[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2000 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

                    49


          Parts 1000 to 1199

                         Revised as of October 1, 2000

Transportation





          Containing a Codification of documents of general 
          applicability and future effect
          As of October 1, 2000
          With Ancillaries
          Published by
          Office of the Federal Register
          National Archives and Records
          Administration

As a Special Edition of the Federal Register



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                     U.S. GOVERNMENT PRINTING OFFICE
                            WASHINGTON : 2000



               For sale by U.S. Government Printing Office
 Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328



[[Page iii]]




                            Table of Contents



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

  Title 49:
    Subtitle B--Other Regulations Relating to Transportation--
      Continued:
          Chapter X--Surface Transportation Board, Department 
          of Transportation                                          5
  Finding Aids:
      Table of CFR Titles and Chapters........................     283
      Alphabetical List of Agencies Appearing in the CFR......     301
      Redesignation Table.....................................     311
      List of CFR Sections Affected...........................     319



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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, 2000, 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.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For 
the period beginning January 1, 1986, a ``List of CFR Sections 
Affected'' is published at the end of each CFR volume.

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 Statutory 
Authorities and Agency Rules (Table I). A list of CFR titles, chapters, 
and parts and an alphabetical list of agencies publishing in the CFR are 
also included in this volume.
    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

    There are no restrictions on the republication of material appearing 
in the Code of Federal Regulations.

INQUIRIES

    For a legal interpretation or explanation of any regulation in this 
volume, contact the issuing agency. The issuing agency's name appears at 
the top of odd-numbered pages.
    For inquiries concerning CFR reference assistance, call 202-523-5227 
or write to the Director, Office of the Federal Register, National 
Archives and Records Administration, Washington, DC 20408 or e-mail 
info@fedreg.nara.gov.

SALES

    The Government Printing Office (GPO) processes all sales and 
distribution of the CFR. For payment by credit card, call 202-512-1800, 
M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2233, 24 hours 
a day. For payment by check, write to the Superintendent of Documents, 
Attn: New Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. For GPO 
Customer Service call 202-512-1803.

ELECTRONIC SERVICES

    The full text of the Code of Federal Regulations, the LSA (List of 
CFR Sections Affected), The United States Government Manual, the Federal 
Register, Public Laws, Public Papers, Weekly Compilation of Presidential 
Documents and the Privacy Act Compilation are available in electronic 
format at www.access.gpo.gov/nara (''GPO Access''). For more 
information, contact Electronic Information Dissemination Services, U.S. 
Government Printing Office. Phone 202-512-1530, or 888-293-6498 (toll-
free). E-mail, gpoaccess@gpo.gov.

[[Page vii]]

    The Office of the Federal Register also offers a free service on the 
National Archives and Records Administration's (NARA) World Wide Web 
site for public law numbers, Federal Register finding aids, and related 
information. Connect to NARA's web site at www.nara.gov/fedreg. The NARA 
site also contains links to GPO Access.

                              Raymond A. Mosley,
                                    Director,
                          Office of the Federal Register.

October 1, 2000.



[[Page ix]]



                               THIS TITLE

    Title 49--Transportation is composed of seven volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-185, parts 186-199, parts 200-399, parts 400-999, parts 1000-1199, 
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 100-185) and the third volume 
(parts 186-199) contain the current regulations issued under chapter I--
Research and Special Programs Administration (DOT); the fourth volume 
(parts 200-399) contains the current regulations issued under chapter 
II--Federal Railroad Administration (DOT), and chapter III--Federal 
Motor Carrier Safety Administration (DOT); the fifth volume (parts 400-
999) contains the current regulations issued under chapter IV--Coast 
Guard (DOT), chapter V--National Highway Traffic Safety Administration 
(DOT), chapter VI--Federal Transit Administration (DOT), chapter VII--
National Railroad Passenger Corporation (AMTRAK), and chapter VIII--
National Transportation Safety Board; the sixth volume (parts 1000-1199) 
contains the current regulations issued under chapter X--Surface 
Transportation Board and the seventh volume (part 1200 to End) contains 
the current regulations issued under chapter X--Surface Transportation 
Board and chapter XI--Bureau of Transportation Statistics, Department of 
Transportation. The contents of these volumes represent all current 
regulations codified under this title of the CFR as of October 1, 2000.

    In the volume containing parts 100-185, see Sec. 172.101 for the 
Hazardous Materials Table. The Federal Motor Vehicle Safety Standards 
appear in part 571.

    Redesignation tables for chapter X--Surface Transportation Board, 
Department of Transportation appear in the Finding Aids section of the 
sixth and seventh volumes.

    For this volume Jonn V. Lilyea was the Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Frances D. McDonald, assisted by Alomha S. Morris.

[[Page x]]





[[Page 1]]



                        TITLE 49--TRANSPORTATION




                 (This book contains parts 1000 to 1199)

  --------------------------------------------------------------------
                                                                    Part

  SUBTITLE B--Other Regulations Relating to Transportation--Continued:

chapter x--Surface Transportation Board, Department of 
  Transportation............................................        1001

[[Page 3]]

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

[[Page 5]]



  CHAPTER X--SURFACE TRANSPORTATION BOARD, DEPARTMENT OF TRANSPORTATION




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

               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.......................................          18
1004            Interpretations and routing regulations.....          18
1005            Principles and practices for the 
                    investigation and voluntary disposition 
                    of loss and damage claims and processing 
                    salvage.................................          19
1007            Records containing information about 
                    individuals.............................          22
1011            Board organization; delegations of authority          28
1012            Meetings of the Board.......................          35
1013            Guidelines for the proper use of voting 
                    trusts..................................          39
1014            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Surface 
                    Transportation Board....................          40
1016            Special procedures governing the recovery of 
                    expenses by parties to Board 
                    adjudicatory proceedings................          46
1017            Debt collection--collection by offset from 
                    indebted government and former 
                    government employees....................          52
1018            Debt collection.............................          57
1019            Regulations governing conduct of Surface 
                    Transportation Board employees..........          69
                      PARTS 1021-1029--ENFORCEMENT
1021            Administrative collection of enforcement 
                    claims..................................          70
  PARTS 1030-1039--CARRIERS SUBJECT TO PART I, INTERSTATE COMMERCE ACT
1033            Car service.................................          71
1034            Routing of traffic..........................          73
1035            Bills of lading.............................          73

[[Page 6]]

1037            Bulk grain and grain products--loss and 
                    damage claims...........................          79
1039            Exemptions..................................          80
                       PARTS 1070-1079 [RESERVED]
               PARTS 1090-1099--INTERMODAL TRANSPORTATION
1090            Practices of carriers involved in the 
                    intermodal movement of containerized 
                    freight.................................          86
                     SUBCHAPTER B--RULES OF PRACTICE
             PARTS 1100-1129--RULES OF GENERAL APPLICABILITY
1100            General provisions..........................          88
1101            Definitions and construction................          88
1102            Communications..............................          89
1103            Practitioners...............................          90
1104            Filing with the board-copies-verification-
                    service-pleadings, generally............         100
1105            Procedures for implementation of 
                    Environmental Laws......................         103
1106-1107

  [Reserved]

1108            Arbitration of certain disputes subject to 
                    the statutory jurisdiction of the 
                    Surface Transportation Board............         114
1109            Use of alternative dispute resolution in 
                    Board proceedings and those in which the 
                    Board is a party........................         119
1110            Procedures governing informal rulemaking 
                    proceedings.............................         119
1111            Complaint and investigation procedures......         121
1112            Modified procedures.........................         124
1113            Oral hearing................................         126
1114            Evidence; discovery.........................         132
1115            Appellate procedures........................         141
1116            Oral argument before the Board..............         143
1117            Petitions (for relief) not otherwise covered         144
1118            Procedures in informal proceedings before 
                    employee boards.........................         144
1119            Compliance with Board decisions.............         144
1120            Use of 1977-1978 study of motor carrier 
                    platform handling factors...............         144
1121            Rail exemption procedures...................         145
1122-1129

  [Reserved]

                    PARTS 1130-1149--RATE PROCEDURES
1130            Informal complaints.........................         146

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1132            Protests requesting suspension and 
                    investigation of collective ratemaking 
                    actions.................................         148
1133            Recovery of damages.........................         149
1135            Railroad cost recovery procedures...........         150
1137            Procedures relating to Railroad 
                    Revitalization and Regulatory Reform Act 
                    of 1976.................................         151
1139            Procedures in motor carrier revenue 
                    proceedings.............................         154
1141            Procedures to calculate interest rates......         178
1144            Intramodal rail competition.................         179
1146            Expedited Relief for Service Emergencies....         182
1147            Temporary relief under 49 U.S.C. 10705 and 
                    11102 for Service Inadequacies..........         183
1148-1149

  [Reserved]

                  PARTS 1150-1174--LICENSING PROCEDURES
               PARTS 1150-1159--RAIL LICENSING PROCEDURES
1150            Certificate to construct, acquire, or 
                    operate railroad lines..................         184
1151            Feeder railroad development program.........         196
1152            Abandonment and discontinuance of rail lines 
                    and rail transportation under 49 U.S.C. 
                    10903...................................         199
1155-1176

  [Reserved]

                   PARTS 1177-1199--FINANCE PROCEDURES
     PARTS 1177-1179--SECURITIES, SECURITY INTERESTS, AND FINANCIAL 
                               STRUCTURES
1177            Recordation of documents....................         253
1178-1179

  [Reserved]

               PARTS 1180-1189--COMBINATIONS AND OWNERSHIP
1180            Railroad acquisition, control, merger, 
                    consolidation project, trackage rights, 
                    and lease procedures....................         256
1182            Purchase, merger, and control of motor 
                    passenger carriers......................         272
1184            Motor carrier pooling operations............         276
1185            Interlocking officers.......................         277
1187-1199

  [Reserved]


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

[[Page 9]]





               SUBCHAPTER A--GENERAL RULES AND REGULATIONS





PARTS 1000-1019--GENERAL PROVISIONS--Table of Contents






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. 702, and 49 U.S.C. 721.

    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 
Secretary 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.dot.gov, the Board's website. 
Final decisions are maintained in a database that is full text 
searchable.

[64 FR 47711, Sept. 1, 1999]



Sec. 1001.2  Certified copies of records.

    Copies of and extracts from public records will be certified by the 
Secretary. 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.



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

    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

[[Page 10]]

Officer (Officer). The Officer shall determine within 10 days of receipt 
of a request (excepting Saturdays, Sundays, and legal public holidays) 
whether a requested record will be made available. If the Officer 
determines that a request cannot be honored, the 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. If 
the 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 state the specific exemption(s) 
contained in 5 U.S.C. 552(b) relied upon for denial. Such an appeal must 
be filed within 30 days of the date of the Freedom of Information 
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 
Sec. 1002.1(f) of this chapter.



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 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

[[Page 11]]

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) and 553; 31 U.S.C. 9701; and 49 
U.S.C. 721(a).



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 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 Secretary, $11.00.
    (b) Service involved in examination of tariffs or schedules for 
preparation of certified copies of tariffs or schedules or extracts 
therefrom at the rate of $26.00 per hour.
    (c) Service involved in checking records to be certified to 
determine authenticity, including clerical work, etc., incidental 
thereto, at the rate of $18.00 per hour.
    (d) Photocopies of tariffs, reports, and other public documents, at 
the rate of $0.90 per letter or legal size exposure. A minimum charge of 
$5.00 will be made for this service.
    (e) The fee for search and copying services requiring ADP processing 
are as follows:

[[Page 12]]

    (1) A fee of $46.00 per hour for professional staff time will be 
charged when it is required to fulfill a request for ADP data.
    (2) The fee for port minute time for the search will be set at the 
current rate set forth in the Board's contract with its time sharing 
computer contractor. Information on those charges can be obtained from 
the Chief, Section of Systems Services, Surface Transportation Board, 
Washington, DC 20423.
    (3) Printing shall be charged at the rate of $.10 per page of 
computer generated output with a minimum charge of $.25. A charge of $30 
per reel of magnetic tape will be made if the tape is to be permanently 
retained by the requestor.
    (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. They are as 
follows:

------------------------------------------------------------------------
                            Grade                                 Rate
------------------------------------------------------------------------
GS-1.........................................................      $7.83
GS-2.........................................................       8.52
GS-3.........................................................       9.60
GS-4.........................................................      10.78
GS-5.........................................................      12.06
GS-6.........................................................      13.44
GS-7.........................................................      14.94
GS-8.........................................................      16.54
GS-9.........................................................      18.27
GS-10........................................................      20.12
GS-11........................................................      22.11
GS-12........................................................      26.50
GS-13........................................................      31.51
GS-14........................................................      37.24
GS-15 and over...............................................      43.80
------------------------------------------------------------------------

    (7) The fee for photocopies shall be $.60 per letter or legal size 
exposure with a minimum charge of $3.00.
    (8) The fee charged for ADP data is set forth in paragraph (e) of 
this section.
    (9) If the cost of collecting any fee would be equal to or greater 
than the fee itself, it will not be assessed.
    (10) A fee may be charged for searches which are not productive and 
for searches for records or those parts

[[Page 13]]

of records which subsequently are determined to be exempt from 
disclosure.
    (11) 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.
    (12) 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.
    (13) 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.
    (14) 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.
    (g) Payment for services described in paragraphs (a) through (f) of 
this section may be made in cash or by postal money order or check 
payable to the order of the Secretary, Surface Transportation Board, 
Washington, D.C., and forwarded to his office.
    (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 
Secretary, Surface Transportation Board, Washington, DC 20423.

[32 FR 20010, Dec. 20, 1967]

    Editorial Note: For Federal Register citations affecting 
Sec. 1002.1, see the List of CFR Sections Affected located in the 
Finding Aids section of this volume.

[[Page 14]]



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. The filing fee for tariffs, including schedules, 
and contracts summaries including supplements (Item 78) may be charged 
to tariff filing fee accounts established by the Board in accordance 
with paragraph (a)(2) of this section.
    (2) Billing account procedure. Form STB-1032 must be submitted to 
the Board's Section of Financial Services to establish a tariff filing 
fee account or an insurance service fee account.
    (i) Each account will have a specific billing date within each month 
and a billing cycle. The billing date is the date that the bill is 
prepared and printed. The billing cycle is the period between the 
billing date in one month and the billing date in the next month. A bill 
for each account which has activity or an unpaid balance during the 
billing cycle will be sent on the billing date each month. Payment will 
be due 20 days from the billing date. Payments received before the next 
billing date are applied to the account. Interest will accrue in 
accordance with 49 CFR 1018.30.
    (ii) The Debt Collection Act of 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.
    (iii) An account holder who files a petition in bankruptcy or who is 
the subject of a bankruptcy proceeding must provide the following 
information to the Chief, Section of Financial Services, Surface 
Transportation Board, Washington, DC:
    (A) The filing date of the bankruptcy petition;
    (B) The court in which the bankruptcy petition was filed;
    (C) The type of bankruptcy proceeding;
    (D) The name, address, and telephone number of its representative in 
the bankruptcy proceeding; and
    (E) The name, address, and telephone number of the bankruptcy 
trustee, if one has been appointed.
    (3) Fees will be payable to the Secretary, Surface Transportation 
Board, by check payable in United States currency drawn upon funds 
deposited in a United States or foreign bank or other financial 
institution, money order payable in United States currency, or by credit 
card.
    (b) Any filing, other than a tariff filing, that is not accompanied 
by the appropriate filing fee is deficient except for filings that 
satisfy the deferred payment procedures in paragraph (a) of this 
section. However, the Board may find that a tariff which is submitted 
without the appropriate filing fee is deficient and reject the tariff 
filing, if the filer repeatedly fails to submit the appropriate filing 
fee after the Board has advised the filer of the proper filing fee and 
tariff filing procedures.
    (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 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

[[Page 15]]

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 wich 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) Filing fees are waived for an application or other proceeding 
which is filed by a federal government agency, or a state or local 
government entity. For purposes of this section the phrases ``federal 
government agency'' or ``government entity'' do not include a quasi-
governmental corporation or government subsidized transportation 
company.
    (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 applicant may request a waiver or reduction of the fee 
prescribed in this part. Such request should be addressed to the 
Secretary.
    (ii) Basis. The 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 upon the requestor.
    (iii) Board action. The Secretary will notify the applicant of the 
decision to grant or deny the request for waiver or reduction.
    (f) Schedule of filing fees.

------------------------------------------------------------------------
                      Type of proceeding                           Fee
------------------------------------------------------------------------
 PART I: Non-Rail Applications or Proceedings to Enter Upon a
     Particular Financial Transaction or Joint Arrangement
 
(1) An application for the pooling or division of traffic.....    $2,900
(2) An application involving the purchase, lease,                  1,300
 consolidation, merger, or acquisition of control of a motor
 carrier of passengers under 49 U.S.C. 14303..................
(3) An application for approval of a non-rail rate association    18,100
 agreement. 49 U.S.C. 13703...................................
(4) An application for approval of an amendment to a non-rail
 rate association agreement:..................................
    (i) Significant amendment.................................     3,000
    (ii) Minor amendment......................................        60
(5) An application for temporary authority to operate a motor        300
 carrier of passengers. 49 U.S.C. 14303(i)....................
(6) A notice of exemption for transaction within a motor           1,100
 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 certificate authorizing the           4,700
     extension, acquisition, or operation of lines of
     railroad. 49 U.S.C. 10901................................
    (ii) Notice of exemption under 49 CFR 1150.31-1150.35.....     1,200
    (iii) Petition for exemption under 49 U.S.C. 10502........     8,200
(12):
    (i) An application involving the construction of a rail       48,800
     line.....................................................
    (ii) A notice of exemption involving construction of a         1,200
     rail line under 49 CFR 1150.36...........................
    (iii) A petition for exemption under 49 U.S.C. 10502          48,800
     involving construction of a rail line....................
(13) A Feeder Line Development Program application filed under     2,600
 49 U.S.C. 10907(b)(1)(A)(i) or 10907(b)(1)(A)(ii)............
(14):
    (i) An application of a class II or class III carrier to       4,100
     acquire an extended or additional rail line under 49
     U.S.C. 10902.............................................
    (ii) Notice of exemption under 49 CFR 1150.41-1150.45.....     1,200
    (iii) Petition for exemption under 49 U.S.C. 10502             4,300
     relating to an exemption from the provisions of 49 U.S.C.
     10902....................................................
(15) A notice of a modified certificate of public convenience      1,100
 and necessity under 49 CFR 1150.21-1150.24...................

[[Page 16]]

 
(16)-(20) [Reserved]
 
PART III: Rail Abandonment or Discontinuance of Transportation
                     Services Proceedings
 
(21):
    (i) An application for authority to abandon all or a          14,500
     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 abandonment or discontinuance         2,500
     under 49 CFR 1152.50.....................................
    (iii) A petition for exemption under 49 U.S.C. 10502......     4,100
(22) An application for authority to abandon all or a portion        300
 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 railroads.................     1,200
(24) A request for waiver of filing requirements for               1,100
 abandonment application proceedings..........................
(25) An offer of financial assistance under 49 U.S.C. 10904        1,000
 relating to the purchase of or subsidy for a rail line
 proposed for abandonment.....................................
(26) A request to set terms and conditions for the sale of or     14,800
 subsidy for a rail line proposed to be abandoned.............
(27) A request for a trail use condition in an abandonment           150
 proceeding under 16 U.S.C.1247(d)............................
(28)-(35) [Reserved]
 
     PART IV: Rail Applications to Enter Upon a Particular
          Financial Transaction or Joint Arrangement
 
(36) An application for use of terminal facilities or other       12,400
 applications under 49 U.S.C. 11102...........................
(37) An application for the pooling or division of traffic. 49     6,700
 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.....................................   976,500
    (ii) Significant transaction..............................   195,300
    (iii) Minor transaction...................................     5,200
    (iv) Notice of an exempt transaction under 49 CFR              1,100
     1180.2(d)................................................
    (v) Responsive application................................     5,200
    (vi) Petition for exemption under 49 U.S.C. 10502.........     6,100
(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.....................................   976,500
    (ii) Significant transaction..............................   195,300
    (iii) Minor transaction...................................     5,200
    (iv) A notice of an exempt transaction under 49 CFR              900
     1180.2(d)................................................
    (v) Responsive application................................     5,200
    (vi) Petition for exemption under 49 U.S.C. 10502.........     6,100
(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.....................................   976,500
    (ii) Significant transaction..............................   195,300
    (iii) Minor transaction...................................     5,200
    (iv) A notice of an exempt transaction under 49 CFR              800
     1180.2(d)................................................
    (v) Responsive application................................     5,200
    (vi) Petition for exemption under 49 U.S.C. 10502.........     6,100
(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.....................................   976,500
    (ii) Significant transaction..............................   195,300
    (iii) Minor transaction...................................     5,200
    (iv) Notice of an exempt transaction under 49 CFR                950
     1180.2(d)................................................
    (v) Responsive application................................     5,200
    (vi) Petition for exemption under 49 U.S.C. 10502.........     4,300
(42) Notice of a joint project involving relocation of a rail      1,600
 line under 49 CFR 1180.2(d)(5)...............................
(43) An application for approval of a rail rate association       45,700
 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.................................     8,500
    (ii) Minor amendment......................................        60
(45) An application for authority to hold a position as              500
 officer or director under 49 U.S.C. 11328....................
(46) A petition for exemption under 49 U.S.C. 10502 (other         5,200
 than a rulemaking) filed by rail carrier not otherwise
 covered......................................................
(47) National Railroad Passenger Corporation (Amtrak)                150
 conveyance proceeding under 45 U.S.C. 562....................
(48) National Railroad Passenger Corporation (Amtrak)                150
 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 the coal rate              54,500
     guidelines (Stand-Alone Cost Methodology) alleging
     unlawful rates and/or practices of rail carriers under 49
     U.S.C. 10704(c)(1).......................................
    (ii) All other formal complaints (except competitive           5,400
     access complaints).......................................
    (iii) Competitive access complaints.......................       150
(57) A complaint seeking or a petition requesting institution     5,800.
 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 order involving a dispute       1,000
     over an existing rate or practice which is comparable to
     a complaint proceeding...................................
    (ii) All other petitions for declaratory order............     1,400
(59) An application for shipper antitrust immunity. 49 U.S.C.      4,600
 10706(a)(5)(A)...............................................
(60) Labor arbitration proceedings............................       150
(61) Appeals to a Surface Transportation Board decision and          150
 petitions to revoke an exemption pursuant to 49 U.S.C.
 10502(d).....................................................
(62) Motor carrier undercharge proceedings....................       150

[[Page 17]]

 
(63)-(75) [Reserved]
 
                 PART VI: Informal Proceedings
 
(76) An application for authority to establish released value        800
 rates or ratings for motor carriers and freight forwarders of
 household goods under 49 U.S.C. 14706........................
(77) An application for special permission for short notice or        80
 the waiver of other tariff publishing requirements...........
(78):
    (i) The filing of tariffs, including supplements, or               1
     contract summaries (per page, $16 minimum charge)........
    (ii) Tariffs transmitted by fax (per page)................         1
(79) Special docket applications from rail and water carriers:
    (i) Applications involving $25,000 or less................        50
    (ii) Applications involving over $25,000..................       100
(80) Informal complaint about rail rate applications..........       400
(81) Tariff reconciliation petitions from motor common
 carriers:
    (i) Petitions involving $25,000 or less...................        50
    (ii) Petitions involving over $25,000.....................       100
(82) Request for a determination of the applicability or             150
 reasonableness of motor carrier rates under 49 U.S.C.
 13710(a)(2) and (3)..........................................
(83) Filing of documents for recordation. 49 U.S.C. 11301 and         26
 49 CFR 1177.3(c) (per document)..............................
(84) Informal opinions about rate applications (all modes)....       150
(85) A railroad accounting interpretation.....................       700
(86) An operational interpretation............................       950
(87) Arbitration of Certain Disputes Subject to the Statutory
 Jurisdiction of the Surface Transportation Board under 49 CFR
 1108:
    (i) Complaint.............................................        75
    (ii) Answer (per defendant), Unless Declining to Submit to        75
     Any Arbitration..........................................
    (iii) Third Party Complaint...............................        75
    (iv) Third Party Answer (per defendant), Unless Declining         75
     to Submit to Any Arbitration.............................
    (v) Appeals of Arbitration Decisions or Petitions to             150
     Modify or Vacate an Arbitration Award....................
(88)-(95) [Reserved]
 
                      PART VII: Services
 
(96) Messenger delivery of decision to a railroad carrier's           21
 Washington, DC, agent (per delivery).........................
(97) Request for service or pleading list for proceedings (per        16
 list)........................................................
(98):
    (i) Processing the paperwork related to a request for the        200
     Carload Waybill Sample to be used in a Surface
     Transportation Board or State proceeding that does not
     require a Federal Register notice........................
    (ii) Processing the paperwork related to a request for           400
     Carload Waybill Sample to be used for reasons other than
     a Surface Transportation Board or State proceeding that
     requires a Federal Register notice.......................
(99):
    (i) Application fee for the Surface Transportation Board's       100
     Practitioners' Exam......................................
    (ii) Practitioners' Exam Information Package..............        25
(100) Uniform Railroad Costing System (URCS) software and
 information:
    (i) Initial PC version URCS Phase III software program and        50
     manual...................................................
    (ii) Updated URCS PC version Phase III cost file, if              10
     computer disk provided by requestor......................
    (iii) Updated URCS PC version Phase III cost file, if             20
     computer disk provided by the Board......................
    (iv) Public requests for Source Codes to the PC version          500
     URCS Phase III...........................................
    (v) PC version or mainframe version URCS Phase II.........       400
    (vi) PC version or mainframe version Updated Phase II             50
     databases................................................
    (vii) Public requests for Source Codes to PC version URCS      1,500
     Phase II.................................................
(101) Carload Waybill Sample data on recordable compact disk
 (R-CD):
    (i) Requests for Public Use File on R-CD--First Year......       450
    (ii) Requests for Public Use File on R-CD Each Additional        150
     Year.....................................................
    (iii) Waybill--Surface Transportation Board or State             650
     proceedings on R-CD--First Year..........................
    (iv) Waybill--Surface Transportation Board or State              450
     proceedings on R-CD--Second Year on same R-CD............
    (v) Waybill--Surface Transportation Board or State               500
     proceeding on R-CD--Second Year on different R-CD........
    (vi) User Guide for latest available Carload Waybill             450
     Sample...................................................
------------------------------------------------------------------------

    (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 $6.00 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 in the Finding Aids 
section of this volume.



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

[[Page 18]]

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 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) Rounding of updated fees. Updated fees shall be rounded 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]



PART 1003--FORMS--Table of Contents




    Authority: 49 U.S.C. 721, 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 the Secretary, Surface 
Transportation Board, Washington, DC 20423.

[57 FR 41112, Sept. 9, 1992, as amended at 64 FR 53266, Oct. 1, 1999]



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. 721.

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

[[Page 19]]



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.



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. 721, 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

[[Page 20]]

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 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

[[Page 21]]

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 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.

    (a) 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 final disposition thereof and it 
shall retain a copy of such advice to the claimant in its claim file 
thereon.
    (b) When settling a claim for loss or damage, a common carrier by 
motor vehicle of household goods as defined in Sec. 1056.1(b)(1) shall 
use the replacement costs of the lost or damaged item as a base to apply 
a depreciation factor to arrive at the current actual value of the lost 
or damaged item: Provided, That where an item cannot be replaced or no 
suitable replacement is obtainable, the proper measure of damages shall 
be the original costs, augmented by a factor derived from a consumer 
price index, and adjusted downward by a factor depreciation over average 
useful life.

[37 FR 4258, Mar. 1, 1972, as amended at 46 FR 16224, Mar. 11, 1981; 47 
FR 12803, Mar. 25, 1982]



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.

[[Page 22]]

    (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. 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.

    Authority: 5 U.S.C. 552, 49 U.S.C. 721.

    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

[[Page 23]]

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, 1925 K Street, NW, Washington, DC 20423.
    (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.
    (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]



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,

[[Page 24]]

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 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

[[Page 25]]

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 of the United 
States 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 Administrator of General Services 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 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 General Accounting 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, 
1925 K Street, NW, Washington, DC 20423, except that the accounting will 
not be revealed with respect to disclosures made under paragraph (a)(7) 
of this Sec. 1107.6 pertaining to law enforcement activity, and will not 
be maintained as to disclosures involving systems of records exempted 
under Sec. 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 Secs. 1007.8 and 1007.9, the Board will inform any 
person or other agency

[[Page 26]]

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]



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 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 Secs. 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.

[[Page 27]]

    (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 
Secs. 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 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:

[[Page 28]]

    (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 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  Divisions of the Board.

[[Page 29]]

1011.4  The Chairman, Vice Chairman, and Senior Board Member present.
1011.5  Delegations to individual Board Members.
1011.6  Employee boards.
1011.7  Delegations of authority by the Chairman.
1011.8  Delegations of authority by the Board to specific offices of the 
          Board.

