[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2010 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
49
Parts 1000 to 1199
Revised as of October 1, 2010
Transportation
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2010
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
Legal Status and Use of Seals and Logos
The seal of the National Archives and Records Administration
(NARA) authenticates the Code of Federal Regulations (CFR) as
the official codification of Federal regulations established
under the Federal Register Act. Under the provisions of 44
U.S.C. 1507, the contents of the CFR, a special edition of the
Federal Register, shall be judicially noticed. The CFR is
prima facie evidence of the original documents published in
the Federal Register (44 U.S.C. 1510).
It is prohibited to use NARA's official seal and the stylized Code
of Federal Regulations logo on any republication of this
material without the express, written permission of the
Archivist of the United States or the Archivist's designee.
Any person using NARA's official seals and logos in a manner
inconsistent with the provisions of 36 CFR part 1200 is
subject to the penalties specified in 18 U.S.C. 506, 701, and
1017.
Use of ISBN Prefix
This is the Official U.S. Government edition of this publication
and is herein identified to certify its authenticity. Use of
the 0-16 ISBN prefix is for U.S. Government Printing Office
Official Editions only. The Superintendent of Documents of the
U.S. Government Printing Office requests that any reprinted
edition clearly be labeled as a copy of the authentic work
with a new ISBN.
U . S . G O V E R N M E N T P R I N T I N G O F F I C E
------------------------------------------------------------------
U.S. Superintendent of Documents Washington, DC
20402-0001
http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
[[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........................ 301
Alphabetical List of Agencies Appearing in the CFR...... 321
List of CFR Sections Affected........................... 331
[[Page iv]]
----------------------------
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, 2010), 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, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001,
or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
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 202-741-6000
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, 8601 Adelphi Road, College Park, MD
20740-6001 or e-mail [email protected].
SALES
The Government Printing Office (GPO) processes all sales and
distribution of the CFR. For payment by credit card, call toll-free,
866-512-1800, or DC area, 202-512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or
fax your order to 202-512-2250, 24 hours a day. For payment by check,
write to: US Government Printing Office - New Orders, P.O. Box 979050,
St. Louis, MO 63197-9000. 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, Daily Compilation of Presidential
Documents and the Privacy Act Compilation are available in electronic
format via Federalregister.gov. 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,
[email protected].
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.archives.gov/federal-
register. The NARA site also contains links to GPO Access.
Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2010.
[[Page ix]]
THIS TITLE
Title 49--Transportation is composed of nine volumes. The parts in
these volumes are arranged in the following order: Parts 1-99, parts
100-185, parts 186-199, parts 200-299, parts 300-399, parts 400-571,
parts 572-999, parts 1000-1199, and part 1200 to end. The first volume
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
185) and the third volume (parts 186-199) contain the current
regulations issued under chapter I--Pipeline and Hazardous Materials
Safety Administration (DOT); the fourth volume (parts 200-299) contains
the current regulations issued under chapter II--Federal Railroad
Administration (DOT); the fifth volume (parts 300-399) contains the
current regulations issued under chapter III--Federal Motor Carrier
Safety Administration (DOT); the sixth volume (parts 400-571) contains
the current regulations issued under chapter IV--Coast Guard (DHS), and
some of chapter V--National Highway Traffic Safety Administration (DOT);
the seventh volume (parts 572-999) contains the rest of the regulations
issued under chapter IV, and the current regulations issued under
chapter VI--Federal Transit Administration (DOT), chapter VII--National
Railroad Passenger Corporation (AMTRAK), and chapter VIII--National
Transportation Safety Board; the eighth volume (parts 1000-1199)
contains the current regulations issued under chapter X--Surface
Transportation Board and the ninth volume (part 1200 to end) contains
the current regulations issued under chapter X--Surface Transportation
Board, chapter XI--Research and Innovative Technology Administration,
and chapter XII--Transportation Security Administration, Department of
Transportation. The contents of these volumes represent all current
regulations codified under this title of the CFR as of October 1, 2010.
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 III--Federal Motor Carrier Safety
Administration, Department of Transportation and chapter XII--
Transportation Security Administration, Department of Transportation
appear in the Finding Aids section of the fifth and ninth volumes.
For this volume, Bonnie Fritts was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Michael L.
White, assisted by Ann Worley.
[[Page 1]]
TITLE 49--TRANSPORTATION
(This book contains parts 1000 to 1199)
--------------------------------------------------------------------
SUBTITLE B--Other Regulations Relating to Transportation (Continued)
Part
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
--------------------------------------------------------------------
Editorial Note: Nomenclature changes to chapter X appear at 62 FR
42075, Aug. 5, 1997.
SUBCHAPTER A--GENERAL RULES AND REGULATIONS
PARTS 1000-1019--GENERAL PROVISIONS
Part Page
1000 [Reserved]
1001 Inspection of records....................... 9
1002 Fees........................................ 11
1003 Forms....................................... 19
1004 Interpretations and routing regulations..... 19
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 29
1012 Meetings of the Board....................... 34
1013 Guidelines for the proper use of voting
trusts.................................. 38
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.................... 51
1018 Debt collection............................. 57
1019 Regulations governing conduct of Surface
Transportation Board employees.......... 69
PARTS 1021-1029--ENFORCEMENT
1021 Administrative collection of enforcement
claims.................................. 69
PARTS 1030-1039--CARRIERS SUBJECT TO PART I, INTERSTATE COMMERCE ACT
1033 Car service................................. 70
[[Page 6]]
1034 Routing of traffic.......................... 72
1035 Bills of lading............................. 73
1037 Bulk grain and grain products--loss and
damage claims........................... 78
1039 Exemptions.................................. 80
PARTS 1040-1089 [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.......................... 87
1101 Definitions and construction................ 87
1102 Communications.............................. 88
1103 Practitioners............................... 89
1104 Filing with the board-copies-verification-
service-pleadings, generally............ 99
1105 Procedures for implementation of
environmental laws...................... 104
1106 Procedures for Surface Transportation Board
consideration of safety integration
plans in cases involving railroad
consolidations, mergers, and
acquisitions of control................. 114
1107 [Reserved]
1108 Arbitration of certain disputes subject to
the statutory jurisdiction of the
Surface Transportation Board............ 116
1109 Use of alternative dispute resolution in
Board proceedings and those in which the
Board is a party........................ 121
1110 Procedures governing informal rulemaking
proceedings............................. 122
1111 Complaint and investigation procedures...... 124
1112 Modified procedures......................... 128
1113 Oral hearing................................ 130
1114 Evidence; discovery......................... 136
1115 Appellate procedures........................ 146
1116 Oral argument before the Board.............. 148
1117 Petitions (for relief) not otherwise covered 149
1118 Procedures in informal proceedings before
employee boards......................... 149
1119 Compliance with Board decisions............. 149
1120 Use of 1977-1978 study of motor carrier
platform handling factors............... 149
1121 Rail exemption procedures................... 150
[[Page 7]]
1122-1129 [Reserved]
PARTS 1130-1149--RATE PROCEDURES
1130 Informal complaints......................... 152
1132 Protests requesting suspension and
investigation of collective ratemaking
actions................................. 153
1133 Recovery of damages......................... 155
1135 Railroad cost recovery procedures........... 156
1139 Procedures in motor carrier revenue
proceedings............................. 156
1141 Procedures to calculate interest rates...... 181
1144 Intramodal rail competition................. 181
1146 Expedited relief for service emergencies.... 183
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......... 197
1152 Abandonment and discontinuance of rail lines
and rail transportation under 49 U.S.C.
