)
XII Department of Transportation (Parts 1200--1299)
XIII Department of Commerce (Parts 1300--1399)
XIV Department of the Interior (Parts 1400--1499)
XV Environmental Protection Agency (Parts 1500--1599)
XVI U.S. International Development Finance Corporation
(Parts 1600--1699)
XVIII National Aeronautics and Space Administration (Parts
1800--1899)
XX United States Nuclear Regulatory Commission (Parts
2000--2099)
XXII Corporation for National and Community Service (Parts
2200--2299)
XXIII Social Security Administration (Parts 2300--2399)
XXIV Department of Housing and Urban Development (Parts
2400--2499)

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XXV National Science Foundation (Parts 2500--2599)
XXVI National Archives and Records Administration (Parts
2600--2699)
XXVII Small Business Administration (Parts 2700--2799)
XXVIII Department of Justice (Parts 2800--2899)
XXIX Department of Labor (Parts 2900--2999)
XXX Department of Homeland Security (Parts 3000--3099)
XXXI Institute of Museum and Library Services (Parts 3100--
3199)
XXXII National Endowment for the Arts (Parts 3200--3299)
XXXIII National Endowment for the Humanities (Parts 3300--
3399)
XXXIV Department of Education (Parts 3400--3499)
XXXV Export-Import Bank of the United States (Parts 3500--
3599)
XXXVI Office of National Drug Control Policy, Executive
Office of the President (Parts 3600--3699)
XXXVII Peace Corps (Parts 3700--3799)
LVIII Election Assistance Commission (Parts 5800--5899)
LIX Gulf Coast Ecosystem Restoration Council (Parts 5900--
5999)
LX Federal Communications Commission (Parts 6000--6099)

Title 3--The President

I Executive Office of the President (Parts 100--199)

Title 4--Accounts

I Government Accountability Office (Parts 1--199)

Title 5--Administrative Personnel

I Office of Personnel Management (Parts 1--1199)
II Merit Systems Protection Board (Parts 1200--1299)
III Office of Management and Budget (Parts 1300--1399)
IV Office of Personnel Management and Office of the
Director of National Intelligence (Parts 1400--
1499)
V The International Organizations Employees Loyalty
Board (Parts 1500--1599)
VI Federal Retirement Thrift Investment Board (Parts
1600--1699)
VIII Office of Special Counsel (Parts 1800--1899)
IX Appalachian Regional Commission (Parts 1900--1999)
XI Armed Forces Retirement Home (Parts 2100--2199)
XIV Federal Labor Relations Authority, General Counsel of
the Federal Labor Relations Authority and Federal
Service Impasses Panel (Parts 2400--2499)
XVI Office of Government Ethics (Parts 2600--2699)
XXI Department of the Treasury (Parts 3100--3199)
XXII Federal Deposit Insurance Corporation (Parts 3200--
3299)
XXIII Department of Energy (Parts 3300--3399)

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XXIV Federal Energy Regulatory Commission (Parts 3400--
3499)
XXV Department of the Interior (Parts 3500--3599)
XXVI Department of Defense (Parts 3600--3699)
XXVIII Department of Justice (Parts 3800--3899)
XXIX Federal Communications Commission (Parts 3900--3999)
XXX Farm Credit System Insurance Corporation (Parts 4000--
4099)
XXXI Farm Credit Administration (Parts 4100--4199)
XXXIII U.S. International Development Finance Corporation
(Parts 4300--4399)
XXXIV Securities and Exchange Commission (Parts 4400--4499)
XXXV Office of Personnel Management (Parts 4500--4599)
XXXVI Department of Homeland Security (Parts 4600--4699)
XXXVII Federal Election Commission (Parts 4700--4799)
XL Interstate Commerce Commission (Parts 5000--5099)
XLI Commodity Futures Trading Commission (Parts 5100--
5199)
XLII Department of Labor (Parts 5200--5299)
XLIII National Science Foundation (Parts 5300--5399)
XLV Department of Health and Human Services (Parts 5500--
5599)
XLVI Postal Rate Commission (Parts 5600--5699)
XLVII Federal Trade Commission (Parts 5700--5799)
XLVIII Nuclear Regulatory Commission (Parts 5800--5899)
XLIX Federal Labor Relations Authority (Parts 5900--5999)
L Department of Transportation (Parts 6000--6099)
LII Export-Import Bank of the United States (Parts 6200--
6299)
LIII Department of Education (Parts 6300--6399)
LIV Environmental Protection Agency (Parts 6400--6499)
LV National Endowment for the Arts (Parts 6500--6599)
LVI National Endowment for the Humanities (Parts 6600--
6699)
LVII General Services Administration (Parts 6700--6799)
LVIII Board of Governors of the Federal Reserve System
(Parts 6800--6899)
LIX National Aeronautics and Space Administration (Parts
6900--6999)
LX United States Postal Service (Parts 7000--7099)
LXI National Labor Relations Board (Parts 7100--7199)
LXII Equal Employment Opportunity Commission (Parts 7200--
7299)
LXIII Inter-American Foundation (Parts 7300--7399)
LXIV Merit Systems Protection Board (Parts 7400--7499)
LXV Department of Housing and Urban Development (Parts
7500--7599)
LXVI National Archives and Records Administration (Parts
7600--7699)
LXVII Institute of Museum and Library Services (Parts 7700--
7799)
LXVIII Commission on Civil Rights (Parts 7800--7899)
LXIX Tennessee Valley Authority (Parts 7900--7999)

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LXX Court Services and Offender Supervision Agency for the
District of Columbia (Parts 8000--8099)
LXXI Consumer Product Safety Commission (Parts 8100--8199)
LXXIII Department of Agriculture (Parts 8300--8399)
LXXIV Federal Mine Safety and Health Review Commission
(Parts 8400--8499)
LXXVI Federal Retirement Thrift Investment Board (Parts
8600--8699)
LXXVII Office of Management and Budget (Parts 8700--8799)
LXXX Federal Housing Finance Agency (Parts 9000--9099)
LXXXIII Special Inspector General for Afghanistan
Reconstruction (Parts 9300--9399)
LXXXIV Bureau of Consumer Financial Protection (Parts 9400--
9499)
LXXXVI National Credit Union Administration (Parts 9600--
9699)
XCVII Department of Homeland Security Human Resources
Management System (Department of Homeland
Security--Office of Personnel Management) (Parts
9700--9799)
XCVIII Council of the Inspectors General on Integrity and
Efficiency (Parts 9800--9899)
XCIX Military Compensation and Retirement Modernization
Commission (Parts 9900--9999)
C National Council on Disability (Parts 10000--10049)
CI National Mediation Board (Parts 10100--10199)
CII U.S. Office of Special Counsel (Parts 10200--10299)
CIII U.S. Office of Federal Mediation and Conciliation
Service (Parts 10300--10399)
CIV Office of the Intellectual Property Enforcement
Coordinator (Part 10400--10499)

Title 6--Domestic Security

I Department of Homeland Security, Office of the
Secretary (Parts 1--199)
X Privacy and Civil Liberties Oversight Board (Parts
1000--1099)

Title 7--Agriculture

Subtitle A--Office of the Secretary of Agriculture
(Parts 0--26)
Subtitle B--Regulations of the Department of
Agriculture
I Agricultural Marketing Service (Standards,
Inspections, Marketing Practices), Department of
Agriculture (Parts 27--209)
II Food and Nutrition Service, Department of Agriculture
(Parts 210--299)
III Animal and Plant Health Inspection Service, Department
of Agriculture (Parts 300--399)
IV Federal Crop Insurance Corporation, Department of
Agriculture (Parts 400--499)
V Agricultural Research Service, Department of
Agriculture (Parts 500--599)

[[Page 323]]