    Authority: 5 U.S.C. 553; 31 U.S.C. 9701, and 49 U.S.C. 701, 721, 
11144, 14122, and 15721.

    Source: 58 FR 29357, May 20, 1993, unless otherwise noted.



Sec. 1011.1  General.

    (a) This part describes the organization of the Board, and the 
assignment of jurisdiction and 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. 1011.5(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
    (iii) The determination 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 authority delegated at Sec. 1011.8(c). 
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.



Sec. 1011.3  Divisions of the Board.

    The Board may establish such divisions as it considers necessary to 
handle any matter before it.



Sec. 1011.4  The Chairman, Vice Chairman, and Senior Board Member present.

    (a)(1) The Chairman of the Board is appointed by the President as 
provided by 49 U.S.C. 10301(b). The Chairman has authority, duties, and 
responsibilities assigned under 49 U.S.C. 10301(f) 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 Vice Chairman, the senior Board Member present, based on 
time of continuous service as a member of the Board, is Acting Chairman, 
and has the authority and responsibilities of the Chairman and Vice 
Chairman.
    (b)(1) The Chairman is the executive head of the Board and has 
general responsibility for:
    (i) The overall management and functioning of the Board;
    (ii) The formulation of plans and policies designed to assure the 
effective

[[Page 30]]

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 expenditure of funds.
    (3) In carrying out his 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 and 
bureaus 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 Secretary 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 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 considers necessary.
    (7)[Reserved]
    (8) 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.
    (9) The Chairman may authorize any officer, employee, or 
administrative unit of the Board to perform a function vested in or 
delegated to the Chairman.
    (10) The Chairman authorizes the institution of investigations on 
the Board's own motion, and their discontinuance at any time before 
hearing, except for investigations under 49 U.S.C. 10708.
    (11) The Chairman approves for publication all publicly-issued 
documents by a bureau or 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 a bureau or office, or an 
initial decision of a hearing officer; and
    (iii) Documents prepared for court cases or for introduction into 
evidence in a formal proceeding.

[58 FR 29357, May 20, 1993, as amended at 64 FR 53266, Oct. 1, 1999]



Sec. 1011.5  Delegations to individual Board Members.

    (a) The following matters are referred to the Chairman of the Board:

[[Page 31]]

    (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 wilfully in violating the 
Privacy Act.
    (7) Issuance of certificates and decisions when no protest is 
received within 30 days after an abandonment or discontinuance 
application is filed under 49 U.S.C. 10903 and the Board must find, 
under 49 U.S.C. 10904(b), that the public convenience and necessity 
require or permit the abandonment or discontinuance.
    (8) 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 has been filed.
    (9) 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 15721.
    (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 Board or if removed from the Board 
by the Vice Chairman.
    (2) Matters involving the admission, disbarment, or discipline of 
practitioners before the Board under 49 CFR part 1103.
    (3) In cases of calamitous visitation:
    (i) Reduced rates authorization under 49 U.S.C. 10721;
    (ii) Relief from the provisions of 49 U.S.C. 10730; and
    (c) The Chairman, Vice Chairman, or any 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.

58 FR 29357, May 20, 1993, as amended at 62 FR 48955, Sept. 18, 1997; 62 
FR 50883, Sept. 29, 1997]



Sec. 1011.6  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 revised 
Interstate Commerce Act (IC Act), subtitle IV of title 49 of the U.S. 
Code, 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 IC Act; 
and

[[Page 32]]

    (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.

[62 FR 50883, Sept. 29, 1997]



Sec. 1011.7  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)(1) 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.
    (2)  [Reserved]
    (c)(1) As used in this paragraph, procedural matter includes, but is 
not limited to, the assignment of the time and place of 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 handling under 
modified (non-oral hearing) procedure; the consolidation of proceedings 
for hearing or disposition; the postponement of hearings and of 
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,
    (iv) Orders suspending or revoking operating authority, or
    (v) Final decisions where petitions for discretionary review have 
been filed under 49 CFR 1115.5.
    (2) Unless otherwise ordered by the Board in individual proceedings, 
authority to dispose of procedural matters arising before issuance of an 
initial decision in proceedings assigned for handling under oral hearing 
procedure or assigned to an Administrative Law Judge under modified 
procedure is delegated to the Chief Administrative Law Judge of the 
Board. Notwithstanding this delegation, Board Members, Administrative 
Law Judges, and Joint Boards appointed under 49 U.S.C. 10341-10344 
retain the authority to dispose of procedural matters 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 arising after issuance of an 
initial decision by a hearing officer in a proceeding that has been the 
subject of an oral hearing, is delegated to the Secretary of the Board. 
The Secretary shall also have authority, unless otherwise ordered by the 
Chairman or by a majority of the Board in individual proceedings, to 
decide whether operating rights application and complaint proceedings 
shall be handled under the modified procedure or be assigned set for 
oral hearings. In carrying out these duties, the Secretary shall 
consult, as necessary, with the General Counsel and the Director of any 
other 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 Secretary and to the Chief Administrative 
Law Judge.
    (e) [Reserved]
    (f) 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.

[[Page 33]]

    (g) 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 and Associate Director of the Office of Economics, 
Environmental Analysis, and Administration and the Chief of the Section 
of Economics.
    (h) The Secretary of the Board 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.
    (i) Issuance of certificates and decisions when no protest is 
received within 30 days after an abandonment or discontinuance 
application is filed under 49 U.S.C. 10903, and the Board must find, 
under 49 U.S.C. 10904(b) that the public convenience and necessity 
require or permit the abandonment or discontinuance, is delegated to the 
Director of the Office of Proceedings.
    (j) 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 has been filed is delegated to the Director of the Office of 
Proceedings.

[58 FR 29357, May 20, 1993, as amended at 61 FR 52710, Oct. 8, 1996; 62 
FR 50884, Sept. 29, 1997; 64 FR 53266, Oct. 1, 1999]



Sec. 1011.8  Delegations of authority by the Board to specific offices of the Board.

    (a) Office of Congressional and Public Services. (1) There is 
established an Office of Congressional and Public Services. The Office 
assumes the functions previously assigned to the former Office of 
Special Counsel, the former Small Business Assistance Office, and the 
State/Community Affairs Liaison position formerly in the Office of 
Legislation and Governmental Affairs.
    (2) The Office shall be managed by a Director, who also serves as 
Special Counsel of the Board, and by a Deputy Director, who also serves 
as the Small Business Assistance Officer of the Board. The Special 
Counsel shall be appointed by the Chairman, subject to the approval of a 
majority of the Board.
    (3) The mission of the Office is to assist the Board and the public 
in determining and representing the public interest, with regard to the 
Interstate Commerce Act and related statutes. The primary function of 
the Office is to act as the focal point to coordinate Board activities 
ensuring that:
    (i) The public interest is fully developed in proceedings before the 
Board and especially to contribute to the development of a complete 
record in proceedings in which important aspects of the public interest 
otherwise would not be explored adequately, particularly proceedings 
affecting the interests of bus passengers, household goods shippers, 
owner operators, and classes II and III rail carriers and the shippers 
they serve;
    (ii) Small and minority-owned transportation entities, 
transportation-related entities, consumer groups, small communities, 
carriers and shippers, and State regulatory officials are advised on the 
applicability of the law and of the availability of assistance from the 
Board as this applies to their enterprise; and
    (iii) The Board is advised on policy matters regarding its small 
business assistance functions and programs.
    (4) The Office will participate as a party in Board proceedings, 
including rulemakings, only on the filing of a petition seeking, and on 
the approval of a majority of the Board granting, such recourse.
    (5) The Office of Hearings, in noticing cases for public hearings, 
shall advise parties of the availability of assistance from the Office 
of Public Assistance.
    (b) Office of the Secretary. The Secretary of the Board is delegated 
the following authority:
    (1) Whether (in consultation with involved Offices) to waive filing 
fees set forth at 49 CFR 1002.2(f).
    (2) To issue, on written request, informal opinions and 
interpretations

[[Page 34]]

(exclusive of informal opinions and interpretations on carrier tariff 
provisions), which are not binding on the Board. In issuing informal 
opinions or interpretations, the Secretary shall consult with the 
Director of the appropriate Board office. Such requests must be directed 
to the Office of the Secretary, Surface Transportation Board, 
Washington, DC 20423. Authority to issue informal opinions and 
interpretations on carrier tariff provisions is delegated at 49 CFR 
1011.8(d)(2) to the Office of Compliance and Enforcement.
    (c) Office of Proceedings. The Director of the Office of Proceedings 
shall have authority initially determinative of the following:
    (1) Whether to designate protested abandonment proceedings for 
investigation (including action on requests for oral hearing).
    (2) Whether offers of financial assistance satisfy the statutory 
standards of 49 U.S.C. 10905(d) for the purpose of negotiations or, in 
exemption proceedings, for purposes of partial revocation and 
negotiations.
    (3) Whether: (i) To impose, modify, or remove environmental and 
historic preservation conditions; and
    (ii) In abandonment proceedings, to impose public use conditions 
under 49 U.S.C. 10906 and the implementing regulations at 49 CFR 
1152.28.
    (4) In abandonment proceedings, when a request for interim trail 
use/rail banking is filed under 49 CFR 1152.29, determining whether the 
National Trails System Act, 16 U.S.C. 1247(d), is applicable and, where 
appropriate, issuing Certificates of Interim Trail Use or Abandonment 
(in application proceedings) or Notices of Interim Trail Use or 
Abandonment (in exemption proceedings).
    (5) 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).
    (6) Whether to institute requested declaratory order proceedings 
under 5 U.S.C. 554(e).
    (7) In all exemption proceedings under 49 U.S.C. 11343(e) involving 
non-rail intermodal parties, to make such findings as necessary and to 
issue notices of exemption.
    (8) To issue decisions, after 60 days' notice by any person 
discontinuing a subsidy established under 49 U.S.C. 10905 and at the 
railroad's request:
    (i) In application proceedings, immediately issuing certificates of 
abandonment or discontinuance; and
    (ii) In exemption proceedings, immediately vacating the decision 
that postponed the effective date of the exemption.
    (9) In proceedings under the Feeder Railroad Development Program 
under 49 U.S.C. 10910 and the implementing regulations at 49 CFR part 
1151:
    (i) Whether to accept or reject primary applications under 
Sec. 1151.2(b); competing applications under Sec. 1151.2(c); and 
incomplete applications under Sec. 1151.2(d);
    (ii) Whether to grant waivers from specific provisions of 49 CFR 
part 1151.
    (10) 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 Section of Environmental Analysis.
    (11) Whether to issue notices of exemption under 49 U.S.C. 10502:
    (i) For acquisition, lease, and operation transactions under 49 
U.S.C. 10901 and the implementing regulations at 49 CFR part 1150, 
subpart D; and
    (ii) For rail transactions under 49 U.S.C. 11343 and the 
implementing regulations at 49 CFR 1180.2(d).
    (12) 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 
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.
    (13) Whether to issue rail modified certificates of public 
convenience and necessity under 49 CFR part 1150, subpart C.
    (14) Whether to waive the regulations at 49 CFR part 1152, subpart 
C, on appropriate petition.

[[Page 35]]

    (15) 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.
    (16) To reject applications by Burlington Northern Railroad 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).
    (17) Whether to extend the 120-day limit within which 49 U.S.C. 
10706(b)(3)(B)(vii) mandates that rate bureaus shall finally dispose of 
rules or rates docketed with them.
    (18) Whether, absent controversy or unusual circumstances, to issue 
notices of provisional recertification under State Intrastate Rail Rate 
Authority, 5 I.C.C.2d 680, 684 (1989).
    (d) Office of Compliance and Enforcement. The Office of Compliance 
and Enforcement is delegated the authority to:
    (1) Reject tariffs and railroad transportation contract summaries 
filed with the Board that violate applicable statutes, rules, or 
regulations. Any rejection of a tariff or contract summary may be by 
letter signed by or for the Director, Office of Compliance and 
Enforcement, or the Chief, Section of Tariffs, Office of Compliance and 
Enforcement.
    (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 
Compliance and Enforcement, or the Chief, Section of Tariffs, Office of 
Compliance and Enforcement.
    (4) Resolve any disputes that may arise concerning the applicability 
of motor common carrier rates under 49 U.S.C. 13710(a)(2).

[58 FR 29357, May 20, 1993, as amended at 62 FR 50884, Sept. 29, 1997; 
64 FR 53266, Oct. 1, 1999; 65 FR 8281, Feb. 18, 2000]



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. 701, 721.

    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

[[Page 36]]

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 Secretary of the 
Board.

[42 FR 13796, Mar. 11, 1977, as amended at 64 FR 53266, 53267, Oct. 1, 
1999]



Sec. 1012.2  Time and place of meetings.

    (a) Conferences, oral arguments, and other meetings are held at the 
Board's offices located at 1925 K Street, NW, Washington, DC, 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]



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 
Secretary 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. Unless 
otherwise specified, that official will be the Board's Public 
Information Officer, whose telephone number is (202) 275-7252.
    (c) Except as provided in paragraphs (d) and (e) of this section, 
public notice will be given at least one week before the date upon which 
a meeting is scheduled.
    (d) Due and timely execution of the Board's functions will not 
normally permit the giving of one week's public notice of meetings 
called to consider or determine whether to suspend or investigate a 
tariff or schedule under sections 15(7), 15(8), 215(g), 218(c), 307(g), 
307(i), or 406(e) of the Interstate Commerce Act (49 U.S.C. 15(7), 
15(8), 316(g),

[[Page 37]]

318(c), 907(g), 907(i), 1006(e)); to consider whether to grant special 
permission to deviate from tariff filing requirements under section 
6(3), 217(c), 218(a), 306(d), 306(e), or 405(d) of the Interstate 
Commerce Act (49 U.S.C. 6(3), 317(c), 318(a), 906(d), 906(e), or 
1005(d)); or to consider or dispose of an application for temporary 
authority under section 210a(a) or 311(a) of the Interstate Commerce Act 
(49 U.S.C. 310a(a) or 911(a)). Such meetings will normally be called on 
less than one week's notice, and public notice will be posted and 
published at the earliest practicable time.
    (e) 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.
    (f) 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 vote of each Board Member on the 
change.

[42 FR 13796, Mar. 11, 1977, as amended at 64 FR 53267, Oct. 1, 1999]



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 and 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

[[Page 38]]

public or the closing of a meeting proposed to be open to the public. In 
the case of a meeting of the Board, the original and 15 copies of such a 
petition shall be filed, and in the case of a meeting of a Division or 
committee of the Board, an original and five copies 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.
    (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.



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)

[[Page 39]]

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.
    (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. 721, 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.

[[Page 40]]

    (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. 11343 will result from termination of the trust.



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 Board (17 CFR 240.13d-1) which reports the purchase of 5 
percent or more of the registered securities of another I.C.C. regulated 
carrier (or the listed shares of a company controlling 10 percent or 
more of the stock of an I.C.C. regulated carrier), must simultaneously 
file a copy of that schedule with this Board, along with any supplements 
to that schedule.
    (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.



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--1014.109  [Reserved]
1014.110  Self-evaluation.
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.

[[Page 41]]

    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--
    (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

[[Page 42]]

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.



Secs. 1014.104--1014.109  [Reserved]



Sec. 1014.110  Self-evaluation.

    (a) The agency shall, by August 24, 1987, evaluate its current 
policies and practices, and the effects thereof, that do not or may not 
meet the requirements of this part, and, to the extent modification of 
any such policies and practices is required, the agency shall proceed to 
make the necessary modifications.
    (b) The agency shall provide an opportunity to interested persons, 
including handicapped persons or organizations representing handicapped 
persons, to participate in the self-evaluation process by submitting 
comments (both oral and written).
    (c) The agency shall, until three years following the completion of 
the self-evaluation, maintain on file and make available for public 
inspection:
    (1) A description of areas examined and any problems identified, and
    (2) A description of any modifications made.



Sec. 1014.111  Notice.

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



Secs. 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

[[Page 43]]

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 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.



Secs. 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.



Secs. 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--

[[Page 44]]

    (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.
    (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--

[[Page 45]]

    (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.



Secs. 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. 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 adminstrative 
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.



Secs. 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

[[Page 46]]

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.
    (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]



Secs. 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  Payment of award.

    Authority: 5 U.S.C. 504(c)(1), 49 U.S.C. 721.

[[Page 47]]


    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 include, but are not limited to, 
investigation proceedings instituted under 49 U.S.C. 11701 and 49 U.S.C. 
10925 and disciplinary proceedings conducted pursuant to 49 CFR 1100.11.
    (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.



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.

[[Page 48]]

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 1954 (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 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]



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 $75.00 per hour, unless a higher fee

[[Page 49]]

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]



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. 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(f) 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

[[Page 50]]

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]



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 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 Secs. 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]

[[Page 51]]



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 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  Payment of award.

    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 Secretary, Surface 
Transportation Board, Washington, DC 20423. 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

[[Page 52]]

of the underlying decision of the adversary adjudication has been sought 
by the applicant or any other party to the proceeding.



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; 4 CFR 
parts 101-105; 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 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

[[Page 53]]

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 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));

[[Page 54]]

    (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 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]

[[Page 55]]



Sec. 1017.5  Hearing procedures.

    (a) Upon the Administrative Law Judge's determination of an 
employee's compliance with Sec. 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 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. 1017.4 through 
Sec. 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

[[Page 56]]

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 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 1108 must be provided 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]



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

[[Page 57]]

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 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.

[[Page 58]]

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. 721, 4 
CFR parts 101-105.

    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 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

[[Page 59]]

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 Chief, Section of 
Financial Services, Surface Transportation Board, room 1330, Washington, 
DC 20423.

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



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
    (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, 4 CFR parts 101 through 105, 
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.



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 or suspending or terminating collection 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.



             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:

[[Page 60]]

    (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 (4 CFR 102.13 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 4 CFR 102.5 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 not prevent the 
Board from proceeding with respect to that matter.

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



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

[[Page 61]]

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.
    (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 or insurance 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 or cashier's check or a money order. The Board reserves 
the right to refuse to maintain an account which is repeatedly 
delinquent.
    (b) Suspension or revocation of tariff or insurance filing 
privileges. If the account holder fails to satisfy all claims for tariff 
or insurance filing fees including applicable interest, penalties, and 
the administrative costs of collection of the debt, the Board may 
suspend or prohibit a tariff or insurance filing fee account holder from 
submitting tariff or insurance filings in its own name or on behalf of 
others.
    (c) Suspension or revocation of certificates, licenses, or permits 
granted by the

[[Page 62]]

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 or 
certificates, licenses, or permits for failure to pay tariff or 
insurance filing fees. Before suspending or revoking an account holder's 
privilege to submit tariff or insurance 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 or insurance 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.



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 
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 4 CFR 102.2, 102.3, and 
102.4 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 4 CFR 102.4 
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.

[[Page 63]]

    (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 4 CFR 102.3(c).
    (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.
    (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.



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

[[Page 64]]

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, 4 
CFR 102.13 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 4 CFR 102.2 and 102.13.
    (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 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.



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:

[[Page 65]]

    (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.



                    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 4 CFR 103.4.
    (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, 4 CFR part 103.
    (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:

[[Page 66]]

    (1) The entire balance of the debt becomes immediately due and 
payable; and
    (2) The Government has the right to enforce any security agreement.



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.



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.

[[Page 67]]



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 judgement 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.



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 4 CFR 105.2. Care must be taken to preserve all 
files, records, and exhibits on claims referred under paragraphs (a) and 
(b) of this section.



              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

[[Page 68]]

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 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;
    (8) All other requirements of 31 U.S.C. 3720A and the Department of 
the Treasury regulations codified at 26 CFR 301.6402-6T relating to the 
eligibility of a debt for tax return offset have been satisfied.



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

[[Page 69]]

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.



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. 721.

    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 Executive 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]



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

[[Page 70]]

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--Table of Contents






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 (31 U.S.C. 951 et 
seq.) and published in 4 CFR parts 101 through 105 are hereby adopted by 
the Surface Transportation Board for the administrative collection of 
enforcement claims.



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.

[[Page 71]]



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.



PARTS 1030-1039--CARRIERS SUBJECT TO PART I, INTERSTATE COMMERCE ACT--Table of Contents






PART 1033--CAR SERVICE--Table of Contents




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

    Authority: 49 U.S.C. 721, 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.
    (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

[[Page 72]]

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 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]

[[Page 73]]



PART 1034--ROUTING OF TRAFFIC--Table of Contents




    Editorial Note:  For service orders issued under this part before 
1983 but not carried in the Code of Federal Regulations, see the List of 
CFR Sections Affected in the Finding Aids section of this volume.

    Authority: 49 U.S.C. 721, 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 telegraphic notice to the Association of American Railroads 
and the Board's Office of Compliance and Enforcement 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 Compliance and Enforcement, 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]



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. 721, 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.

[[Page 74]]



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.

                         Appendix A to Part 1035

                     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__________________________, 19__

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_____________________________________________________________

Car No__________________________________________________________________

Trailer Initials/Number_________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Container Initials/Number_______________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________


[[Page 75]]

________________________________________________________________________

----------------------------------------------------------------------------------------------------------------
                           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
 
Per
 
Permanent post office address of shipper

                         Appendix B to Part 1035

                      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 
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

[[Page 76]]

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.
    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 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

[[Page 77]]

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 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

[[Page 78]]

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, 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

[[Page 79]]

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.



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. 721.

    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.
    (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

[[Page 80]]

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 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.
1039.12  Long and short haul transportation exemption.
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.
1039.21  International joint through rates.
1039.22  Exemption of certain payments, services, and commitments from 
          the Elkins Act and related provisions.


[[Page 81]]


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

[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]



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 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-   Dimension stone,
                                   92.                 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.

[[Page 82]]

 
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-   Used vehicles.
                                   93.
14 715..........................  6001-V, eff. 1-1-   Rock salt.
                                   94.
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-   Steel shipping
                                   95..                containers.
40 211..........................  ......do..........  Iron and steel
                                                       scrap.
33 119..........................  6001-X, eff. 1-11-  Blast furnace,
                                   96.                 open hearth,
                                                       rolling mill or
                                                       coke oven
                                                       products, NEC.
20511...........................  6001-X, eff., 1-1-  Bread or other
                                   96.                 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.
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.

[[Page 83]]

 
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.
    (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, as amended at 48 FR 33306, July 21, 1983; 48 
FR 55744, Dec. 15, 1983; 54 FR 51402, Dec. 15, 1989; 56 FR 31547, July 
11, 1991; 58 FR 4356, Jan. 14, 1993; 58 FR 27951, May 12, 1993; 58 FR 
43818, Aug. 18, 1993; 58 FR 53434, Oct. 15, 1993; 59 FR 51134, Oct. 7, 
1994; 59 FR 59663, Nov. 18, 1994; 59 FR 63926, Dec. 12, 1994; 60 FR 
26840, May 19, 1995; 60 FR 38281, July 26, 1995; 61 FR 7426, Feb. 28, 
1996; 61 FR 47446, Sept. 9, 1996; 61 FR 66231, Dec. 17, 1996; 63 FR 
19665, Apr. 21, 1998]



Sec. 1039.12  Long and short haul transportation exemption.

    (a) All rates and charges for rail transportation are exempt from 
the provisions of 49 U.S.C. 10726 to the extent that:
    (1) Board approval or consideration before the effective date of 
these rates and charges is not required; and
    (2) Section 10707 will not apply to rates to the extent that they 
are challenged on the basis of alleged violations of section 10726.
    (b) This exemption does not extend to review by the Board upon the 
filing of a formal complaint alleging a violation of section 10726. 
Board review will, however, be subject to the following conditions:
    (1) A showing that a rate violates section 10726 will not create a 
presumption that the higher rate is unreasonably high, and
    (2) A finding by the Board that a rate or charge violates the 
provisions of section 10726 will not, absent a specific showing of 
damages, afford a basis for an award of reparations.

[48 FR 9649, Mar. 8, 1983]



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.
    (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.
    (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:

[[Page 84]]

    (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 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

[[Page 85]]

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. This 
exemption shall remain in effect, unless modified or revoked by a 
subsequent order of this 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]



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 carrriers 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 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 decision of this Board.

[51 FR 46675, Dec. 24, 1986]



Sec. 1039.21  International joint through rates.

    Rail carriers are exempt from the provisions of Sec. 1312.37 that 
require the filing of tariffs containing international joint through 
rates. Rail carriers must continue to comply with Board accounting and 
reporting requirements. This exemption shall remain in effect, unless 
modified or revoked by a subsequent order of this Board.

[51 FR 27046, July 29, 1986]



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 
would not be eligible for inclusion in rail contracts under 49 U.S.C. 
10713, such transaction(s) shall be exempt from 49 U.S.C. 10761(a), 
10762(a)(1), 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

[[Page 86]]

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]



PARTS 1070-1079--[RESERVED]






PARTS 1090-1099--INTERMODAL TRANSPORTATION--Table of Contents






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. 721.



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. 10505 (e) and (g), 109229(1), and 
10530, rail TOFC/COFC service and highway TOFC/COFC 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

[[Page 87]]

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]



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 
preformance 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 88]]





                     SUBCHAPTER B--RULES OF PRACTICE





PARTS 1100-1129--RULES OF GENERAL APPLICABILITY--Table of Contents






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. 721.

    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 Secretary, Surface Transportation Board 
or should telephone the Secretary's Office.

[64 FR 53267, Oct. 1, 1999]



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. 721.

    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 89]]

    (1) An informal complaint filed under Secs. 1130.1, or 1130.3 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. 10505 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]



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  Ex parte communications prohibited; penalties provided.

    Authority: 49 U.S.C. 721.



Sec. 1102.1  How addressed.

    All communications should be addressed to the Secretary of the 
Board, Surface Transportation Board, Washington, DC 20423 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.

[47 FR 49548, Nov. 1, 1982]



Sec. 1102.2  Ex parte communications prohibited; penalties provided.

    (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) ``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.
    (3) Ex Parte communication concerning the merits means an oral or 
written communication by or on the behalf of a party which is made 
without the knowledge or consent of any other party that could or is 
intended to influence anyone who participates or could reasonably be 
expected to participate in the decision.
    (b) Communications that are not prohibited. (1) Any communication to 
which all the parties to the proceeding agree, or on which the Board 
formally rules, may be made on an ex parte basis;
    (2) 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 on-the-record proceeding in 
which it is interested;
    (3) 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 on-the-record proceedings.

[[Page 90]]

    (c) Prohibitions. (1) No party, counsel, agent of a party, or person 
who intercedes in any on-the-record proceeding shall engage in any ex 
parte communication concerning the merits of the proceeding with any 
Board Member, hearing officer, joint board member, employee board member 
or employee of the Board who participates, or who may reasonably be 
expected to participate, in the decision in the proceeding.
    (2) No Board Member, hearing officer, joint board member, employee 
board member or employee of the Board who participates, or is reasonably 
expected to participate, in the decision in an on-the-record proceeding 
shall invite or knowingly entertain any ex parte communication 
concerning the merits of a proceeding 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. The prohibitions against ex parte 
communications concerning the merits of a proceeding apply from the date 
on which a proceeding is noticed for oral hearing or for the taking of 
evidence by modified procedure, or when the person responsible for the 
communication has knowledge that the proceeding will be so noticed, or 
at any time the Board, by rule or decision, specifies.
    (e) Procedure required of Board members and employees upon receipt 
of ex parte communications concerning the merits of a proceeding. Any 
person who receives an ex parte communication concerning the merits of a 
proceeding must promptly transmit either the written communication, or a 
written summary of the oral communication with an outline of the 
surrounding circumstances to the Secretary of the Board. The Secretary 
shall place all of the material in the correspondence section of the 
public docket of the proceeding. A recipient of such ex parte 
communication, who has doubt as to the nature of the communication, may 
request a ruling on the question from the Board's Designated Agency 
Ethics Official. The Designated Agency Ethics Official shall promptly 
reply to such requests. The Secretary shall promptly notify the Chairman 
of the Board of such ex parte communications sent to the Secretary. 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.
    (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 
concerning the merits of a proceeding.
    (2) The relief or benefit sought by a party to a 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 foregoing rules.

[47 FR 49548, Nov. 1, 1982, as amended at 58 FR 42027, Aug. 6, 1993]



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.

[[Page 91]]

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. 703(e), 721.

    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 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

[[Page 92]]

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 Secretary, Surface 
Transportation Board, Washington, DC 20423, 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. 853a.

    (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)(100). 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 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 ordinarily be 
conducted in selected cities where Board offices are located. A listing 
of the available sites will be attached to the application form. 
Applicants may select their preferred examination site. If a group of 
prospective applicants (three applicants or more) wishes to take the 
examination at a location not listed, a letter stating the preferred 
test site should be included with the application. The Board will make 
every effort to administer the test at the requested location.
    (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.