10903................................... 201
1155 Solid waste rail transfer facilities........ 254
1156-1176 [Reserved]
PARTS 1177-1199--FINANCE PROCEDURES
PARTS 1177-1179--SECURITIES, SECURITY INTERESTS, AND FINANCIAL
STRUCTURES
1177 Recordation of documents.................... 264
1178-1179 [Reserved]
PARTS 1180-1189--COMBINATIONS AND OWNERSHIP
1180 Railroad acquisition, control, merger,
consolidation project, trackage rights,
and lease procedures.................... 267
1182 Purchase, merger, and control of motor
passenger carriers...................... 291
1184 Motor carrier pooling operations............ 295
1185 Interlocking officers....................... 296
1187-1199 [Reserved]
[[Page 9]]
SUBCHAPTER A_GENERAL RULES AND REGULATIONS
Parts 1000 1019_General Provisions
PART 1000 [RESERVED]
PART 1001_INSPECTION OF RECORDS--Table of Contents
Sec.
1001.1 Records available from the Board.
1001.2 Certified copies of records.
1001.3 Requests to inspect other records not considered public under 5
U.S.C. 552.
1001.4 Predisclosure notification procedures for confidential commercial
information.
Authority: 5 U.S.C. 552, 49 U.S.C. 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
Records Officer of the Surface Transportation Board are available to the
public and may be inspected at the Board's office upon reasonable
request during business hours (between 8:30 a.m. and 5 p.m., Monday
through Friday):
(1) Copies of tariffs and railroad transportation contract summaries
filed with the Board pursuant to 49 U.S.C. 13702(b) and 10709(d),
respectively.
(2) Annual and other periodic reports filed with the Board pursuant
to 49 U.S.C. 11145.
(3) All docket files, which include documents of record in a
proceeding.
(4) File and index of instruments or documents recorded pursuant to
49 U.S.C. 11301.
(5) Surface Transportation Board Administrative Issuances.
(b) The following records, so-called ``reading room'' documents, are
available for inspection and copying at the Board's office:
(1) Final decisions, including concurring and dissenting opinions,
as well as orders, made in the adjudication of cases;
(2) Those statements of policy and interpretations that have been
adopted by the agency and are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect a member of the public; and
(4) Copies of all records, regardless of form or format, that have
been released to any person under 5 U.S.C. 552(a)(3) and that, because
of the nature of their subject matter, the agency determines have become
or are likely to become the subject of subsequent requests for
substantially the same records.
(c) The Board maintains, and makes available for inspection and
copying, indexes of the documents described in paragraph (b) of this
section. Final decisions are indexed in the ``Surface Transportation
Board Daily Releases'', which is issued by the Board every working day.
This document also explains how copies of decisions can be purchased.
The remaining documents are indexed as they are made available.
(d) Documents described in paragraph (b) of this section that were
created on and after November 1, 1996, are indexed by service date or
date of issuance and are available for viewing and downloading from the
Board's Electronic Reading Room at www.stb.dot.gov, the Board's website.
Final decisions are maintained in a database that is full text
searchable.
[64 FR 47711, Sept. 1, 1999, as amended at 74 FR 52902, Oct. 15, 2009]
Sec. 1001.2 Certified copies of records.
Copies of and extracts from public records will be certified by the
Records Officer. Persons requesting the Board to prepare such copies
should clearly state the material to be copied, and whether it shall be
certified. Charges will be made for certification and for the
preparation of copies as provided in part 1002 of this chapter.
[74 FR 52903, Oct. 15, 2009]
[[Page 10]]
Sec. 1001.3 Requests to inspect other records not considered public
under 5 U.S.C. 552.
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 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.
[[Page 11]]
(e) Notice of intent to disclose. (1) The Board shall consider
carefully a submitter's objections and specific grounds for
nondisclosure prior to its determination whether or not to disclose the
requested information. Whenever the Board decides to disclose the
information over a submitter's objection, it shall provide the submitter
with written notice containing the following:
(i) A description or copy of the information to be disclosed;
(ii) The reasons why the submitter's disclosure objections were not
sustained; and
(iii) A specific disclosure date, which shall be a reasonable number
of days after the notice of intent to disclose has been mailed to the
submitter.
(2) At the same time that notice of intent to disclose is given to a
submitter, the Board shall notify the requester accordingly.
(f) Notice of lawsuit. (1) Whenever an FOIA requester brings legal
action seeking to compel disclosure of confidential commercial
information, the Board shall promptly notify the submitter.
(2) Whenever a submitter brings legal action seeking to prevent
disclosure of confidential commercial information, the Board shall
promptly notify the requester.
(g) Exception to notice requirement. The notice requirements of this
section shall not apply if:
(1) The Board determines that the information requested should not
be disclosed; or
(2) The information already has been published or otherwise
officially made available to the public; or
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) Disclosure is required by a Board rule that:
(i) Was adopted pursuant to notice and public comment;
(ii) Specifies narrow classes of records submitted to the Board that
are to be released; and
(iii) Provides in exceptional circumstances for notice when the
submitter provides written justification, at the time the information is
submitted or within a reasonable time thereafter, that disclosure of the
information could reasonably be expected to cause substantial
competitive harm; or
(5) The information requested was not designated by the submitter as
exempt from disclosure, when the submitter had an opportunity to do so
at the time of submission or within a reasonable time thereafter, unless
the Board has reason to believe that disclosure of the information could
reasonably be expected to cause substantial competitive harm; or
(6) The designation made by the submitter in accordance with these
regulations appears obviously frivolous; in such case, the Board must
provide the submitter only with written notice of any administrative
disclosure determination within a reasonable number of days prior to the
specified disclosure date.
