[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Proposed Rules]
[Pages 39110-39115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18849]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Parts 1011, 1104, 1111, 1112, 1113, 1114, 1115 and 1121

[STB Ex Parte No. 527]


Expedited Procedures For Processing Rail Rate Reasonableness, 
Exemption And Revocation Proceedings

AGENCY: Surface Transportation Board.

ACTION: Notice Of Proposed Rulemaking.

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SUMMARY: Under new 49 U.S.C. 10704(d), enacted as part of section 
102(a) of the ICC Termination Act of 1995 (ICCTA), the Surface 
Transportation Board (Board) is required to establish procedures to 
expedite the handling of challenges to the reasonableness of railroad 
rates and of railroad exemption and revocation proceedings. This 
publication contains our proposed regulations.

DATES: Comments are due on August 21, 1996.

ADDRESSES: Send comments (an original and 10 copies) referring to STB 
Ex Parte No. 527 to: Surface Transportation Board, Office of the 
Secretary, Case Control Branch, 1201 Constitution Ave., NW., 
Washington, DC 20423. Parties are encouraged to submit all pleadings 
and attachments on a 3.5-inch diskette in WordPerfect 5.1 format.

FOR FURTHER INFORMATION CONTACT: Thomas J. Stilling, (202) 927-7312. 
[TDD for the hearing impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: The Board's decision discussing this 
proposal is available to all persons for a charge by calling DC NEWS & 
DATA INC. at (202) 289-4357. The Board certifies that the rules 
proposed, if adopted, would not have a significant economic effect on a 
substantial number of small entities. The proposed rules should result 
in easier and quicker discovery and record-building. The Board, 
however, seeks comments on whether there would be effects on small 
entities that should be considered. If comments provide information 
that there would be a significant effect on small entities, the Board 
will prepare a regulatory flexibility analysis at the final rule stage.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.

List of Subjects

49 CFR Part 1011

    Administrative practice and procedure, Authority delegations 
(Government agencies), Organization and functions (Government 
agencies).

49 CFR Parts 1104, 1112, 1113, 1114, and 1115

    Administrative practice and procedure.

49 CFR Part 1111

    Administrative practice and procedure, Investigations.

49 CFR Part 1121

    Administrative practice and procedure, Rail exemption procedures, 
Railroads.

    Decided: July 18, 1996.


[[Page 39111]]


    By the Board, Chairman Morgan, Vice Chairman Simmons, and 
Commissioner Owen.
Vernon A. Williams,
Secretary.
    For the reasons set forth in the preamble, title 49, chapter X, 
parts 1011, 1104, 1111, 1112, 1113, 1114, 1115 and 1121 of the Code of 
Federal Regulations are proposed to be amended as follows:

PART 1011--COMMISSION ORGANIZATION; DELEGATIONS OF AUTHORITY

    1. The authority citation for part 1011 is revised to read as 
follows:

    Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721, 
13702.


Sec. 1011.7  [Amended]

    2. Section 1011.7 is amended as follows:
    a. In paragraph (b)(1), remove the words ``The Chairman of the 
Commission'' and add in their place the words ``The Commission 
(Board)''.
    b. Paragraph (b)(2) is removed.

PART 1104--FILING WITH THE BOARD-COPIES-VERIFICATIONS-SERVICE-
PLEADINGS, GENERALLY

    3. The heading of part 1104 is revised as set forth above.
    4. The authority citation for part 1104 is revised to read as 
follows:

    Authority: 5 U.S.C. 559; 21 U.S.C. 853a; 49 U.S.C. 721.
    5. Part 1104 is amended as follows:


Secs. 1104.3--1104.8, 1104.10 and 1104.12--1104.14  [Amended]

    a. Remove the word ``Commission'' and add the word ``Board'' in the 
following sections: Secs. 1104.3(a), 1104.3(b), 1104.4(b), 1104.5(b), 
1104.6, 1104.7(b), 1104.8, 1104.10(a), 1104.10(b), 1104.12(a), 
1104.12(b), 1104.13(a) and 1104.14(b).


Sec. 1104.3, 1104.6 and 1104.11  [Amended]

    b. Remove the word ``Commission's'' and add the word ``Board's'' in 
the following sections: Secs. 1104.3(b), 1104.6 and 1104.11.


Sec. 1104.1  [Amended]

    c. Remove the words ``Interstate Commerce Commission'' and add the 
words ``Surface Transportation Board'' in Sec. 1104.1(a).