[[Page 93]]

    (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 the Secretary 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)(100). 
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)(100) 
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)(100).
    (o) Content and grading of examination. The Employee Board on 
Education and Practice is responsible, under the general supervision of 
the Vice-Chairman, for the examination of non-attorney applicants, for 
the preparation of examination questions, and for grading examinations. 
The Board consists of two attorneys and one non-attorney appointed by 
the Chairman with the approval of the Board. Under the supervision of 
this Board, a seven-member Committee of Examiners will grade the 
examination questions. The members of this Committee must have at least 
2 years experience with the Board and are appointed for a 2 year term by 
the Chairman, with the approval of the Board. Members may be reappointed 
and, to the extent possible, no more than three members of the Committee 
will be replaced at one time.
    (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]



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 Secretary of the 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.



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 
practitoner:
    (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 Secs. 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

[[Page 94]]

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.



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

[[Page 95]]

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 confidence 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.



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 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.

[[Page 96]]



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, Boards and rebates. A practitioner shall accept no 
compensation, Boards, 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 in behalf of 
the client.
    (h) Witnesses' compensation. Compensation of a witness is not to be 
made contigent 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.



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 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

[[Page 97]]

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.



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

[[Page 98]]

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 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

[[Page 99]]

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 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

[[Page 100]]

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 and identification.
1104.2  Typographical specification generally.
1104.3  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 and papers.
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. 853a.

    Authority: 5 U.S.C. 559; 21 U.S.C. 853a; 49 U.S.C. 721.

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



Sec. 1104.1  Address and identification.

    (a) Except as provided in Sec. 1115.7, pleadings should be addressed 
to the ``Secretary, Surface Transportation Board, Washington, DC 
20423,'' 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).

[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]



Sec. 1104.2  Typographical specification generally.

    Requirements. All pleadings should:
    (a) Be on opaque, unglazed, durable paper not exceeding 8\1/2\ by 11 
inches. Printing may appear on both sides of a page.
    (b) Be doubled-spaced except long quotations which must be singled-
spaced and indented.
    (c) Be reproduced by printing, or by any other process that results 
in clear and permanently legible copies. Any print that cannot be 
reproduced by photography is not acceptable.



Sec. 1104.3  Copies.

    (a) The original and 10 copies of every pleading document or paper 
permitted or required to be filed under this subchapter must be 
furnished for the use of the Board, unless otherwise specifically 
directed by another Board regulation or notice in an individual 
proceeding. 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. One copy of each such computer 
diskette or tape submitted to the Board should, if possible, be provided 
to any other party requesting a copy.
    (b) The original and 10 copies of all correspondence relating to a 
formal proceeding before the Board must be furnished for the Board's 
use, unless otherwise specifically directed by another Board regulation 
or notice in an individual proceeding.

[47 FR 49554, Nov. 1, 1982, as amended at 48 FR 34475, July 29, 1983; 53 
FR 19301, May 27, 1988; 61 FR 52711, Oct. 8, 1996; 61 FR 58491, Nov. 15, 
1996]

[[Page 101]]



Sec. 1104.4  Attestation and verification.

    (a) Signature of attorney or practitioner. If a party is represented 
by a 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 
by imprisonment up to 5 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 
5 years for each offense.

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



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.

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



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 of Columbia, in 
which event the period

[[Page 102]]

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, except 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. 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]



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 and papers.

    (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. When a 
party is represented by a practitioner or attorney, service upon the 
practitioner is deemed to be service upon the party.
    (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 
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. 10321, 5 U.S.C. 553)

[47 FR 49554, Nov. 1, 1982, as amended at 48 FR 44827, Sept. 30, 1983; 
61 FR 52711, Oct. 8, 1996]



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

[[Page 103]]

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.''
    (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.''

[48 FR 44827, Sept. 30, 1983, as amended at 61 FR 52711, Oct. 8, 1996]



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.
    (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. 853a.

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



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: 5 U.S.C. 553 and 559; 16 U.S.C. 470f, 1451, and 1531; 42 
U.S.C. 4332 and 6362(b); and 49 U.S.C. 701 note (1995) (section 204 of 
the ICC Termination Act of 1995), 721 (a) 10502, and 10903-10905.

    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 Economics, Environmental Analysis, and 
Administration shall have general responsibility for the overall 
management and functioning of the Section of Environmental Analysis. The 
Director 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 Chief of the Section of 
Environmental Analysis is responsible for the preparation of documents 
under these rules and is delegated the authority to provide 
interpretations of

[[Page 104]]

the Board's 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. The Director may further delegate 
procedural authority to the Chief of the Section of Environmental 
Analysis as appropriate. Appeals to the Board will be available as a 
matter of right.

[56 FR 36105, July 31, 1991, as amended at 64 FR 53268, Oct. 1, 1999]



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 Section of Environmental Analysis, Surface Transportation 
Board, 1925 K Street, NW, Washington, DC 20423.

[64 FR 53268, Oct. 1, 1999]



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 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) Section of Environmental Analysis or ``SEA'' means the Section 
that prepares the Board's environmental documents and analyses.
    (j) Third-Party Consultant means an independent contractor, utilized 
by the applicant, who works with SEA's approval and under SEA'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]



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

[[Page 105]]

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. 10905 (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]



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 or 
10910, or consolidation, merger or acquisition of control under 49 
U.S.C. 11343, 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;
    (6) Water carrier licensing under 49 U.S.C. 10922 that:
    (i) Involves a new operation (i.e., one that adds a significant 
number of barges to the inland waterway system requiring the addition of 
towing capacity, or otherwise significantly alters an existing 
operation, or introduces service to a new waterway that has had no 
previous traffic, or involves the commencement of a new service that is 
not statutorily exempt); or
    (ii) Involves the transportation of hazardous materials; and
    (7) Any other proceeding not listed in paragraphs (a) or (c) of this 
section.
    (c) No environmental documentation will normally be prepared 
(although a Historic Report may be required under section 1105.8) for 
the following actions:
    (1) Motor carrier, broker, or freight forwarder licensing and water 
carrier licensing not included in section 1105.6(b)(6);
    (2) 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 or 
10910, or consolidation, merger, or acquisition of control under 49 
U.S.C. 11343 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;

[[Page 106]]

    (v) Approval of motor vehicle rental contracts, and self insurance;
    (vi) Determinations of the fact of competition;
    (3) Rate, fare, and tariff actions;
    (4) Common use of rail terminals and trackage rights;
    (5) Discontinuance of rail freight service under a modified 
certificate issued pursuant to 49 CFR 1150.21;
    (6) Discontinuance of trackage rights where the affected line will 
continue to be operated; and
    (7) 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.



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.
    (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;
    (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 U.S. Soil 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.

For information regarding the names and addresses of the agencies to be 
contacted, interested parties may contact SEA at the address and 
telephone number indicated in Sec. 1105.3.
    (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

[[Page 107]]

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. 
10906 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 
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 10505) 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

[[Page 108]]

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. 10505), 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.
    (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):

[[Page 109]]

    (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 Secs. 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]



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.
    (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 
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 
apropriate 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.

[[Page 110]]

    (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]



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

[[Page 111]]

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 Section of Environmental Analysis 
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 the Section of Environmental Analysis.)
    (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, the Section of Environmental Analysis will verify and 
independently analyze the Environmental Report and/or Historic Report 
and related material submitted by an applicant pursuant to sections 
1105.7 and 1105.8. The Environmental Assessment will discuss relevant 
environmental and historic preservation issues. SEA 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.

[[Page 112]]

    (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 SEA. The environmental reporting 
requirements that would otherwise apply will be waived if a railroad 
hires a consultant, SEA approves the scope of the consultant's work, and 
the consultant works under SEA's supervision. In such a case, the 
consultant acts on behalf of the Board, working under SEA's direction to 
collect the needed environmental information and compile it into a draft 
EA or draft EIS, which is then submitted to SEA 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, CZMA, 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 SEA 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]



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.

   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 Section of Environmental Analysis (SEA), Surface 
Transportation Board, 1925 K Street, NW, Washington, DC 20423, telephone 
[INSERT TELEPHONE NUMBER] and refer to the above Docket No.

[[Page 113]]

(if available). Because the applicable statutes and regulations impose 
stringent deadlines for processing this action, your written comments to 
SEA (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]



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 
20423, 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 Section of Environmental Analysis (SEA) 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 Section 
of Environmental Analysis (SEA), Surface Transportation Board, 
Washington, DC 20423 or by calling that office at 202-927-6211.
    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 the Secretary, 1925 K Street, NW., Washington, DC 20423 [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 Congressional and Public Services 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).

 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 20423, a petition for exemption under 49 U.S.C. 
10505 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 Section of Environmental Analysis (SEA) will generally 
prepare an Environmental Assessment (EA), which will normally be 
available 60 days after the filing of the petition for abandonment 
exemption.

[[Page 114]]

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 
SEA, Surface Transportation Board, Washington, DC 20423 or by calling 
SEA at 202-927-6211.
    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 the Secretary, 1925 K Street, NW., Washington, DC 20423 [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 Congressional and Public Services 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]



PARTS 1106-1107  [RESERVED]






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




Sec.
1108.1  Definitions.
1108.2  Statement of purpose, organization, and jurisdiction.
1108.3  Matters subject to arbitration.
1108.4  Relief.
1108.5  Fees and costs.
1108.6  Arbitrators.
1108.7  Arbitration commencement procedures.
1108.8  Arbitration procedures.
1108.9  Decisions.
1108.10  Precedent.
1108.11  Enforcement and appeals.
1108.12  Additional matters.

    Authority: 49 U.S.C. 721(a).

    Source: 62 FR 46217, Sept. 2, 1997, unless otherwise noted.



Sec. 1108.1  Definitions.

    (a) Arbitrator means an arbitrator appointed pursuant to these 
provisions.
    (b) ICC means the Interstate Commerce Commission.
    (c) Interstate Commerce Act means the Interstate Commerce Act as 
amended from time to time, including the amendments made by the ICC 
Termination Act of 1995.
    (d) RSTAC means the Rail-Shipper Transportation Advisory Council 
established pursuant to 49 U.S.C. 726.
    (e) STB means the Surface Transportation Board.
    (f) 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.



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

    (a) These provisions are intended to provide a means for the 
binding, voluntary arbitration of certain disputes subject to the 
statutory jurisdiction of the STB, either between two or more railroads 
subject to the jurisdiction of the STB or between any such railroad and 
any other person.
    (b) These procedures shall not be available to obtain the grant, 
denial, stay or revocation of any license, authorization (e.g., 
construction, abandonment, purchase, trackage rights, merger, pooling) 
or exemption, or to prescribe for the future any conduct, rules, or 
results of general, industry-wide applicability. Nor are they available 
for arbitration that is conducted pursuant to labor protective 
conditions. These procedures are intended for the resolution of specific 
disputes between specific parties involving the payment of money or 
involving rates or practices related to rail transportation or service 
subject to the statutory jurisdiction of the STB.
    (c) The alternative means of dispute resolution provided for herein 
are established pursuant to the authority of the STB to take such 
actions as are necessary and appropriate to fulfill its jurisdictional 
mandate and not pursuant to the Administrative Dispute Resolution Act, 5 
U.S.C. 571 et seq.

[[Page 115]]

    (d) On January 1, 1996, the STB replaced the ICC. For purposes of 
these procedures, it is immaterial whether an exemption from regulation 
was granted by the ICC or the STB.



Sec. 1108.3  Matters subject to arbitration.

    (a) Any controversy between two or more parties, subject to 
resolution by the STB, and subject to the limitations in Sec. 1108.2 
hereof, may be processed pursuant to the provisions of this part 1108, 
if all necessary parties voluntarily subject themselves to arbitration 
under these provisions after notice as provided herein.
    (b) Arbitration under these provisions is limited to matters over 
which the STB has statutory jurisdiction and may include disputes 
arising in connection with jurisdictional transportation, including 
service being conducted pursuant to an exemption. An Arbitrator should 
decline to accept, or to render a decision regarding, any dispute that 
exceeds the STB's statutory jurisdiction. Such Arbitrator may resolve 
any dispute properly before him/her in the manner and to the extent 
provided herein, but only to the extent of and within the limits of the 
STB's statutory jurisdiction. In so resolving any such dispute, the 
Arbitrator will not be bound by any procedural rules or regulations 
adopted by the STB for the resolution of similar disputes, except as 
specifically provided in this part 1108; provided, however, that the 
Arbitrator will be guided by the Interstate Commerce Act and by STB and 
ICC precedent.



Sec. 1108.4  Relief.

    (a) Subject to specification in the complaint, as provided in 
Sec. 1108.7 herein, an Arbitrator may grant the following types of 
relief:
    (1) Monetary damages, to the extent available under the Interstate 
Commerce Act, with interest at a reasonable rate to be specified by the 
Arbitrator.
    (2) Specific performance of statutory obligations (including the 
prescription of reasonable rates), but for a period not to exceed 3 
years from the effective date of the Arbitrator's award.
    (b) A party may petition an Arbitrator to modify or vacate an 
arbitral award in effect that directs future specific performance, based 
on materially changed circumstances or the criteria for vacation of an 
award contained in 9 U.S.C. 10.
    (1) A petition to modify or vacate an award in effect should be 
filed with the STB. The petition will be assigned to the Arbitrator that 
rendered the award unless that Arbitrator is unavailable, in which event 
the matter will be assigned to another Arbitrator.
    (2) Any such award shall continue in effect pending disposition of 
the request to modify or vacate. Any such request shall be handled as 
expeditiously as practicable with due regard to providing an opportunity 
for the presentation of the parties' views.



Sec. 1108.5  Fees and costs.

    (a) Fees will be utilized to defray the costs of the STB in 
administering this alternate dispute resolution program in accordance 
with 31 U.S.C. 9701. The fees for filing a complaint, answer, third 
party complaint, third party answer, appeals of arbitration decisions, 
and petitions to modify or vacate an arbitration award will be as set 
forth in 49 CFR 1002.2(f)(87). All fees are non-refundable except as 
specifically provided and are due with the paying party's first filing 
in any proceeding.
    (b) The parties may agree among themselves who will bear the 
expenses of arbitration, including compensation of the arbitrator. 
Absent an agreement, each party will bear its own expenses, including, 
without limitation, fees of experts or counsel. Absent an agreement, the 
fees of the Arbitrator will be paid by the party or parties losing an 
arbitration entirely. If no party loses an arbitration entirely (as 
determined by the Arbitrator), the parties shall share equally (or pro 
rata if more than two parties) the fees and expenses, if any, of the 
Arbitrator, absent an agreement otherwise.



Sec. 1108.6  Arbitrators.

    (a) Arbitration shall be conducted by an arbitrator (or panel of 
arbitrators) selected, as provided herein, from a roster of persons 
(other than active government officials) experienced in rail 
transportation or economic issues

[[Page 116]]

similar to those capable of arising before the STB. The initial roster 
of arbitrators shall be established by the RSTAC in consultation with 
the Chairman of the STB, and shall contain not fewer than 21 names. The 
roster shall thereafter be maintained by the Chairman of the STB, who 
may augment the roster at any time to include other eligible arbitrators 
and may remove from the roster any arbitrators who are no longer 
available. The initial roster shall be published; thereafter the roster 
shall be available to the public, upon request, at all times. For each 
arbitrator on the roster, the roster shall disclose the level of the fee 
(or fee range) charged by that arbitrator.
    (b) The parties to a dispute may select an arbitrator (or panel of 
arbitrators) and submit the name(s) (and, if not already on the roster 
of arbitrators, the qualifications) of the agreed-upon person(s) in 
writing to the Chairman of the STB. Any person(s) so designated who is 
not already on the roster, if found to be qualified, will be added to 
the roster and may be used as the arbitrator(s) for that dispute.
    (c) If the parties cannot agree upon an arbitrator (or panel of 
arbitrators), then each party shall, using the roster of arbitrators, 
strike through the names of any arbitrators to whom they object, number 
the remaining arbitrators on the list in order of preference, and submit 
its marked roster to the Chairman of the STB. The Chairman will then 
designate the arbitrator (or panel of arbitrators, if mutually preferred 
by the parties) in order of the highest combined ranking of all of the 
parties to the arbitration.
    (d) The process of selecting an Arbitrator pursuant to this section 
shall be conducted confidentially following the completion of the 
Arbitration Commencement Procedures set forth in Sec. 1108.7 hereof.
    (e) If, at any time during the arbitration process, a selected 
Arbitrator becomes incapacitated, unwilling or unable to fulfill his/her 
duties, or if both parties agree that the arbitrator should be replaced, 
a replacement Arbitrator will be promptly selected under the process set 
forth in paragraphs (b) and (c) of this section.



Sec. 1108.7  Arbitration commencement procedures.

    (a) Each demand for arbitration shall be commenced with a written 
complaint. Because arbitration under these procedures is both voluntary 
and binding, the complaint must set forth in detail: the nature of the 
dispute; the statutory basis of STB jurisdiction; a clear, separate 
statement of each issue as to which arbitration is sought; and the 
specific relief sought. Each complaint shall contain a sworn, notarized 
verification, by a responsible official of the complaining party, that 
the factual allegations contained in the complaint are true and 
accurate. Each complaint must contain a statement that the complainant 
is willing to arbitrate pursuant to these arbitration rules and be bound 
by the result thereof in accordance with those rules, and must contain a 
demand that the defendants likewise agree to arbitrate and be so bound.
    (b) The complaining party shall serve, by overnight mail or hand 
delivery, a signed and dated original of the complaint on each defendant 
(on a responsible official at his or her usual place of business), and 
an original and two copies on the STB, accompanied by the filing fee 
prescribed under Sec. 1108.5(a) and set forth in 49 CFR 1002.2(f)(87). 
Each complaint served on a defendant shall be accompanied by a copy of 
this part 1108.
    (c) Any defendant willing to enter into arbitration under these 
rules must, within 30 days of the date of a complaint, answer the 
complaint in writing. The answer must contain a statement that the 
defendant is willing to arbitrate each arbitration issue set forth in 
the complaint or specify which such issues the defendant is willing to 
arbitrate. If the answer contains an agreement to arbitrate some but not 
all of the arbitration issues in the complaint, the complainant will 
have 10 days from the date of the answer to advise the defendant and the 
STB in writing whether the complainant is willing to arbitrate on that 
basis. Upon the agreement of the parties to arbitrate, these rules will 
be deemed incorporated by reference into the arbitration agreement.

[[Page 117]]

    (d) The answer of a party willing to arbitrate shall also contain 
that party's specific admissions or denials of each factual allegation 
contained in the complaint, affirmative defenses, and any counterclaims 
or set-offs which the defendant wishes to assert against the 
complainant. The right of a defendant to advance any counterclaims or 
set-offs, and the capacity of an Arbitrator to entertain and render an 
award with respect thereto, is subject to the same jurisdictional limits 
as govern the complaint.
    (e) A defendant's answer must be served on the complainant, other 
parties, and the STB in the same manner as the complaint.
    (f) A defendant willing to enter into arbitration under these 
procedures only if it is able to obtain cross-relief against another 
defendant or a non-party may serve an answer containing an agreement to 
arbitrate that is conditioned upon the willingness of any such third 
party to enter into arbitration as a third party defendant. 
Simultaneously with the service of any such conditional answer, the 
defendant making such answer shall serve a complaint and demand for 
arbitration on the party whose presence that defendant deems to be 
essential, such complaint and demand to be drawn and served in the same 
manner as provided in paragraphs (a) and (b) of this section. A 
defendant receiving such a complaint and demand for arbitration and that 
is willing to so arbitrate shall respond in the same manner as provided 
in paragraphs (c), (d), and (e) of this section.
    (g) Upon receipt of a complaint and demand for arbitration served by 
a complainant on a defendant, or by a defendant on a third-party 
defendant, the STB promptly will notify the parties serving and 
receiving such documents of any patent deficiencies, jurisdictional or 
otherwise, which the STB deems fatal to the processing of the complaint, 
and will suspend the timetable for processing the arbitration until 
further notice. If the complainant is unwilling or unable to remedy such 
deficiencies to the satisfaction of the STB within such time as the STB 
may specify, the complaint shall be deemed to be withdrawn without 
prejudice. Upon satisfaction that two or more parties have 
unconditionally agreed to arbitrate under these procedures, the STB will 
so notify the parties and commence procedures for the selection of an 
Arbitrator.
    (h) An agreement to arbitrate pursuant to these rules will be deemed 
a contract to arbitrate, subject to limited review by the STB pursuant 
to Sec. 1108.11(c), for the purpose of subjecting the arbitration award 
to the provisions of 9 U.S.C. 9 (court enforcement of an arbitration 
award), and 9 U.S.C. 10 (vacation of an arbitration award by a court on 
certain limited grounds).



Sec. 1108.8  Arbitration procedures.

    (a) The Arbitrator will establish rules, including timetables, for 
each arbitration proceeding.
    (1) The evidentiary process will be completed within 90 days from 
the start date established by the arbitrator, and the arbitrator's 
decision will be issued within 30 days from the close of the record. The 
parties may agree to vary these timetables, however, subject to the 
approval of the arbitrator. Matters handled through arbitration under 
these rules are exempted from any applicable statutory time limits, 
pursuant to 49 U.S.C. 10502.
    (2) Discovery will be available only upon the agreement of the 
parties.
    (b) Evidence will be submitted under oath. Evidence may be submitted 
in writing or orally, at the direction of the Arbitrator. Hearings for 
the purpose of cross-examining witnesses will be permitted at the sound 
discretion of the Arbitrator. The Arbitrator, at his/her discretion, may 
require additional evidence.
    (c) Subject to alteration by the Arbitrator or by agreement of the 
parties in individual proceedings, as a general rule, where evidence is 
submitted in written form, the complaining party will proceed first, and 
the defendant will proceed next. The complainant will then be given an 
opportunity to submit a reply. At the discretion of the Arbitrator, 
argument may be submitted with each evidentiary filing or in the form of 
a brief after the submission of all evidence. Page limits will be set by 
each Arbitrator for all written

[[Page 118]]

submissions of other than an evidentiary nature.
    (d) Any written document, such as a common carrier rate schedule, 
upon which a party relies should be submitted as part of that party's 
proof, in whole or in relevant part. The Arbitrator will not be bound by 
formal rules of evidence, but will avoid basing a decision entirely or 
largely on unreliable proof.
    (e) Where proof submitted to an Arbitrator addresses railroad costs, 
such proof should be prepared in accordance with the standards employed 
by the STB in ascertaining the costs at issue. Discovery should be 
sufficient to enable parties to meet these standards.
    (f) Where the Arbitrator is advised that any party to an arbitration 
proceeding wishes to keep matters relating to the arbitration 
confidential, the Arbitrator shall take such measures as are reasonably 
necessary to ensure that such matters are treated confidentially by the 
parties or their representatives and are not disclosed by the Arbitrator 
to non-authorized persons. If the Arbitrator regards any confidential 
submission as being essential to his/her written decision, such 
information may be considered in the decision, but the Arbitrator will 
make every effort to omit confidential information from his/her written 
decision.



Sec. 1108.9  Decisions.

    (a) Decisions of the Arbitrator shall be in writing and shall 
contain findings of fact and conclusions. All such decisions shall be 
served by the Arbitrator by hand delivery or overnight mail on the 
parties. At the same time, the arbitrator shall notify the STB, in 
writing, that a decision has been rendered.
    (b) By agreeing to arbitrate pursuant to these procedures, each 
party agrees that the decision and award of the Arbitrator shall be 
binding and judicially enforceable in law and equity in any court of 
appropriate jurisdiction, subject to a limited right of appeal to the 
STB as provided below.



Sec. 1108.10  Precedent.

    Decisions rendered by arbitrators pursuant to these procedures shall 
have no precedential value.



Sec. 1108.11  Enforcement and appeals.

    (a) An arbitration decision rendered pursuant to these procedures 
may be appealed to the STB within 20 days of service of such decision. 
Any such appeal shall be served by hand delivery or overnight mail on 
the parties and on the STB, together with a copy of the arbitration 
decision. Replies to such appeals may be filed within 20 days of the 
filing of the appeal with the Board. An appeal or a reply under this 
paragraph shall not exceed 20 pages in length. The parties shall furnish 
to the STB an original and 10 copies of appeals and replies filed 
pursuant to this section. The filing fee for an appeal will be as set 
forth in 49 CFR 1002.2(f)(87).
    (b) The filing of an appeal, as allowed in paragraph (a) of this 
Sec. 1108.11, automatically will stay an arbitration decision pending 
disposition of the appeal. The STB will decide any such appeal within 50 
days after the appeal is filed. Such decision by the STB shall be served 
in accordance with normal STB service procedures.
    (c) The STB will review, and may vacate or amend, an arbitration 
award, in whole or in part, only on the grounds that such award
    (1) Exceeds the STB's statutory jurisdiction; or
    (2) Does not take its essence from the Interstate Commerce Act.
    (d) Effective arbitration decisions rendered pursuant to these 
procedures, whether or not appealed to the STB, may only be enforced in 
accordance with 9 U.S.C. 9 and vacated by a court in accordance with 9 
U.S.C. 10, except that an STB decision vacating an arbitration award is 
reviewable under the Hobbs Act, 28 U.S.C. 2321, 2342.



Sec. 1108.12  Additional matters.

    Where an arbitration demand is filed by one or more complainants 
against one or more defendants, the complainants as a group and the 
defendants as a group shall be entitled to exercise those rights, with 
respect to the selection of arbitrators, as are conferred on individual 
arbitration parties.

[[Page 119]]



PART 1109--USE OF ALTERNATIVE DISPUTE RESOLUTION IN BOARD PROCEEDINGS AND THOSE IN WHICH THE BOARD IS A PARTY--Table of Contents




Sec.
1109.1  Invoking ADR in Board proceedings.
1109.2  Appeals from arbitration decisions.
1109.3  Confidentiality in ADR matters.

    Authority: 5 U.S.C. 571 et seq.53, 559, and 582.

    Source: 57 FR 32451, July 22, 1992, unless otherwise noted.



Sec. 1109.1  Invoking ADR in Board proceedings.

    Any proceeding may be held in abeyance for 90 days while 
administrative dispute resolution (ADR) procedures (such as arbitration 
and mediation) are pursued. (Additional 90 day periods can be 
requested.) The period while any proceeding is held in abeyance to 
facilitate ADR will not be counted towards the statutory deadlines. All 
parties are required to indicate their written consent for ADR 
treatment. Requests that a proceeding be held in abeyance while ADR 
procedures are pursued should be submitted to the Office of the 
Secretary. The Secretary shall promptly issue an order in response to 
such requests. Unless arbitration or some other binding process 
involving a neutral has been undertaken, any party believing that ADR 
procedures are not yielding the intended results shall inform the 
Secretary and all parties in writing, and normal agency procedures will 
be reactivated by the Secretary by notice served on all the parties.



Sec. 1109.2  Appeals from arbitration decisions.

    Appeals are limited to clear errors of general transportation 
importance, and not issues of causation or fact. Arbitration awards can 
be challenged on the basis that they do not take their essence from the 
Interstate Commerce Act, or are not limited to the matters the parties 
have referred for arbitration. Appeals are limited to 10 typewritten 
pages. Parties will have 20 days from the service date of the decision 
to file, and opposing parties 20 days to answer. Arbitration decisions 
will become effective in 30 days unless a party seeks a stay of the 
decision within 10 days of its issuance, and we grant the stay. Appeals 
and stay petitions should be limited to extraordinary circumstances.

[57 FR 32451, July 22, 1992; 57 FR 35628, Aug. 10, 1992]



Sec. 1109.3  Confidentiality in ADR matters.

    In all ADR matters involving the Board, whether under the 
Administrative Dispute Resolution Act or not, the confidentiality 
provisions of ADRA (5 U.S.C. 584) shall bind the Board and all parties 
and neutrals in those ADR matters.



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. 721.

    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 issue, amend, or repeal a 
rule.

[[Page 120]]

    (c) Each petition seeking the institution of a proceeding, filed 
under this section must:
    (1) Be submitted, along with 15 copies if possible, to the 
Secretary, Surface Transportation Board, Washington, DC 20423;
    (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.
    (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.



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 and made available 
to the public through the Office of the Secretary. 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.



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

[[Page 121]]

as possible without incurring additional expense, delay, or prejudice to 
other parties.



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 and one copy 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.
    (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.



Sec. 1110.7  Availability of dockets.

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



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 Secretary, 
Surface Transportation Board, Washington, DC 20423, and should identify 
the rule involved and the arguments in favor of granting the waiver.

[48 FR 44827, Sept. 30, 1983]



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  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  Procedural schedule in stand-alone cost cases.
1111.9  Procedural schedule to determine whether to use simplified 
          procedures.
1111.10  Meeting to discuss procedural matters.

    Authority: 49 U.S.C. 721, 10704, and 11701.

    Source: 61 FR 52711, Oct. 8, 1996, unless otherwise noted.