VI Natural Resources Conservation Service, Department of
Agriculture (Parts 600--699)
VII Farm Service Agency, Department of Agriculture (Parts
700--799)
VIII Agricultural Marketing Service (Federal Grain
Inspection Service, Fair Trade Practices Program),
Department of Agriculture (Parts 800--899)
IX Agricultural Marketing Service (Marketing Agreements
and Orders; Fruits, Vegetables, Nuts), Department
of Agriculture (Parts 900--999)
X Agricultural Marketing Service (Marketing Agreements
and Orders; Milk), Department of Agriculture
(Parts 1000--1199)
XI Agricultural Marketing Service (Marketing Agreements
and Orders; Miscellaneous Commodities), Department
of Agriculture (Parts 1200--1299)
XIV Commodity Credit Corporation, Department of
Agriculture (Parts 1400--1499)
XV Foreign Agricultural Service, Department of
Agriculture (Parts 1500--1599)
XVI [Reserved]
XVII Rural Utilities Service, Department of Agriculture
(Parts 1700--1799)
XVIII Rural Housing Service, Rural Business-Cooperative
Service, Rural Utilities Service, and Farm Service
Agency, Department of Agriculture (Parts 1800--
2099)
XX [Reserved]
XXV Office of Advocacy and Outreach, Department of
Agriculture (Parts 2500--2599)
XXVI Office of Inspector General, Department of Agriculture
(Parts 2600--2699)
XXVII Office of Information Resources Management, Department
of Agriculture (Parts 2700--2799)
XXVIII Office of Operations, Department of Agriculture (Parts
2800--2899)
XXIX Office of Energy Policy and New Uses, Department of
Agriculture (Parts 2900--2999)
XXX Office of the Chief Financial Officer, Department of
Agriculture (Parts 3000--3099)
XXXI Office of Environmental Quality, Department of
Agriculture (Parts 3100--3199)
XXXII Office of Procurement and Property Management,
Department of Agriculture (Parts 3200--3299)
XXXIII Office of Transportation, Department of Agriculture
(Parts 3300--3399)
XXXIV National Institute of Food and Agriculture (Parts
3400--3499)
XXXV Rural Housing Service, Department of Agriculture
(Parts 3500--3599)
XXXVI National Agricultural Statistics Service, Department
of Agriculture (Parts 3600--3699)

[[Page 324]]

XXXVII Economic Research Service, Department of Agriculture
(Parts 3700--3799)
XXXVIII World Agricultural Outlook Board, Department of
Agriculture (Parts 3800--3899)
XLI [Reserved]
XLII Rural Business-Cooperative Service, Department of
Agriculture (Parts 4200--4299)
L Rural Business-Cooperative Service, Rural Housing
Service, and Rural Utilities Service, Department
of Agriculture (Parts 5000--5099)

Title 8--Aliens and Nationality

I Department of Homeland Security (Parts 1--499)
V Executive Office for Immigration Review, Department of
Justice (Parts 1000--1399)

Title 9--Animals and Animal Products

I Animal and Plant Health Inspection Service, Department
of Agriculture (Parts 1--199)
II Agricultural Marketing Service (Fair Trade Practices
Program), Department of Agriculture (Parts 200--
299)
III Food Safety and Inspection Service, Department of
Agriculture (Parts 300--599)

Title 10--Energy

I Nuclear Regulatory Commission (Parts 0--199)
II Department of Energy (Parts 200--699)
III Department of Energy (Parts 700--999)
X Department of Energy (General Provisions) (Parts
1000--1099)
XIII Nuclear Waste Technical Review Board (Parts 1300--
1399)
XVII Defense Nuclear Facilities Safety Board (Parts 1700--
1799)
XVIII Northeast Interstate Low-Level Radioactive Waste
Commission (Parts 1800--1899)

Title 11--Federal Elections

I Federal Election Commission (Parts 1--9099)
II Election Assistance Commission (Parts 9400--9499)

Title 12--Banks and Banking

I Comptroller of the Currency, Department of the
Treasury (Parts 1--199)
II Federal Reserve System (Parts 200--299)
III Federal Deposit Insurance Corporation (Parts 300--399)

[[Page 325]]

IV Export-Import Bank of the United States (Parts 400--
499)
V (Parts 500--599) [Reserved]
VI Farm Credit Administration (Parts 600--699)
VII National Credit Union Administration (Parts 700--799)
VIII Federal Financing Bank (Parts 800--899)
IX (Parts 900--999)[Reserved]
X Consumer Financial Protection Bureau (Parts 1000--
1099)
XI Federal Financial Institutions Examination Council
(Parts 1100--1199)
XII Federal Housing Finance Agency (Parts 1200--1299)
XIII Financial Stability Oversight Council (Parts 1300--
1399)
XIV Farm Credit System Insurance Corporation (Parts 1400--
1499)
XV Department of the Treasury (Parts 1500--1599)
XVI Office of Financial Research, Department of the
Treasury (Parts 1600--1699)
XVII Office of Federal Housing Enterprise Oversight,
Department of Housing and Urban Development (Parts
1700--1799)
XVIII Community Development Financial Institutions Fund,
Department of the Treasury (Parts 1800--1899)

Title 13--Business Credit and Assistance

I Small Business Administration (Parts 1--199)
III Economic Development Administration, Department of
Commerce (Parts 300--399)
IV Emergency Steel Guarantee Loan Board (Parts 400--499)
V Emergency Oil and Gas Guaranteed Loan Board (Parts
500--599)

Title 14--Aeronautics and Space

I Federal Aviation Administration, Department of
Transportation (Parts 1--199)
II Office of the Secretary, Department of Transportation
(Aviation Proceedings) (Parts 200--399)
III Commercial Space Transportation, Federal Aviation
Administration, Department of Transportation
(Parts 400--1199)
V National Aeronautics and Space Administration (Parts
1200--1299)
VI Air Transportation System Stabilization (Parts 1300--
1399)

Title 15--Commerce and Foreign Trade

Subtitle A--Office of the Secretary of Commerce (Parts
0--29)
Subtitle B--Regulations Relating to Commerce and
Foreign Trade
I Bureau of the Census, Department of Commerce (Parts
30--199)

[[Page 326]]

II National Institute of Standards and Technology,
Department of Commerce (Parts 200--299)
III International Trade Administration, Department of
Commerce (Parts 300--399)
IV Foreign-Trade Zones Board, Department of Commerce
(Parts 400--499)
VII Bureau of Industry and Security, Department of
Commerce (Parts 700--799)
VIII Bureau of Economic Analysis, Department of Commerce
(Parts 800--899)
IX National Oceanic and Atmospheric Administration,
Department of Commerce (Parts 900--999)
XI National Technical Information Service, Department of
Commerce (Parts 1100--1199)
XIII East-West Foreign Trade Board (Parts 1300--1399)
XIV Minority Business Development Agency (Parts 1400--
1499)
XV Office of the Under-Secretary for Economic Affairs,
Department of Commerce (Parts 1500--1599)
Subtitle C--Regulations Relating to Foreign Trade
Agreements
XX Office of the United States Trade Representative
(Parts 2000--2099)
Subtitle D--Regulations Relating to Telecommunications
and Information
XXIII National Telecommunications and Information
Administration, Department of Commerce (Parts
2300--2399) [Reserved]

Title 16--Commercial Practices

I Federal Trade Commission (Parts 0--999)
II Consumer Product Safety Commission (Parts 1000--1799)

Title 17--Commodity and Securities Exchanges

I Commodity Futures Trading Commission (Parts 1--199)
II Securities and Exchange Commission (Parts 200--399)
IV Department of the Treasury (Parts 400--499)

Title 18--Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of
Energy (Parts 1--399)
III Delaware River Basin Commission (Parts 400--499)
VI Water Resources Council (Parts 700--799)
VIII Susquehanna River Basin Commission (Parts 800--899)
XIII Tennessee Valley Authority (Parts 1300--1399)

[[Page 327]]

Title 19--Customs Duties

I U.S. Customs and Border Protection, Department of
Homeland Security; Department of the Treasury
(Parts 0--199)
II United States International Trade Commission (Parts
200--299)
III International Trade Administration, Department of
Commerce (Parts 300--399)
IV U.S. Immigration and Customs Enforcement, Department
of Homeland Security (Parts 400--599) [Reserved]