PART 1002_FEES--Table of Contents
Sec.
1002.1 Fees for records search, review, copying, certification, and
related services.
1002.2 Filing fees.
1002.3 Updating user fees.
Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and 49
U.S.C. 721. Section 1002.1(g)(11) also issued under 5 U.S.C. 5514 and 31
U.S.C. 3717.
Sec. 1002.1 Fees for records search, review, copying, certification,
and related services.
Certifications and copies of such tariffs, reports and other public
records and documents on file with the Surface Transportation Board as
may be practicable to furnish, as well as searches and copying of
records not considered public under the Freedom of Information Act (5
U.S.C. 552), will be furnished on the following basis:
(a) Certificate of the Records Officer, $17.00.
(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 $41.00 per hour.
(c) Service involved in checking records to be certified to
determine authenticity, including clerical work, etc., identical
thereto, at the rate of $28.00 per hour.
[[Page 12]]
(d) Photocopies of tariffs, reports, and other public documents, at
the rate of $1.40 per letter or legal size exposure. A minimum charge of
$7.00 will be made for this service.
(e) Fees for courier services to transport agency records to provide
on-site access to agency records stored off-site will be set at the
rates set forth in the Board's agreement with its courier service
provider. Rate information is available on the Board's Web site (http://
www.stb.dot.gov) or can be obtained from the Board's Records Officer,
Room 1200, Surface Transportation Board, Washington, DC 20423-0001.
(f) The fee for search and copying services requiring computer
processing are as follows:
(1) A fee of $71.00 per hour for professional staff time will be
charged when it is required to fulfill a request for ADP data.
(2) 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.
(g) 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 Grade Rate
------------------------------------------------------------------------
GS-1........................... $12.01 GS-9............. $28.04
GS-2........................... 13.07 GS-10............ 30.88
GS-3........................... 14.73 GS-11............ 33.92
GS-4........................... 16.54 GS-12............ 40.66
GS-5........................... 18.50 GS-13............ 48.21
GS-6........................... 20.63 GS-14............ 57.13
GS-7........................... 22.92 GS-15 and over... 67.21
GS-8........................... 25.38
------------------------------------------------------------------------
(7) The fee for photocopies shall be $1.40 per letter or legal size
exposure with a minimum charge of $7.00.
(8) The fees for computer data are set forth in paragraph (f) of
this section.
[[Page 13]]
(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 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
20423-0001.
(h) Fees for services described in paragraphs (a) through (g) of
this section may be charged to accounts established in accordance with
49 CFR 1002.2(a)(2), or paid for by check, money order, currency, or
credit card in accordance with 49 CFR 1002.2(a)(3).
(i) Transcript of testimony and of oral argument, or extracts
therefrom, may be purchased by the public from the Board's official
reporter. For information regarding the official reporter, contact the
Records Officer, Surface Transportation Board, Washington, DC 20423-
0001.
[32 FR 20010, Dec. 20, 1967]
[[Page 14]]
Editorial Note: For Federal Register citations affecting Sec.
1002.1, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
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. Filing fees for tariffs, including schedules, and
contract summaries, including supplements (Item 78), and filing fees for
documents submitted for recording (Item 83) may be charged to 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 STB billing
accounts for filing fees for tariffs and for documents submitted for
recording.
(3) Fees will be payable to the 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 that is not accompanied by the appropriate filing
fee, payment via credit card or STB billing account, or a request for
waiver of the fee, is deficient. 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 contained
in paragraph (f) of this section.
(2) A separate fee will be assessed for the filing of an application
for temporary authority to operate a motor carrier of passengers as
provided for in paragraph (f)(5) of this section regardless of whether
such application is related to a corresponding transfer proceeding as
provided for in paragraph (f)(2) of this section.
(3) The Board may reject concurrently filed applications, petitions,
notices, contracts, or other documents asserted to be related and refund
the filing fee if, in its judgment, they embrace two or more severable
matters which should be the subject of separate proceedings.
(e) Waiver or reduction of filing fees. It is the general policy of
the Board not to waive or reduce filing fees except as described below:
(1) 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:
[[Page 15]]
(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 Chief,
Section of Administration, Office of Proceedings, Surface Transportation
Board.
(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 Chief, Section of Administration, Office of
Proceedings, Surface Transportation Board 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 $4,400.
of traffic.
(2)(i) An application involving the purchase, $2,000.
lease, consolidation, merger, or acquisition
of control of a motor carrier of passengers
under 49 U.S.C. 14303.
(ii) A petition for exemption under 49 U.S.C. $3,200.
13541 (other than a rulemaking) filed by a
non-rail carrier not otherwise covered.
(iii) A petition to revoke an exemption filed $2,600.
under 49 U.S.C. 13541(d).
(3) An application for approval of a non-rail $27,600.
rate association agreement. 49 U.S.C. 13703.
(4) An application for approval of an
amendment to a non-rail rate association
agreement:
(i) Significant amendment................. $4,600.
(ii) Minor amendment...................... $100.
(5) An application for temporary authority to $500.
operate a motor carrier of passengers. 49
U.S.C. 14303(i)
(6) A notice of exemption for transaction $1,700.
within a motor passenger corporate family
that does not result in adverse changes in
service levels, significant operational
changes, or a change in the competitive
balance with motor passenger carriers outside
the corporate family.
(7)-(10) [Reserved]
-----------------------------------------------
PART II: Rail Licensing Proceedings other than Abandonment or
Discontinuance Proceedings
------------------------------------------------------------------------
(11) (i) An application for a certificate $7,200.
authorizing the extension, acquisition, or
operation of lines of railroad. 49 U.S.C.
10901.
(ii) Notice of exemption under 49 CFR..... $1,800.
1150.31-1150.35...........................
(iii) Petition for exemption under 49 $12,500.
U.S.C. 10502.
(12) (i) An application involving the $74,500.
construction of a rail line.
(ii) A notice of exemption involving $1,800.
construction of a rail line under 49 CFR
1150.36.
(iii) A petition for exemption under 49 $74,500.
U.S.C. 10502 involving construction of a
rail line.
(iv) A request for determination of a $250.
dispute involving a rail construction
that crosses the line of another carrier
under 49 U.S.C. 10902(d).
(13) A Feeder Line Development Program $2,600.
application filed under 49 U.S.C.
10907(b)(1)(A)(i) or 10907(b)(1)(A)(ii).