Sec. 1104.3  [Amended]

    6. Section 1104.3 is amended by adding the following sentence to 
the end of paragraph (a):
    (a) * * * In addition to the paper copies required to be filed with 
the Board, 3 copies of: (1) Textual submissions of 20 or more pages and 
(2) All electronic spreadsheets should be submitted on 3.5 inch, IBM 
compatible formatted diskettes or QIC-80 tapes. Textual materials must 
be in WordPerfect 5.1 format, and electronic spreadsheets must be in 
LOTUS 1-2-3 release 5 or earlier format.
* * * * *
    7. In Sec. 1104.15, paragraph (a) is revised to read as follows:


Sec. 1104.15  Certification of eligibility for Federal benefits under 
21 U.S.C. 853a.

    (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.
* * * * *
    8. Part 1111 is revised to read as follows:

PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES

Sec.
1111.1  Content of formal complaints; joinder.
1111.2  Amended and supplemental complaints.
1111.3  Service.
1111.4  Answers and cross complaints.
1111.5  Motions to dismiss or to make more definite.
1111.6  Satisfaction of complaint.
1111.7  Investigations on the Board's own motion.
1111.8  Meeting to discuss procedural matters.

    Authority: 5 U.S.C. 559; 49 U.S.C. 721.


Sec. 1111.1  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 at the hearing. In a complaint challenging the 
reasonableness of a rail rate, the complainant must file evidence on 
the absence of effective intramodal and intermodal competition with the 
complaint. The complainant also must make available to counsel for the 
defendant(s) all underlying workpapers and related documents supporting 
its market dominance evidence. In addition, the complainant should 
indicate in the complaint whether it intends to contest the rate level 
based on a constrained market pricing presentation and, if so, which of 
the constraints it will contend the railroad violated, or whether it 
intends to contest the rate level based on the procedures adopted 
pursuant to 49 U.S.C. 10701(d)(3).
    (b) Requests for oral hearing. A formal complaint may include a 
request that the proceeding be handled either under the modified 
procedure or at oral hearing. A request for oral hearing should detail 
why oral hearing is required.
    (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.


Sec. 1111.2  Amended and supplemental complaints.

    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 Secs. 1111.4 and 1111.5 of this part, as if the 
amended or supplemental complaint was an original complaint.


Sec. 1111.3  Service.

    A complainant is responsible for serving formal complaints, amended 
or supplemental complaints, and cross complaints on the defendant(s). 
Service may be personal or by mail. Ten copies of 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

[[Page 39112]]

which the papers were mailed or at which they were delivered, certified 
by the person who made service. If complainant cannot serve the 
complaint, an original of each complaint accompanied by a sufficient 
number of copies to enable the Board to serve one upon each defendant 
and to retain 10 copies in addition to the original should be filed 
with the Board.


Sec. 1111.4  Answers and cross complaints.

    (a) Generally. An answer shall be filed within the time provided in 
paragraph (b) 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. Evidence supporting such a 
contention is due 45 days after the complaint is served or within such 
additional time as the Board may provide. In addition, if the defendant 
intends to reply to a complainant's evidence on the absence of 
effective intramodal or intermodal competition filed with the 
complaint, such a reply is due 45 days after the complaint is served or 
within such additional time as the Board may provide. The defendant 
also must make available to counsel for the complainant all underlying 
workpapers and related documents supporting its market dominance 
evidence. The complaint may reply to the defendants' product or 
geographic competition or revenue-variable cost evidence within 20 days 
after such evidence is filed with the Board or within such additional 
time as the Board may provide.
    (b) Time for filing; copies; service. An answer must be filed 
within 20 days after the service of the complaint or within such 
additional time as the Board may provide. The original and 10 copies of 
an answer must be filed with the Board. The defendant must serve copies 
of the answer upon the complainant and any other defendants.
    (c) 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.


Sec. 1111.5  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. At the time the answer 
is filed, if the defendant has reason to believe that the complaint or 
cross complaint should be dismissed, a motion to dismiss should be 
filed with the answer. If grounds for dismissing the complaint or cross 
complaint arise subsequent to the filing of the answer, a motion to 
dismiss shall be filed within 20 days of when the grounds arise. 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. 1111.6  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. 1111.7  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. 1111.8  Meeting to discuss procedural matters.

    Within 7 days after an answer to a complaint is filed, the parties 
shall meet, or discuss by telephone, discovery and procedural matters. 
Within 14 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.