Title 20--Employees' Benefits

I Office of Workers' Compensation Programs, Department
of Labor (Parts 1--199)
II Railroad Retirement Board (Parts 200--399)
III Social Security Administration (Parts 400--499)
IV Employees' Compensation Appeals Board, Department of
Labor (Parts 500--599)
V Employment and Training Administration, Department of
Labor (Parts 600--699)
VI Office of Workers' Compensation Programs, Department
of Labor (Parts 700--799)
VII Benefits Review Board, Department of Labor (Parts
800--899)
VIII Joint Board for the Enrollment of Actuaries (Parts
900--999)
IX Office of the Assistant Secretary for Veterans'
Employment and Training Service, Department of
Labor (Parts 1000--1099)

Title 21--Food and Drugs

I Food and Drug Administration, Department of Health and
Human Services (Parts 1--1299)
II Drug Enforcement Administration, Department of Justice
(Parts 1300--1399)
III Office of National Drug Control Policy (Parts 1400--
1499)

Title 22--Foreign Relations

I Department of State (Parts 1--199)
II Agency for International Development (Parts 200--299)
III Peace Corps (Parts 300--399)
IV International Joint Commission, United States and
Canada (Parts 400--499)
V United States Agency for Global Media (Parts 500--599)
VII U.S. International Development Finance Corporation
(Parts 700--799)
IX Foreign Service Grievance Board (Parts 900--999)
X Inter-American Foundation (Parts 1000--1099)
XI International Boundary and Water Commission, United
States and Mexico, United States Section (Parts
1100--1199)

[[Page 328]]

XII United States International Development Cooperation
Agency (Parts 1200--1299)
XIII Millennium Challenge Corporation (Parts 1300--1399)
XIV Foreign Service Labor Relations Board; Federal Labor
Relations Authority; General Counsel of the
Federal Labor Relations Authority; and the Foreign
Service Impasse Disputes Panel (Parts 1400--1499)
XV African Development Foundation (Parts 1500--1599)
XVI Japan-United States Friendship Commission (Parts
1600--1699)
XVII United States Institute of Peace (Parts 1700--1799)

Title 23--Highways

I Federal Highway Administration, Department of
Transportation (Parts 1--999)
II National Highway Traffic Safety Administration and
Federal Highway Administration, Department of
Transportation (Parts 1200--1299)
III National Highway Traffic Safety Administration,
Department of Transportation (Parts 1300--1399)

Title 24--Housing and Urban Development

Subtitle A--Office of the Secretary, Department of
Housing and Urban Development (Parts 0--99)
Subtitle B--Regulations Relating to Housing and Urban
Development
I Office of Assistant Secretary for Equal Opportunity,
Department of Housing and Urban Development (Parts
100--199)
II Office of Assistant Secretary for Housing-Federal
Housing Commissioner, Department of Housing and
Urban Development (Parts 200--299)
III Government National Mortgage Association, Department
of Housing and Urban Development (Parts 300--399)
IV Office of Housing and Office of Multifamily Housing
Assistance Restructuring, Department of Housing
and Urban Development (Parts 400--499)
V Office of Assistant Secretary for Community Planning
and Development, Department of Housing and Urban
Development (Parts 500--599)
VI Office of Assistant Secretary for Community Planning
and Development, Department of Housing and Urban
Development (Parts 600--699) [Reserved]
VII Office of the Secretary, Department of Housing and
Urban Development (Housing Assistance Programs and
Public and Indian Housing Programs) (Parts 700--
799)

[[Page 329]]

VIII Office of the Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Section 8 Housing Assistance
Programs, Section 202 Direct Loan Program, Section
202 Supportive Housing for the Elderly Program and
Section 811 Supportive Housing for Persons With
Disabilities Program) (Parts 800--899)
IX Office of Assistant Secretary for Public and Indian
Housing, Department of Housing and Urban
Development (Parts 900--1699)
X Office of Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Interstate Land Sales
Registration Program) (Parts 1700--1799)
[Reserved]
XII Office of Inspector General, Department of Housing and
Urban Development (Parts 2000--2099)
XV Emergency Mortgage Insurance and Loan Programs,
Department of Housing and Urban Development (Parts
2700--2799) [Reserved]
XX Office of Assistant Secretary for Housing--Federal
Housing Commissioner, Department of Housing and
Urban Development (Parts 3200--3899)
XXIV Board of Directors of the HOPE for Homeowners Program
(Parts 4000--4099) [Reserved]
XXV Neighborhood Reinvestment Corporation (Parts 4100--
4199)

Title 25--Indians

I Bureau of Indian Affairs, Department of the Interior
(Parts 1--299)
II Indian Arts and Crafts Board, Department of the
Interior (Parts 300--399)
III National Indian Gaming Commission, Department of the
Interior (Parts 500--599)
IV Office of Navajo and Hopi Indian Relocation (Parts
700--899)
V Bureau of Indian Affairs, Department of the Interior,
and Indian Health Service, Department of Health
and Human Services (Part 900--999)
VI Office of the Assistant Secretary, Indian Affairs,
Department of the Interior (Parts 1000--1199)
VII Office of the Special Trustee for American Indians,
Department of the Interior (Parts 1200--1299)

Title 26--Internal Revenue

I Internal Revenue Service, Department of the Treasury
(Parts 1--End)

Title 27--Alcohol, Tobacco Products and Firearms

I Alcohol and Tobacco Tax and Trade Bureau, Department
of the Treasury (Parts 1--399)

[[Page 330]]

II Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice (Parts 400--799)

Title 28--Judicial Administration

I Department of Justice (Parts 0--299)
III Federal Prison Industries, Inc., Department of Justice
(Parts 300--399)
V Bureau of Prisons, Department of Justice (Parts 500--
599)
VI Offices of Independent Counsel, Department of Justice
(Parts 600--699)
VII Office of Independent Counsel (Parts 700--799)
VIII Court Services and Offender Supervision Agency for the
District of Columbia (Parts 800--899)
IX National Crime Prevention and Privacy Compact Council
(Parts 900--999)
XI Department of Justice and Department of State (Parts
1100--1199)

Title 29--Labor

Subtitle A--Office of the Secretary of Labor (Parts
0--99)
Subtitle B--Regulations Relating to Labor
I National Labor Relations Board (Parts 100--199)
II Office of Labor-Management Standards, Department of
Labor (Parts 200--299)
III National Railroad Adjustment Board (Parts 300--399)
IV Office of Labor-Management Standards, Department of
Labor (Parts 400--499)
V Wage and Hour Division, Department of Labor (Parts
500--899)
IX Construction Industry Collective Bargaining Commission
(Parts 900--999)
X National Mediation Board (Parts 1200--1299)
XII Federal Mediation and Conciliation Service (Parts
1400--1499)
XIV Equal Employment Opportunity Commission (Parts 1600--
1699)
XVII Occupational Safety and Health Administration,
Department of Labor (Parts 1900--1999)
XX Occupational Safety and Health Review Commission
(Parts 2200--2499)
XXV Employee Benefits Security Administration, Department
of Labor (Parts 2500--2599)
XXVII Federal Mine Safety and Health Review Commission
(Parts 2700--2799)
XL Pension Benefit Guaranty Corporation (Parts 4000--
4999)

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Title 30--Mineral Resources

I Mine Safety and Health Administration, Department of
Labor (Parts 1--199)
II Bureau of Safety and Environmental Enforcement,
Department of the Interior (Parts 200--299)
IV Geological Survey, Department of the Interior (Parts
400--499)
V Bureau of Ocean Energy Management, Department of the
Interior (Parts 500--599)
VII Office of Surface Mining Reclamation and Enforcement,
Department of the Interior (Parts 700--999)
XII Office of Natural Resources Revenue, Department of the
Interior (Parts 1200--1299)