(14)(i) An application of a class II or class $6,200.
III carrier to acquire an extended or
additional rail line under 49 U.S.C. 10902.
(ii) Notice of exemption under 49 CFR $1,800.
1150.41-1150.45.
(iii) Petition for exemption under 49 $6,600.
U.S.C. 10502 relating to an exemption
from the provisions of 49 U.S.C. 10902.
(15) A notice of a modified certificate of $1,700.
public convenience and necessity under 49 CFR
1150.21-1150.24.
(16) An application for a land-use-exemption $6,000.
permit for a facility existing as of October
16, 2008 under 49 U.S.C. 10909.
(17) An application for a land-use-exemption $21,100.
permit for a facility not existing as of
October 16, 2008 under 49 U.S.C. 10909.
(18)-(20) [Reserved]
-----------------------------------------------
PART III: Rail Abandonment or Discontinuance of Transportation Services
Proceedings
------------------------------------------------------------------------
(21)(i) An application for authority to $22,100.
abandon all or a portion of a line of
railroad or discontinue operation thereof
filed by a railroad (except applications
filed by Consolidated Rail Corporation
pursuant to the Northeast Rail Service Act
[Subtitle E of Title XI of Pub. L. 97-35],
bankrupt railroads, or exempt abandonments).
(ii) Notice of an exempt abandonment or $3,600.
discontinuance under 49 CFR 1152.50.
(iii) A petition for exemption under 49 $6,300.
U.S.C. 10502.
(22) An application for authority to abandon $450.
all or a portion of a line of a railroad or
operation thereof filed by Consolidated Rail
Corporation pursuant to Northeast Rail
Service Act.
(23) Abandonments filed by bankrupt railroads. $1,800.
(24) A request for waiver of filing $1,800.
requirements for abandonment application
proceedings.
(25) An offer of financial assistance under 49 $1,500.
U.S.C. 10904 relating to the purchase of or
subsidy for a rail line proposed for
abandonment.
(26) A request to set terms and conditions for $22,600.
the sale of or subsidy for a rail line
proposed to be abandoned.
[[Page 16]]
(27) (i) A request for a trail use condition $250.
in an abandonment proceeding under 16
U.S.C.1247(d).
(ii) A request to extend the period to $450.
negotiate a trail use agreement.
(28)-(35) [Reserved]
-----------------------------------------------
PART IV: Rail Applications to Enter Upon a Particular Financial
Transaction or Joint Arrangement
------------------------------------------------------------------------
(36) An application for use of terminal $18,900.
facilities or other applications under 49
U.S.C. 11102.
(37) An application for the pooling or $10,200.
division of traffic. 49 U.S.C. 11322.
(38) An application for two or more carriers
to consolidate or merge their properties or
franchises (or a part thereof) into one
corporation for ownership, management, and
operation of the properties previously in
separate ownership. 49 U.S.C. 11324:
(i) Major transaction..................... $1,489,900.
(ii) Significant transaction.............. $298,000.
(iii) Minor transaction................... $7,500.
(iv) Notice of an exempt transaction under $1,700.
49 CFR 1180.2(d).
(v) Responsive application................ $7,500.
(vi) Petition for exemption under 49 $9,300.
U.S.C. 10502.
(vii) A request for waiver or $5,500.
clarification of regulations filed in a
major financial proceeding as defined at
49 CFR 1180.2(a).
(39) An application of a non-carrier to
acquire control of two or more carriers
through ownership of stock or otherwise. 49
U.S.C. 11324:
(i) Major transaction..................... $1,489,900.
(ii) Significant transaction.............. $298,000.
(iii) Minor transaction................... $7,500.
(iv) A notice of an exempt transaction $1,300.
under 49 CFR 1180.2(d).
(v) Responsive application................ $7,500.
(vi) Petition for exemption under 49 $9,300.
U.S.C. 10502.
(vii) A request for waiver or $5,500.
clarification of regulations filed in a
major financial proceeding as defined at
49 CFR 1180.2(a).
(40) An application to acquire trackage rights
over, joint ownership in, or joint use of any
railroad lines owned and operated by any
other carrier and terminals incidental
thereto. 49 U.S.C. 11324:
(i) Major transaction..................... $1,489,900.
(ii) Significant transaction.............. $298,000.
(iii) Minor transaction................... $7,500.
(iv) Notice of an exempt transaction under $1,200.
49 CFR 1180.2(d).
(v) Responsive application................ $7,500.
(vi) Petition for exemption under 49 $9,300.
U.S.C. 10502.
(vii) A request for waiver or $5,500.
clarification of regulations filed in a
major financial proceeding as defined at
49 CFR 1180.2(a).
(41) An application of a carrier or carriers
to purchase, lease, or contract to operate
the properties of another, or to acquire
control of another by purchase of stock or
otherwise. 49 U.S.C. 11324:
(i) Major transaction..................... $1,489,900.
(ii) Significant transaction.............. $298,000.
(iii) Minor transaction................... $7,500.
(iv) Notice of an exempt transaction under $1,400.
49 CFR 1180.2(d).
(v) Responsive application................ $7,500.
(vi) Petition for exemption under 49 $6,600.
U.S.C. 10502.
(vii) A request for waiver or $5,500.
clarification of regulations filed in a
major financial proceeding as defined at
49 CFR 1180.2(a).
(42) Notice of a joint project involving $2,400.
relocation of a rail line under 49 CFR
1180.2(d)(5).
(43) An application for approval of a rail $69,700.
rate association agreement. 49 U.S.C. 10706.
(44) An application for approval of an
amendment to a rail rate association
agreement. 49 U.S.C. 10706:
(i) Significant amendment................. $12,900.
(ii) Minor amendment...................... $100.
(45) An application for authority to hold a $750.
position as officer or director under 49
U.S.C. 11328.
(46) A petition for exemption under 49 U.S.C. $8,000.
10502 (other than a rulemaking) filed by rail
carrier not otherwise covered.
(47) National Railroad Passenger Corporation $250.
(Amtrak) conveyance proceeding under 45
U.S.C. 562.
(48) National Railroad Passenger Corporation $250.
(Amtrak) compensation proceeding under
Section 402(a) of the Rail Passenger Service
Act.
(49)-(55) [Reserved]
-----------------------------------------------
PART V: Formal Proceedings
------------------------------------------------------------------------
(56) A formal complaint alleging unlawful
rates or practices of carriers:.