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 should indicate 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:

[[Page 122]]

    (1) A general history of the traffic at issue, including how the 
traffic has moved in the past, how it currently moves, and how it can 
and will be moved in the future. This information should address not 
only the physical movement of the traffic, but the type and level of 
rates actually used. It should include all carriers (rail and nonrail) 
that have participated in the transportation of this traffic or could do 
so.
    (2) The specific commodity description(s) for the traffic at issue, 
the shipping characteristics and requirements of the traffic, and the 
type of railroad cars required or used for the traffic.
    (3) All origins, destinations, and origin-destination (O-D) pairs 
involved in the complaint, by commodity type.
    (4) The amount of traffic involved (by commodity type), including 
total annual carloadings, average tons per car, number of carloads per 
shipment, and number of carloads per week or month.
    (5) Total or average revenue per carload paid to the defendant 
railroad(s), by commodity type.
    (6) The feasibility and anticipated cost of preparing a stand-alone 
cost presentation in the case.
    (7) An estimate of the other costs to be incurred in pursuing the 
rate complaint, including preparing necessary jurisdictional threshold 
and market dominance evidence.
    (8) The relief sought, including all reparations as well as the 
level and duration of any rate prescription.
    (9) The present value of the relief sought.
    (10) The assumptions, calculations and any documentation necessary 
to support the responses to the above listed factors.
    (b) 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.
    (c) 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.
    (d) 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 1244.8.

[61 FR 52711, Oct. 8, 1996, as amended at 63 FR 2639, Jan. 16, 1998]



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 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. 
An original and 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 
which the papers were mailed or at which they were delivered,

[[Page 123]]

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.

[61 FR 52711, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996]



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.
    (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.
    (d) Failure to answer complaint. Averments in a complaint are 
admitted when not denied in an answer to the complaint.



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. A motion to dismiss can 
be 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. 1111.6   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   Procedural schedule in stand-alone cost cases.

    Absent a specific order by the Board, the following general 
procedural schedule will apply in stand-alone cost cases:

Day 0--Complaint filed, discovery period begins.
Day 7 or before--Conference of the parties convened pursuant to 
    Sec. 1111.10(b).
Day 20--Defendant's answer to complaint due.
Day 75--Discovery completed.
Day 120--Complainant files opening evidence on absence of intermodal and 
    intramodal competition, variable cost, and stand-alone cost issues. 
    Defendant files opening evidence on existence of product and 
    geographic competition, and revenue-variable cost percentage 
    generated by complainant's traffic.

[[Page 124]]

Day 180--Complainant and defendant file reply evidence to opponent's 
    opening evidence.
Day 210--Complainant and defendant file rebuttal evidence to opponent's 
    reply evidence.

[61 FR 52711, Oct. 8, 1996; 61 FR 53996, Oct. 16, 1996, as amended at 63 
FR 2639, Jan. 16, 1998]



Sec. 1111.9  Procedural schedule to determine whether to use simplified procedures.

    Absent a specific order by the Board, the following procedural 
schedule will apply in determining whether to grant a request under 
Sec. 1111.1(a) to use the simplified procedures (with the remainder of 
the procedural schedule to be determined on a case-by-case basis):

Day 0--Complaint filed, discovery period begins.
Day 20--Defendant's answer to complaint and opposition to use of 
simplified procedures due.
Day 30--Complainant's response to use of simplified procedures due.
Day 50--Board's determination of whether simplified procedures should be 
used.

[63 FR 2639, Jan. 16, 1998]



Sec. 1111.10   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, 
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 complaints. In complaints challenging the 
reasonableness of a rail rate based on stand-alone cost, the parties 
shall meet, or discuss by telephone, discovery and procedural matters 
within 7 days after a complaint is filed. The parties should inform the 
Board as soon as possible thereafter whether there are unresolved 
disputes that require Board intervention and, if so, the nature of such 
disputes.

[61 FR 52711, Oct. 8, 1996. Redesignated and amended at 63 FR 2639, Jan. 
16, 1998]



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.
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. 721.

    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

[[Page 125]]

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 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]

[[Page 126]]



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; copies.
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. 721.

    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 in the Office of 
the Secretary of the Board and will be served upon the parties and such 
other persons as may be entitled to receive notice under the Act.
    (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 descretion 
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]



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 
Secretary 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 on 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

[[Page 127]]

required return, affidavit, statement, or acceptance of service, should 
be returned forthwith to the Secretary of the Board, 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 instance 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]



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 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 
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]



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;

[[Page 128]]

    (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]



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]

[[Page 129]]



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. If 
leave is granted at the hearing, 10 copies of the petition must be 
furnished for the use of the Board. When a petition for leave to 
intervene is not tendered at the hearing, the original and 10 copies of 
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. 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]



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 in 
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]



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

[[Page 130]]

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 
damage, 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]



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, 
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; copies.

    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. Unless otherwise directed by 
the officer, the original and 10 copies of such submission should be 
filed with the Board.

[47 FR 49559, Nov. 1, 1982, as amended at 53 FR 19301, May 27, 1988; 61 
FR 52712, Oct. 8, 1996]



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

[[Page 131]]

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 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 Secretary of the Board 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]



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.

[[Page 132]]

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]



Secs. 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. 721.

    Source: 47 FR 49562, Nov. 1, 1982, unless otherwise noted.



                  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

[[Page 133]]

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 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

[[Page 134]]

the record after hearing and include informal complaints and all 
proceedings assigned for initial disposition to employee boards under 
Sec. 1011.6.
    (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.
    (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;
    (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 
Secs. 1114.24(a), 1114.26(a), or 1114.31.
    (d) Sequence and timing of discovery. Unless the Board upon motion, 
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, 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]



Sec. 1114.22   Deposition.

    (a) Purpose. The testimony of any person, including a party, may be 
taken by deposition upon oral examination.

[[Page 135]]

    (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.

[61 FR 52713, Oct. 8, 1996]



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 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

[[Page 136]]

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 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

[[Page 137]]

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 securely seal the deposition in an 
envelope endorsed with sufficient information to identify the proceeding 
and marked ``Deposition of (here insert name of witness)'' and shall 
either personally deliver or promptly send the original and one copy of 
all exhibits by registered mail to the Secretary of the Board. 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.
    (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]



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 seasonable objection thereto is 
made at the taking of the deposition.
    (c) As to completion and return of deposition. 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. 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.



Sec. 1114.26  Written interrogatories to parties.

    (a) Availability; procedures for use. Subject to the provisions of 
Sec. 1114.21(b)(2), 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

[[Page 138]]

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 
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.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996]



Sec. 1114.27  Request for admission.

    (a) Availability; procedures for use. Subject to the provisions of 
Sec. 1114.21(b)(2), 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

[[Page 139]]

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]



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

[[Page 140]]

specify a reasonable time, place, and manner of making the inspection 
and performing the related acts.

[61 FR 52713, Oct. 8, 1996]



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. 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.
    (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. 721(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. In lieu of any such order 
or in addition thereto, the Board shall require the party failing to act 
or the attorney advising that

[[Page 141]]

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 imposed upon the United States under this rule.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996]



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. 721.

    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. 1011.7 
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]



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;
    (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 142]]

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]



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.
    (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]



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]



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

[[Page 143]]

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 is permitted. The appeal must be filed within 20 
days 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). 
Standards for Board review of arbitration decisions are set forth in 
Chicago and North Western Transp. Co.--Abandonment, 3 I.C.C.2d 729 
(1987), aff'd sub nom. International Brotherhood of Electrical Workers 
v. STB, No. 87-1629 (D.C. Cir. November 25, 1988). The timely filing of 
a petition will not automatically stay the effect of the arbitration 
decision. A stay may be requested under Sec. 1115.5.

[54 FR 19894, May 9, 1989, as amended at 61 FR 52714, Oct. 8, 1996]



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, 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]



PART 1116--ORAL ARGUMENT BEFORE THE BOARD--Table of Contents




Sec.
1116.1  Requests.
1116.2  Manner of presentation.

    Authority: 49 U.S.C. 721.

    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 
Secretary, Surface Transportation Board, Washington, DC 20423.
    (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.



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.

[[Page 144]]



PART 1117--PETITIONS (FOR RELIEF) NOT OTHERWISE COVERED--Table of Contents




    Authority: 49 U.S.C. 721.



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 1118--PROCEDURES IN INFORMAL PROCEEDINGS BEFORE EMPLOYEE BOARDS--Table of Contents




Sec.
1118.1  Scope.
1118.2  Proceedings to be informal.
1118.3  Appeals.

    Authority: 49 CFR 721.

    Source: 62 FR 50884, Sept. 29, 1997, unless otherwise noted.



Sec. 1118.1  Scope.

    The rules in this part govern proceedings before employee boards.



Sec. 1118.2  Proceedings to be informal.

    The proceedings in all matters governed by this part will be 
informal. No transcript of these proceedings will be made. Subpoenas 
will not be issued and, except when applications, petitions, or 
statements are required to be attested, oaths will not be administered.



Sec. 1118.3  Appeals.

    (a) Standing to appeal. Appeals of the decisions of the employee 
boards subject to this part and replies to appeals may be filed by any 
person.
    (b) Number of copies. The original and 10 copies of each pleading or 
paper permitted or required to be filed under this section should be 
furnished for the use of the Board.
    (c) Time for filing. Appeals in proceedings governed by this part 
must be filed within 20 days after the date of service of the decision.
    (d) Where filed. Appeals and replies to appeals of decisions issued 
by employee boards must be filed with the Secretary, Surface 
Transportation Board, 1925 K St., NW., Washington, DC 20423-0001.
    (e) Decisions on appeal. An appeal from an employee board's initial 
decision in a matter subject to this part will be reviewed by the 
employee board, which may elect to modify its decision in light of new 
facts or arguments presented on appeal. If the employee board elects not 
to modify its prior decision, the appeal will be forwarded to the entire 
Board for determination. If a modified decision is issued by the 
employee board, a further appeal lies under this part.



PART 1119--COMPLIANCE WITH BOARD DECISIONS--Table of Contents




    Authority: 49 U.S.C. 721.



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. 721, 13701, 13703.

[[Page 145]]



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.



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.



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

[[Page 146]]

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]



PARTS 1122-1129  [RESERVED]






PARTS 1130-1149--RATE PROCEDURES--Table of Contents






PART 1130--INFORMAL COMPLAINTS--Table of Contents




Sec.
1130.1  When no damages sought.
1130.2  When damages sought.

    Authority: 49 U.S.C. 721, 13301(f), 14709.



Sec. 1130.1  When no damages sought.

    (a) Form and content; copies. Informal complaint may be by letter or 
other writing and will be serially numbered as filed. The complaint must 
contain the essential elements of a formal complaint as specified at 49 
CFR 1131.1 and may embrace supporting papers. The original and one copy 
must be filed with the Board.
    (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]



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;

[[Page 147]]

    (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 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. An original and 10 copies of a petition for 
reconsideration should be filed.
    (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

[[Page 148]]

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 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]



PART 1132--PROTESTS REQUESTING SUSPENSION AND INVESTIGATION OF COLLECTIVE RATEMAKING ACTIONS--Table of Contents




Sec.
1132.1  Protests against collective ratemaking actions.
1132.2  Procedures in certain suspension matters.

    Authority: 49 U.S.C. 721, 13301(f), and 13703.

    Source: 62 FR 50885, Sept. 29, 1997, unless otherwise noted.



Sec. 1132.1  Protests 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) Motor carrier tariff bureau filings. When motor common carrier 
tariff bureaus take collective actions subject to the special procedures 
adopted in Ex Parte No. MC-82, New Procedures in Motor Carrier Rev. 
Proc. 340 I.C.C. 1 (1971), and set forth at 49 CFR part 1139, protests 
must reach the Board at least 22 days before the effective dates of 
those actions if protestants desire action by the Board before such 
effective dates. All statements should be served by express mail or an 
equivalent expedited delivery service upon any party undertaking to bear 
the cost. Written

[[Page 149]]

request for this expedited service must be made no less than 5 days 
before the statement is due to be filed with the Board.
    (d) Copies; service. In connection with proceedings involving 
proposals subject to the special procedures in Ex Parte No. MC-82, New 
Procedures in Motor Carrier Rev. Proc. 339 I.C.C. 324, and set forth at 
49 CFR part 1139, an original and 10 copies of every protest or reply 
filed under this section should be furnished for the use of the Board. 
Except as provided for proposals subject to the special procedures in Ex 
Parte No. MC-82, the original and 10 copies of each protest, or of each 
reply filed under this section, must be filed with the Board, and one 
copy simultaneously must be served upon the publishing carrier or 
collective ratemaking organization, and upon other persons known by 
protestant to be interested. These pleadings should be directed to the 
attention of the Secretary, Surface Transportation Board.
    (e) 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. Replies to protests against motor carrier rate bureau 
proposals subject to Ex Parte No. MC-82 procedures, to be assured of 
consideration, must reach the Board no later than 14 days before the 
scheduled effective date of the protested provisions.



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, 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. 721.

    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.

[[Page 150]]

    ______ 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, 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




    Authority: : 5 U.S.C. 553 and 49 U.S.C. 721 and 10708.



Sec. 1135.1  Quarterly adjustment of rates.

    (a) Rail carriers may adjust rates and charges quarterly in order to 
compensate for inflationary cost increases. The quarterly adjustment 
shall not exceed the percentage change in the all inclusive index of 
railroad costs as proposed by the Association of American Railroads and 
modified by the Board. The Board will make modifications of the 
revisions to the index as necessary.
    (b) The allowable increase will be based on a projection of the 
index to the midpoint of the quarter to which the index will apply. The 
percentage change must be calculated from a comparison of the forecast 
index for the midpoint of the quarter during which the rates will be in 
effect with the forecast index for the midpoint of the previous quarter. 
Each quarterly index will be adjusted for forecast error in the index 
issued six months earlier. The adjustments will be made by adding or 
subtracting, as appropriate, the difference between the index using 
actual data for the second prior quarter and the index using forecasted 
data for that quarter. Additionally, AAR shall

[[Page 151]]

file an index adjusted for productivity changes. The adjustment will be 
made by applying the multi-year average annual growth in productivity 
spread evenly over four quarters, compounded each quarter. Productivity 
adjustments shall compound in the same manner as rate changes.
    (c) The Association of American Railroads must file its calculations 
with the Board on the fifth day of the last month of the prior quarter 
(or the closest business day if the fifth is a Saturday, Sunday or 
holiday). The calculations are to be for the mid-point of the next 
quarter.
    (d) Tariffs containing adjustments under the provisions of this rule 
may be filed to become effective on not less than ten days notice when 
the Rail Cost Adjustment Factor adopted by the Board does not differ 
from that proposed by the Association of American Railroads. When the 
Rail Cost Adjustment Factor adopted by the Board differs from that 
proposed by the Association of American Railroads the notice period 
shall be not less than five days. Reductions to rates published in the 
initial RCCR tariff may be published on one day's notice during the 
period between the publication of the tariff and the first day of the 
calendar quarter for which that tariff applies.
    (e) Increases in rates consistent with these standards will not be 
investigated or suspended by the Board unless the filing results in a 
double recovery of inflation-based cost increases.
    (f) All cost recovery tariffs filed with the Board shall state that 
they are being filed in conformity with the rules in 49 CFR 1135.1 and 
1312.17(k), and shall be amended under the same timetable applicable to 
rate increases, to reflect declines in the cost index. Any declines in 
the index below the level in effect on December 31, 1985, will be 
addressed by postponing authorizations for future cost recovery rate 
increases pursuant to a ``banking'' procedure described more fully in Ex 
Parte No. 290 (Sub-No. 2), Railroad Cost Recovery Procedures, served 
October 17, 1986.
    (g) In accordance with the procedures outlined in Sec. 1312.17(k), 
each carrier shall timely file (either directly or through a duly 
authorized tariff-publishing agent) with the regulatory authority of 
each State in which it operates, all tariffs filed with the Board in 
accordance with these procedures. The carrier will file with the State 
at the same time that it files with the Board.

[46 FR 22599, Apr. 20, 1981; 46 FR 51255, Oct. 19, 1981, as amended at 
46 FR 55270, Nov. 9, 1981. Redesignated and amended at 47 FR 49576, Nov. 
1, 1982; 50 FR 88, Jan. 2, 1985; 50 FR 37534, Sept. 16, 1985; 50 FR 
43396, Oct. 25, 1985; 51 FR 37035, Oct. 17, 1986; 54 FR 12920, Mar. 29, 
1989; 61 FR 7427, Feb. 28, 1996]



PART 1137--PROCEDURES RELATING TO RAILROAD REVITALIZATION AND REGULATORY REFORM ACT OF 1976--Table of Contents




Sec.
1137.1  Divisions of revenue cases.
1137.2  Expeditious procedures for publication of separate rates for 
          distinct services.

    Authority: 49 U.S.C. 721, 10705.



Sec. 1137.1  Divisions of revenue cases.

    (a) Notice of intent to file complaint.
    (1) An original and 10 copies shall be filed for Board use. 
Complainant shall serve copies of the notice upon each party (each 
receiver or trustee if a bankrupt line) to the joint rate.
    (2) The notice of intent shall state generally: The involved traffic 
and applicable joint rates, the territorial scope, the participating 
railroads, and the present and proposed divisions.
    (3) The notice shall include a statement indicating when filing of 
the formal complaint is expected. The formal complaint may not be filed 
more than one year after the filing of the notice of intent, unless the 
Board approves an extension of time. Lack of diligence in filing of the 
formal complaint may result in dismissal of the action.
    (b) Notice of intent to file cross complaint. These notices shall be 
filed within 30 days from service of the original notice and are subject 
to the requirements in paragraph (a) of this section.
    (c) Formal complaint (and cross complaint). The formal complaint 
(and cross complaint) shall be filed no sooner than 120 days after the 
filing of the notice of intent unless good cause is shown either for not 
filing a notice or for a shorter notice period. The request

[[Page 152]]

to waive the notice time requirement may be included in the formal 
complaint or in a separate petition. The formal complaint (or cross 
complaint) shall contain the case-in-chief. All supporting papers shall 
be made available to opposing parties for inspection and copying. 
Complaints (and cross complaints) are subject to the same copy 
requirements as in paragraph (a) of this section. Complainant (or cross 
complainant) shall serve copies on each party of record. If 
circumstances permit, the cross complaint will be consolidated for 
disposition.
    (d) Answer. The answer to the formal complaint shall contain the 
entire case-in-rebuttal. Supporting papers shall be made available to 
opposing parties for inspection and copying. If the notice of intent 
procedure was used, the case-in-rebuttal shall be filed within 30 days 
from service of the complaint. If the notice procedure is waived, the 
case-in-rebuttal shall be filed within 5 months of the filing of the 
complaint. Answers shall be served on each party of record. An original 
and 10 copies shall be submitted to the Board.
    (e) Further proceedings. Following submission of defendant's 
evidence, complainant may, within 2 months, submit reply evidence which 
shall be served on each party of record. Unless otherwise ordered, no 
further filing shall be accepted. Divisions cases shall be handled under 
the modified procedure, unless oral hearing is shown to be necessary.
    (f) Discovery. If the notice of intent procedure was used, discovery 
shall be available to all parties only prior to the filing of the 
complaint. If the notice procedure was not used, discovery shall be 
available to defendants only and must be exercised under the time 
restrictions contained in paragraph (d) of this section. Prehearing 
conferences may be requested to adjudicate discovery requests, or they 
may be resolved by written pleadings.
    (g) Evidentiary guidelines. (1) Traffic and cost studies, either 
individual or joint, may be submitted. Studies shall be accepted for 
consideration as long as they do not delay the process or conflict with 
other applicable deadlines. Cost studies should be developed, absent a 
more specific method, in accordance with Rail Form A (or URCS, if 
implemented), adjusted to reflect the specific traffic and updated to a 
current level. Studies may include the types of evidence discussed in 
appendix D of Expeditious Handling of Divisions of Revenue Cases, 353 
I.C.C. 349, 388 (1976).
    (2) The following evidentiary standards apply:
    (i) Costs associated with exempt or contract traffic shall not be 
included, except that allocation of certain common costs to regulated 
traffic may be acceptable if adequately explained.
    (ii) Elements of profit, income tax, and passenger, commuter, and 
LCL deficits are not proper expense items for developing fully allocated 
cost [See Rules to Govern Assembling and Presenting Cost Evidence, 337 
I.C.C. 298 (1970)], but will be treated under the issue of revenue need.
    (iii) Passenger and commuter service costs shall be considered only 
in relation to the carrier's revenue need.
    (iv) All subsidies shall be disclosed and explained.
    (v) The same divisional basis shall apply on ``border point'' 
traffic.
    (h) Time periods for completion of proceedings. In accordance with 
section 10705(f)(1)(A)(ii), a party, for good cause, may seek extension 
of any applicable filing deadline. If a requested extension will result 
in an evidentiary period in excess of 9 months and the proceeding does 
not involve Class III carriers, the request shall contain sufficient 
information to allow the required report to Congress and set forth the 
reasons why the extension is necessary. When the proceeding involves a 
railroad in reorganization or a contention that the divisions do not 
cover the variable costs of handling the traffic, requests for extension 
of filing deadlines shall be viewed with disfavor. The Act directs us to 
give these proceedings preference and to take final action at the 
earliest practicable time. 49 U.S.C. 10705(f)(1)(A)(i).

[48 FR 12105, Mar. 23, 1983, as amended at 53 FR 19302, May 27, 1988]

[[Page 153]]



Sec. 1137.2  Expeditious procedures for publication of separate rates for distinct services.

    (a) Purpose. These regulations are designed to facilitate the 
publication of and thus encourage the use of separate rates for distinct 
rail services. Increased utilization of such rates will also increase 
the attractiveness of investing in railroads and rail service related 
enterprises by creating a keener competition among rail carriers and 
other modes of transportation. Encouraging these goals, the Board also 
seeks to promote experimentation and innovative ratemaking through the 
initiation of rail carriers and the requests of their customers. Special 
permission requests for publication on short notice will be granted 
whenever feasible, and any proceedings involving separate rates for 
distinct services will be expedited.
    (b) Definitions. (1) Distinct rail services are those railroad 
transportation services, which are separate from line-haul 
transportation services necessary for the movement of freight, and for 
which a specific tariff item is published by the railroads either upon 
their own initiative or upon the request of any shipper or receiver of 
freight.

The following definitions refer to those factors included in 
Sec. 1137.2(h) in the determination of reasonableness:
    (2) The term ``cash-outlays'' as used in 49 U.S.C. 10728 shall 
consist of the following:
    (i) The annualized operating expenses, rents and taxes (including 
labor, materials and supplies, fuel and utilities, but excluding 
depreciation, amortization, and Federal income taxes) which change 
directly with the carrier's production of a distinct rail service.
    (ii) The annualized cash-outlays equivalent to the carrier's capital 
investment, including the cost of providing such capital, which change 
directly with the carrier's production of a distinct rail service. These 
cash-outlays may be determined based on either the cost of sunk and new 
investment combined or the cost of new investment only.
    (3) Demand is the willingness of a shipper to purchase a distinct 
rail service (as that term is defined in Sec. 1137.2(b)(1)) at a 
specified price under the prevailing circumstances.
    (c) Title page. In addition to requirements of Sec. 1312.12, a 
tariff title page must also state whether the tariff or supplement 
contains new or changed rates for distinct rail services as defined in 
Sec. 1137.2(b) and bear the following notation:

    This tariff (or supplement or loose leaf amendment) contains 
separate rates for distinct rail services (see item(s)______) within the 
meaning of Sec. 1137.2(b).

    (d) Letters of transmittal. In connection with separate rates for 
distinct rail services filed with the Board, the letter of transmittal 
(required in Sec. 1312.4) must also bear the notation found in 
Sec. 1137.2(c).
    (e) Justification statements. Justification statements in support of 
the publication of a separate rate or charge for a distinct rail service 
may be filed concurrently with the filing of the tariff. Information of 
the type specified in Sec. 1137.2(h), if included in the justification 
statement, would assist the Board in its initial evaluation of the 
proposal.
    (f) Protest(s) and investigation. Protests to a tariff (or 
supplement) making reference on the title page to Sec. 1137.2(b) must be 
verified and filed in accordance with Sec. 1132.1(g). In the event of 
investigation or suspension, these proceedings will be accorded 
priority, and modified procedure (49 CFR Part 1112), to the extent 
feasible, will be followed.
    (g) Reply to protest. Replies to protests of rates proposals under 
this section must be verified and should be filed and served promptly in 
accordance with Sec. 1132.1(f). Respondents are urged to submit the 
information specified in Sec. 1137.2(h) unless previously furnished.
    (h) Initial statement. In order to expedite the proceedings in the 
event of the suspension of tariff schedules setting forth separate rates 
for distinct rail services or in the event that investigation without 
suspension of such schedules is ordered, respondent railroad or 
railroads shall submit in writing, under verfication, support of the 
tariff in issue. Such data should consist of the following:
    (1) Cash-outlays. The dollars of ``cash-outlays'' as that term is 
defined in

[[Page 154]]

Sec. 1137.2(b)(2). A full explanation of the methods, procedures and 
data used to determine ``cash-outlays'' should be supplied.
    (2) Demand. Evidence supporting existence of a ``demand'' for the 
proposed service as that term is defined in Sec. 1137.2(b)(3).
    (3) Market dominance. If the proposal involves a new or increased 
charge for a distinct service, evidence prepared in accordance with the 
guidelines established in Ex Parte No. 320 (Sub-No. 2), 365 ICC 118 
should be supplied. However, if such data has been previously submitted 
in the same proceeding, a notation to that effect will suffice.
    (4) Revenues. The annualized dollars of revenue to be obtained from 
the rate or charge associated with providing the distinct rail service.
    (5) Outputs. The annualized number of service outputs associated 
with the rate or charge per service unit. For example, if the proposed 
rate is stated in cents per hundredweight, per car switched, or per 
stop, then the number of service outputs should be expressed as x number 
of hundredweight, cars switched, or stops made.
    (6) Ratios. The revenue-to-cost ratio (percentage) for the distinct 
rail service, based on the revenues to be obtained, and the carrier's 
``cash-outlays.''
    (7) Effect. A statement as to how the proposed rate on the distinct 
rail service will encourage competition; promote increased reinvestment 
by the railroad; or encourage and facilitate increased non-railroad 
investment in the production of rail services.
    (8) Alternative data. The submission of the above evidence, 
paragraphs (h)(1) through (7) of this section, represents data which the 
Board believes would provide a basis for meaningful analysis of the 
lawfulness of such rates. However, in lieu thereof or in addition 
thereto, respondents may justify their proposal on the basis of other 
relevant evidence or cost levels. A full explanation of the methods and 
procedures used shall be provided.
    (i) Reporting requirements. For the 6-month period beginning 
February 5, 1977, all common carriers by rail, subject to 49 U.S.C. 
11145; shall submit information showing those distinct rail service 
rates published in accordance with 49 U.S.C. 10728, showing actual or 
estimated revenues derived therefrom during the 6-month period. In 
addition, these reports, which shall be filed with the Board by July 30, 
1977, shall state whether the rates accomplished their intended purpose, 
and if not whether they intend any change in the level of charge or 
other change.

[42 FR 9024, Feb. 14, 1977; 42 FR 36265, July 14, 1977, as amended at 42 
FR 62139, Dec. 9, 1977. Redesignated and amended at 47 FR 49576, Nov. 1, 
1982; 48 FR 44827, Sept. 30, 1983; 50 FR 37534, Sept. 16, 1985]



PART 1139--PROCEDURES IN MOTOR CARRIER REVENUE PROCEEDINGS--Table of Contents




            Subpart A--Common Carriers of General Commodities

Sec.
1139.1  Application.
1139.2  Traffic study.
1139.3  Cost study.
1139.4  Revenue need.
1139.5  Affiliate data.
1139.6  Official notice.
1139.7  Service.
1139.8  Availability of underlying data.

Appendix I to Subpart A
Appendix II to Subpart A

                    Subpart B--Intercity Bus Industry

1139.20  Application.
1139.21  Study carriers.
1139.22  Revenue data for study carriers.
1139.23  Revenue need.
1139.24  Offical notice.
1139.25  Service.
1139.26  Availability of underlying data.

                         Schedules to Subpart B

Schedule A
Schedule B
Schedule C
Schedule D
Schedule E
Schedule F
Schedule G
Appendix I to Subpart B

    Authority: 49 U.S.C. 721, 13703.



            Subpart A--Common Carriers of General Commodities

    Source: 47 FR 49577, Nov. 1, 1982, unless otherwise noted.

[[Page 155]]



Sec. 1139.1  Application.