PART 1112--MODIFIED PROCEDURES

    9. The authority citation for part 1112 is revised to read as 
follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 701.
    10. Part 1112 is amended as follows:

Secs. 1112.1, 1112.4 and 1112.7  [Amended]

    a. Remove the word ``Commission'' and add the word ``Board'' in the 
following sections: Secs. 1112.1, 1112.4(a), introductory text, and 
1112.7.


Sec. 1112.1  [Amended]

    b. Remove the word ``Commission's'' and add the word ``Board's'' in 
Sec. 1112.1.


Sec. 1112.4  [Amended]

    c. Section 1112.4 is amended by removing paragraph (c).
    d. Section 1112.10 is revised to read as follows:


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.

PART 1113--ORAL HEARING

    11. The authority citation for part 1113 is revised to read as 
follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 721.

    12. Part 1113 is amended as follows:


Secs. 1113.1, 1113.2, 1113.4--1113.8, 1113.10, 1113.12, 1113.13, 
1113.16--1113.11  [Amended]

    a. Remove the word ``Commission'' and add the word ``Board'' in the 
following sections: Secs. 1113.1(a), 1113.2(a), 1113.2(b)(1), 
1113.2(d), 1113.4(a), introductory text, 1113.4(b), 1113.5, 1113.6(b), 
1113.7(e), 1113.8, 1113.10, 1113.12(a), 1113.12(b), 1113.13, 1113.16, 
1113.17(b) and 1113.18(c).


Sec. 1113.1  [Amended]

    b. In Sec. 1113.1, paragraph (c)(3) is removed.


Sec. 1113.3  [Amended]

    c. In Sec. 1113.3, paragraph (b)(2), add a period after the word 
``complaint'' and remove the remainder of the paragraph.


Sec. 1113.11  [Amended]

    d. In Sec. 1113.11, first sentence, remove the words ``and in 
evidence'' and add the words ``in evidence and''.

[[Page 39113]]

Sec. 1113.31  [Removed]

    e. Section 1113.31 is removed.

PART 1114--EVIDENCE; DISCOVERY

    13. The authority citation for part 1114 is revised to read as 
follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 721.

    14. Subpart A is revised to read as follows:

Subpart A--General Rules of Evidence

Sec.
1114.1  Generally.
1114.2  Suspension of rules.

Subpart A--General Rules of Evidence


Sec. 1114.1  Generally.

    Unless a different requirement is imposed by these rules, the Board 
will follow the Federal Rules of Evidence and the Federal Rules of 
Civil Procedure used in United States district courts.


Sec. 1114.2  Suspension of rules.

    In the interest of expediting a decision, or for other good cause 
shown, the Board may suspend the requirements or provisions of any of 
these rules in a particular case on application of a party or in its 
own motion and may order proceedings in accordance with its direction.
    15. Subpart B is amended as follows:


Secs. 1114.21, 1114.23, 1114.24, 1114.26, 1114.27, and 
1114.31  [Amended]

    a. Remove the word ``Commission'' and add the word ``Board'' in the 
following sections: Secs. 1114.21(c)(3), 1114.21(c)(9) and the 
concluding text, 1114.21(d), 1114.21(e), introductory text, 1114.23(b), 
1114.23(c), 1114.23(d)(1), 1114.23(d)(2), 1114.24(b)(2), 1114.24(b)(3), 
1114.24(d), 1114.24(h), 1114.26(a), 1114.27(b), 1114.31(a), 
1114.31(b)(1), 1114.31(b)(2), 1114.31(c) and 1114.31(d).


Sec. 1114.31  [Amended]

    b. Remove the word ``Commission's'' and add the word ``Board's'' in 
Sec. 1114.31(b), introductory text.


Sec. 1114.21  [Amended]

    c. In Sec. 1114.21, paragraph (a)(1), remove the words ``(except 
the review boards)''.


Sec. 1114.26  [Amended]

    d. In Sec. 1114.26, paragraph (a), remove the second sentence.


Sec. 1114.26  [Amended]

    e. In Sec. 1114.26, paragraph (c), remove the words ``In those 
proceedings not requiring a petition for interrogatories, and unless 
under special circumstances and for good cause,'' and capitalize the 
word ``no''.


Sec. 1114.27  [Amended]

    f. In Sec. 1114.27, paragraph (a), remove the third and last 
sentences.


Sec. 1114.27  [Amended]

    g. In Sec. 1114.27, paragraph (c), remove the words ``In those 
proceedings not requiring a petition for requests for admission, and 
unless under special circumstances and for good cause shown,'' and 
capitalize the word ``no''.