(i) A formal complaint filed under the $350.
coal rate guidelines (Stand-Alone Cost
Methodology) alleging unlawful rates and/
or practices of rail carriers under 49
U.S.C. 10704(c)(1).
(ii) A formal complaint involving rail $350.
maximum rates filed under the Simplified-
SAC methodology.
(iii) A formal complaint involving rail $150.
maximum rates filed under the Three
Benchmark methodology.
(iv) All other formal complaints (except $20,600.
competitive access complaints).
(v) Competitive access complaints......... $150.
(vi) A request for an order compelling a $250.
rail carrier to establish a common
carrier rate.
(57) A complaint seeking or a petition $8,800.
requesting institution of an investigation
seeking the prescription or division of joint
rates or charges. 49 U.S.C. 10705.
[[Page 17]]
(58) A petition for declaratory order:
(i) A petition for declaratory order $1,000.
involving a dispute over an existing rate
or practice which is comparable to a
complaint proceeding.
(ii) All other petitions for declaratory $1,400.
order.
(59) An application for shipper antitrust $7,000.
immunity. 49 U.S.C. 10706(a)(5)(A).
(60) Labor arbitration proceedings............ $250.
(61)(i) An appeal of a Surface Transportation $250.
Board decision on the merits or petition to
revoke an exemption pursuant to 49 U.S.C.
10502(d).
(ii) An appeal of a Surface Transportation $350.
Board decision on procedural matters
except discovery rulings.
(62) Motor carrier undercharge proceedings.... $250.
(63)(i) Expedited relief for service $250.
inadequacies: A request for expedited relief
under 49 U.S.C. 11123 and 49 CFR part 1146
for service emergency.
(ii) Expedited relief for service $250.
inadequacies: A request for temporary
relief under 49 U.S.C. 10705 and 11102,
and 49 CFR part 1147 for service
inadequacy.
(64) A request for waiver or clarification of $550.
regulations except one filed in an
abandonment or discontinuance proceeding, or
in a major financial proceeding as defined at
49 CFR 1180.2(a).
(65)-(75) [Reserved]
-----------------------------------------------
PART VI: Informal Proceedings
------------------------------------------------------------------------
(76) An application for authority to establish $1,200.
released value rates or ratings for motor
carriers and freight forwarders of household
goods under 49 U.S.C. 14706.
(77) An application for special permission for $100.
short notice or the waiver of other tariff
publishing requirements.
(78) The filing of tariffs, including $1 per page.
supplements, or contract summaries. ($24 minimum charge.)
(79) Special docket applications from rail and
water carriers:
(i) Applications involving $25,000 or less $75.
(ii) Applications involving over $25,000.. $150.
(80) Informal complaint about rail rate $600.
applications.
(81) Tariff reconciliation petitions from
motor common carriers:
(i) Petitions involving $25,000 or less... $75.
(ii) Petitions involving over $25,000..... $150.
(82) Request for a determination of the $200.
applicability or reasonableness of motor
carrier rates under 49 U.S.C. 13710(a)(2) and
(3).
(83) Filing of documents for recordation. 49 $41 per document.
U.S.C. 11301 and 49 CFR 1177.3(c).
(84) Informal opinions about rate applications $250.
(all modes).
(85) A railroad accounting interpretation..... $1,100.
(86) (i) A request for an informal opinion not $1,400.
otherwise covered.
(ii) A proposal to use on a voting trust $5,100.
agreement pursuant to 49 CFR 1013 and 49
CFR 1180.4(b)(4)(iv) in connection with a
major control proceeding as defined at 49
CFR 1180.2(a).
(iii) A request for an informal opinion on $500.
a voting trust agreement pursuant to 49
CFR 1013.3(a) not otherwise covered.
(87) Arbitration of Certain Disputes Subject
to the Statutory Jurisdiction of the Surface
Transportation Board under 49 CFR 1108:
(i) Complaint............................. $75.
(ii) Answer (per defendant), Unless $75.
Declining to Submit to Any Arbitration.
(iii) Third Party Complaint............... $75.
(iv) Third Party Answer (per defendant), $75.
Unless Declining to Submit to Any
Arbitration.
(v) Appeals of Arbitration Decisions or $150.
Petitions to Modify or Vacate an
Arbitration Award.
(88) Basic fee for STB adjudicatory services $250.
not otherwise covered.
(89)-(95) [Reserved]
-----------------------------------------------
PART VII: Services
------------------------------------------------------------------------
(96) Messenger delivery of decision to a $32 per delivery.
railroad carrier's Washington, DC, agent.
(97) Request for service or pleading list for $24 per list.
proceedings.
(98) Processing the paperwork related to a
request for the Carload Waybill Sample to be
used in a Surface Transportation Board or
State proceeding that:
(i) Does not require a Federal Register
notice:
(a) Set cost portion...................... $150.
(b) Sliding cost portion.................. $47 per party.
(ii) Does require a Federal Register notice:
(a) Set cost portion...................... $400.
(b) Sliding cost portion.................. $47 per party.
(99)(i) Application fee for the Surface $150.
Transportation Board's Practitioners' Exam.
(ii) Practitioners' Exam Information $25.
Package.
(100) Carload Waybill Sample data:
(i) Requests for Public Use File for all $250 per year.
years prior to the most current year
Carload Waybill Sample data available,
provided on CD-R.
(ii) Specialized programming for Waybill $112 per hour.
requests to the Board.
------------------------------------------------------------------------
[[Page 18]]
(g) Returned check policy. (1) If a check submitted to the Board for
a filing or service fee is dishonored by a bank or financial institution
on which it is drawn, the Board will notify the person who submitted the
check that:
(i) All work will be suspended on the filing or proceeding, other
than a tariff filing, until the check is made good;
(ii) A returned check charge of $20.00 and any bank charges incurred
by the Board as a result of the dishonored check must be submitted with
the filing fee which is outstanding; and
(iii) If payment is not made within the time specified by the Board,
the proceeding will be dismissed or the filing may be rejected.
(2) If a person repeatedly submits dishonored checks to the Board
for filing fees, the Board may notify the person that all future filing
fees must be submitted in the form of a certified or cashier's check or
a money order.
[49 FR 18492, May 1, 1984]
Editorial Note: For Federal Register citations affecting Sec.
1002.2, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
Sec. 1002.3 Updating user fees.
(a) Update. Each fee established in this part shall be updated in
accordance with this section at least once a year. However, any fee may
be updated more than once a year, if the Board finds that an additional
update is necessary.
(b) Publication and effective dates. Updated fees shall be published
in the Federal Register and shall become effective 30 days after
publication.