    (a) Upon the filing by the tariff publishing agencies named 
hereinafter on behalf of their motor common carrier members, or by such 
other agencies as the Board may by order otherwise designate, of agency 
tariff schedules which contain (1) proposed general increases in rates 
or charges on general freight where such proposal would result in an 
increase of $1 million or more in the annual operating revenues on the 
tariff affected by the proposal, or (2) a proposed general adjustment 
with the objective of restructuring the rates on a wide range of 
traffic, involving both increases and reductions in rates and charges, 
where such proposal would result in a net increase of $1 million or more 
in annual operating revenues, the motor common carriers of general 
freight on whose behalf such schedules are filed shall, concurrently 
with the filing of those tariff schedules, file and serve, as provided 
hereinafter, a verified statement presenting and comprising the entire 
evidential case which is relied upon to support the proposed general 
increase or rate restructuring. Carriers thus required to submit their 
evidence when they file their schedules are hereby notified that special 
permission to file those schedules shall be conditioned upon the 
publishing of an effective date at least 45 days later than the date of 
filing, to enable proper evaluation of the evidence presented. Data to 
be submitted in accordance with Secs. 1139.2 through 1139.5 of this part 
represent the minimum data required to be filed and served, and in no 
way shall be considered as limiting the type of evidence that may be 
presented at the time of filing of the schedules. If a formal proceeding 
is instituted, the carriers are not precluded from updating the evidence 
submitted at the time of filing of the schedules to reflect the 
contemporary situation.
    (b) The motor common carriers of general freight which are subject 
to the provisions of this section are those which are members of the 
following tariff publishing agencies:

Central and Southern Motor Freight Tariff Association, Inc.
Central States Motor Freight Bureau, Inc.
The Eastern Central Motor Carriers Association, Inc.
Middle Atlantic Conference
Middlewest Motor Freight Bureau
The New England Motor Rate Bureau, Inc.
Pacific Inland Tariff Bureau, Inc.
Rocky Mountain Motor Tariff Bureau, Inc.
Southern Motor Carriers Rate Conference

    (c) Upon the filing of tariff schedules other than those described 
hereinabove, the carriers or their tariff publishing agencies shall be 
required to comply with such procedures as the Board may direct in the 
event an investigation is instituted. In any proceeding involving a 
proposed rate restructuring which would produce additional net revenue 
of less than $1 million the carriers will be required to submit only the 
data sought in Secs. 1139.2 and 1139.3. Nothing stated in this part 
shall relieve the carriers of their burden of proof imposed under the 
Interstate Commerce Act.



Sec. 1139.2  Traffic study.

    (a) The respondents shall submit a traffic study for the most 
current 12-month calendar year available, which shall be referred to as 
the ``base-calendar year--actual.'' This year shall be the calendar year 
that has ended at least 7 months prior to the published effective date 
of the tariff schedules. If the effective date is less than 7 months 
following the end of the preceding calendar year, than the second 
preceding calendar year shall be considered at the ``base-calendar 
year--actual.'' The study shall include a probability sampling of the 
actual traffic handled during identical time periods for each study 
carrier.
    (b) The study carriers shall consist of those carriers subject to 
the requirements for allocation of expenses between line-haul and pickup 
and delivery services, as provided in Part 1207 of this chapter, 
Instructions 27 and 9002, which participate in one of the motor carrier 
industry's Continuous Traffic Studies, and which derive either $1 
million or more in annual operating revenues from this issue traffic or 
1 percent or more of the total annual operating revenues of all carriers 
from the issue traffic. A list of such carriers and the appropriate 
revenue data shall be submitted to corroborate the selection of the 
study carriers. ``Issue traffic'' consists of those shipments on which 
the

[[Page 156]]

freight rates or charges would be affected by the rate proposal.
    (c) Respondents shall take a sample of the traffic handled by the 
study carriers according to acceptable standards of probability sampling 
principles and practices, and shall explain and evaluate the probability 
sample from the standpoint of: Purpose, sample design (including 
explanation of estimation procedure and disclosure of sampling errors 
for derived characteristics), quality control aspects involved in 
processing and tabulating data and any statistical analysis performed on 
the sampled data.4
---------------------------------------------------------------------------

    \4\ Although not adopted by the Board, attention is called to a 
staff report, ``Guidelines for the Presentation of the Results of Sample 
Studies,'' February 1, 1971, available from the Superintendent of 
Documents.
---------------------------------------------------------------------------

    (d) For cost and revenue purposes, the ``carried'' tariff basis 
shall be used. ``Carried'' tariff means the issue traffic handled solely 
by the study carriers, either single-line or interline. Estimates of 
current revenues applicable to the issue traffic should reflect all 
rates and charges in effect no later than 45 days prior to the date of 
tariff filing.



Sec. 1139.3  Cost study.

    (a) The respondents shall submit a cost study. Highway Form B may be 
used for this purpose. Service unit-costs shall be developed for each 
individual study carrier, adjusted by size of shipment and length of 
haul, and shall be applied to respective individual carrier's traffic 
service units as developed from its traffic study. Operating ratios 
shall be determined for the issue traffic handled by the study carriers 
on the ``carried'' basis by individual weight brackets included within 
the rate proposal, for: (1) The traffic study year, that is, the ``base-
calendar year--actual,'' as hereinbefore defined, (2) a ``present 
proforma year'' reflecting conditions prevailing on a date no later than 
45 days prior to the date of the tariff filing, and (3) a ``restated 
proforma year'' based on conditions anticipated on the effective date of 
the proposed rates, with a separation indicating projected operating 
ratios on two bases, namely, ``based on current revenues,'' and ``based 
on proposed revenues''. Operating ratios shall also be shown for all 
other traffic not affected by the rate proposal for the same weight 
brackets as shown for the issue traffic, but only for the period 
indicated in paragraph (a)(1) of this section.
    (b) In addition to the operating ratios, the cost study shall also 
be used to develop and provide the revenue-to-cost comparisons required 
in Appendix I hereto for the same time periods indicated for the 
operating ratios plus a ``restated proforma year'' based on constructed 
revenue need.
    (c) For both the operating ratios and the revenue-to-cost 
comparisons in Appendix I, the ``each-to-each'' costing method, i.e., 
the application of each individual study carrier's unit-cost to its 
traffic service units, applies only to the ``base calendar year--
actual.'' The application of possible labor and nonlabor cost increases 
for the purpose of updating the ``base calendar year--actual'' cost data 
may be accomplished by the use of either individual carrier data for 
each of the study carriers, or the composite carrier data for those 
study carriers whose revenue from the issue traffic amount to 50 percent 
or more of their total system revenues for the ``base calendar year--
actual.'' The sample values for expenses and revenues shall be expanded 
to full year values without adjustments to known annual report figures 
of any carrier.
    (d) Where cost studies are developed through the use of computer 
processing techniques, there shall be submitted a manual application of 
the costing procedures used for one traffic and cost study carrier 
(study carrier) in order to demonstrate the procedures by which the 
computer program distributes the annual report statistics, and applies 
service unit-costs to each shipment. An illustration of the application 
of service unit-costs to the applicable traffic service units generated 
by one single-line sample shipment and by one interline sample shipment 
shall also be submitted. These sample shipments shall be on the 
``Carried'' basis.



Sec. 1139.4  Revenue need.

    Traffic and cost study carrier, i.e., the study carriers, shall 
submit evidence of the sum of money, in addition

[[Page 157]]

to operating expenses, including that needed to attract debt and equity 
capital, which they require to insure financial stability and the 
capacity to render service. This evidence shall include data required by 
Appendix I, parts I and II, and Appendix II.



Sec. 1139.5  Affiliate data.

    Each individual traffic and cost study carrier having transactions 
with affiliates, subject to the reporting requirements of schedules 
9009-A and 9009-B in the annual report for class I motor carriers, shall 
submit appropriate data and analyses reflecting the effect on the parent 
carrier's profits of transactions with affiliates. Such data and 
analyses shall be adequately supported, and there shall be submitted 
such underlying data as will permit a reconciliation of these data to 
the data supplied in the appropriate schedules of each carrier's annual 
report.

[47 FR 49577, Nov. 1, 1982; 47 FR 54082, Dec. 1, 1982]



Sec. 1139.6  Official notice.

    The Board will take official notice of all of the proponent 
carriers' annual and quarterly reports on file with the Board.



Sec. 1139.7  Service.

    The detailed information called for herein shall be in writing and 
shall be verified by a person or persons having knowledge thereof. The 
original and 10 copies of each verified statement for the use of the 
Board shall be filed with the Secretary, Surface Transportation Board, 
Washington, DC 20423. One copy of each statement shall be sent by first-
class mail to each of the regional offices of the Board in the area 
affected by the proposed increase, where it will be open to public 
inspection. A copy of each statement shall be mailed by first-class mail 
to each party of record in the last formal proceeding concerning a 
general rate increase in the affected area or territory. However, one 
copy of each statement shall be sent by express mail to any person 
undertaking to bear the cost. Written request for this expedited service 
must be made no less than 5 days before the statement is due to be filed 
with the Board. Otherwise, the service requirements of 49 CFR 1104.12 
should be observed. Information with respect to carrier affiliates may 
be served on the parties in summary form, if so desired. A copy of each 
statement shall be furnished to any interested person on request.

[47 FR 49577, Nov. 1, 1982, as amended at 53 FR 19302, May 27, 1988]



Sec. 1139.8  Availability of underlying data.

    All underlying data used in preparation of the material outlined 
above shall be made available in the office of the party serving such 
verified matter during usual office hours for inspection by any party of 
record desiring to do so, and shall be made available to the Board upon 
request therefor. The underlying data shall be made available also at 
the hearing, but only if and to the extent specifically requested in 
writing and required by any party for the purpose of cross-examination. 
Since appendix I data are to be submitted on a combined carrier basis, 
any underlying individual carrier data used to complete appendix I 
should be furnished to the Board for its use as well as for the use of 
parties opposing the sought increases.

[[Page 158]]


                           Appendix I--Revenue Need and Allocation to Traffic at Issue
             [Cost allocation--see part II, line 13,  Method A,  Method B; check one; provide both]
----------------------------------------------------------------------------------------------------------------
                                                                                    Restated proforma year \4\
                                                                                --------------------------------
Line                                                   Base calendar    Present                        Based on
 No.           Item                 Source \1\       year--actual \2\  proforma  Based on  Based on  constructed
                                                                       year \3\   current  proposed    revenue
                                                                                 revenues  revenues    need \5\
----------------------------------------------------------------------------------------------------------------
      (1)...................  (2)..................           (3)           (4)       (5)       (6)         (7)
----------------------------------------------------------------------------------------------------------------
 
                                              Part I. Revenue Need
 
----------------------------------------------------------------------------------------------------------------
   1  Operating revenue.....  A.R. Sch. 2998, L. 3.         $             $         $         $         $
   2  Operating expenses....  A.R. Sch. 2998, L. 10
   3  Lease of distinct       A.R. Sch. 2998, Net
       operating unit (net).   of Ls. 12 and 13.
   4  Miscellaneous           A.R. Sch. 2998 (L. 27
       deductions less other   minus L. 20).
       income.
   5  Interest included in    A.R. Sch. 2998, L. 23
       miscellaneous
       deductions.
   6  Income taxes on         A.R. Sch. 2998, L. 29
       ordinary income \6\.
   7  Extraordinary and       A.R. Sch. 2998, L. 34
       prior period items.
   8  Net income or loss \7\  A.R. Sch. 2998, L. 35
   9  Sum of money above      Sum of Ls. 4, 6 and 8
       operating expenses.
  10  Percent owned and       A.R. Sch. 100, Col.               %             %         %         %           %
       leased property to      (c) (L. 21+L.
       net tangible property   23)L. 26.
       (3 decimals).
  11  Sum of money related    (L. 9 x --% in L. 10)
       to transportation.      plus L. 3.
  12  System revenue need     L. 2 plus L. 11......
       items and projected
       revenue need.
----------------------------------------------------------------------------------------------------------------
 
                                     Part II. Allocation to Traffic at Issue
 
----------------------------------------------------------------------------------------------------------------
  13  Constant costs and sum  See Method A (  ) and
       of money allocated to   Method B (  ), check
       issue traffic.          one; provide both.
  14  Variable expenses from  From traffic and cost
       traffic at issue (90%   study.
       variable excluding
       return on
       investment)\8\.
  15  Operating revenues      From traffic study...
       from traffic at issue
       \8\.
  16  Constant costs and sum  L. 13 plus L. 14.....         $             $         $         $         $
       of money allocated to
       issue traffic plus
       variable expenses.
  17  Revenue to cost         L. 15L. 16...             %             %         %         %           %
       comparison (1
       decimal).
----------------------------------------------------------------------------------------------------------------
See Methods A and B and footnotes on following pages.


 Method A--Constant Costs and Sum of Money Allocated To Issue Traffic Based on Ton and Ton-Mile Method (See Note
                                                       A)
----------------------------------------------------------------------------------------------------------------
                                                                                      Restated proforma year
                                                                                --------------------------------
Line                              Source for columns 3       Base       Present                        Based on
 No.            Item                     and 4             calendar    proforma  Based on  Based on  constructed
                                                         year--actual    year     current  proposed    revenue
                                                                                 revenues  revenues      need
----------------------------------------------------------------------------------------------------------------
      (1).....................  (2)....................         (3)         (4)       (5)       (6)         (7)
 
 (a)  System constant costs...  L. (b)+L. (c)..........       $           $         $         $         $
 (b)    Not related to          (See Note B)...........
       distance.
 (c)    Related to distance...  (See Note B)...........       $           $         $         $         $
 (d)    Percent not related to  L. (b)L. (a)...           %           %         %         %           %
       distance (3 decimals).
 (e)    Percent related to      L. (c)L. (a)...           %           %         %         %           %
       distance (3 decimals).
 (f)  System sum of money.....  Appendix I, part I, L.        $           $         $         $         $
                                 11.
 (g)    Not related to          L. (f) x L. (d)........
       distance.
 (h)    Related to distance...  L. (f) x L. (e)........
 (i)  Total system constant     L. (a)+L. (f)..........
       costs plus sum of money.
 (j)    Not related to          L. (b)+L. (g)..........
       distance.
 (k)    Related to distance...  L. (c)+L. (h)..........       $           $         $         $         $

[[Page 159]]

 
 (l)  Tons carried on issue     From traffic study (see
       and nonissue traffic      Note C).
       combined.
 (m)  Ton-miles...............  ......do...............
 (n)  Issue traffic tons        ......do...............
       carried.
 (o)  Issue traffic ton-miles.  ......do...............
 (p)  Percent of issue traffic  L. (n)L. (l)...           %           %         %         %           %
       tons to system tons (3
       decimals).
 (q)  Percent of issue traffic  L. (o)L. (m)...           %           %         %         %           %
       ton-miles to system ton-
       miles (3 decimals).
----------------------------------------------------------------------------------------------------------------
 
                           Constant Costs and Sum of Money Allocated To Issue Traffic
 
----------------------------------------------------------------------------------------------------------------
 (r)    Not related to          L. (p) x L. (j)........       $           $         $         $         $
       distance.
 (s)    Related to distance...  L. (q) x L. (k)........
 (t)    Total (enter amount in  L. (r)+L. (s)..........       $           $         $         $         $
       Appendix I, part II,
       line 13).
----------------------------------------------------------------------------------------------------------------
Note A: This procedure allocates constant costs and the sum of money based on the ton and ton-mile method and
  should be submitted for the information of the Board. How much of the constant and sum of money costs may or
  should be recovered by any specific segment of traffic rest on (1) considerations including value of service,
  demand, and ability to pay, and (2) considerations which involve matters relating to regulatory policy.
Note B: Separate the amount of constant costs, including unrelated, by using Statement No. 6-68, Highway Form B,
  Schedule A, Line III. Assign the dollars in columns (6), (7), (8), and (9) times 10 percent to line (b), and
  the dollars in columns (4) and (5) times 10 percent to line (c).
Note C: Show tons and ton-miles on issue and nonissue traffic based on an expansion of the sample to a full
  year.


 Method B--Constant Costs and Sum of Money Allocated To Issue Traffic Based on Dollar (Expense) Method (See Note
                                                       A)
----------------------------------------------------------------------------------------------------------------
                                                                                      Restated proforma year
                                                                                --------------------------------
 Line                             Source for columns 3       Base       Present                        Based on
 No.             Item                    and 4             calendar    proforma  Based on  Based on  constructed
                                                         year--actual    year     current  proposed    revenue
                                                                                 revenues  revenues      need
----------------------------------------------------------------------------------------------------------------
       (1)....................  (2)....................         (3)         (4)       (5)       (6)         (7)
 
  (a)  System constant cost     Note B.................       $           $         $         $         $
        (excluding.
  (b)  System sum of money....  Appendix I, part I,
                                 line II.
  (c)  Total system constant    Line (a) plus line (b).
        costs plus sum of
        money.
  (d)  Variable expenses on     From traffic and cost
        issue traffic.           study; Note C-.
  (e)  Variable expenses on     From traffic and cost
        issue and nonissue       study; Note D-.
        traffic combined.
  (f)  Percent relationship (3  Line (d)  line            %           %         %         %           %
        decimals).               (e).
  (g)  Constant costs and sum   Line (c)  x  line (f)..       $           $         $         $         $
        of money allocated to
        issue traffic (enter
        amount in Appendix I,
        part II, line 13).
----------------------------------------------------------------------------------------------------------------
Note A: This procedure allocates constant costs and the sum of money based on the dollar (expense) method and
  should be submitted for the information of the Board. How much of the constant and sum of money costs may or
  should be recovered by any specific segment of traffic rests on (1) considerations including value of service,
  demand, and ability to pay, and (2) consideration which invlove matters relating to regulatory policy.
Note B: Determine the amount of constant costs, including unrelated, by using Statement No. 6-68, Highway Form
  B, Schedule A, Line 111, column (3) multiplied by 10 percent; insert this amount on line (a).
Note C: Determine the amount of variable costs, including unrelated, by using Statement No. 6-68, Highway Form
  B, Schedule A, line 111, column (3) multiplied by 90 percent to obtain the variable portion.
Note D: Show variable expenses allocated to the issue traffic based on an expansion of a sample to a full year.
 
Footnotes to Appendix I:
 

[[Page 160]]

 
Explanatory: The Purpose of Appendix I is twofold, namely: (1) to obtain, through part 1, Revenue Need, an
  indication of the past actual, present, and restated system revenue needs of the traffic and cost study
  carriers, which, along with the financial data required in appendix B, will facilitate an analysis of the
  financial stability of these carriers, and (2) to allocate a part of these system revenue needs to the traffic
  at issue as provided for in part II, line 13. It is that portion of constant and sum of money costs resulting
  from this allocation plus the related variable expenses (line 14) which produces the total costs assigned to
  the issue traffic (line 16) which is then compared to the issue traffic revenues in the revenue-to-cost
  comparison shown on line 17. This comparison provides some indication of how much the total issue traffic is
  contributing to the carriers' overall revenue needs; and serves as a reference point for the consideration of
  ratemaking factors, other than costs, which may influence the appropriateness of the issue traffic's
  contribution.
Appendix I data should be completed and submitted for all traffic and cost study carriers combined. However,
  data for the ``base calendar year--actual,'' column (3), should be developed and completed for each traffic
  and cost study carrier and the results combined for all such carriers. The data in part I, columns (4) through
  (7), which reflect an updating of revenue need data for the ``base calendar year--actual'' to present and
  restated levels, should be developed on either an individual carrier basis, or on a composite carrier basis
  comprised of all traffic and cost study carriers. Data in part II, line 14 columns (4) through (7), which
  reflect an updating of the cost and traffic study data for the ``base calendar year--actual'' to present and
  restated levels, should be developed by the use of either individual carrier data for each of the study
  carriers, or the composite carrier data for those study carriers whose revenues from the issue traffic amount
  to 50 percent or more of their total system revenues for the ``base calendar year--actual.'' However, for line
  14, the method selected should be the same as that used to update the operating ratios to present and restated
  levels as required in .3 Cost study. As indicated above, appendix I data should be completed and submitted
  only for all traffic and cost study carriers combined. Since appendix I are to be submitted on a combined
  carrier basis, any underlying individual carrier data used to complete this appendix should be furnished to
  the Board for its use as well as for the use of parties opposing the sought increases. Data in columns (4)
  through (7) must be appropriately explained and supported. Each of the dollar figures called for in these
  columns shall be accompanied by an explanation of the bases or methods of restatement, including explicit
  identification of all projected or assumed changes in revenues, in wage rates, in price levels of other
  expenses and property items, and in productivity, as compared with the preceeding (actual) year results. Note
  that the time periods referred to in appendix I, that is, ``Base calendar year--actual,'' ``Present proforma
  year'' and ``Restated proforma year'' are the same time periods indicated in Sec. 1139.3, Cost study.
\1\ Sources in this column apply to column (3) ``Base calendar year--actual.'' Data for columns (4) through (7)
  should rely on column (3) as a base in order to reflect data for the ``Present proforma year'' and the
  ``Restated proforma year.'' Annual report sources apply to class I motor carriers for class II carriers use
  comparable sources.
\2\ The data in column (3) should reflect the revenue need data (part 1), and the traffic and cost study data
  (part II), for the traffic study year. That is, the ``Base calendar year--actual,'' which should coincide with
  the ``Base calendar year--actual'' referred to in the Cost study (Sec. 1139.3). Parts I and II should be
  completed for each individual study carrier--the purpose being to allocate a portion of each carrier's system
  revenue need to the traffic at issue as provided for in part II. The results for all study carriers should
  then be aggregated and submitted on a combined carrier basis.
\3\ The data in column (4) should be based on present wage, price and productivity levels and reflect conditions
  prevailing on a date no later than the 45 days prior to the date of the tariff filing.
\4\ The data in columns (5), (6), and (7) should be based on wage, price, and productivity levels anticipated on
  the effective date of the proposed rates.
\5\ The purpose of this column is to obtain data on what system revenue needs of the study carriers should be at
  a giving time. Part I should consider the sum of money in addition to operating expenses (including that
  needed to attract debt and equity capital) which the carriers feel they require to insure financial stability
  and the capacity to render service.
\6\ In columns (4) through (7), show income taxes based on estimated taxable income reduced by the taxes
  applicable to other income such as, for example, capital gains transactions.
\7\ In columns (4) through (7), determine the net income based on data shown for lines 1 though 7. In column
  (7), the estimate of the net income needed should be supported by evidence that it is a just and reasonable
  amount.
\8\ Show expenses and revenues allocated to the total issue traffic based on an expansion of the sample to a
  full year. The amount shown on line 14 for variable expenses should agree with that shown in Method B, line
  (d).

[47 FR 49579, Nov. 1, 1982; 47 FR 54081, Dec. 1, 1982]

                    Appendix II--Financial Ratios (Traffic and Cost Study Carrier __________)
        [Complete appendix II for each traffic and cost study carrier and for all such carriers combined]
----------------------------------------------------------------------------------------------------------------
                                                                                                        First
                                                                              Third        Second     preceding
Line                                                                        preceding    preceding     calendar
 No.                 Item                           Source \1\               calendar     calendar       year
                                                                               year         year      (actual or
                                                                             (actual)     (actual)    estimated)
----------------------------------------------------------------------------------------------------------------
      (1)..............................  (2).............................          (3)          (4)          (5)
 
----------------------------------------------------------------------------------------------------------------
   1  Current assets \2\...............  A.R. Sch. 100, L. 18............      $            $            $
   2  Net carrier operating property     A.R. Sch. 100, L. 21............
       (owned)\2\.
   3  Net carrier operating property     A.R. Sch. 100, L. 21+L. 23......
       (owned plus leased to others)
       \2\.
   4  Net tangible property \2\........  A.R. Sch. 100, L. 26............
   5  Intangibles \2\..................  A.R. Sch. 100, L. 32............
   6  Current liabilities \2\..........  A.R. Sch. 101, L. 13............
   7  Long-term debt \2\...............  A.R. Sch. 101, L. 15+L. 25......
   8  Shareholders' equity \2\.........  A.R. Sch. 101, L. 55............
   9  Operating revenues...............  A.R. Sch. 2998, L. 3............
  10  Depreciation plus or minus         A.R. Sch. 2998, L. 6+ or-L. 7...
       depreciation adjustment.
  11  Operating expenses...............  A.R. Sch. 2998, L. 10...........
  12  Net carrier operating income.....  A.R. Sch. 2998, L. 14...........
  13  Ordinary income before income      A.R. Sch. 2998, L. 28...........
       taxes.
  14  Net income or loss...............  A.R. Sch. 2998, L. 35...........
  15  Net income or loss plus or minus   L. 10 Plus L. 14................      $            $            $
       depreciation \3\.

[[Page 161]]

 
  16  Percent owned and leased property  L. 3L. 4................            %            %            %
       to net tangible property (3
       decimals).
  17  Investment in owned and leased     ................................      $            $            $
       property plus working capital
       \4\.
  18  Shareholders' equity less          L. 8-L. 5.......................      $            $            $
       intangibles.
  19  Long-term debt plus shareholders'  L. 7+L. 18......................      $            $            $
       equity less intangibles.
  20  Operating ratio (2 decimals).....  L. 11L. 9...............            %            %            %
  21  Current ratio (2 decimals).......  L. 1L. 6................
  22  Ratio net income or loss to        L. 14L. 9...............            %            %            %
       operating revenue (2 decimals).
  23  Rate of return on owned and        L. 12L. 17..............            %            %            %
       leased operating property plus
       working capital (2 decimals).
  24  Rate of return on shareholders'    L. 14L. 18..............            %            %            %
       equity less intangibles (2
       decimals).
  25  Capital structure ratio (2         L. 7L. 19...............            %            %            %
       decimals).
  26  Throwoff to debt ratio (2          L. 15L. 7...............            %            %            %
       decimals).
  27  Ratio long-term debt to            L. 7L. 18...............            %            %            %
       shareholders' equity less
       intangibles (2 decimals).
 
----------------------------------------------------------------------------------------------------------------
\1\ Annual report sources refer to 1970 Motor Carrier Annual Report Form A for Class I Motor Carriers of
  Property. For class II carriers use the comparable sources. For years prior to 1970 use the comparable annual
  report sources.
\2\ Show average of beginning and end of year figures.
\3\ If carrier shows a net income, the amount shown for depreciation should be added to it; if a net loss, then
  the net loss and the amount for depreciation should be netted and the appropriate figure shown.
\4\ Multiply the percent on line 16 by the difference between line 1 and line 6. Add the resulting amount to
  line 3.

[47 FR 49580, Nov. 1, 1982; 47 FR 54081, Dec. 1, 1982]



                    Subpart B--Intercity Bus Industry

    Source: 42 FR 32541, June 27, 1977, unless otherwise noted. 
Redesignated at 47 FR 49571, Nov. 1, 1982.



Sec. 1139.20  Application.

    (a) Upon the filing by the National Bus Traffic Association, Inc., 
(NBTA) on behalf of its carrier members, or by such other agencies as 
the Board may by order otherwise designate, of agency tariff schedules 
which contain proposed general increases in fares or charges where such 
proposal would result in an increase of $1 million or more in the annual 
operating revenues on the traffic affected by the proposal, the motor 
common carriers of passengers on whose behalf such schedules are filed 
shall, concurrently with the filing of those schedules, file and serve, 
as provided hereinafter, a verified statement presenting and comprising 
the entire evidential case which is relied upon to support the proposed 
general increase. Carriers thus required to submit their evidence when 
they file their schedules are hereby notified that special permission to 
file those schedules shall be conditioned upon the publishing of an 
effective date at least 30 days later than the date of filing, to enable 
proper evaluation of the evidence presented. Data to be submitted in 
accordance with Secs. 1139.21 through 1139.23 represent the minimum data 
required to be filed and served, and in no way shall be considered as 
limiting the type of evidence that may be presented at the time of 
filing of the schedules. If a formal proceeding is instituted, the 
carriers are not precluded from updating the evidence submitted at the 
time of filing of the schedules to reflect the current situation.
    (b) When filing tariff schedules other than those described 
hereinabove, the carriers or their tariff publishing agencies shall be 
required to comply with

[[Page 162]]

such procedures as the Board may direct in the event an investigation is 
instituted. Nothing stated in this part shall relieve the carriers of 
their burden of proof imposed under the Interstate Commerce Act.

[42 FR 40860, Aug. 12, 1977. Redesignated at 47 FR 49577, Nov. 1, 1982, 
and amended at 51 FR 6238, Feb. 21, 1986]



Sec. 1139.21  Study carriers.

    (a) For the purposes of this proceeding the ``study carriers'' shall 
consist of those Class I motor common carriers of passengers which are 
members of NBTA and which, during the latest calendar year available 
preceding the filing date of the proposed increase in fares and/or 
charges, derived $500,000 or more in annual operating revenues from the 
issue traffic, or 1 percent or more of the total annual operating 
revenues received by all Class I carriers from the issue traffic. Issue 
traffic is defined as that traffic (services) directly affected by the 
proposed increases in fares and/or charges.
    (b) To corroborate the selection of the above study carriers, and to 
provide a data base for a continuing evaluation of the validity and 
usefulness of those carriers as a study group, respondents shall submit, 
as a part of their verified statement (justification), a list of all 
Class I motor common carriers of passengers participating in the issue 
traffic (services). For the above specified calendar year, the dollar 
amounts of total system operating revenues for each such carrier shall 
be arrayed in descending order; and, there shall be shown the amount of 
annual operating revenues received by each carrier from the total 
traffic at issue. Also, to be shown is the percent that each such 
carrier's total issue traffic revenue is to its total system revenues, 
and the percent that each carrier's total issue traffic revenue is to 
the total issue traffic revenues for all Class I carriers indicated in 
the above list. This list of carriers and the carrier's applicable 
revenues shall be referred to as Schedule A, Class I Participating 
Carriers' Revenue Data.