Title 31--Money and Finance: Treasury

Subtitle A--Office of the Secretary of the Treasury
(Parts 0--50)
Subtitle B--Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts
51--199)
II Fiscal Service, Department of the Treasury (Parts
200--399)
IV Secret Service, Department of the Treasury (Parts
400--499)
V Office of Foreign Assets Control, Department of the
Treasury (Parts 500--599)
VI Bureau of Engraving and Printing, Department of the
Treasury (Parts 600--699)
VII Federal Law Enforcement Training Center, Department of
the Treasury (Parts 700--799)
VIII Office of Investment Security, Department of the
Treasury (Parts 800--899)
IX Federal Claims Collection Standards (Department of the
Treasury--Department of Justice) (Parts 900--999)
X Financial Crimes Enforcement Network, Department of
the Treasury (Parts 1000--1099)

Title 32--National Defense

Subtitle A--Department of Defense
I Office of the Secretary of Defense (Parts 1--399)
V Department of the Army (Parts 400--699)
VI Department of the Navy (Parts 700--799)
VII Department of the Air Force (Parts 800--1099)
Subtitle B--Other Regulations Relating to National
Defense
XII Department of Defense, Defense Logistics Agency (Parts
1200--1299)
XVI Selective Service System (Parts 1600--1699)
XVII Office of the Director of National Intelligence (Parts
1700--1799)
XVIII National Counterintelligence Center (Parts 1800--1899)
XIX Central Intelligence Agency (Parts 1900--1999)

[[Page 332]]

XX Information Security Oversight Office, National
Archives and Records Administration (Parts 2000--
2099)
XXI National Security Council (Parts 2100--2199)
XXIV Office of Science and Technology Policy (Parts 2400--
2499)
XXVII Office for Micronesian Status Negotiations (Parts
2700--2799)
XXVIII Office of the Vice President of the United States
(Parts 2800--2899)

Title 33--Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts
1--199)
II Corps of Engineers, Department of the Army, Department
of Defense (Parts 200--399)
IV Great Lakes St. Lawrence Seaway Development
Corporation, Department of Transportation (Parts
400--499)

Title 34--Education

Subtitle A--Office of the Secretary, Department of
Education (Parts 1--99)
Subtitle B--Regulations of the Offices of the
Department of Education
I Office for Civil Rights, Department of Education
(Parts 100--199)
II Office of Elementary and Secondary Education,
Department of Education (Parts 200--299)
III Office of Special Education and Rehabilitative
Services, Department of Education (Parts 300--399)
IV Office of Career, Technical, and Adult Education,
Department of Education (Parts 400--499)
V Office of Bilingual Education and Minority [Reserved]
VI Office of Postsecondary Education, Department of
Education (Parts 600--699)
VII Office of Educational Research and Improvement,
Department of Education (Parts 700--799)
[Reserved]
Subtitle C--Regulations Relating to Education
XI [Reserved]
XII National Council on Disability (Parts 1200--1299)

Title 35 [Reserved]

Title 36--Parks, Forests, and Public Property

I National Park Service, Department of the Interior
(Parts 1--199)
II Forest Service, Department of Agriculture (Parts 200--
299)
III Corps of Engineers, Department of the Army (Parts
300--399)
IV American Battle Monuments Commission (Parts 400--499)
V Smithsonian Institution (Parts 500--599)
VI [Reserved]

[[Page 333]]

VII Library of Congress (Parts 700--799)
VIII Advisory Council on Historic Preservation (Parts 800--
899)
IX Pennsylvania Avenue Development Corporation (Parts
900--999)
X Presidio Trust (Parts 1000--1099)
XI Architectural and Transportation Barriers Compliance
Board (Parts 1100--1199)
XII National Archives and Records Administration (Parts
1200--1299)
XV Oklahoma City National Memorial Trust (Parts 1500--
1599)
XVI Morris K. Udall Scholarship and Excellence in National
Environmental Policy Foundation (Parts 1600--1699)

Title 37--Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department
of Commerce (Parts 1--199)
II U.S. Copyright Office, Library of Congress (Parts
200--299)
III Copyright Royalty Board, Library of Congress (Parts
300--399)
IV National Institute of Standards and Technology,
Department of Commerce (Parts 400--599)

Title 38--Pensions, Bonuses, and Veterans' Relief

I Department of Veterans Affairs (Parts 0--199)
II Armed Forces Retirement Home (Parts 200--299)

Title 39--Postal Service

I United States Postal Service (Parts 1--999)
III Postal Regulatory Commission (Parts 3000--3099)

Title 40--Protection of Environment

I Environmental Protection Agency (Parts 1--1099)
IV Environmental Protection Agency and Department of
Justice (Parts 1400--1499)
V Council on Environmental Quality (Parts 1500--1599)
VI Chemical Safety and Hazard Investigation Board (Parts
1600--1699)
VII Environmental Protection Agency and Department of
Defense; Uniform National Discharge Standards for
Vessels of the Armed Forces (Parts 1700--1799)
VIII Gulf Coast Ecosystem Restoration Council (Parts 1800--
1899)
IX Federal Permitting Improvement Steering Council (Part
1900)

Title 41--Public Contracts and Property Management

Subtitle A--Federal Procurement Regulations System
[Note]

[[Page 334]]

Subtitle B--Other Provisions Relating to Public
Contracts
50 Public Contracts, Department of Labor (Parts 50-1--50-
999)
51 Committee for Purchase From People Who Are Blind or
Severely Disabled (Parts 51-1--51-99)
60 Office of Federal Contract Compliance Programs, Equal
Employment Opportunity, Department of Labor (Parts
60-1--60-999)
61 Office of the Assistant Secretary for Veterans'
Employment and Training Service, Department of
Labor (Parts 61-1--61-999)
Chapters
62--100 [Reserved]
Subtitle C--Federal Property Management Regulations
System
101 Federal Property Management Regulations (Parts 101-1--
101-99)
102 Federal Management Regulation (Parts 102-1--102-299)
Chapters
103--104 (Parts 103-001--104-099)[Reserved]
105 General Services Administration (Parts 105-1--105-999)
109 Department of Energy Property Management Regulations
(Parts 109-1--109-99)
114 Department of the Interior (Parts 114-1--114-99)
115 Environmental Protection Agency (Parts 115-1--115-99)
128 Department of Justice (Parts 128-1--128-99)
Chapters
129--200 [Reserved]
Subtitle D--Federal Acquisition Supply Chain Security
201 Federal Acquisition Security Council (Parts 201-1--
201-99)
Subtitle E [Reserved]
Subtitle F--Federal Travel Regulation System
300 General (Parts 300-1--300-99)
301 Temporary Duty (TDY) Travel Allowances (Parts 301-1--
301-99)
302 Relocation Allowances (Parts 302-1--302-99)
303 Payment of Expenses Connected with the Death of
Certain Employees (Part 303-1--303-99)
304 Payment of Travel Expenses from a Non-Federal Source
(Parts 304-1--304-99)

Title 42--Public Health

I Public Health Service, Department of Health and Human
Services (Parts 1--199)
Chapters
II--III [Reserved]
IV Centers for Medicare & Medicaid Services, Department
of Health and Human Services (Parts 400--699)
V Office of Inspector General-Health Care, Department of
Health and Human Services (Parts 1000--1099)

[[Page 335]]

Title 43--Public Lands: Interior

Subtitle A--Office of the Secretary of the Interior
(Parts 1--199)
Subtitle B--Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior
(Parts 400--999)
II Bureau of Land Management, Department of the Interior
(Parts 1000--9999)
III Utah Reclamation Mitigation and Conservation
Commission (Parts 10000--10099)

Title 44--Emergency Management and Assistance

I Federal Emergency Management Agency, Department of
Homeland Security (Parts 0--399)
IV Department of Commerce and Department of
Transportation (Parts 400--499)