(c) Payment of fees. Any person submitting a filing for which a fee
is established shall pay the fee in effect at the time of the filing.
(d) Method of updating fees. Each fee shall be updated by updating
the cost components comprising the fee. Cost components shall be updated
as follows:
(1) Direct labor costs shall be updated by multiplying base level
direct labor costs by percentage changes in average wages and salaries
of Board employees. Base level direct labor costs are direct labor costs
determined by the cost study set forth in Revision of Fees For Services,
1 I.C.C.2d 60 (1984) or subsequent cost studies. The base period for
measuring changes shall be April 1984.
(2) Operations overhead shall be developed each year on the basis of
current relationships existing on a weighted basis, for indirect labor
applicable to the first supervisory work centers directly associated
with user fee activity. Actual updating of operations overhead will be
accomplished by applying the current percentage factor to updated direct
labor, including current governmental overhead costs.
(3)(i) Office general and administrative costs shall be developed
each year on the basis of current level costs, i.e., dividing actual
office general and administrative costs for the current fiscal year by
total office costs for the Offices directly associated with user fee
activity. Actual updating of office general and administrative costs
will be accomplished by applying the current percentage factor to
updated direct 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
[[Page 19]]
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 Public Assistance,
Governmental Affairs, and Compliance, Surface Transportation Board,
Washington, DC 20423.
[57 FR 41112, Sept. 9, 1992, as amended at 64 FR 53266, Oct. 1, 1999; 74
FR 52903, Oct. 15, 2009]
PART 1004_INTERPRETATIONS AND ROUTING REGULATIONS--Table of Contents
Sec.
1004.1 Gifts, donations, and hospitality by carriers.
1004.2 Misrouting, adjustment of claims.
Authority: 49 U.S.C. 721.
Source: 64 FR 47711, Sept. 1, 1999, unless otherwise noted.
Sec. 1004.1 Gifts, donations, and hospitality by carriers.
It is unlawful for any common carrier engaged in interstate or
foreign commerce to offer, make, or cause any undue or unreasonable
preference or advantage to any person. Gifts or services or anything of
substantial value to particular shippers or their representatives are
considered violations of the law. Expenditures for such gifts may not
support requests to increase carrier rates. The Board shall take
appropriate enforcement action to redress such unlawful expenditures.
Sec. 1004.2 Misrouting, adjustment of claims.
Carriers should adjust claims for damages resulting from misrouting.
Where a carrier admits responsibility for billing, forwarding, or
diverting a shipment over a higher rated route than that directed by the
shipper or otherwise available, the misrouting carrier should refund the
difference to the shipper (or reimburse the delivering carrier, as the
case may be). Where the misrouting carrier alleges justification for
using the higher rated route, the Board may, at its discretion and upon
appropriate petition, determine or express an advisory opinion on the
lawfulness of such routing. This interpretation must not be used to
evade or defeat tariff rates or to meet the rate of a competing carrier
or route, nor to relieve a shipper from responsibility for routing
instruction. Damages caused by misrouting are not overcharges.
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]
[[Page 20]]
Sec. 1005.2 Filing of claims.
(a) Compliance with regulations. A claim for loss or damage to
baggage or for loss, damage, injury, or delay to cargo, shall not be
voluntarily paid by a carrier unless filed, as provided in paragraph (b)
of this section, with the receiving or delivering carrier, or carrier
issuing the bill of lading, receipt, ticket, or baggage check, or
carrier on whose line the alleged loss, damage, injury, or delay
occurred, within the specified time limits applicable thereto and as
otherwise may be required by law, the terms of the bill of lading or
other contract of carriage, and all tariff provisions applicable
thereto.
(b) Minimum filing requirements. A written or electronic
communication (when agreed to by the carrier and shipper or receiver
involved) from a claimant, filed with a proper carrier within the time
limits specified in the bill of lading or contract of carriage or
transportation and: (1) Containing facts sufficient to identify the
baggage or shipment (or shipments) of property, (2) asserting liability
for alleged loss, damage, injury, or delay, and (3) making claim for the
payment of a specified or determinable amount of money, shall be
considered as sufficient compliance with the provisions for filing
claims embraced in the bill of lading or other contract of carriage;
Provided, however, That where claims are electronically handled,
procedures are established to ensure reasonable carrier access to
supporting documents.
(c) Documents not constituting claims. Bad order reports, appraisal
reports of damage, notations of shortage or damage, or both, on freight
bills, delivery receipts, or other documents, or inspection reports
issued by carriers or their inspection agencies, whether the extent of
loss or damage is indicated in dollars and cents or otherwise, shall,
standing alone, not be considered by carriers as sufficient to comply
with the minimum claim filing requirements specified in paragraph (b) of
this section.
(d) Claims filed for uncertain amounts. Whenever a claim is
presented against a proper carrier for an uncertain amount, such as
``$100 more or less,'' the carrier against whom such claim is filed
shall determine the condition of the baggage or shipment involved at the
time of delivery by it, if it was delivered, and shall ascertain as
nearly as possible the extent, if any, of the loss or damage for which
it may be responsible. It shall not, however, voluntarily pay a claim
under such circumstances unless and until a formal claim in writing for
a specified or determinable amount of money shall have been filed in
accordance with the provisions of paragraph (b) of this section.
(e) Other claims. If investigation of a claim develops that one or
more other carriers has been presented with a similar claim on the same
shipment, the carrier investigating such claim shall communicate with
each such other carrier and, prior to any agreement entered into between
or among them as to the proper disposition of such claim or claims,
shall notify all claimants of the receipt of conflicting or overlapping
claims and shall require further substantiation, on the part of 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
[[Page 21]]
the time such claim is received the carrier shall cause the date of
receipt to be recorded on the face of the claim document, and the date
of receipt shall also appear in the carrier's acknowledgment of receipt
to the claimant. The carrier shall also cause the claim file number to
be noted on the shipping order, if in its possession, and the delivery
receipt, if any, covering such shipment, unless the carrier has
established an orderly and consistent internal procedure for assuring:
(1) That all information contained in shipping orders, delivery
receipts, tally sheets, and all other pertinent records made with
respect to the transportation of the shipment on which claim is made, is
available for examination upon receipt of a claim; (2) that all such
records and documents (or true and complete reproductions thereof) are
in fact examined in the course of the investigation of the claim (and an
appropriate record is made that such examination has in fact taken
place); and (3) that such procedures prevent the duplicate or otherwise
unlawful payment of claims.