Sec. 1114.31  [Amended]

    h. In Sec. 1114.31, paragraph (a), remove the last two sentences.


Sec. 1114.31  [Amended]

    i. In Sec. 1114.31, paragraph (b)(1), remove the words ``49 U.S.C. 
10321 (c)(3) and (d)(4)'' and add in their place the words ``49 U.S.C. 
721 (c) and (d)''.
    16. The additions and revisions to subpart B are as follows:
    a. Section 1114.21 is amended by revising paragraph (b) and adding 
a new paragraph (f) as follows:


Sec. 1114.21  Applicability; general provisions.

* * * * *
    (b) How discovery is obtained. All discovery procedures may be used 
by parties without filing a petition and obtaining prior Board 
approval.
* * * * *
    (f) Service of discovery materials. Unless otherwise ordered by the 
Board, 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.
    b. Section 1114.22 is revised to read as follows:


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. Section 1114.30 is revised to read as follows:


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.
    d. Section 1114.31 is amended by adding a new paragraph (b)(2)(iv) 
and adding concluding text to paragraph (d) as follows:


Sec. 1114.31  Failure to respond to discovery.

* * * * *
    (b) * * *
    (2) * * *
    (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.
* * * * *
    (d) * * *. 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

[[Page 39114]]

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.
* * * * *

PART 1115--APPELLATE PROCEDURES

    17. The authority citation for part 1115 is revised to read as 
follows:

    Authority: 5 U.S.C. 559; 49 U.S.C. 721.

    18. Part 1115 is amended as follows:


Secs. 1115.1, 1115.2 and 1115.5-1115.8  [Amended]

    a. Remove the word ``Commission'' and add the word ``Board'' in the 
following sections: Secs. 1115.1(b), 1115.1(c), 1115.2(b)(2), 
1115.2(g), 1115.5(a), 1115.5(b), 1115.6, 1115.7 and 1115.8.


Sec. 1115.1  [Amended]

    b. In Sec. 1115.1, paragraph (c), remove the words ``Chairman of 
the Commission.'' at the end of the first sentence and add in their 
place the words ``entire Board.''.


Sec. 1115.7  [Amended]

    c. In Sec. 1115.7, remove the words ``Interstate Commerce 
Commission'' and add in their place the words ``Surface Transportation 
Board''.
    19. The additions and revisions to part 1115 are as follows:
    a. Section 1115.1, paragraph (a), is revised to read as follows:


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. In Sec. 1115.2, the introductory text and paragraph (e) are 
revised to read as follows:


Sec. 1115.2  Initial decisions.

    This category includes the initial decision of an administrative 
law judge, individual Commissioner or employee board.
* * * * *
    (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.
* * * * *
    c. Section 1115.3 is revised to read as follows:


Sec. 1115.3  Board actions other than initial decisions.

    (a) A discretionary appeal of an entire Board action is permitted.
    (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.
    (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.
    d. Section 1115.4 is revised to read as follows:


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.
    e. A new Sec. 1115.9 is added to read as follows:


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 and the requested documents 
are not otherwise subject to a protective order entered by the Board 
pursuant to 49 CFR 1114.21(c);
    (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) 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.
    20. Part 1121 is revised to read as follows:

PART 1121--RAIL EXEMPTION PROCEDURES

Sec.
1121.1 Scope.
1121.2 Discovery.
1121.3 Content.
1121.4 Procedures.

    Authority: 5 U.S.C. 553; 49 U.S.C. 10502 and 10704.


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 may begin upon the filing of the petition for exemption 
or petition for revocation of an exemption. A party may begin discovery 
prior to filing a petition to revoke an exemption or a notice of 
exemption by filing a notice of intent to file a petition for 
revocation. Discovery shall follow the procedures set forth at 49 CFR 
part 1114, subpart B.

[[Page 39115]]

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.


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 paragraph (d) of this section. 
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) If the impact of the proposed exemption cannot be ascertained 
from the information contained in the petition or accompanying 
submissions or if significant adverse impacts might occur if the 
proposed exemption were granted, the Board, in its discretion, may:
    (1) Direct that additional information be filed; or
    (2) Publish a notice in the Federal Register requesting 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 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 section 10502(d) have been met. 
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.
    (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.

[FR Doc. 96-18849 Filed 7-25-96; 8:45 am]
BILLING CODE 4915-00-P