Title 45--Public Welfare

Subtitle A--Department of Health and Human Services
(Parts 1--199)
Subtitle B--Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs),
Administration for Children and Families,
Department of Health and Human Services (Parts
200--299)
III Office of Child Support Services, Administration of
Families and Services, Department of Health and
Human Services (Parts 300--399)
IV Office of Refugee Resettlement, Administration for
Children and Families, Department of Health and
Human Services (Parts 400--499)
V Foreign Claims Settlement Commission of the United
States, Department of Justice (Parts 500--599)
VI National Science Foundation (Parts 600--699)
VII Commission on Civil Rights (Parts 700--799)
VIII Office of Personnel Management (Parts 800--899)
IX Denali Commission (Parts 900--999)
X Office of Community Services, Administration for
Children and Families, Department of Health and
Human Services (Parts 1000--1099)
XI National Foundation on the Arts and the Humanities
(Parts 1100--1199)
XII Corporation for National and Community Service (Parts
1200--1299)
XIII Administration for Children and Families, Department
of Health and Human Services (Parts 1300--1399)
XVI Legal Services Corporation (Parts 1600--1699)
XVII National Commission on Libraries and Information
Science (Parts 1700--1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800--
1899)

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XXI Commission of Fine Arts (Parts 2100--2199)
XXIII Arctic Research Commission (Parts 2300--2399)
XXIV James Madison Memorial Fellowship Foundation (Parts
2400--2499)
XXV Corporation for National and Community Service (Parts
2500--2599)

Title 46--Shipping

I Coast Guard, Department of Homeland Security (Parts
1--199)
II Maritime Administration, Department of Transportation
(Parts 200--399)
III Coast Guard (Great Lakes Pilotage), Department of
Homeland Security (Parts 400--499)
IV Federal Maritime Commission (Parts 500--599)

Title 47--Telecommunication

I Federal Communications Commission (Parts 0--199)
II Office of Science and Technology Policy and National
Security Council (Parts 200--299)
III National Telecommunications and Information
Administration, Department of Commerce (Parts
300--399)
IV National Telecommunications and Information
Administration, Department of Commerce, and
National Highway Traffic Safety Administration,
Department of Transportation (Parts 400--499)
V The First Responder Network Authority (Parts 500--599)

Title 48--Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1--99)
2 Defense Acquisition Regulations System, Department of
Defense (Parts 200--299)
3 Health and Human Services (Parts 300--399)
4 Department of Agriculture (Parts 400--499)
5 General Services Administration (Parts 500--599)
6 Department of State (Parts 600--699)
7 Agency for International Development (Parts 700--799)
8 Department of Veterans Affairs (Parts 800--899)
9 Department of Energy (Parts 900--999)
10 Department of the Treasury (Parts 1000--1099)
12 Department of Transportation (Parts 1200--1299)
13 Department of Commerce (Parts 1300--1399)
14 Department of the Interior (Parts 1400--1499)
15 Environmental Protection Agency (Parts 1500--1599)
16 Office of Personnel Management, Federal Employees
Health Benefits Acquisition Regulation (Parts
1600--1699)

[[Page 337]]

17 Office of Personnel Management (Parts 1700--1799)
18 National Aeronautics and Space Administration (Parts
1800--1899)
19 Broadcasting Board of Governors (Parts 1900--1999)
20 Nuclear Regulatory Commission (Parts 2000--2099)
21 Office of Personnel Management, Federal Employees
Group Life Insurance Federal Acquisition
Regulation (Parts 2100--2199)
23 Social Security Administration (Parts 2300--2399)
24 Department of Housing and Urban Development (Parts
2400--2499)
25 National Science Foundation (Parts 2500--2599)
28 Department of Justice (Parts 2800--2899)
29 Department of Labor (Parts 2900--2999)
30 Department of Homeland Security, Homeland Security
Acquisition Regulation (HSAR) (Parts 3000--3099)
34 Department of Education Acquisition Regulation (Parts
3400--3499)
51 Department of the Army Acquisition Regulations (Parts
5100--5199) [Reserved]
52 Department of the Navy Acquisition Regulations (Parts
5200--5299)
53 Department of the Air Force Federal Acquisition
Regulation Supplement (Parts 5300--5399)
[Reserved]
54 Defense Logistics Agency, Department of Defense (Parts
5400--5499)
57 African Development Foundation (Parts 5700--5799)
61 Civilian Board of Contract Appeals, General Services
Administration (Parts 6100--6199)
99 Cost Accounting Standards Board, Office of Federal
Procurement Policy, Office of Management and
Budget (Parts 9900--9999)

Title 49--Transportation

Subtitle A--Office of the Secretary of Transportation
(Parts 1--99)
Subtitle B--Other Regulations Relating to
Transportation
I Pipeline and Hazardous Materials Safety
Administration, Department of Transportation
(Parts 100--199)
II Federal Railroad Administration, Department of
Transportation (Parts 200--299)
III Federal Motor Carrier Safety Administration,
Department of Transportation (Parts 300--399)
IV Coast Guard, Department of Homeland Security (Parts
400--499)
V National Highway Traffic Safety Administration,
Department of Transportation (Parts 500--599)
VI Federal Transit Administration, Department of
Transportation (Parts 600--699)

[[Page 338]]

VII National Railroad Passenger Corporation (AMTRAK)
(Parts 700--799)
VIII National Transportation Safety Board (Parts 800--999)
X Surface Transportation Board (Parts 1000--1399)
XI Research and Innovative Technology Administration,
Department of Transportation (Parts 1400--1499)
[Reserved]
XII Transportation Security Administration, Department of
Homeland Security (Parts 1500--1699)

Title 50--Wildlife and Fisheries

I United States Fish and Wildlife Service, Department of
the Interior (Parts 1--199)
II National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of
Commerce (Parts 200--299)
III International Fishing and Related Activities (Parts
300--399)
IV Joint Regulations (United States Fish and Wildlife
Service, Department of the Interior and National
Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of
Commerce); Endangered Species Committee
Regulations (Parts 400--499)
V Marine Mammal Commission (Parts 500--599)
VI Fishery Conservation and Management, National Oceanic
and Atmospheric Administration, Department of
Commerce (Parts 600--699)

[[Page 339]]

Alphabetical List of Agencies Appearing in the CFR

(Revised as of October 1, 2024)

CFR Title, Subtitle or
Agency Chapter

Administrative Conference of the United States 1, III
Advisory Council on Historic Preservation 36, VIII
Advocacy and Outreach, Office of 7, XXV
Afghanistan Reconstruction, Special Inspector 5, LXXXIII
General for
African Development Foundation 22, XV
Federal Acquisition Regulation 48, 57
Agency for International Development 2, VII; 22, II
Federal Acquisition Regulation 48, 7
Agricultural Marketing Service 7, I, VIII, IX, X, XI; 9,
II
Agricultural Research Service 7, V
Agriculture, Department of 2, IV; 5, LXXIII
Advocacy and Outreach, Office of 7, XXV
Agricultural Marketing Service 7, I, VIII, IX, X, XI; 9,
II
Agricultural Research Service 7, V
Animal and Plant Health Inspection Service 7, III; 9, I
Chief Financial Officer, Office of 7, XXX
Commodity Credit Corporation 7, XIV
Economic Research Service 7, XXXVII
Energy Policy and New Uses, Office of 2, IX; 7, XXIX
Environmental Quality, Office of 7, XXXI
Farm Service Agency 7, VII, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Forest Service 36, II
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Institute of Food and Agriculture 7, XXXIV
Natural Resources Conservation Service 7, VI
Operations, Office of 7, XXVIII
Procurement and Property Management, Office of 7, XXXII
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Utilities Service 7, XVII, XVIII, XLII
Secretary of Agriculture, Office of 7, Subtitle A
Transportation, Office of 7, XXXIII
World Agricultural Outlook Board 7, XXXVIII
Air Force, Department of 32, VII
Federal Acquisition Regulation Supplement 48, 53
Air Transportation Stabilization Board 14, VI
Alcohol and Tobacco Tax and Trade Bureau 27, I
Alcohol, Tobacco, Firearms, and Explosives, 27, II
Bureau of
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
American Indians, Office of the Special Trustee 25, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers 36, XI
Compliance Board
[[Page 340]]