[37 FR 4258, Mar. 1, 1972, as amended at 37 FR 20943, Oct. 10, 1972; 47
FR 12803, Mar. 25, 1982]
Sec. 1005.4 Investigation of claims.
(a) Prompt investigation required. Each claim filed against a
carrier in the manner prescribed herein shall be promptly and thoroughly
investigated if investigation has not already been made prior to receipt
of the claim.
(b) Supporting documents. When a necessary part of an investigation,
each claim shall be supported by the original bill of lading, evidence
of the freight charges, if any, and either the original invoice, a
photographic copy of the original invoice, or an exact copy thereof or
any extract made therefrom, certified by the claimant to be true and
correct with respect to the property and value involved in the claim; or
certification of prices or values, with trade or other discounts,
allowance, or deductions, of any nature whatsoever and the terms
thereof, or depreciation reflected thereon; Provided, however, That
where property involved in a claim has not been invoiced to the
consignee shown on the bill of lading or where an invoice does not show
price or value, or where the property involved has been sold, or where
the property has been transferred at bookkeeping values only, the
carrier shall, before voluntarily paying a claim, require the claimant
to establish the destination value in the quantity, shipped,
transported, or involved; Provided, further, That when supporting
documents are determined to be a necessary part of an investigation, the
supporting documents are retained by the carriers for possible Board
inspection.
(c) Verification of Loss. When an asserted claim for loss of an
entire package or an entire shipment cannot be otherwise authenticated
upon investigation, the carrier shall obtain from the consignee of the
shipment involved a certified statement in writing that the property for
which the claim is 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
[[Page 22]]
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.
(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
[[Page 23]]
to determine whether information about them is contained in Board files
and, if so, to obtain access to that information; to establish
procedures whereby individuals may have inaccurate and incomplete
information corrected; and, to restrict access by unauthorized persons
to that information.
(b) In this part the Board is also exempting certain Board systems
of records from some of the provisions of the Privacy Act of 1974 that
would otherwise be applicable to those systems.
Sec. 1007.2 Definitions.
As used in this part:
Board means the Surface Transportation Board.
Chairman means the Presidentially appointed Board Member who is the
administrative head of the Surface Transportation Board.
Privacy Officer refers to the individual designated to process
requests and handle various other matters relating to the Board's
implementation of the Privacy Act of 1974.
Individual means a citizen of the United States or an alien lawfully
admitted for permanent residence.
Maintain means the maintenance, collection, use, or dissemination
(of records).
Record means any item, collection or grouping of information about
an individual that is maintained by an agency, including, but not
limited to, his education, financial transactions, medical history, and
criminal or employment history and that contains his name, or the
identifying number, symbol, or other identifying particular assigned to
the individual, such as a finger or voice print or a photograph.
Statistical Record means a record in a system of records maintained
for statistical research or reporting purposes only and not used in
whole or in part in making any determination about an identifiable
individual, except as provided by section 8 of Title 13 of the United
States Code.
System of records means a group of any records under the control of
the Board retrieved by the name of the individual or by some identifying
number, symbol, or other identifying particular assigned to the
individual.
Routine use means, with respect to the disclosure of a record, the
use of such record for a purpose which is compatible with the purpose of
which the record was compiled.
Agency means any executive department, military department,
Government corporation, Government-controlled corporation or other
establishment in the Executive Branch of the Government or any
independent regulatory agency.
Sec. 1007.3 Requests by an individual for information or access.
(a) Any individual may request information on whether a system of
records maintained by the Board contains any information pertaining to
him or her, or may request access to his or her record or to any
information pertaining to him or her which is contained in a system of
records. All requests shall be directed to the Privacy Officer, Surface
Transportation Board, 395 E Street, SW., Washington, DC 20423-0001.
(b) A request for information or for access to records under this
part may be made by mail or in person. The request shall:
(1) Be in writing and signed by the individual making the request;
and,
(2) Include the full name of the individual seeking the information
or record, along with his or her home and business addresses and
telephone numbers.
(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
[[Page 24]]
days, the request will be acknowledged and an explanation will be given
of the status of the request.
(e) The individual either will be notified in writing of where and
when he or she may obtain access to the records requested or will be
given the name, address and telephone number of the member of the Board
staff with whom he or she should communicate to make further
arrangements for access.
[41 FR 3087, Jan. 21, 1976, as amended at 64 FR 53266, Oct. 1, 1999; 74
FR 52903, Oct. 15, 2009]
Sec. 1007.4 Procedures for identifying the individual making the request.
When a request for information or for access to records has been
made pursuant to Sec. 1007.3, before information is given or access is
granted pursuant to Sec. 1007.5 of these rules, the Board shall require
reasonable identification of the person making the request to insure
that information is given and records are disclosed only to the proper
person.
(a) An individual may establish his identity by:
(1) Submitting with his written request for information or for
access to photocopy, two pieces of identification bearing his or her
name and signature, one of which shall bear his or her current home or
business address; or
(2) Appearing at any office of the Board during the regular working
hours for that office and presenting either:
(i) One piece of identification containing a photograph and
signature, such as a driver's license or passport, or, in the case of a
Board employee, his or her STB identification card; or
(ii) Two pieces of identification bearing the individual's name and
signature, one of which shows the individual's current home or business
address; and
(3) Providing such other proof of identity as the Board deems
satisfactory in the circumstances of a particular request.
(b) Nothing in this section shall preclude the Board from requiring
additional identification before granting access to the records if there
is reason to believe that the person making the request may not be the
individual to whom the record pertains, or where the sensitivity of the
data may warrant.
(c) The requirements of this subsection shall not apply if the
records involved would be available to any person under the Freedom of
Information Act.
Sec. 1007.5 Disclosure of requested information to individuals;
fees for copies of records.
(a) Any individual who has requested access to his or her record or
to any information pertaining to that individual in the manner
prescribed in Sec. 1007.3 and has identified himself or herself as
prescribed in Sec. 1007.4 shall be permitted to review the record and
have a copy made of all or any portion thereof in a form comprehensible
to the individual, subject to fees for copying services set forth in
paragraph (f) of this section. Upon request, persons of the individual's
own choosing may accompany the individual, provided that the individual
has furnished a written statement authorizing discussion of his or her
record in the accompanying person's presence.
(b) Access will generally be granted in the office of the Board
where the records are maintained during normal business hours, but for
good cause shown the Board may grant access at another office of the
Board or at different times for the convenience of the individual making
the request. When a request for access is from a Board employee, this
request may be granted by 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.
[[Page 25]]
(d) Where the disclosure involves medical records, the Privacy
Officer may determine that such information will be provided only to a
physician designated by the individual.