[42 FR 40860, Aug. 12, 1977. Redesignated at 47 FR 49577, Nov. 1, 1982]



Sec. 1139.22  Revenue data for study carriers.

    The study carriers, as identified above, shall submit the revenue 
data called for in Schedule B herein, the purpose of which is to 
determine the amount of increased revenues which might be expected under 
the proposed increase in fares and/or charges on the issue traffic, and 
to evaluate the revenue aspects of the non-issue traffic, including that 
traffic subject to Surface Transportation Board rate regulation but not 
here at issue, and that traffic which is intrastate in character and 
under the jurisdiction of state public commissions.

[42 FR 40860, Aug. 12, 1977, as amended at 42 FR 56333, Oct. 25, 1977. 
Redesignated at 47 FR 49577, Nov. 1, 1982; 64 FR 53268, Oct. 1, 1999]



Sec. 1139.23  Revenue need.

    The ``study carriers'' shall submit evidence of the sum of money, in 
addition to operating expenses, including that needed to attract debt 
and equity capital, which they require to insure financial stability and 
the capability to render service. This evidence shall include data 
required by Schedules C through G.



Sec. 1139.24  Official notice.

    The Board will take official notice of all of the proponent 
carriers' annual and quarterly reports on file with the Board.



Sec. 1139.25  Service.

    The detailed information called for herein shall be in writing and 
shall be verified by a person or persons having knowledge thereof. The 
original and 16 copies of each verified statement for the use of the 
Board shall be filed with the Secretary, Surface Transportation Board, 
Washington, DC 20423. One copy of each statement shall be sent first-
class mail to each of the regional offices of the Board in the area 
affected by the proposed increase, where it will be open to public 
inspection. A copy of each statement shall be mailed by first-class mail 
to each party of record

[[Page 163]]

in the last formal proceeding concerning a general increase in bus 
passenger fares in the affected area or territory. Otherwise, the 
service requirements of Sec. 1130.1 shall be observed.



Sec. 1139.26  Availability of underlying data.

    All underlying data used in preparation of the material outlined 
above shall be made available in the office of the party serving such 
verified matter during usual office hours for inspection by any party of 
record desiring to do so, and shall be made available to the Board upon 
request therefor. The underlying data shall be made available also at 
the hearing, but only if, and to the extent, specifically requested in 
writing and required by any party for the purpose of cross-examination.

                            Schedule A--Class I Participating Carriers' Revenue Data
                                             [Dollars in thousands]
----------------------------------------------------------------------------------------------------------------
                                                                                     Percent of carrier's issue
                                                                                        traffic revenue to--
                                                                                   -----------------------------
                                                               Total       Total                     Total issue
Line No. and carrier annual report    Carrier   Study code    system       issue      Total system     traffic
              No. (a)                   (b)         (c)      operating    traffic    revenues, col,    revenues
                                                              revenue     revenue   (e)col.    (percent
                                                                (d)         (e)       (d) (2 Dec.)     dist. of
                                                                                          (f)        col. (e) (2
                                                                                                      Dec.) (g)
----------------------------------------------------------------------------------------------------------------
1.................................  ..........  ..........  ..........  ..........  ...............  ...........
2.................................  ..........  ..........  ..........  ..........  ...............  ...........
3.................................  ..........  ..........  ..........  ..........  ...............  ...........
4.................................  ..........  ..........  ..........  ..........  ...............  ...........
5.................................  ..........  ..........  ..........  ..........  ...............  ...........
6.................................  ..........  ..........  ..........  ..........  ...............  ...........
7.................................  ..........  ..........  ..........  ..........  ...............  ...........
9.................................  ..........  ..........  ..........  ..........  ...............  ...........
10................................  ..........  ..........  ..........  ..........  ...............  ...........
11................................  ..........  ..........  ..........  ..........  ...............  ...........
12................................  ..........  ..........  ..........  ..........  ...............  ...........
13................................  ..........  ..........  ..........  ..........  ...............  ...........
14................................  ..........  ..........  ..........  ..........  ...............  ...........
15................................  ..........  ..........  ..........  ..........  ...............  ...........
16................................  ..........  ..........  ..........  ..........  ...............  ...........
17................................  ..........  ..........  ..........  ..........  ...............  ...........
18................................  ..........  ..........  ..........  ..........  ...............  ...........
19................................  ..........  ..........  ..........  ..........  ...............  ...........
20................................  ..........  ..........  ..........  ..........  ...............  ...........
21................................  ..........  ..........  ..........  ..........  ...............  ...........
22................................  ..........  ..........  ..........  ..........  ...............  ...........
23................................  ..........  ..........  ..........  ..........  ...............  ...........
24................................  ..........  ..........  ..........  ..........  ...............  ...........
25................................  ..........  ..........  ..........  ..........  ...............  ...........
----------------------------------------------------------------------------------------------------------------

                         Explanatory--Schedule A

    Purpose. The purpose of Schedule A is to corroborate the selection 
of the ``study carriers'', as defined in Sec. 1139.21 of the prescribed 
procedures, and to provide a data base for the continuing evaluation of 
the validity and usefulness of the ``study carrier'' group.
    Calendar Year. For the purpose of this schedule use the latest 
calendar year available preceding the filing date of the proposed 
increased fares and/or charges.
    Column (a). The annual report number is that number assigned to the 
carrier by the Surface Transportation Board for identification purposes.
    Column (b). List Class I carrier members of national Bus Traffic 
Association and other interested Class I carriers participating in the 
tariffs of NBTA which will be affected by the proposal, in descending 
order of total system operating revenues.
    Column (c). Use the following code for this column. For study 
carriers (as defined in Sec. 1139.21) insert ``S''. For non-study 
carriers insert ``NS''.
    Column (d). Use amount shown in carrier's Annual Report, Schedule 
2998, Line 9.
    Column (e). Issue traffic is defined as that traffic (services) 
directly affected by the proposed increase in fares and/or charges.
    Columns (f) and (g). These columns are self-explanatory and are 
obtained by calculations using columns (d) and (e).

[[Page 164]]


                                    Schedule B--Study Carriers' Revenue Data
                                             [Dollars in thousands]
----------------------------------------------------------------------------------------------------------------
                                                        Issue traffic         Total       Total    Miscellaneous
                                          Total      (services) revenue       issue     nonissue    station and
    Line No. and study carrier (a)      operating ------------------------   traffic     traffic       other
                                         revenue                             revenue     revenue     operating
                                           (b)        (C-1)       (C-2)        (d)         (e)      revenues (f)
----------------------------------------------------------------------------------------------------------------
                         Base year actual: 4-quarter period ending ____________________
 
----------------------------------------------------------------------------------------------------------------
1....................................  ..........  ..........  ..........  ..........  ..........  .............
2....................................  ..........  ..........  ..........  ..........  ..........  .............
3....................................  ..........  ..........  ..........  ..........  ..........  .............
4....................................  ..........  ..........  ..........  ..........  ..........  .............
5....................................  ..........  ..........  ..........  ..........  ..........  .............
6....................................  ..........  ..........  ..........  ..........  ..........  .............
7....................................  ..........  ..........  ..........  ..........  ..........  .............
9....................................  ..........  ..........  ..........  ..........  ..........  .............
10...................................  ..........  ..........  ..........  ..........  ..........  .............
11...................................  ..........  ..........  ..........  ..........  ..........  .............
12...................................  ..........  ..........  ..........  ..........  ..........  .............
13...................................  ..........  ..........  ..........  ..........  ..........  .............
14...................................  ..........  ..........  ..........  ..........  ..........  .............
15...................................  ..........  ..........  ..........  ..........  ..........  .............
16...................................  ..........  ..........  ..........  ..........  ..........  .............
17...................................  ..........  ..........  ..........  ..........  ..........  .............
18...................................  ..........  ..........  ..........  ..........  ..........  .............
19...................................  ..........  ..........  ..........  ..........  ..........  .............
20...................................  ..........  ..........  ..........  ..........  ..........  .............
21...................................  ..........  ..........  ..........  ..........  ..........  .............
22...................................  ..........  ..........  ..........  ..........  ..........  .............
23...................................  ..........  ..........  ..........  ..........  ..........  .............
24...................................  ..........  ..........  ..........  ..........  ..........  .............
25...................................  ..........  ..........  ..........  ..........  ..........  .............
      Total, all study carriers......
 
----------------------------------------------------------------------------------------------------------------
                                    Pro forma year based on proposed revenues
 
----------------------------------------------------------------------------------------------------------------
1....................................  ..........  ..........  ..........  ..........  ..........  .............
2....................................  ..........  ..........  ..........  ..........  ..........  .............
3....................................  ..........  ..........  ..........  ..........  ..........  .............
4....................................  ..........  ..........  ..........  ..........  ..........  .............
5....................................  ..........  ..........  ..........  ..........  ..........  .............
6....................................  ..........  ..........  ..........  ..........  ..........  .............
7....................................  ..........  ..........  ..........  ..........  ..........  .............
9....................................  ..........  ..........  ..........  ..........  ..........  .............
10...................................  ..........  ..........  ..........  ..........  ..........  .............
11...................................  ..........  ..........  ..........  ..........  ..........  .............
12...................................  ..........  ..........  ..........  ..........  ..........  .............
13...................................  ..........  ..........  ..........  ..........  ..........  .............
14...................................  ..........  ..........  ..........  ..........  ..........  .............
15...................................  ..........  ..........  ..........  ..........  ..........  .............
16...................................  ..........  ..........  ..........  ..........  ..........  .............
17...................................  ..........  ..........  ..........  ..........  ..........  .............
18...................................  ..........  ..........  ..........  ..........  ..........  .............
19...................................  ..........  ..........  ..........  ..........  ..........  .............
20...................................  ..........  ..........  ..........  ..........  ..........  .............
21...................................  ..........  ..........  ..........  ..........  ..........  .............
22...................................  ..........  ..........  ..........  ..........  ..........  .............
23...................................  ..........  ..........  ..........  ..........  ..........  .............
24...................................  ..........  ..........  ..........  ..........  ..........  .............
25...................................  ..........  ..........  ..........  ..........  ..........  .............
      Total, all study carriers......
 
----------------------------------------------------------------------------------------------------------------
                                    Pro forma year based on current revenues
 
----------------------------------------------------------------------------------------------------------------
1....................................  ..........  ..........  ..........  ..........  ..........  .............
2....................................  ..........  ..........  ..........  ..........  ..........  .............
3....................................  ..........  ..........  ..........  ..........  ..........  .............
4....................................  ..........  ..........  ..........  ..........  ..........  .............
5....................................  ..........  ..........  ..........  ..........  ..........  .............
6....................................  ..........  ..........  ..........  ..........  ..........  .............
7....................................  ..........  ..........  ..........  ..........  ..........  .............

[[Page 165]]

 
9....................................  ..........  ..........  ..........  ..........  ..........  .............
10...................................  ..........  ..........  ..........  ..........  ..........  .............
11...................................  ..........  ..........  ..........  ..........  ..........  .............
12...................................  ..........  ..........  ..........  ..........  ..........  .............
13...................................  ..........  ..........  ..........  ..........  ..........  .............
14...................................  ..........  ..........  ..........  ..........  ..........  .............
15...................................  ..........  ..........  ..........  ..........  ..........  .............
16...................................  ..........  ..........  ..........  ..........  ..........  .............
17...................................  ..........  ..........  ..........  ..........  ..........  .............
18...................................  ..........  ..........  ..........  ..........  ..........  .............
19...................................  ..........  ..........  ..........  ..........  ..........  .............
20...................................  ..........  ..........  ..........  ..........  ..........  .............
21...................................  ..........  ..........  ..........  ..........  ..........  .............
22...................................  ..........  ..........  ..........  ..........  ..........  .............
23...................................  ..........  ..........  ..........  ..........  ..........  .............
24...................................  ..........  ..........  ..........  ..........  ..........  .............
25...................................  ..........  ..........  ..........  ..........  ..........  .............
      Total, all study carriers......
----------------------------------------------------------------------------------------------------------------

                         Explanatory--Schedule B

    Purpose. The purpose of this schedule is to obtain--for each study 
carrier and by totals for all study carriers--(1) total operating 
revenue, (2) revenues attributable to the various types of traffic at 
issue, (3) revenue attributable to the total non-issue traffic, and (4) 
miscellaneous station and other operating revenues. These data shall be 
provided for the specified study periods, namely: Base year actual, pro 
forma year based on current revenues, and pro forma year based on 
proposed revenues.
    The pro forma year based on proposed revenues for the traffic at 
issue will be compared to the issue traffic revenues for the pro forma 
year based on current revenues and for the base year actual to determine 
the amount of the proposed revenue increase being sought over these two 
periods. In addition, the revenue data for the total issue traffic 
(column (d)), will be used in Schedule C, Part III as a basis for 
allocating increased costs, i.e., the increased operating expenses and 
the increased ``sum of money'' costs.
    Base Year Actual. Data to be reported in this and other schedules 
herein for the base year actual shall be based on the 4-quarter calendar 
year periods identified below:

                   Filing Month of Verified Statement
January...............................  Sept. 30, preceding year.
February..............................      Do.
March.................................      Do.
April.................................  Dec. 31, preceding year.
May...................................      Do.
June..................................      Do.
July..................................  Mar. 31, filing-month year.
August................................      Do.
September.............................      Do.
October...............................  June 30, filing-month year.
November..............................      Do.
December..............................  June 30, filing-month year.
 

    The 4-quarter calendar year periods identified above represent the 
minimum requirement. However, in event a proposed fare/charge increase 
is filed at a time when data for a more current quarter than that 
specified are obtainable then that more current quarter may be used in 
the base year actual. For example, if an increase is filed in late March 
and data for the 4th quarter of the preceding year are obtainable, then 
the base year actual ending December 31 may be used in lieu of the base 
year actual ending September 30.
    Pro forma year data. Revenue data for the pro forma year shall be 
reported in two ways, namely: Based on current revenues and based on 
proposed revenues. Separate schedules are required for each pro forma 
year. These data do not represent a forecast but reflect the results of 
12 months of operation at particular rate levels. Thus, data for the pro 
forma year based on current revenues should be based on a restatement of 
the revenue data for the base year actual to reflect fares and/or 
charges which are currently in effect. Similarly data for the pro forma 
year based on proposed revenues should reflect a restatement of the base 
year actual data but at levels reflecting the proposed fares and/or 
charges.
    Column (a). Insert in this column the company name of each ``study 
carrier'' as defined in Sec. 1139.21 of the prescribed procedures.

[[Page 166]]

    Column (b). Use carrier's Annual Report, Schedule 2998, Line 9. The 
dollar amount in this column, for each study carrier, should equal the 
total of columns (d), (e), and (f).
    Columns (c-1), (c-2), etc. As defined in Sec. 1139.21, ``issue 
traffic'' means that traffic (service) affected by the proposed increase 
in fares and/or charges, and is limited to the fares and/or charges 
published in schedules and tariffs filed with the Surface Transportation 
Board. For the purpose of the proposed increases filed under the 
prescribed procedures of this proceeding, column (c) should be 
subdivided into columns (c-1), (c-2), etc. to show separately the 
revenue for each type of traffic in issue and each column should be 
appropriately headed. For instance, a proposal to increase passenger 
fares and express rates would call for Intercity Passenger Revenue in 
column (c-1), and Express Revenue in column (c-2). If a third basic 
service is included in the proposed increase, column (c-3) should show 
revenue from that traffic with an appropriate identification in this 
column heading.
    Column (d). The total issue traffic revenues in this column should 
equal the sum of columns (c-1), (c-2), etc.
    Column (e). The revenues to be reported in this column shall consist 
of those revenues other than ``total issue traffic revenue'' (Column 
(d)), and ``miscellaneous station and other operating revenues'' (Column 
(f)). Thus, ``non-issue traffic revenue'' means those revenues accruing 
from providing the types of services indicated in columns (c-1), etc., 
but which may be ``intrastate'' in nature, are ``exempt'' as provided 
under 49 U.S.C. 10721, 10722, 10723 and 10724, or which are otherwise 
not at issue in a proposed fare and/or charge increase. Such non-issue 
traffic may also include a commuter or mass transportation service, 
which is the transportation of passengers generally performed within a 
city or town and the suburban areas contiguous thereto. However, in some 
instances this service may also be intercity in character where the 
cities involved are within relatively short distances of each other and 
the primary purpose is the mass transportation of commuter passengers to 
and from these cities.
    Column (f). For the purpose of this schedule the revenues to be 
reported in this column shall consist of those in Account 3600, 
Miscellaneous Station Revenue, and in Account 3900, Other Operating 
Revenue. (See 49 CFR Part 1206.)
    Presentation of statement on revenue sample studies. Historically, 
in order to separate interstate from intrastate revenues, it has not 
been necessary for annual report purposes for each carrier to conduct 
studies of its traffic operations, whether based upon sampling or 
otherwise, however, many of the Class I carriers make such studies for 
managerial purposes. In order to permit the evaluation of such studies, 
and the evidence derived therefrom, each study carrier, as defined in 
section 1139.21, shall submit an affidavit explaining how its study was 
conducted and how it appraises the reliability of the results. Carriers 
having studies based upon sampling should conform with the staff report 
entitled ``Guidelines for the Presentation of the Results of Sample 
Studies,'' February 1, 1971.

[42 FR 32541, June 27, 1977. Redesignated and amended at 47 FR 49577, 
Nov. 1, 1982; 64 FR 53268, OCT. 1, 1999]

[[Page 167]]

Pt. 1139, Subpt. B, Sch. C

                                                                                          Attachment 1
                                                                                           Schedule C
                                                                               Part I--Condensed Income Statement
                                                                                     [Dollars in thousands]
                                                           (  ) Greyhound Lines, Inc.  (  )Trailways combined  (  ) All study carriers
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Pro forma year
                                                                                                            ------------------------------------------------------------------------------------
                                                                                                 Base year-                       Proposed         Proposed       Constructed      Constructed
             Line No. and Item (a)                         Source A.R. schedule 250(b)           actual (c)  Current revenue    revenue and      revenue and      revenue need     revenue need
                                                                                                              and projected      projected      future expense     projected      future expense
                                                                                                               expense (d)      expense (e)          (f)          expense (g)          (h)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1. Passenger revenue...........................  L. 1..........................................  ..........  ...............  ...............  ...............  ...............  ...............
2. Special bus revenue.........................  L. 2..........................................  ..........  ...............  ...............  ...............  ...............  ...............
3. Baggage revenue.............................  L. 3..........................................  ..........  ...............  ...............  ...............  ...............  ...............
4. Mail revenue................................  L. 4..........................................  ..........  ...............  ...............  ...............  ...............  ...............
5. Express revenue.............................  L. 5..........................................  ..........  ...............  ...............  ...............  ...............  ...............
6. Newspaper revenue...........................  L. 6..........................................  ..........  ...............  ...............  ...............  ...............  ...............
7. Miscellaneous station revenue...............  L. 7..........................................  ..........  ...............  ...............  ...............  ...............  ...............
8. Other operating revenue.....................  L. 8..........................................  ..........  ...............  ...............  ...............  ...............  ...............
9. Total revenues..............................  L. 12.........................................  ..........  ...............  ...............  ...............  ...............  ...............
10. Total expenses.............................  L. 18.........................................  ..........  ...............  ...............  ...............  ...............  ...............
11. Net operating revenue......................  L. 19.........................................  ..........  ...............  ...............  ...............  ...............  ...............
12. Rent for lease of carrier property-debt....  L. 20.........................................  ..........  ...............  ...............  ...............  ...............  ...............
13. Income from lease of carrier property-       L. 21.........................................  ..........  ...............  ...............  ...............  ...............  ...............
 credit.
14. Net carrier operating income...............  L. 22.........................................  ..........  ...............  ...............  ...............  ...............  ...............
15. Total other income.........................  L. 33.........................................  ..........  ...............  ...............  ...............  ...............  ...............
16. Gross income...............................  L. 34.........................................  ..........  ...............  ...............  ...............  ...............  ...............
17. Interest and amortization of debt discount   Sums of lines 35, 38, and 39..................  ..........  ...............  ...............  ...............  ...............  ...............
 expenses and premium.
18. Total income deductions....................  L. 42.........................................  ..........  ...............  ...............  ...............  ...............  ...............
19. Income (loss) from continuing operations     L. 43.........................................  ..........  ...............  ...............  ...............  ...............  ...............
 before income taxes.
20. Income taxes on income from continuing       L. 44.........................................  ..........  ...............  ...............  ...............  ...............  ...............
 operations.
21. Provision for deferred taxes...............  L. 45.........................................  ..........  ...............  ...............  ...............  ...............  ...............
22. Income (loss) from continuing operations...  L. 46.........................................  ..........  ...............  ...............  ...............  ...............  ...............
23. Total income (loss) from discontinued        L. 49.........................................  ..........  ...............  ...............  ...............  ...............  ...............
 operations.
24. Total extraordinary items and accounting     L. 56.........................................  ..........  ...............  ...............  ...............  ...............  ...............
 changes (debit) credit.
25. Net income (loss) transferred to retained    L. 57.........................................  ..........  ...............  ...............  ...............  ...............  ...............
 income-unappropriated.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 168]]


                                                     Part II--System Operating Expenses and Sum of Money Assigned to Transportation Service
                                                                                     [Dollars in thousands]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Pro-forma year
                                                                                                            ------------------------------------------------------------------------------------
                                                                                                 Base year-                       Proposed         Proposed       Constructed      Constructed
             Line No. and Item (a)                                 Source (b)                    actual (c)  Current revenue    revenue and      revenue and      revenue need     revenue need
                                                                                                              and projected      projected      future expense     projected      future expense
                                                                                                               expense (d)      expense (e)          (f)          expense (g)          (h)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1. Operating expenses ``Sum of money'' items...  Pt. I, L. 10..................................  ..........  ...............  ...............  ...............  ...............  ...............
2. Rent for, and from, lease of carrier          Pt. I, net of ls. 12 and 13...................  ..........  ...............  ...............  ...............  ...............  ...............
 property (net).
3. Interest and amortization of debt discount    Pt. I, L. 17..................................  ..........  ...............  ...............  ...............  ...............  ...............
 and expense and premium on debt.
4. Percent of carrier operating property to      A. R. Sch. 200 col. (b) (ls. 19 and             ..........  ...............  ...............  ...............  ...............  ...............
 total tangible property.                         21)(L. 26) (2 dec.).
5. Interest and related expenses assigned to     L. 3xl, 4, above..............................  ..........  ...............  ...............  ...............  ...............  ...............
 transportation service.
6. Taxable income assigned to transportation     (Pt. I, L. 14) minus (pt. II, L. 5)...........  ..........  ...............  ...............  ...............  ...............  ...............
 service.
7. Taxable income from continuing operations...  Pt. I, L. 19..................................  ..........  ...............  ...............  ...............  ...............  ...............
8. Percent of taxable income assigned to         L. 6 L. 7, above (2 dec.).............  ..........  ...............  ...............  ...............  ...............  ...............
 transportation service to taxable income from
 continuing operations.
9. Total income taxes..........................  Pt. I, L. 20..................................  ..........  ...............  ...............  ...............  ...............  ...............
10. Income taxes assigned to transportation      L. 8xL. 9, above..............................  ..........  ...............  ...............  ...............  ...............  ...............
 service.
11. Income (loss) assigned to transportation     L. 6 minus L. 10 above........................  ..........  ...............  ...............  ...............  ...............  ...............
 service.
12. Total ``sum of money'' items assigned to     Ls. 2, 5, 10 and 11...........................  ..........  ...............  ...............  ...............  ...............  ...............
 transportation service.
13. Operating expenses and ``sum of money''      Ls. 1 and 12, above...........................  ..........  ...............  ...............  ...............  ...............  ...............
 assigned to transportation service.
14. Ratio of income (loss) assigned to           Pt. II, L. 11 Pt. I, L. 22............  ..........  ...............  ...............  ...............  ...............  ...............
 transportation to income (loss) from
 continuing operations (1 det.).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                                                Part III--Allocation of Increased System Operating Expenses and Sum of Money to Traffic at Issue
                                                                                     [Dollars in thousands]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                                Pro-forma year
                                                                                                            ------------------------------------------------------------------------------------
                                                                                                 Base year-                       Proposed         Proposed       Constructed      Constructed
             Line No. and Item (a)                                 Source (b)                    actual (c)  Current revenue    revenue and      revenue and      revenue need     revenue need
                                                                                                              and projected      projected      future expense     projected      future expense
                                                                                                               expense (d)      expense (e)          (f)          expense (g)          (h)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
            A.--Revenue distribution
1. Revenues applicable to traffic at issue.....  From revenue study............................  ..........  ...............  ...............  ...............  ...............  ...............

[[Page 169]]

 
2. System operating revenues, less               Sch. C, pt. I, L. 9 Ls. 7 and 8.......  ..........  ...............  ...............  ...............  ...............  ...............
 miscellaneous station revenues (3600) and
 other operating revenues (2900).
3. Percent of total issue traffic revenues to    L. 1 L. 2 (percent to 2 dec.).........  ..........  ...............  ...............  ...............  ...............  ...............
 L. 2 revenues.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               B.--Allocation to traffic at issue
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
4. Increased system operating expenses.........  Pt. II, line 1................................  ..........  ...............  ...............  ...............  ...............  ...............
5. Increased system ``sum of money''...........  Pt. II, line 12...............................  ..........  ...............  ...............  ...............  ...............  ...............
6. Total increased system operating expenses     L. 4 L. 5, above......................  ..........  ...............  ...............  ...............  ...............  ...............
 and ``sum of money''.
7. Allocation of line 6 to traffic at issue....  L. 3 x L. 6 above.............................  ..........  ...............  ...............  ...............  ...............  ...............
8. Increased revenues on traffic at issue......  L. 1, above...................................  ..........  ...............  ...............  ...............  ...............  ...............
9. Ratio of increased revenues to increased      L. 8 L. 7, above (2 dec.).............  ..........  ...............  ...............  ...............  ...............  ...............
 costs on traffic at issue.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 170]]

             Explanatory--Schedule C (Parts I, II, and III)

    Columns (d) through (h). These columns shall contain the pro forma 
year data.
    The data reported in column (d) shall be the base year actual 
(column (c)) restated to reflect conditions (wage, price, and 
productivity, etc.) prevailing on or near the effective date of the 
proposed increase. Revenues in column (d) shall be based on fares and 
charges which are currently in effect.
    The data reported in column (e) shall also be the base year actual 
(column (c)) restated to reflect conditions (wage, price, and 
productivity, etc.) prevailing on or near the effective date of the 
proposed increase. Unlike column (d), however, revenues in column (e) 
shall be based on the proposed fares and charges.
    The data reported in column (f) shall also be the base year actual 
(column (c)) restated to reflect conditions (wage, price, and 
productivity, etc.) prevailing on or near the effective date of the 
proposed increase plus allowable foreseeable future costs. Revenues 
shall be based on the proposed fares and charges.
    The data reported in columns (g) and (h) shall be based on what the 
system revenue needs of the study carriers should be at a given time, 
including the constructed projected and future operating expenses and 
the constructed ``sum of money'' above these expenses. The constructed 
``sum of money'' should be supported by evidence that it is a just and 
reasonable amount and is that needed to attract debt and equity capital 
and to insure financial stability and the capacity to render service. 
Such evidence should include an analysis of the adequacy of the 
carriers' earnings, the carriers' cost of debt and equity capital, the 
various kinds of risk attending their operations and the financing 
thereof, and the carriers' ongoing needs for working capital, new 
equipment and facilities.