Arctic Research Commission 45, XXIII
Armed Forces Retirement Home 5, XI; 38, II
Army, Department of 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Benefits Review Board 20, VII
Bilingual Education and Minority Languages 34, V
Affairs, Office of
Blind or Severely Disabled, Committee for 41, 51
Purchase from People Who Are
Federal Acquisition Regulation 48, 19
Career, Technical, and Adult Education, Office 34, IV
of
Census Bureau 15, I
Centers for Medicare & Medicaid Services 42, IV
Central Intelligence Agency 32, XIX
Chemical Safety and Hazard Investigation Board 40, VI
Chief Financial Officer, Office of 7, XXX
Child Support Services, Office of 45, III
Children and Families, Administration for 45, II, IV, X, XIII
Civil Rights, Commission on 5, LXVIII; 45, VII
Civil Rights, Office for 34, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Commerce, Department of 2, XIII; 44, IV; 50, VI
Census Bureau 15, I
Economic Affairs, Office of the Under- 15, XV
Secretary for
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Emergency Management and Assistance 44, IV
Federal Acquisition Regulation 48, 13
Foreign-Trade Zones Board 15, IV
Industry and Security, Bureau of 15, VII
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II; 37, IV
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric 15, IX; 50, II, III, IV,
Administration VI
National Technical Information Service 15, XI
National Telecommunications and Information 15, XXIII; 47, III, IV
Administration
National Weather Service 15, IX
Patent and Trademark Office, United States 37, I
Secretary of Commerce, Office of 15, Subtitle A
Commercial Space Transportation 14, III
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 5, XLI; 17, I
Community Planning and Development, Office of 24, V, VI
Assistant Secretary for
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining 29, IX
Commission
Consumer Financial Protection Bureau 5, LXXXIV; 12, X
Consumer Product Safety Commission 5, LXXI; 16, II
Copyright Royalty Board 37, III
Corporation for National and Community Service 2, XXII; 45, XII, XXV
Cost Accounting Standards Board 48, 99
Council on Environmental Quality 40, V
Council of the Inspectors General on Integrity 5, XCVIII
and Efficiency
Court Services and Offender Supervision Agency 5, LXX; 28, VIII
for the District of Columbia
Customs and Border Protection 19, I
Defense, Department of 2, XI; 5, XXVI; 32,
Subtitle A; 40, VII
Advanced Research Projects Agency 32, I
Air Force Department 32, VII
Army Department 32, V; 33, II; 36, III;
48, 51
Defense Acquisition Regulations System 48, 2
Defense Intelligence Agency 32, I

[[Page 341]]

Defense Logistics Agency 32, I, XII; 48, 54
Engineers, Corps of 33, II; 36, III
National Imagery and Mapping Agency 32, I
Navy, Department of 32, VI; 48, 52
Secretary of Defense, Office of 2, XI; 32, I
Defense Contract Audit Agency 32, I
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, XII; 48, 54
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Denali Commission 45, IX
Disability, National Council on 5, C; 34, XII
District of Columbia, Court Services and 5, LXX; 28, VIII
Offender Supervision Agency for the
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Office of the Under-Secretary 15, XV
for
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Economic Research Service 7, XXXVII
Education, Department of 2, XXXIV; 5, LIII
Bilingual Education and Minority Languages 34, V
Affairs, Office of
Career, Technical, and Adult Education, Office 34, IV
of
Civil Rights, Office for 34, I
Educational Research and Improvement, Office 34, VII
of
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, 34, III
Office of
Educational Research and Improvement, Office of 34, VII
Election Assistance Commission 2, LVIII; 11, II
Elementary and Secondary Education, Office of 34, II
Emergency Oil and Gas Guaranteed Loan Board 13, V
Emergency Steel Guarantee Loan Board 13, IV
Employee Benefits Security Administration 29, XXV
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board 5, V
Employment and Training Administration 20, V
Employment Policy, National Commission for 1, IV
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 2, IX; 5, XXIII; 10, II,
III, X
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 5, XXIV; 18, I
Property Management Regulations 41, 109
Energy, Office of 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 2, XV; 5, LIV; 40, I, IV,
VII
Federal Acquisition Regulation 48, 15
Property Management Regulations 41, 115
Environmental Quality, Office of 7, XXXI
Equal Employment Opportunity Commission 5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary 24, I
for
Executive Office of the President 3, I
Environmental Quality, Council on 40, V
Management and Budget, Office of 2, Subtitle A; 5, III,
LXXVII; 14, VI; 48, 99
National Drug Control Policy, Office of 2, XXXVI; 21, III
National Security Council 32, XXI; 47, II
Presidential Documents 3
Science and Technology Policy, Office of 32, XXIV; 47, II
Trade Representative, Office of the United 15, XX
States
[[Page 342]]

Export-Import Bank of the United States 2, XXXV; 5, LII; 12, IV
Families and Services, Administration of 45, III
Family Assistance, Office of 45, II
Farm Credit Administration 5, XXXI; 12, VI
Farm Credit System Insurance Corporation 5, XXX; 12, XIV
Farm Service Agency 7, VII, XVIII
Federal Acquisition Regulation 48, 1
Federal Acquisition Security Council 41, 201
Federal Aviation Administration 14, I
Commercial Space Transportation 14, III
Federal Claims Collection Standards 31, IX
Federal Communications Commission 2, LX; 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 5, XXII; 12, III
Federal Election Commission 5, XXXVII; 11, I
Federal Emergency Management Agency 44, I
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition 48, 16
Regulation
Federal Energy Regulatory Commission 5, XXIV; 18, I
Federal Financial Institutions Examination 12, XI
Council
Federal Financing Bank 12, VIII
Federal Highway Administration 23, I, II
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Enterprise Oversight Office 12, XVII
Federal Housing Finance Agency 5, LXXX; 12, XII
Federal Labor Relations Authority 5, XIV, XLIX; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Management Regulation 41, 102
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 5, CIII; 29, XII
Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration 49, III
Federal Permitting Improvement Steering Council 40, IX
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Board of Governors 5, LVIII
Federal Retirement Thrift Investment Board 5, VI, LXXVI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 5, XLVII; 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Financial Crimes Enforcement Network 31, X
Financial Research Office 12, XVI
Financial Stability Oversight Council 12, XIII
Fine Arts, Commission of 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of the 45, V
United States
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Services Administration 5, LVII; 41, 105
Contract Appeals, Board of 48, 61

[[Page 343]]

Federal Acquisition Regulation 48, 5
Federal Management Regulation 41, 102
Federal Property Management Regulations 41, 101
Federal Travel Regulation System 41, Subtitle F
General 41, 300
Payment From a Non-Federal Source for Travel 41, 304
Expenses
Payment of Expenses Connected With the Death 41, 303
of Certain Employees
Relocation Allowances 41, 302
Temporary Duty (TDY) Travel Allowances 41, 301
Geological Survey 30, IV
Government Accountability Office 4, I
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grain Inspection, Packers and Stockyards 7, VIII; 9, II
Administration
Great Lakes St. Lawrence Seaway Development 33, IV
Corporation
Gulf Coast Ecosystem Restoration Council 2, LIX; 40, VIII
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 2, III; 5, XLV; 45,
Subtitle A
Centers for Medicare & Medicaid Services 42, IV
Child Support Services, Office of 45, III
Children and Families, Administration for 45, II, IV, X, XIII
Community Services, Office of 45, X
Families and Services, Administration of 45, III
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Indian Health Service 25, V
Inspector General (Health Care), Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Homeland Security, Department of 2, XXX; 5, XXXVI; 6, I; 8,
I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Customs and Border Protection 19, I
Federal Emergency Management Agency 44, I
Human Resources Management and Labor Relations 5, XCVII
Systems
Immigration and Customs Enforcement Bureau 19, IV
Transportation Security Administration 49, XII
HOPE for Homeowners Program, Board of Directors 24, XXIV
of
Housing and Urban Development, Department of 2, XXIV; 5, LXV; 24,
Subtitle B
Community Planning and Development, Office of 24, V, VI
Assistant Secretary for
Equal Opportunity, Office of Assistant 24, I
Secretary for
Federal Acquisition Regulation 48, 24
Federal Housing Enterprise Oversight, Office 12, XVII
of
Government National Mortgage Association 24, III
Housing--Federal Housing Commissioner, Office 24, II, VIII, X, XX
of Assistant Secretary for
Housing, Office of, and Multifamily Housing 24, IV
Assistance Restructuring, Office of
Inspector General, Office of 24, XII
Public and Indian Housing, Office of Assistant 24, IX
Secretary for
Secretary, Office of 24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of 24, II, VIII, X, XX
Assistant Secretary for
Housing, Office of, and Multifamily Housing 24, IV
Assistance Restructuring, Office of
Immigration and Customs Enforcement Bureau 19, IV
Immigration Review, Executive Office for 8, V
Independent Counsel, Office of 28, VII
Independent Counsel, Offices of 28, VI
Indian Affairs, Bureau of 25, I, V

[[Page 344]]

Indian Affairs, Office of the Assistant 25, VI
Secretary
Indian Arts and Crafts Board 25, II
Indian Health Service 25, V
Industry and Security, Bureau of 15, VII
Information Resources Management, Office of 7, XXVII
Information Security Oversight Office, National 32, XX
Archives and Records Administration
Inspector General
Agriculture Department 7, XXVI
Health and Human Services Department 42, V
Housing and Urban Development Department 24, XII, XV
Institute of Peace, United States 22, XVII
Intellectual Property Enforcement Coordinator, 5, CIV
Office of
Inter-American Foundation 5, LXIII; 22, X
Interior, Department of 2, XIV
American Indians, Office of the Special 25, VII
Trustee
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant 25, VI
Secretary
Indian Arts and Crafts Board 25, II
Land Management, Bureau of 43, II
National Indian Gaming Commission 25, III
National Park Service 36, I
Natural Resource Revenue, Office of 30, XII
Ocean Energy Management, Bureau of 30, V
Reclamation, Bureau of 43, I
Safety and Environmental Enforcement, Bureau 30, II
of
Secretary of the Interior, Office of 2, XIV; 43, Subtitle A
Surface Mining Reclamation and Enforcement, 30, VII
Office of
Internal Revenue Service 26, I
International Boundary and Water Commission, 22, XI
United States and Mexico, United States
Section
International Development, United States Agency 22, II
for
Federal Acquisition Regulation 48, 7
International Development Cooperation Agency, 22, XII
United States
International Development Finance Corporation, 2, XVI; 5, XXXIII; 22, VII
U.S.
International Joint Commission, United States 22, IV
and Canada
International Organizations Employees Loyalty 5, V
Board
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 5, XL
Investment Security, Office of 31, VIII
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice, Department of 2, XXVIII; 5, XXVIII; 28,
I, XI; 40, IV
Alcohol, Tobacco, Firearms, and Explosives, 27, II
Bureau of
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 31, IX
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the 45, V
United States
Immigration Review, Executive Office for 8, V
Independent Counsel, Offices of 28, VI
Prisons, Bureau of 28, V
Property Management Regulations 41, 128
Labor, Department of 2, XXIX; 5, XLII
Benefits Review Board 20, VII
Employee Benefits Security Administration 29, XXV

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Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office 41, 60
of
Federal Procurement Regulations System 41, 50
Labor-Management Standards, Office of 29, II, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training Service, 41, 61; 20, IX
Office of the Assistant Secretary for
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I, VI
Labor-Management Standards, Office of 29, II, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Libraries and Information Science, National 45, XVII
Commission on
Library of Congress 36, VII
Copyright Royalty Board 37, III
U.S. Copyright Office 37, II
Management and Budget, Office of 2, Subpart A; 5, III,
LXXVII; 14, VI; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II, LXIV
Micronesian Status Negotiations, Office for 32, XXVII
Military Compensation and Retirement 5, XCIX
Modernization Commission
Millennium Challenge Corporation 22, XIII
Mine Safety and Health Administration 30, I
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Morris K. Udall Scholarship and Excellence in 36, XVI
National Environmental Policy Foundation
Museum and Library Services, Institute of 2, XXXI
National Aeronautics and Space Administration 2, XVIII; 5, LIX; 14, V
Federal Acquisition Regulation 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National and Community Service, Corporation for 2, XXII; 45, XII, XXV
National Archives and Records Administration 2, XXVI; 5, LXVI; 36, XII
Information Security Oversight Office 32, XX
National Capital Planning Commission 1, IV, VI
National Counterintelligence Center 32, XVIII
National Credit Union Administration 5, LXXXVI; 12, VII
National Crime Prevention and Privacy Compact 28, IX
Council
National Drug Control Policy, Office of 2, XXXVI; 21, III
National Endowment for the Arts 2, XXXII
National Endowment for the Humanities 2, XXXIII
National Foundation on the Arts and the 45, XI
Humanities
National Geospatial-Intelligence Agency 32, I
National Highway Traffic Safety Administration 23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency 32, I
National Indian Gaming Commission 25, III
National Institute of Food and Agriculture 7, XXXIV
National Institute of Standards and Technology 15, II; 37, IV
National Intelligence, Office of Director of 5, IV; 32, XVII
National Labor Relations Board 5, LXI; 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 5, CI; 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV,
VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII

[[Page 346]]

National Science Foundation 2, XXV; 5, XLIII; 45, VI
Federal Acquisition Regulation 48, 25
National Security Council 32, XXI; 47, II
National Technical Information Service 15, XI
National Telecommunications and Information 15, XXIII; 47, III, IV, V
Administration
National Transportation Safety Board 49, VIII
Natural Resource Revenue, Office of 30, XII
Natural Resources Conservation Service 7, VI
Navajo and Hopi Indian Relocation, Office of 25, IV
Navy, Department of 32, VI
Federal Acquisition Regulation 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Northeast Interstate Low-Level Radioactive Waste 10, XVIII
Commission
Nuclear Regulatory Commission 2, XX; 5, XLVIII; 10, I
Federal Acquisition Regulation 48, 20
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Ocean Energy Management, Bureau of 30, V
Oklahoma City National Memorial Trust 36, XV
Operations Office 7, XXVIII
Patent and Trademark Office, United States 37, I
Payment From a Non-Federal Source for Travel 41, 304
Expenses
Payment of Expenses Connected With the Death of 41, 303
Certain Employees
Peace Corps 2, XXXVII; 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension Benefit Guaranty Corporation 29, XL
Personnel Management, Office of 5, I, IV, XXXV; 45, VIII
Federal Acquisition Regulation 48, 17
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition 48, 16
Regulation
Human Resources Management and Labor Relations 5, XCVII
Systems, Department of Homeland Security
Pipeline and Hazardous Materials Safety 49, I
Administration
Postal Regulatory Commission 5, XLVI; 39, III
Postal Service, United States 5, LX; 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House 1, IV
Fellowships
Presidential Documents 3
Presidio Trust 36, X
Prisons, Bureau of 28, V
Privacy and Civil Liberties Oversight Board 6, X
Procurement and Property Management, Office of 7, XXXII
Public and Indian Housing, Office of Assistant 24, IX
Secretary for
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation, Bureau of 43, I
Refugee Resettlement, Office of 45, IV
Relocation Allowances 41, 302
Research and Innovative Technology 49, XI
Administration
Rural Business-Cooperative Service 7, XVIII, XLII, L
Rural Housing Service 7, XVIII, XXXV, L
Rural Utilities Service 7, XVII, XVIII, XLII, L
Safety and Environmental Enforcement, Bureau of 30, II
Science and Technology Policy, Office of 32, XXIV; 47, II
Secret Service 31, IV
Securities and Exchange Commission 5, XXXIV; 17, II
Selective Service System 32, XVI
Small Business Administration 2, XXVII; 13, I
Smithsonian Institution 36, V
Social Security Administration 2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII

[[Page 347]]