[47 FR 53281, Nov. 24, 1982]

                                                   Schedule D
                                             [Dollars in thousands]
                   (  ) Greyhound Lines, Inc. (  ) Trailways combined (  ) All study carriers
----------------------------------------------------------------------------------------------------------------
                                                                               Calendar    Calendar
            Line No. and Item (a)                       Source (b)             year 19--   year 19--   Base year
                                                                                  (c)         (d)     actual (e)
----------------------------------------------------------------------------------------------------------------
                                        Part I.--Selected financial data
 
----------------------------------------------------------------------------------------------------------------
Income statement data:
  1  Total revenues.........................  Sch. 2998, L. 9...............  ..........  ..........  ..........
  2  Total expenses.........................  Sch. 2998, L. 15..............  ..........  ..........  ..........
  3  Depreciation expense and amortization    Sch. 2998, L. 11 + L. 12......  ..........  ..........  ..........
   of carrier operating property.
  4  Lease of carrier property (net)........  Sch. 2998, L. 17 + L. 18......  ..........  ..........  ..........
  5  Net carrier operating income...........  Sch. 2998, L. 19..............  ..........  ..........  ..........
  6  Equity in earnings (losses) of           Sch. 2998, L. 29..............  ..........  ..........  ..........
   associated companys.
  7  Interest on long-term obligations......  Sch. 2998, L. 32..............  ..........  ..........  ..........
  8  Amortization of debt discount and        Sch. 2998, L. 35 + L. 36......  ..........  ..........  ..........
   expense and premium on debt (net).
  9  Pretax income (loss)...................  Sch. 2998, L. 40..............  ..........  ..........  ..........
  10  Tax on income from continuing           Sch. 2998, L. 41..............  ..........  ..........  ..........
   operations.
  11  Provision for deferred taxes..........  Sch. 2998, L. 42..............  ..........  ..........  ..........
  12  Income (loss) from continuing           Sch. 2998, L. 43..............  ..........  ..........  ..........
   operations.
  13  Total income (loss) from discontinued   Sch. 2998, L. 46..............  ..........  ..........  ..........
   operations.
  14  Total extraordinary items and           Sch. 2998, L. 53..............  ..........  ..........  ..........
   accounting changes--(debit) credit.
  15  Net income (loss).....................  Sch. 2998, L. 54..............  ..........  ..........  ..........
Balance sheet data:
  16  Current assets........................  Sch. 100, L. 17, col. (b).....  ..........  ..........  ..........
  17  Current liabilities...................  Sch. 101, L. 14, col. (b).....  ..........  ..........  ..........
  18  Current assets\1\.....................  Sch. 100, L. 17...............  ..........  ..........  ..........
  19  Current liabilities\1\................  Sch. 101, L. 14...............  ..........  ..........  ..........
  20  Long-term debt due within 1 yr........  Sch. 101, L. 15, col. (b).....  ..........  ..........  ..........
  21  Long-term debt due after 1 yr.........  Sch. 101, L. 24, col. (b).....  ..........  ..........  ..........
  22  Long-term debt due within 1 yr\1\.....  Sch. 101, L. 15...............  ..........  ..........  ..........
  23  Long-term debt due after 1 yr\1\......  Sch. 101, L. 24...............  ..........  ..........  ..........
  24  Owners' equity........................  Sch. 101, L. 38 + L. 41 + L.    ..........  ..........  ..........
                                               44 -- L. 45, col. (b).
  25  Owners' equity\1\.....................  Sch. 101, L. 38 + L. 41 + L.    ..........  ..........  ..........
                                               44 -- L. 45.
  26  Total intangible property\1\..........  Sch. 100, L. 31...............  ..........  ..........  ..........
  27  Net carrier operating property (owned   Sch. 100, L. 19 + L. 21.......  ..........  ..........  ..........
   plus leased to others)\1\.

[[Page 171]]

 
  28  Investment in owned and leased          L. 27 + L. 18 -- L. 19........  ..........  ..........  ..........
   property plus working capital.
Miscellaneous and financial ratios:
  29  Cash dividend appropriations..........  Sch. 2930, L. 16..............  ..........  ..........  ..........
  30  Operating ratio (percent).............  L. 2  L. 1............  ..........  ..........  ..........
  31  Current ratio.........................  L. 16  L. 17..........  ..........  ..........  ..........
  32  Dividend payout ratio (percent).......  L. 29  L. 15..........  ..........  ..........  ..........
  33  Throwoff to debt ratio (percent)......  (L. 3 + L. 15)  (L. 20  ..........  ..........  ..........
                                               + L. 21).
  34  Capital structure ratio (percent).....  (L. 20 + L. 21)  (L.    ..........  ..........  ..........
                                               20 + L. 21 + L. 24).
  35  Working capital.......................  L. 18 -- L. 19................  ..........  ..........  ..........
  36  Rate of return on owned and leased      L. 5  L. 28...........  ..........  ..........  ..........
   operating property plus working capital
   (percent).
  37  Rate of return on owners' equity, less  L. 15  (L. 25 -- L.     ..........  ..........  ..........
   intangibles (percent).                      26).
  38  Rate of return on total capitalization  (L. 7 + L. 8 + L. 15)   ..........  ..........  ..........
   (percent).                                  (L. 22 + L. 23 + L. 25).
 
----------------------------------------------------------------------------------------------------------------
   Part II. Accounts giving effect to interperiod tax allocation (deferred taxes) and impact of investment tax
                                                     credit
 
----------------------------------------------------------------------------------------------------------------
Balance sheets accounts:
  1  Deferred income tax charges............  Sch. 100, L. 16, col. (b).....  ..........  ..........  ..........
  2  Accumulated deferred income tax charges  Sch. 100, L. 44, col. (b).....  ..........  ..........  ..........
  3  Deferred income tax credits............  Sch. 101, L. 13, col. (b).....  ..........  ..........  ..........
  4  Accumulated deferred income tax credits  Sch. 101, L. 27, col. (b).....  ..........  ..........  ..........
Income statement accounts:
  5  Provision for deferred taxes...........  Sch. 2998, L. 42..............  ..........  ..........  ..........
  6  Provision for deferred taxes--           Sch. 2998, L. 50..............  ..........  ..........  ..........
   Extraordinary items.
  7  Impact of investment tax credit on       See explanatory...............  ..........  ..........  ..........
   continuing operations.
----------------------------------------------------------------------------------------------------------------
\1\ Show average of beginning and end-of-year figures.

                    Explanatory--Schedule D (Part I)

    Purpose. The purpose of Schedule D (Part I) is to ascertain the 
financial posture of Greyhound Lines, Inc. and all the study carrier 
carriers by an analysis of certain key financial data, with a view to 
determining revenue needs.
    Study Carrier Groupings. Schedule D (Part I) shall be prepared on 
the following two bases:
    1. Greyhound Lines, Inc.
    2. Trailways Combined (study carriers, only)
    3. All Study Carriers
    Column (b). The annual report sources in this column refer to the 
1976 Annual Report Form MP-1. For years prior or subsequent to 1976, use 
comparable sources.
    Column (c). If the fare/charge increase is filed during the first 
six months of the calendar year, the data reported in column (c) shall 
be based on the 3rd calendar year preceding the filing year. For 
example, if the rate increase is filed on May 15, 1977, column (c) shall 
report data for calendar year 1974.
    If the fare/charge increase is filed during the last six months of 
the calendar year, the data reported in column (c) shall be based on the 
2nd calendar year preceding the filing year. For example, if the rate 
increase is filed on Nov. 15, 1977, column (c) should report data for 
calendar year 1975.
    Column (d). If the fare/charge increase is filed during the first 
six months of the calendar year, the data reported in column (d) should 
be based on the 2nd calendar year preceding the filing year. For 
example, if the rate increase is filed on May 15, 1977, column (d) 
should report data for calendar year 1975.
    If the rate increase is filed during the last six months of the 
calendar year, the data reported in column (d) shall be based on the 1st 
calendar year preceding the filing year. If, for example, the fare/
charge increase is filed on November 15, 1977, column (d) should report 
data for calendar year 1976.
    Column (e). Data to be reported in this column for the base year 
actual shall be based on the 4-quarter calendar year periods identified 
below:

[[Page 172]]



------------------------------------------------------------------------
                                           Four-quarter calendar year
  Filing month of verified statement              period ending
------------------------------------------------------------------------
January...............................  Sept. 30, preceding year.
February..............................      Do.
March.................................      Do.
April.................................  Dec. 31, preceding year.
May...................................      Do.
June..................................      Do.
July..................................  Mar. 31, filing-month year.
August................................      Do.
September.............................      Do.
October...............................  June 30, filing-month year.
November..............................      Do.
December..............................      Do.
------------------------------------------------------------------------

    The 4-quarter calendar year periods identified above represent the 
minimum requirement. However, in event a proposed fare/charge increase 
is filed at a time when data for a more current quarter than that 
specified are obtainable, the more current quarter may be used in the 
base year-actual. For example, if an increase is filed in late March and 
data for the 4th quarter of the preceding year is obtainable, the base 
year-actual ending December 31, may be used in lieu of the base year-
actual ending September 30.

                    Explanatory--Schedule D (Part II)

    Purpose. Schedule D (Part II) is designed to segregate the impacts 
of: (1) The Board's deferred tax accounting rule change; and (2) the 
impact of the investment tax credit on continuing operations.
    Study Carrier Groupings. The study carrier groups for Part II shall 
be the same as those designated for Part I.
    Column (b). The annual report sources in this column refer to the 
1976 Annual Report Form MP-1. For years prior or subsequent to 1976, use 
comparable sources.
    Columns (c), (d) and (e). The reporting periods for Part II shall 
correspond to those in Part I.
    Investment Tax Credit Impact. This impact is: (1) The amount by 
which Account 8000, Income Taxes on Income from Continuing Operations, 
was credited for the investment tax credit if the flow-through 
accounting method was elected or (2) the amount by which Account 8040, 
Provision for Deferred Taxes, was credited for the amortization of the 
investment tax credit if the deferral accounting method was elected.

[42 FR 32541, June 27, 1977; 42 FR 40861, Aug. 12, 1977. Redesignated at 
47 FR 49577, Nov. 1, 1982]

                             Schedule E--Statement of Changes in Financial Position
                                             [Dollars in thousands]
                   (  ) Greyhound Lines, Inc. (  ) Trailways combined (  ) All study carriers
----------------------------------------------------------------------------------------------------------------
                                                                               Calendar    Calendar
            Line No. and item (a)                       Source (b)             year 19--   year 19--  Base year-
                                                                                  (c)         (d)     actual (e)
----------------------------------------------------------------------------------------------------------------
         sources of working capital
 
Working capital provided by operations:
  1  Net income (loss) before extraordinary   Sch. 2998, L. 47, col. (b)....  ..........  ..........  ..........
   items.
Add expenses not requiring outlay of working
 capital (subtract) credits not generating
 working capital:
  2  Loss (gain) on sale or disposal of       Sch. 5091, L. 7, col. (b).....  ..........  ..........  ..........
   tangible property.
  3  Add depreciation and amortization        Sch. 2998, Ls. 11+12+35+36,     ..........  ..........  ..........
   expense.                                    col. (b).
  4  Net increase (decrease) in deferred      Sch. 2998, L. 42, col. (b)....  ..........  ..........  ..........
   income taxes.
  5  Net decrease (increase) in parent's      Sch. 2998, L. 28..............  ..........  ..........  ..........
   share of subsidiary's undistributed
   income for the year.
  6  Net increase (decrease) in noncurrent    Sch. 101, L. 31, cols. (b)-(c)  ..........  ..........  ..........
   portion of estimated liabilities.
  7  Other (specify):
  8.........................................  ..............................  ..........  ..........  ..........
  9.........................................  ..............................  ..........  ..........  ..........
  10........................................  ..............................  ..........  ..........  ..........
  11........................................  ..............................  ..........  ..........  ..........
  12........................................  ..............................  ..........  ..........  ..........
  13........................................  ..............................  ..........  ..........  ..........
  14........................................  ..............................  ..........  ..........  ..........
  15........................................  ..............................  ..........  ..........  ..........
  16........................................  ..............................  ..........  ..........  ..........
  17........................................  ..............................  ..........  ..........  ..........
  18  Total working capital from operations   ..............................  ..........  ..........  ..........
   before extraordinary items.
  19  Extraordinary items and accounting      Sch. 2998, L. 53, col. (b)....  ..........  ..........  ..........
   changes.
Add expenses not requiring outlay of working
 capital (subtract) credits not generating
 working capital.
  20  Loss (gain) on extraordinary items....  Sch. 2998, L. 48, col. (b)....  ..........  ..........  ..........

[[Page 173]]

 
  21  Net increase (decrease) in deferred     Sch. 2998, L. 50, col (b).....  ..........  ..........  ..........
   income taxes.
  22  Cumulative effect of changes in         Sch. 2998, L. 52, col. (b)....  ..........  ..........  ..........
   accounting principles.
Other (specify):
  23........................................  ..............................  ..........  ..........  ..........
  24........................................  ..............................  ..........  ..........  ..........
  25........................................  ..............................  ..........  ..........  ..........
  26........................................  ..............................  ..........  ..........  ..........
  27........................................  ..............................  ..........  ..........  ..........
  28  Total working capital from              ..............................  ..........  ..........  ..........
   extraordinary items and accounting
   changes.
  29  Total working capital from operations   ..............................  ..........  ..........  ..........
   (lines 18 and 28).
Working capital from sources other than
 operating:
  30  Proceeds from issuance of long-term     ..............................  ..........  ..........  ..........
   liabilities.
  31  Proceeds from sale/disposition of       Sch. 1200-A, L. 9.............  ..........  ..........  ..........
   carrier operating property.
  32  Proceeds from sale/disposition of       ..............................  ..........  ..........  ..........
   other tangible property.
  33  Proceeds from sale/repayment of         Sch. 1600/1650, ls. 23+47.....  ..........  ..........  ..........
   investments advances.
  34  Net decrease in sinking and other       Sch. 1700, ls. 15+31+50, cols.  ..........  ..........  ..........
   special funds.                              (d)-(j).
  35  Proceeds from issue of capital stock..  Sch. 2700A/2710A, L. 12, cols.  ..........  ..........  ..........
                                               (e)+(f)--(i).
Other (specify):
  36........................................  ..............................  ..........  ..........  ..........
  37........................................  ..............................  ..........  ..........  ..........
  38........................................  ..............................  ..........  ..........  ..........
  39........................................  ..............................  ..........  ..........  ..........
  40........................................  ..............................  ..........  ..........  ..........
  41  Total working capital from sources      ..............................  ..........  ..........  ..........
   other than operating.
  42  Total sources of working capital
   (lines 29 and 41).
 
       Application of Working Capital
 
  43  Amount paid to acquire/retire long-     ..............................  ..........  ..........  ..........
   term liabilities.
  44  Cash dividends........................  Sch. 2930, L. 16..............  ..........  ..........  ..........
  45  Purchase price of carrier operating     Sch. 1200, L. 11, col. (c)....  ..........  ..........  ..........
   property.
  46  Purchase price of other tangible        ..............................  ..........  ..........  ..........
   property.
  47  Purchase price of long-term             Sch. 1600/1650, ls. 23+47,      ..........  ..........  ..........
   investments and advances.                   col. (e).
  48  Net increase in sinking or other        Sch. 1700, ls. 15+31+50, cols.  ..........  ..........  ..........
   special funds.                              (j)-(d).
  49  Purchase price of acquiring treasury    Sch. 2700B/2710B, L. 12, col.   ..........  ..........  ..........
   stock.                                      (c).
Other (specify):
  50........................................  ..............................  ..........  ..........  ..........
  51........................................  ..............................  ..........  ..........  ..........
  52........................................  ..............................  ..........  ..........  ..........
  53........................................  ..............................  ..........  ..........  ..........
  54........................................  ..............................  ..........  ..........  ..........
  55  Total application of working capital..  ..............................  ..........  ..........  ..........
  56  Net increase (decrease) in working      ..............................  ..........  ..........  ..........
   capital (line 42 less line 55).
----------------------------------------------------------------------------------------------------------------

                         Explanatory--Schedule E

    Purpose. Schedule E is designed to provide the Board with an 
indication of the carrier's sources and uses of funds over the recent 
past.
    Study Carrier Groupings. Schedule E shall be prepared on the 
following two bases:
    1. Greyhound Lines, Inc.
    2. Trailways Combined (study carriers, only)
    3. All Study Carriers

[[Page 174]]

    ``Funds''. The term ``Funds'' for the purpose of this schedule shall 
include all assets or financial resources even though a transaction may 
not directly affect cash or working capital. For example, the purchase 
of property in exchange for bonds or shares of stock would be an 
application of funds for investment in property provided by the issue of 
securities.
    Sources and uses of funds should be individually disclosed. For 
example, outlays for fixed assets should not be reported net of 
retirements.
    Column (b). The annual report sources in this column refer to the 
1976 Annual Report Form MP-1. For years prior or subsequent to 1976, use 
comparable sources.
    Column (c). If the fare/charge increase is filed during the first 
six months of the calendar year, the data reported in column (c) shall 
be based on the 3rd calendar year preceding the filing year. For 
example, if the rate increase is filed on May 15, 1977, column (c) shall 
report data for calendar year 1974.
    If the fare/charge increase is filed during the last six months of 
the calendar year, the data reported in column (c) shall be based on the 
2nd calendar year preceding the filing year. For example, if the rate 
increase is filed on Nov. 15, 1977, column (c) should report data for 
calendar year 1975.
    Column (d). If the fare/charge increase is filed during the first 
six months of the calendar year, the data reported in column (d) should 
be based on the 2nd calendar year preceding the filing year. For 
example, if the rate increase is filed on May 15, 1977, column (d) 
should report data for calendar year 1975.
    If the rate increase is filed during the last six months of the 
calendar year, the data reported in column (d) shall be based on the 1st 
calendar year preceding the filing year. If, for example, the fare/
charge increase is filed on November 15, 1977, column (d) should report 
data for calendar year 1976.
    Column (e). Data to be reported in this column for the base year-
actual shall be based on the 4-quarter calendar year periods identified 
below:

------------------------------------------------------------------------
                                           Four-quarter calendar year
  Filing month of verified statement              period ending
------------------------------------------------------------------------
January...............................  Sept. 30, preceding year.
February..............................      Do.
March.................................      Do.
April.................................  Dec. 31, preceding year.
May...................................      Do.
June..................................      Do.
July..................................  Mar. 31, filing-month year.
August................................      Do.
September.............................      Do.
October...............................  June 30, filing-month year.
November..............................      Do.
December..............................      Do.
------------------------------------------------------------------------

    The 4-quarter calendar year periods identified above represent the 
minimum requirement. However, in event a proposed fare/charge increase 
is filed at a time when data for a more current quarter than that 
specified are obtainable, the more current quarter may be used in the 
base year-actual. For example, if an increase is filed in late March and 
data for the 4th quarter of the preceding year is obtainable, the base 
year-actual ending December 31, may be used in lieu of the base year-
actual ending September 30.
[42 FR 32541, June 27, 1977; 42 FR 40861, Aug. 12, 1977. Redesignated at 
47 FR 49577, Nov. 1, 1982]

        Schedule F--Affiliate Revenue Data for Services Rendered
                         [Dollars in thousands]
    (  ) Greyhound Lines, Inc. (  ) Trailways combined (  ) All study
                                carriers
------------------------------------------------------------------------
                                       Calendar    Calender
        Line No. and Item (a)          year 19--   year 19--  Base year-
                                          (b)         (c)     actual (d)
------------------------------------------------------------------------
   affiliate revenues for services
       rendered to respondents
 
1  Engineering......................  ..........  ..........  ..........
2  Management.......................  ..........  ..........  ..........
3  Legal............................  ..........  ..........  ..........
4  Accounting.......................  ..........  ..........  ..........
5  Financial........................  ..........  ..........  ..........
6  Furnishing of materials and        ..........  ..........  ..........
 supplies...........................
7  Leasing of land, structures, and   ..........  ..........  ..........
 vehicles...........................
8  Purchase of equipment............  ..........  ..........  ..........
9  Construction.....................  ..........  ..........  ..........
10  All other services..............  ..........  ..........  ..........
11  Total affiliate revenues for      ..........  ..........  ..........
 services rendered to respondent
 (lines 1 through 10)...............
12  Total affiliate revenues for      ..........  ..........  ..........
 services rendered to other than
 respondents........................
13  Total affiliate revenues (lines   ..........  ..........  ..........
 11 and 12).........................
14  Total affiliate income from       ..........  ..........  ..........
 operations before income taxes.....
------------------------------------------------------------------------


[[Page 175]]

                         Explanatory--Schedule F

    Purpose. Schedule F is designed to facilitate an assessment of the 
effect on the carriers' profits of transactions with affiliates.
    Affiliate transactions aggregating less than $30,000 need not be 
reported in this Schedule.
    Study Carrier Groupings. A separate Schedule F shall be prepared for 
each of the following:
    1. Greyhound Lines, Inc.
    2. Trailways Combined (study carriers, only)
    3. All Study Carriers
    Column (b). If the fare/charge increase is filed during the first 
six months of the calendar year, the data reported in column (b) shall 
be based on the 3rd calendar year preceding the filing year. If the 
fare/charge increase is filed during the last six months of the calendar 
year, the data reported in column (b) shall be based on the 2nd calendar 
year preceding the filing year.
    Column (c). If the fare/charge increase is filed during the first 
six months of the calendar year, the data reported in column (c) shall 
be based on the 2nd calendar year preceding the filing year. If the 
fare/charge increase is filed during the last six months of the calendar 
year, the data reported in column (c) shall be based on the 1st calendar 
year preceding the filing year.
    Column (d). Data to be reported in this column for the base year-
actual shall be based on the 4-quarter calendar year periods identified 
below:

------------------------------------------------------------------------
                                           Four-quarter calendar year
  Filing month of verified statement              period ending
------------------------------------------------------------------------
January...............................  Sept. 30, preceding year.
February..............................      Do.
March.................................      Do.
April.................................  Dec. 31, preceding year.
May...................................      Do.
June..................................      Do.
July..................................  Mar. 31, filing-month year
August................................      Do.
September.............................      Do.
October...............................  June 30, filing-month year.
November..............................      Do.
December..............................      Do.
------------------------------------------------------------------------

    The 4-quarter calendar year periods identified above represent the 
minimum requirement. However, in event a proposed fare/charge increase 
is filed at a time when data for a more current quarter than that 
specified are obtainable, the more current may be used in the base year-
actual. For example, if an increase is filed in late March and data for 
the 4th quarter of the preceding year is obtainable then the base year-
actual ending December 31, may be used in lieu of the base year-actual 
ending September 30.

                                      Schedule G--Selected Statistical Data
                                             [Dollars in thousands]
                   (  ) Greyhound Lines, Inc. (  ) Trailways combined (  ) All study carriers
----------------------------------------------------------------------------------------------------------------
                                                                                                   Cols. (h)-(l)
      Line No. and Item (a)           Source (b)        1972     1973     1974     1975     1976   (1977)-(1981)
                                                        (c)      (d)      (e)      (f)      (g)         (h)
----------------------------------------------------------------------------------------------------------------
Operating revenues, expenses,
 and operating ratios:
  1  Passenger revenue..........  Sch. 2998, L. 1,    .......  .......  .......  .......  .......  .............
                                   col. (b).
  2  Special bus revenue........  Sch. 2998, L. 2,    .......  .......  .......  .......  .......  .............
                                   col. (b).
  3  Express revenue............  Sch. 2998, L. 5,    .......  .......  .......  .......  .......  .............
                                   col. (b).
  4  Total operating revenues...  Sch. 2998, L. 9,    .......  .......  .......  .......  .......  .............
                                   col. (b).
  5  Total operating expenses...  Sch. 2998, L. 15,   .......  .......  .......  .......  .......  .............
                                   col. (b).
  6  Operating ratio............  Line 5line  .......  .......  .......  .......  .......  .............
                                   4.
Carrier operating property:
  7  Structures.................  Sch. 1200, L. 2,    .......  .......  .......  .......  .......  .............
                                   col. (c).
  8  Revenue equipment..........  Sch. 1200, L. 3,    .......  .......  .......  .......  .......  .............
                                   col. (c).
  9  Improvements of leasehold    Sch. 1200, L. 8,    .......  .......  .......  .......  .......  .............
   property.                       col. (c).
  10  Total carrier operating     Sch. 1200, L. 11,   .......  .......  .......  .......  .......  .............
   property.                       col. (c).
Number and cost of buses:
  11  Number of buses acquired..  Sch. 1221, L. 22,   .......  .......  .......  .......  .......  .............
                                   col. (c).
  12  Cost of buses acquired....  Sch. 1221, L. 22,   .......  .......  .......  .......  .......  .............
                                   col. (d).
  13  Number of buses retired...  Sch. 1221, L. 22,   .......  .......  .......  .......  .......  .............
                                   col. (e).
  14  Cost of buses retired.....  Sch. 1221, L. 22,   .......  .......  .......  .......  .......  .............
                                   col. (f).
  15  Average age of buses \1\..  Sch. 1221, L. 22,   .......  .......  .......  .......  .......  .............
                                   col. (i).
Employee compensation:
  16  Total daily basis.........  Sch. 9002, L. 20,   .......  .......  .......  .......  .......  .............
                                   col. (c).

[[Page 176]]

 
  17  Total hourly basis........  Sch. 9002, L. 21,   .......  .......  .......  .......  .......  .............
                                   col. (c).
Man-hours or days paid for:
  18  Total--Daily basis........  Sch. 9002, L. 20,   .......  .......  .......  .......  .......  .............
                                   col. (e).
  19  Total--Hourly basis.......  Sch. 9002, L. 21,   .......  .......  .......  .......  .......  .............
                                   col. (e).
Revenue bus-miles operated:
  20    Intercity service         Sch. 9002, L. 1,    .......  .......  .......  .......  .......  .............
   (regular route).                col. (e).
  21  Charter, sightseeing and    Sch. 9002, L. 3,    .......  .......  .......  .......  .......  .............
   other special service.          col. (e).
  22  Vehicle miles operated      Sch. 9002, L. 4,    .......  .......  .......  .......  .......  .............
   exclusively in baggage, mail    col. (e).
   express, and/or newspaper
   service.
Revenue passengers carried:
  23  Number of intercity         Sch. 9002, L. 6,    .......  .......  .......  .......  .......  .............
   revenue passengers carried      col. (b).
   (regular route).
  24  Total number of revenue     Sch. 9002, L. 9,    .......  .......  .......  .......  .......  .............
   passengers carried.             col. (b).
Other Statistics:
  25  Number of regulator route   Sch. 9002, L. 12,   .......  .......  .......  .......  .......  .............
   intercity passenger miles.      col. (b).
  26  Total passenger revenue...  Sch. 9002, L. 16,   .......  .......  .......  .......  .......  .............
                                   col. (b).
  27  Passenger-miles per bus     25L. 20...  .......  .......  .......  .......  .......  .............
   mile (average load).
  28  Passenger-miles per         25L. 23...  .......  .......  .......  .......  .......  .............
   passenger carried-intercity
   service (average journey).
----------------------------------------------------------------------------------------------------------------
\1\ Line No. 15: The weighted average age of buses for ``All Study Carriers'' is computed by:
 
(a) Calculating the average age of buses for each study carrier.
(b) Calculating the number of buses which each study carrier has on hand at the end of the year as a percentage
  of the total number of buses which all study carriers as a group have on hand at the end of the year.
(c) Multiplying the average age for each study carrier by that carrier's percentage of total buses on hand at
  the end of the year.
(d) Summing the result of calculation (c) above for each study carrier. The summation gives the weighted average
  age of buses for ``All Study Carriers'' taken together as a group.

                         Explanatory--Schedule G

    Purpose. The purpose of Schedule G is to develop selected property, 
labor and operational data for use in evaluating the influence and 
relationship of these data to the income and other financial data 
contained in Schedules C through F. This schedule requires data 
commencing with the year 1972 through 1976, and thereafter, adding each 
calendar year's data until a 10-year moving period is reached. A ten-
year time period is useful for analyzing the industry's operations 
during all phases of the business cycle.
    Study Carrier Groupings. Schedule G shall be prepared for each of 
the following:
    1. Greyhound Lines, Inc.
    2. Trailways Combined (study carriers, only).
    3. All Study Carriers.
    Column (b). The annual report sources in this column refer to the 
1976 Annual Report Form MP-1. For years prior or subsequent to 1976, use 
comparable sources.
    Columns (c) through (g). These columns refer to successive calendar 
years from 1972 through 1976, each ending December 31.
    Columns (h) to (l). These columns refer to successive calendar years 
which become applicable as the time period of record is expanded to the 
ultimate 10 year moving time period.

                         Appendix I to Subpart B

    Excerpt from National Bus Traffic Association's brief (pages 18-23) 
in I&S M-29089 increased bus passenger fares and express/rates-
nationwide.