Special Education and Rehabilitative Services, 34, III
Office of
State, Department of 2, VI; 22, I; 28, XI
Federal Acquisition Regulation 48, 6
Surface Mining Reclamation and Enforcement, 30, VII
Office of
Surface Transportation Board 49, X
Susquehanna River Basin Commission 18, VIII
Tennessee Valley Authority 5, LXIX; 18, XIII
Trade Representative, United States, Office of 15, XX
Transportation, Department of 2, XII; 5, L
Commercial Space Transportation 14, III
Emergency Management and Assistance 44, IV
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II
Federal Motor Carrier Safety Administration 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Great Lakes St. Lawrence Seaway Development 33, IV
Corporation
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 47, IV; 49, V
Pipeline and Hazardous Materials Safety 49, I
Administration
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Transportation Statistics Bureau 49, XI
Transportation, Office of 7, XXXIII
Transportation Security Administration 49, XII
Transportation Statistics Bureau 49, XI
Travel Allowances, Temporary Duty (TDY) 41, 301
Treasury, Department of the 2, X; 5, XXI; 12, XV; 17,
IV; 31, IX
Alcohol and Tobacco Tax and Trade Bureau 27, I
Community Development Financial Institutions 12, XVIII
Fund
Comptroller of the Currency 12, I
Customs and Border Protection 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Claims Collection Standards 31, IX
Federal Law Enforcement Training Center 31, VII
Financial Crimes Enforcement Network 31, X
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Investment Security, Office of 31, VIII
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Truman, Harry S. Scholarship Foundation 45, XVIII
United States Agency for Global Media 22, V
United States and Canada, International Joint 22, IV
Commission
United States and Mexico, International Boundary 22, XI
and Water Commission, United States Section
U.S. Copyright Office 37, II
U.S. Office of Special Counsel 5, CII
Utah Reclamation Mitigation and Conservation 43, III
Commission
Veterans Affairs, Department of 2, VIII; 38, I
Federal Acquisition Regulation 48, 8
Veterans' Employment and Training Service, 41, 61; 20, IX
Office of the Assistant Secretary for
Vice President of the United States, Office of 32, XXVIII
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I, VI
World Agricultural Outlook Board 7, XXXVIII

[[Page 349]]

List of CFR Sections Affected

All changes in this volume of the Code of Federal Regulations (CFR) that
were made by documents published in the Federal Register since January
1, 2019 are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters, parts and
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the
annual edition of the monthly List of CFR Sections Affected (LSA). The
LSA is available at www.govinfo.gov. For changes to this volume of the
CFR prior to 2001, see the ``List of CFR Sections Affected, 1949-1963,
1964-1972, 1973-1985, and 1986-2000'' published in 11 separate volumes.
The ``List of CFR Sections Affected 1986-2000'' is available at
www.govinfo.gov.

2019

49 CFR
84 FR
Page
1002 Authority citation revised.............................12943, 20294
1002.1 (c) and (e) amended; (f) removed; (g), (h), and (i)
redesignated as new (f), (g), and (h); new (f)(8) removed;
new (f)(9) through (18) redesignated as new (f)(8) through
(17); (d), new (f)(7) and new (g) revised..................12943
(a) and (b) revised............................................38580
1002.2 (a)(1) amended; (a)(2) removed; (a)(3) redesignated as new
(a)(2); new (a)(2) and (b) revised.........................12943
(b) heading added; (f)(78) revised.............................20294
(f) revised....................................................38580
1012.2 (a) amended.................................................12943
1012.3 (b)(5) amended..............................................12943
1012.6 (a) revised.................................................12943
1104.1 (e) revised.................................................12943
1104.3 Revised.....................................................12944
1104.12 Heading revised; (d) added.................................12944
1110.2 (c)(1) revised..............................................12944
1110.6 (a) amended.................................................12944
1111.4 Amended.....................................................12944
1111.5 (c) revised.................................................12944
1113.7 (e) revised.................................................12944
1113.13 Heading revised; section amended...........................12944
1130.1 (a) revised.................................................12944
1130.2 (f) amended.................................................12944
1132.1 (c) removed; (d) and (e) redesignated as new (c) and (d);
new (c) revised; new (d) amended...........................12944
1150.10 (b) and (g) amended........................................12945
1150.16 Amended....................................................12945
1150.45 (d) amended................................................12945
1152.21 Amended....................................................12945
1152.22 (i) introductory text and section amended..................12945
1152.24 (a) revised................................................12945
1152.25 (c)(2) removed; (c)(3) and (4) redesignated as new (c)(2)
and (3); new (c)(3), (e)(1)(iii), (4), (6), and (7)(i)
revised....................................................12945
1152.29 (a) heading, (b) heading, (e) heading, (f) heading, (g)
heading, and (h) heading added; (b)(1)(ii), (c)(3),
(d)(3), and (g) amended; (c) heading, (1), (d) heading,
and (1) revised............................................66325
1152.60 (c) note revised...........................................12945
1155.21 (e) amended................................................12945
1155.23 (c)(1), (2), and (3) amended...............................12945
1182.7 (e)(2) amended..............................................12945
1182.8 (b) removed; (c) through (f) redesignated as new (b)
through (e)................................................12945

[[Page 350]]

2020

49 CFR
85 FR
Page
Chapter X
Chapter X Policy statement.........................................41422
1002.1 (a), (b), and (c) revised...................................47099
1002.2 (f) revised.................................................47099
1002.2 (e)(1), (2)(i), (ii), and (iii) revised; (e)(3) added.......83832
1011.6 (i) added...................................................47696
1022.4 (b) revised...................................................839
1039.10 Amended....................................................12756
1039.11 (a) amended................................................12756
1039.14 (d) amended................................................12756
1111 Authority citation revised....................................47696
1111.9 (a) revised.................................................47696
1111.10 (a) revised................................................47696
1111.12 Added......................................................47697

2021

49 CFR
86 FR
Page
Chapter X
1002.1 (a) through (c) revised.....................................44282
1002.2 (f) revised.................................................44282
1022 Authority citation revised.....................................3027
1022.4 (b) revised..................................................3027
1180.2 (d) introductory text and (8) amended; (d)(9) added.........68930
1180.4 (g)(1) revised; (g)(2) removed; (g)(3) and (4) redesignated
as (g)(2) and (3); new (g)(3) and new (i) amended..........68931

2022

49 CFR
87 FR
Page
Chapter X
1002.1 (a), (b), and (c) revised...................................51922
1002.2 (f) revised.................................................51922
1022 Authority citation revised.....................................2353
1022.4 (b) revised..................................................2354

2023

49 CFR
88 FR
Page
Chapter X
1002.1 (a), (b), and (c) revised...................................59806
1002.2 (f)(56) revised...............................................317
1002.2 (f) revised.................................................59806
1011.7 (a)(2)(xix) revised; (b)(7) added.............................729
1022.4 (b) revised..................................................2269
1108 1108.1--1108.13 Designated as Subpart A; heading added..........729
1108.1 (a), (b) and section amended..................................729
1108.3 (a)(1)(ii) amended............................................729
1108.7 (d) amended...................................................729
1108.8 (a) amended...................................................729
1108.21--1108.33 (Subpart B) Added...................................729
1111 Authority citation revised......................................318
1111.3 (c) revised...................................................318
1111.5 (a) through (c) and (e) revised...............................318
1111.10 (a)(3) added.................................................318
1111.11 (b) revised..................................................318
1111.12 (c), (d)(1), and (2) revised.................................318
1114.21 (a)(4) added.................................................319
1114.24 (h) revised..................................................319
1114.31 (a) and (d) revised..........................................319
1115.3 (e) revised...................................................320
1115.8 Amended.......................................................735

2024

(Regulations published from January 1, 2024, through October 1, 2024)

49 CFR
89 FR
Page
Chapter X
1002.1 (a) through (c) revised; eff. 10-18-24......................76435
1002.2 (f) revised; eff. 10-18-24..................................76435
1011.7 (a)(2)(xx) added.............................................4578
1104.7 (b) revised..................................................4578
1115.3 (e) revised..................................................4578
1145 Added.........................................................38706
1145 Technical correction..........................................66011
1146.1 Revised......................................................4578
1146.2 Added........................................................4579

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