[[Page 177]]

  NBTA Will Undertake the Development of a Cost Allocation System for 
                      Motor Carriers of Passengers

    At the conclusion of the hearing in this proceeding, the 
Administrative Law Judge requested a discussion of the feasibility of 
NBTA undertaking the traffic and cost studies necessary to permit the 
separation of bus carrier expenses by types of service. As the record in 
this case indicates, no such studies have ever been undertaken and there 
is no present capability on the part of either the Board or the carriers 
themselves to allocate total operating expenses by types of carrier 
service. As the testimony of Mr. Bilz reveals, data derived from traffic 
studies is the source of only a few of the factors which must be 
developed to permit the identification of cost.18 
Consequently, the development of a carefully conceived overall cost 
allocation system must be accomplished first, and then a determination 
must be made of the types and kinds of studies needed to develop the 
specific factors required for implementation to the system.
---------------------------------------------------------------------------

    18 Tr. 183-186.
---------------------------------------------------------------------------

    At its annual meeting held in Newton, Massachusetts, on September 
27-28, 1976, the members of the National Bus Traffic Association 
considered the question of undertaking the analyses, planning, and 
studies leading to the development and implementation of a cost 
allocation system and agreed to undertake such a program. Mr. Bilz, the 
cost analyst retained by the Association, has been request to work with 
appropriate carrier personnel and an initial meeting to outline the 
first steps is scheduled to be held during November of this year. In the 
meantime, after consultation with Mr. Bilz, we set forth the following 
discussion of what will be involved.
    In assessing the problems and complexities involved in formulating a 
procedure to develop costs by types of service for the bus lines, some 
parallels may be drawn with the procedure which has evolved over the 
years for general commodity motor carriers. Cost formulas for general 
commodity carriers were developed by the Cost Finding Section of the 
Interstate Commerce Commission more than thirty years ago. These cost 
formulas have been modified and refined from time-to-time in order to 
adjust for changing operating practices and conditions, improvements in 
accounting technology or the need to develop costs for particular kinds 
of service or types of traffic. At a later point in time when the need 
arose in general revenue increase cases for more detailed separations of 
the expenses of the general commodity carriers among types of service 
and types of traffic, procedures were developed whereby a continuing 
sample of traffic data could be developed to tie in with unit costs 
produced by the motor carrier cost formulas.19 Thus, the 
detailed separation of traffic data developed in the continuing traffic 
studies was designed to tie in with existing cost allocation formulas. 
More recently, a complete revision of the Uniform System of Accounts for 
general commodity motor carriers necessitated further modification of 
the cost formulas; however, at the same time, such revisions served to 
increase the amount of expenses allocated in the formulas on a direct 
basis and reduced the amount of expenses which could only be allocated 
by means of factors derived from special studies or other means.
---------------------------------------------------------------------------

    19 Probability sampling of general freight motor carrier 
traffic did not develop until some 20 years after the Board's cost 
formulas for truck lines.
---------------------------------------------------------------------------

    At the present time, the bus industry has committed itself to a 
review of its Uniform System of Accounts, jointly with the Bureau of 
Accounts of the Interstate Commerce Commission, to determine the need 
for revising the accounts to conform more closely with generally 
accepted accounting principles and, most importantly, to facilitate cost 
finding and financial analysis. In the review and analysis of the 
Uniform System of Accounts, consideration should be given to possible 
benefits from a matrix approach in accumulating operating expenses, 
similar in some respects but not necessarily as detailed as the approach 
used in redesigning the system of accounts for general commodity 
carriers. The separations of expenses for bus lines need not be as 
detailed as those made for general commodity carriers since the needs 
for expense segregations are not the same. However, use of a matrix 
system by the bus lines to accumulate operating expenses would result in 
the direct assignment of various categories of expense which would 
otherwise be included in a common pool of expense to be allocated on the 
basis of the best available data. Therefore, as a necessary preliminary 
step toward the development of a cost allocation system for the bus 
lines, the Uniform System of Accounts must be examined for the purpose 
of identifying expenses which can be directly assigned to particular 
services or operations.
    Basically, a cost study for the bus lines involves, first, a 
determination of the expenses chargeable to each of the various services 
provided by the carriers. These services include regular route intercity 
service, involving transportation of passengers, express, baggage, 
newspapers and mail, local service and special services including 
charter operations and tours. Secondly, the need for further separations 
within these categories must be explored. An all-out study would involve 
the allocation of expenses for regular route service among passengers 
and their baggage, express traffic and all other traffic;

[[Page 178]]

however, such detailed separations--which can only be made by means of 
specially-designed allocating procedures and special studies--may not be 
necessary, at least in the initial design of a cost allocation system 
for the bus lines. From the standpoint of current and potential use to 
be made of cost study data, it is reasonable, at this point, to design a 
system which will separate expenses for regular route service involving 
passenger and express traffic (including baggage) on the one hand, and 
all other services on the other. Finally, an additional separation of 
the expenses for regular route service between interstate and intrastate 
traffic is necessary.
    In connection with the first step, i.e., allocation of expenses 
among services, although a number of the various categories of expense 
incurred by the bus lines may be directly allocated to various services, 
there are additional items of expense which are jointly incurred in 
connection with two or more services and can only be separated among 
services on the basis of appropriate allocation factors. The same 
problems arise in the second and third steps, to an even greater extent, 
in determining the extent to which expenses assigned to a particular 
service must be allocated among the various types of traffic handled in 
that service and in making the further separation between interstate and 
intrastate traffic. These separations should be made by means of cost 
allocation factors which are functionally related to the fullest extent 
possible to each item of expense. This calls for the development of 
additional allocation factors which are not presently maintained by the 
bus lines.
    At the present time, the carriers can accurately determine from 
their regularly maintained accounting records the amount of revenue 
accruing from regular route operations, separately for passenger and 
express service, and from operations in connection with charter and 
special service. By means of established probability sampling 
procedures, Greyhound and Continental Trailways can further separate 
passenger revenue in intercity service between interstate and intrastate 
traffic. Other carriers are able to make the latter separation of 
revenue on various bases consistent with the size of their operations. 
It is possible that the probability sampling procedure and other bases 
employed by the smaller carriers may be expanded to include statistical 
data as well as revenue information. The bus lines currently maintain 
records, for the purpose of their annual reports to the Surface 
Transportation Board, of the number of bus miles operated separately for 
intercity service, local service and special services. Such data will 
undoubtedly come into use in allocating expenses among services. 
Similarly, records of the number of passengers carried in various 
services, maintained by the bus lines, may be used in some of the 
expense allocations. However, no continuing records are maintained 
showing the number of passengers carried separately in interstate and 
intrastate commerce nor are any separations made of the number of 
passenger miles in each category. Such statistical separations are 
required regardless of the methodology followed in the cost study, that 
is, whether the separations of expenses between interstate and 
intrastate traffic are made within the framework of a cost allocation 
formula or whether the expenses in each category are developed on the 
basis of average mileage-related and non-mileage unit costs developed 
from a cost formula and applied to traffic service units developed for 
interstate and intrastate traffic, i.e., number of passengers and number 
of passenger miles.
    As noted above, expenses for each type of traffic must be separated 
between those which are related to mileage operated and those which are 
not related to mileage. This brings in the problem of segregating the 
terminal activities of the carriers among services and types of traffic. 
Segregation of such expenses will probably require time and motion 
analyses, calculation of space utilization factors at various 
representative terminals and other special studies.
    The formulation of a cost allocation system and the gathering of 
input data for the system will require an extensive amount of work and 
expense on the part of the bus lines. If the amount of time required in 
developing acceptable cost allocation procedures for general freight 
motor carriers is any indication, several years may be required before a 
cost system for the bus lines can be formulated, applied and tested. The 
bus industry recognizes that, because of its workload and limited staff, 
the Cost Finding Section of the Board cannot take on the task of 
developing a cost allocation system for the bus lines as it did in 
connection with general freight motor carriers; however, it is hoped 
that the efforts of the bus lines in this regard will receive the full 
support and guidance of the Board's staff so that the best possible 
results may be achieved in the shortest possible time.
                                                          H. G. Homme,  
                                                              Secretary.

[42 FR 32541, June 27, 1977. Redesignated at 47 FR 49571, Nov. 1, 1982 
and amended at 64 FR 53268, Oct. 1, 1999]



PART 1141--PROCEDURES TO CALCULATE INTEREST RATES--Table of Contents




    Authority: 49 U.S.C. 721.

[[Page 179]]



Sec. 1141.1  Procedures to calculate interest rates.

    (a) For purposes of complying with a Board decision in a complaint 
or investigation proceeding, interest rates to be computed shall be the 
coupon equivalent yield (investment rate) of marketable securities of 
the United States Government having a duration of 91 days (3 months). 
The rate levels will be determined as follows:
    (1) For investigation proceedings, the interest rate shall be the 
coupon equivalent yield in effect on the date the statement is filed 
accounting for all amounts received under the new rates (See 49 U.S.C. 
10707(d)(1)).
    (2) For complaint proceedings, the interest rate shall be the coupon 
equivalent yield in effect on the first day of the calendar quarter in 
which an unlawful charge is paid. The interest rate in complaint 
proceedings shall be updated as of the first day of all subsequent 
calendar quarters, at the coupon equivalent yields in effect on those 
days. Updating will continue until the required reparation payments are 
made.
    (3) For purposes of this section, coupon equivalent yields shall be 
considered ``in effect'' on the date the securities are issued, not on 
the date they are auctioned. If the date the statement is filed (for 
investigation proceedings) or if the first day of the calendar quarter 
(for complaint proceedings) is the same as the issue date, then the 
yield on that date shall be used.
    (b) Interest in a complaint or investigation proceeding shall be 
compounded quarterly, as follows:
    (1) For investigation proceedings, the reparations period shall 
begin on the date the investigation is started. Thus, unless by 
coincidence, the quarterly compounding periods in investigation 
proceedings will not coincide with the calendar quarters.
    (2) For complaint proceedings, the reparations period shall begin on 
the date the unlawful charge is paid. However, in order for the 
quarterly compounding periods in complaint cases to coincide with the 
calendar quarters (so that only one interest rate is in effect during 
each compounding period), the first compounding period shall run from 
the date the unlawful charge is paid to the last day of the current 
calendar quarter, and all subsequent compounding periods shall coincide 
with the calendar quarters.
    (3) For both investigation and complaint proceedings, the annual 
effective interest 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 quarterly period (or part thereof) 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. As an example, if the annual interest rate for the 
quarter is 5.6 percent, then the interest factor would be 1.01368, or 
1.056 to the power of 91/365.

[58 FR 19360, Apr. 14, 1993]



PART 1144--INTRAMODAL RAIL COMPETITION--Table of Contents




Sec.
1144.1  Notification, explanation, and justification.
1144.2  Negotiation.
1144.3  Suspension.
1144.4  Investigation of proposed cancellations.
1144.5  Prescription.
1144.6  General.

    Authority: 49 U.S.C. 721, 10703, 10705, and 11102.

    Source: 50 FR 46066, Nov. 6, 1985, unless otherwise noted.



Sec. 1144.1  Notification, explanation, and justification.

    (a) Notification. A rail carrier proposing to cancel a through route 
and/or a joint rate shall comply with the requirements of 49 U.S.C. 
10762(c)(3) and

[[Page 180]]

10705a(f), as appropriate, and 49 CFR part 1312, and shall give notice 
of its intent to make such a cancellation 45 days prior to the effective 
date of the cancellation. For cancellations under 49 U.S.C. 10705(e), 
the 45-day period must consist of at least a 25-day notice of intent to 
file followed by a 20-day tariff filing in compliance with 49 U.S.C. 
10762(c)(3).
    (b) Explanation and justification--(1) Request. After a rail carrier 
has given notice of a proposed cancellation, any affected party may ask 
the canceling rail carrier to:
    (i) Explain how the proposed cancellation will affect the party, and
    (ii) Justify the application of the cancellation to a route or rate 
actively used by or participated in by the party.
    (2) Reply. The rail carrier proposing the cancellation must give the 
party the requested explanation and justification, including pertinent 
mileage and cost data, within 10 days of the date the request is made.
    (3) Time. By mutual agreement, the rail carrier proposing the 
cancellation and the affected party may alter the time frames of 
paragraph (b)(2) of this section. The 49 CFR part 1132 time periods for 
protests and replies apply.
    (4) Content. The content of the request and reply (other than 
pertinent mileage and cost data) will be left to the parties, though all 
information pertinent to the individual case should be included. The 
failure to provide information necessary to analyze the action under the 
criteria established in Sec. 1144.3 may be treated as an admission 
against interest.

[50 FR 46066, Nov. 6, 1985; 51 FR 18333, May 19, 1986; 56 FR 18532, Apr. 
23, 1991]



Sec. 1144.2  Negotiation.

    (a) Timing. At least 5 days prior to challenging a cancellation of a 
through route or joint rate, or 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 
suspension and/or investigation or prescription.
    (c) Arbitration. The parties may use arbitration as part of the 
negotiation process, or in lieu of litigation before the Board.



Sec. 1144.3  Suspension.

    (a) General. Under these rules the Board will suspend and 
investigate, investigate, or not suspend and investigate a proposed 
cancellation of a through route and/or joint rate. A persuasive 
presentation under all of the criteria below is sufficient for the Board 
to determine that the requirements of 49 U.S.C. 10707(c)(1) have been 
met warranting suspension and investigation of the proposed 
cancellation. Failure to convince the Board on any one of the criteria 
may result in either only an investigation (no suspension) or a 
determination not to investigate. This will be decided on a case-by case 
basis.
    (b) Statutory factors. A decision under (a) will be made based on 
the broad factors in 49 U.S.C. 10707(c)(1). The criteria considered in 
analyzing the factors in 49 U.S.C. 10707(c)(1) (A and B) are in 
paragraph (c) of this section. The requirements to keep account under 49 
U.S.C. 10707(c)(1)(C) cannot be applied to cancellation cases, and will 
not be considered.
    (c) Criteria. The Board will suspend and investigate if a protestant 
shows:
    (1) The cancellations of a through route and/or joint rate would 
eliminate effective railroad competition for the affected traffic 
between the origin and destination. Among other evidence, the Board will 
consider two rebuttable presumptions to show the elimination of 
effective railroad competition: (i) That the mileage between the origin 
and destination over the route to be canceled is not more than that of 
any feasible alternative rail route; and (ii) that the cost of operating 
via the route to be canceled is not more than that of any feasible 
alternative rail route; and
    (2) Either (i) a protesting shipper has used or would use the 
through route and/or joint rate proposed to be canceled to meet a 
significant portion of its current or future railroad transportation 
needs between the origin and destination; or

[[Page 181]]

    (ii) A protesting carrier has used or would use the affected through 
route and/or joint rate for a significant amount of traffic.



Sec. 1144.4  Investigation of proposed cancellations.

    (a) General. The Board shall determine that a proposed cancellation 
of a through route and/or joint rate is contrary to the public interest 
under 49 U.S.C. 10705 if it finds that the cancellation, or a rate that 
would remain in place after the cancellation, is contrary to the 
competition policies of 49 U.S.C. 10101a or is otherwise 
anticompetitive.
    (b) Factors. In making its determination, the Board will take into 
account all relevant factors, including:
    (1) The revenues of the involved railroads on the affected traffic 
via the rail routes in question.
    (2) The efficiency of the rail routes in question, including the 
costs of operating via those routes.
    (3) The rates charged or sought to be charged by the canceling 
railroad or railroads.
    (4) The revenues, following the cancellation, of the involved 
railroads for the traffic in question via the affected through 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 will not be a basis for finding that a 
cancellation is anticompetitive.
    (c) 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) Where a cancellation has been determined to be contrary to the 
competitive standards of this section, the overall revenue inadequacy of 
the canceling carrier will not excuse such a cancellation.
    (4) Any investigations of proposed cancellations under the terms of 
this paragraph will be conducted and concluded by the Board on an 
expedited basis.



Sec. 1144.5  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. 11103, if the Board determines:
    (1) That the prescription or establishment (i) is necessary to 
remedy or prevent an act that is contrary to the competition policies of 
49 U.S.C. 10101a or is otherwise anticompetitive, and (ii) otherwise 
satisfies the criteria of 49 U.S.C. 10705 and 11103, as appropriate. In 
making its determination, the Board shall take into account all relevant 
factors, including:
    (A) The revenues of the involved railroads on the affected traffic 
via the rail routes in question.
    (B) The efficiency of the rail routes in question, including the 
costs of operating via those routes.
    (C) The rates or compensation charged or sought to be charged by the 
railroad or railroads from which prescription or establishment is 
sought.
    (D) 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:
    (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

[[Page 182]]

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.



Sec. 1144.6  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) These rules supersede the rules at 49 CFR part 1132 to the 
extent they are inconsistent.
    (c) Discovery under these rules is governed by the Board's general 
rules of discovery at 49 CFR part 1114.
    (d) Any Board determinations or findings under this part with 
respect to compliance or non-compliance with the standards of 
Secs. 1144.4 and 1144.5 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 1146--EXPEDITED RELIEF FOR SERVICE EMERGENCIES--Table of Contents




    Authority: 49 U.S.C. 721, 11101, and 11123.



Sec. 1146.1  Prescription of alternative rail service.

    (a) General. Alternative rail service 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.
    (b)(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 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 five (5) business days.
    (3) Rebuttal. The party requesting relief may file rebuttal no more 
than three (3) business days later.
    (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)(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. Carrier are admonished not 
to file such a petition prematurely.

[[Page 183]]

    (2) Reply. Parties must file replies to petitions to terminate filed 
under this subsection within five (5) business days.
    (3) Rebuttal. The incumbent carrier may file any rebuttal no more 
than three (3) business days later.
    (e) Service. All pleadings under this part shall be served by hand 
or overnight delivery on the Board, the other parties, and the Federal 
Railroad Administration.

[63 FR 71401, Dec. 28, 1998]



PART 1147--TEMPORARY RELIEF UNDER 49 U.S.C. 10705 AND 11102 FOR SERVICE INADEQUACIES--Table of Contents




    Authority: 49 U.S.C. 721, 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 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]

[[Page 184]]



PARTS 1148--1149 [RESERVED]






PARTS 1150-1174--LICENSING PROCEDURES--Table of Contents






PARTS 1150-1159--RAIL LICENSING PROCEDURES--Table of Contents






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: 5 U.S.C. 553 and 559, 49 U.S.C. 721(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. 11343. 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 part. In addition, where appropriate, we have granted individual 
exemptions from these certification requirements. See 49 U.S.C. 10505.
    (b) Content of the application. Applications filed under this 
subpart shall include the information set forth in Secs. 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 Section of Environmental Analysis at least 6 months prior to 
filing an application, to begin

[[Page 185]]

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]



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 othewise 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 
(e) or (f) 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.



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.
    (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

[[Page 186]]

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 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.

[[Page 187]]

    (b) Filing procedures. The original and 10 copies of the application 
and all documents shall be filed with the Secretary. A filing fee in the 
amount set forth in 49 CFR 1002.2(f)(33) is required to file an 
application. Copies of documents shall be furnished promptly to 
interested parties upon request. The application shall 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 (with 10 copies) 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 Section 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 1112.1 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]



                     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

[[Page 188]]

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 (plus three copies). 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]



   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 fully abandoned, or approved for abandonment by the 
Board or a bankruptcy court. As used in these rules, the term ``State'' 
includes 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.

[[Page 189]]



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).
    (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:

[[Page 190]]

    (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 from securities regulation at 49 CFR part 1175.



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 7 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 30 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. 
10505(d) does not automatically stay the exemption.
    (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]



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

[[Page 191]]

    (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.

[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]



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. 10505(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. 
Amended at 53 FR 5982, Feb. 29, 1988]



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 the information required 
in Sec. 1150.33 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 21 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 30 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. 
10505(d) does not automatically stay the transaction. Stay petitions 
must be filed within 7 days of the filing of the notice of exemption. 
Replies will be due 7 days thereafter. To be considered, stay petitions 
must be timely served on the applicant.
    (g) Applicant must comply with Sec. 1150.33(g) regarding section 106 
of the

[[Page 192]]

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]



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 Section of Environmental Analysis (SEA) 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 SEA); 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

[[Page 193]]

within 20 days after the notice of exemption is received that describes 
the construction project and invites comments. SEA will then prepare an 
EA (or, if necessary, an EIS). The EA generally will be made available 
15 days after the Federal Register notice. It will be served on all 
parties and appropriate agencies. Others may request a copy from SEA. 
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 SEA'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.

[[Page 194]]

    (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 SEA and 
acts under SEA's 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 SEA's direction to collect the environmental 
information that is needed and to compile it into a draft EA or EIS, 
which is prepared under SEA's direction and then submitted to SEA 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]



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. In addition to 
the written submission, the notice and summary must be submitted on a 
3.5-inch diskette formatted for WordPerfect 5.1.
    (b) The exemption will be effective 7 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 30 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.
    (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]



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;

[[Page 195]]

    (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 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.



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:

(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. In addition 
to the written submission, the notice must be submitted on a 3.5-inch 
diskette formatted for WordPerfect 5.1.
    (e) The exemption will be effective 21 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 30 days of the 
filing.
    (f) If the notice contains false or misleading information, the 
exemption is void ab initio. A petition to revoke

[[Page 196]]

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. 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]



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]



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

[[Page 197]]

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 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.

[[Page 198]]

    (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:
    (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 the 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

[[Page 199]]

that must be established. 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]



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;
    (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. 10709(d)(2), which limits Board maximum ratemaking 
jurisdiction to rates above certain cost/price ratios.



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.

[[Page 200]]

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.

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. 701 note (1995) (section 204 of the ICC Termination 
Act of 1995), 721(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.

[[Page 201]]

    (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.



                        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

[[Page 202]]

    (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.



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

[[Page 203]]

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 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;
    (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 Traffic Management 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 headquarters of the Railroad Labor Executives' Association;
    (xii) The U.S. Department of Agriculture, Chief of the Forest 
Service; and

[[Page 204]]

    (xiii) The headquarters of all duly certified labor organizations 
that represent employees on the affected rail line. For purposes of this 
subsection ``directly affected states'' are those in which any part of a 
line sought to be abandoned is located.
    (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 Secs. 1105.7 and 
1105.8 at least 20 days prior to filing an application.



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. ________)
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, 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), 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

[[Page 205]]

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) 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 Secretary, 
Surface Transportation Board, Washington, DC 20423, 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). The original and 10 copies of all comments or protests 
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 
Section 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 Section 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 Section 
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

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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.



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 Secs. 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 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 Secs. 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

[[Page 207]]

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.
    (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 Secs. 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. In 
addition to the regular number of copies that must be filed with the 
Board, the applicant must submit a copy of the draft notice as data 
contained on a computer diskette compatible with the Board's current 
word processing capabilities. 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

[[Page 208]]

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 Secretary, 
Surface Transportation Board (Board), Washington, DC 20423, 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). The original and 10 copies of all comments 
or protests 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 
Section of Environmental Analysis.
    An environmental assessment (EA) (or environmental impact statement 
(EIS), if necessary) prepared by the Section 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 Section 
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. ____);

[[Page 209]]

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



Sec. 1152.23  [Reserved]



Sec. 1152.24  Filing and service of application.

    (a) An original and 10 copies of applications, typewritten or 
printed on paper approximately 8\1/2\ inches by 11 inches with 1\1/2\ 
inch left margin, shall be filed with the Secretary of the Surface 
Transportation Board, Washington, DC 20423. The original shall bear the 
date and signature and shall be complete in itself; the signature may be 
stamped or typed and the notarial seal may be omitted on the copies. A 
check, money order or payment by credit card payable to the Surface 
Transportation Board must also be submitted to cover the applicable 
filing fee. 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 
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

[[Page 210]]

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]



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 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.

[[Page 211]]

    (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 Secretary, Surface Transportation Board, Washington, DC 
20423) within 45 days of the filing with the Board of an abandonment or 
discontinuance application.
    (2) An original and 10 copies of each written comment or protest 
shall be filed with the Board.
    (3) 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.
    (4) 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. An original and 10 copies of such replies shall be 
filed with the Board.
    (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.

[[Page 212]]

    (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 1011.8(c) (4) and (5), will be acted on by the 
entire Board as set forth at 49 CFR 1011.2(a)(7). An original and 10 
copies of all 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 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 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. An original and 10 copies of such petitions must 
be filed with the Board.
    (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. An original and 10 copies of these 
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. An original and 10 copies of any 
petitions to stay must be filed with the Board.

[[Page 213]]

    (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]



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.

    (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, 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

[[Page 214]]

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 f 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 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) 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 Secretary, Surface Transportation Board, 
Washington, DC 20423.
    (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 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.

[[Page 215]]

    (ii) 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; governmental 
entities will be presumed to be financially responsible; and
    (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.
    (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). 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 Secretary, Surface Transportation Board, 
Washington, DC 20423.
    (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 (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 the 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)(ii) of 
this section.
    (d) Access to documents. Upon receipt by the carrier of a written 
comment under Sec. 1152.25 or a formal expression of intent under 
paragraph (c)(2)(i) of this section indicating an intent to offer 
financial assistance, or upon receipt by the carrier of an offer of 
financial assistance, whichever occurs earlier, the

[[Page 216]]

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)(i)(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. 1011.8, 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).
    (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)(i)(C) or (c)(2)(ii) (C) or (D) of this section). Under the 
delegation of authority at Sec. 1011.8, 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.

[[Page 217]]

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.)
    (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

[[Page 218]]

(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 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

[[Page 219]]

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 
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

[[Page 220]]

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]



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 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) 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:

[[Page 221]]

    (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 user's willingness to assume full 
responsibility: for managing the right-of-way; for any legal liability 
arising out of the 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 for the payment of all taxes 
assessed against the right-of-way; and
    (3) An acknowledgment that interim trail use is subject to the 
user'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, __________ (Interim Trail User) is 
willing to assume full responsibility for management of, for any legal 
liability arising out of the transfer or use of (unless the user is 
immune from liability, in which case it need only indemnify the railroad 
against any potential liability), and for the payment of any and all 
taxes that may be levied or assessed against the right-of-way owned by 
__________ (Railroad) and operated by __________ (Railroad). The 
property, known as __________ (Name of Branch Line), extends from 
railroad milepost __________ 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 User) acknowledges that use of the right-of-
way is subject to the user'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)(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 Sec. 1152.29(a), 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) Regular and NERSA abandonment proceedings. (1) 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/rail banking 
agreement, then the Board will issue a CITU to the railroad and to the 
interim trail user for that portion of the right-of-way to be covered by 
the agreement. The CITU will: Permit the railroad to discontinue 
service, cancel

[[Page 222]]

any applicable tariffs, and salvage track and material consistent with 
interim trail use and rail banking, as long as it is consistent with any 
other Board order, 30 days after the date it is issued (10 days after 
issuance in NERSA proceedings); and permit the railroad to fully abandon 
the line if no trail use agreement is reached 180 days after it is 
issued, subject to appropriate conditions, including labor protection 
and environmental matters.
    (2) The CITU will indicate that any interim trail use is subject to 
future restoration of rail service, and subject to the user continuing 
to meet the financial obligations for the right-of-way. The CITU will 
also provide that, if the user intends to terminate trail use, it must 
send the Board a copy of the CITU and request that it be vacated on a 
specified date. 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 user.
    (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 49 CFR part 1150, 
or exempted under 49 U.S.C. 10502, then the CITU will be vacated 
accordingly.
    (d) Exempt abandonment proceedings. (1) 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/rail banking agreement, then 
the Board will issue a Notice of Interim Trail Use or Abandonment (NITU) 
to the railroad and to the interim trail user for the portion of the 
right-of-way to be covered by the agreement. The NITU will: permit the 
railroad to discontinue service, cancel any applicable tariffs, and 
salvage track and materials, consistent with interim trail use and rail 
banking, as long as it is consistent with any other Board order, 30 days 
after the date it is issued; and permit the railroad to fully abandon 
the line if no agreement is reached 180 days after it is issued, subject 
to appropriate conditions, including labor protection and environmental 
matters.
    (2) The NITU will indicate that interim trail use is subject to 
future restoration of rail service, and subject to the user continuing 
to meet the financial obligations for the right-of-way. The NITU will 
also provide that, if the user intends to terminate trail use, it must 
send the Board a copy of the NITU and request that it be vacated on a 
specific date. 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 user.
    (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 49 CFR part 1150, 
or exempted under 49 U.S.C. 10502, then the NITU will be vacated 
accordingly.
    (e)(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 
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

[[Page 223]]

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 
Secretary of the Board. 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)(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.
    (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) 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 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 180 days, at the end of which, the CITU 
or NITU will convert into a decision or notice permitting abandonment.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997; 
64 FR 53268, Oct. 1, 1999]



  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

[[Page 224]]

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).
    (c) Final payment of financial assistance. (1) When a financial 
assistance agreement 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 the increase results from an expense 
preapproved by the subsidizer, the adjusted amount shall be included in 
the final payment.



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


[[Page 225]]



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.

------------------------------------------------------------------------
    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.

[[Page 226]]

 
    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.
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.

[[Page 227]]

 
    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.
    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.

[[Page 228]]

 
    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.
    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.

[[Page 229]]

 
    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.
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).

[[Page 230]]

 
    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.
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.

[[Page 231]]

 
    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.
    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.

[[Page 232]]

 
      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.
    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).

[[Page 233]]

 
    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.
      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.

[[Page 234]]

 
      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.
      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.

[[Page 235]]

 
    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.
    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.

[[Page 236]]

 
    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 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:

[[Page 237]]

    (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 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

[[Page 238]]

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.
    (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 (f)(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

[[Page 239]]

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.
    (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 cos