(e) Requests for copies of documents may be directed to the Privacy
Officer or to the member of the Board's staff through whom arrangements
for access were made.
(f) Fees for copies of records shall be charged at the rate set
forth in 49 CFR 1002.1(d). Fees for requests requiring the use of a
computer shall be charged at the actual cost for machine time. Payment
should be made by check or money order payable to the Treasury of the
United States. When it is determined to be in the best interest of the
public, the Privacy Officer may waive the fee provision.
(g) Nothing in this subsection or in Sec. 1007.3 shall:
(1) Require the disclosure of records exempted under Sec. 1007.12
of these rules, including the exemption relating to investigative
records;
(2) Allow an individual access to any information compiled in
reasonable anticipation of a civil action or proceeding or a criminal
proceeding; or,
(3) Require the furnishing of information or records which in the
regular course of business cannot be retrieved by the name or other
identifier of the individual making the request.
[41 FR 3087, Jan. 21, 1976, as amended at 53 FR 46483, Dec. 8, 1987]
Sec. 1007.6 Disclosure to third parties.
(a) The Board shall not disclose to any agency or to any person by
any means of communication a record pertaining to an individual which is
contained in a system of records, except under the following
circumstances:
(1) The individual to whom the record pertains has given his written
consent to the disclosure;
(2) The disclosure is to officers and employees of the Board who
need it in the performance of their duties;
(3) Disclosure is required under the Freedom of Information Act (5
U.S.C. 552).
(4) Disclosure is for a routine use as defined in Sec. 1007.2 of
these rules and described in the system notice for that system of
records;
(5) The disclosure is made to the Bureau of the Census for the
purposes of planning or carrying out a census or survey or related
activity;
(6) The disclosure is made to a recipient who has provided the
agency with advance adequate written assurance that the record will be
used solely as a statistical research or reporting record, and the
record is to be transferred in a form that is not individually
identifiable;
(7) The disclosure is made to another agency or to an
instrumentality of any Governmental jurisdiction within or under the
control of the United States for a civil or criminal law enforcement
activity if the activity is authorized by law and if the head of the
agency or instrumentality has made a written request to the Board
specifying the particular portion desired and the law enforcement
activity for which the record is sought;
(8) The disclosure is made to the National Archives 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:
[[Page 26]]
(1) A record shall be kept of all disclosures made under paragraph
(a) of this section, except disclosures made with the consent of the
individual to whom the record pertains (paragraph (a)(1) of this
section), disclosures to authorized employees (paragraph (a)(2) of this
section), and disclosures required under the Freedom of Information Act
(paragraph (a)(3) of this section).
(2) The record shall include:
(i) The date, nature, and purpose of each disclosure of a record
made to any person or to another agency;
(ii) The name and address of the person or agency to whom the
disclosure was made.
(c) The accounting described in paragraph (b) of this section will
be made available to the individual named in the record upon his written
request, directed to the Privacy Officer, Surface Transportation Board,
395 E Street, SW., Washington, DC 20423-0001, except that the accounting
will not be revealed with respect to disclosures made under paragraph
(a)(7) of this section 1107.6 pertaining to law enforcement activity,
and will not be maintained as to disclosures involving systems of
records exempted under section 1007.12.
(d) Whenever an amendment or correction of a record or a notation of
dispute concerning the accuracy of records is made by the Board in
accordance with Sec. Sec. 1007.8 and 1007.9, the Board will inform any
person or other agency to whom the record was previously disclosed, if
an accounting of the disclosure was made pursuant to the requirements of
paragraph (b) of this section.
[41 FR 3087, Jan. 21, 1976. as amended at 64 FR 53266, Oct. 1, 1999; 74
FR 52903, Oct. 15, 2009]
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 Sec. Sec.
1007.3 and 1007.4 in order to simplify identification of the record and
permit verification of the identity of the person making the request for
amendment.
(c) Receipt of a request for amendment will be acknowledged in
writing within ten days (excluding Saturdays, Sundays and legal public
holidays); except that if the individual is given notice within the ten-
day period that his or her request will or will not be complied with, no
acknowledgment is required.
[[Page 27]]
(d) Assistance in preparing a request to amend a record may be
obtained from the Privacy Officer, Surface Transportation Board, 1925 K
Street, NW, Washington, DC 20423.
(e) Upon receipt of a request for amendment the Privacy Officer or a
person designated by him shall promptly determine whether the record is
materially inaccurate, incomplete, misleading, or is irrelevant or not
timely, as claimed by the individual, and, if so, shall cause the record
to be amended in accordance with the individual's request.
(f) If the Privacy Officer or designee grants the request to amend
the record, the individual shall promptly be advised of the decision and
of the action taken, and notice shall be given of the correction and its
substance to each person or agency to whom the record had previously
been disclosed, as shown on the record of disclosures maintained in
accordance with Sec. 1007.6(b).
(g) If the Privacy Officer or designee disagrees in whole or in part
with a request for amendment of a record, the individual shall promptly
be notified of the complete or partial denial of his request and the
reasons for the refusal. The individual shall also be notified of the
procedures for administrative review by the Chairman of any complete or
partial denial of a request for amendment, which are set forth in Sec.
1007.9.
(h) If a request is received for amendment of a record prepared by
another agency which is in the possession or control of the Board, the
request for amendment will be forwarded to that agency. If that agency
determines that the correction should be made, the Board will amend its
records accordingly and notify the individual making the request for
amendment of the change. If the other agency declines to make the
amendment, the Privacy Officer or designee will independently determine
whether the amendment will be made to the record in the Board's
possession or control, considering any explanation given by the other
agency for its decision.
[41 FR 3087, Jan. 21, 1976, as amended at 64 FR 53266, Oct. 1, 1999]
Sec. 1007.9 Appeals to the Chairman.
(a) Any individual may petition the Chairman:
(1) To review a refusal to comply with an individual request for
access to records pursuant to the Privacy Act (5 U.S.C. 552a(d)(1)), and
Sec. Sec. 1007.3 and 1007.5 in this part;
(2) To review denial of a request for amendment made pursuant to
Sec. 1007.8;
(3) To correct any determination that may have been made adverse to
the individual based in whole or in part upon inaccurate, irrelevant,
untimely or incomplete information; and,
(4) To correct a failure to comply with any other provision of the
Privacy Act and the rules of this part 1007, which has had an adverse
effect on the individual.
(b) The petition to the Chairman shall be in writing and shall: (1)
State in what manner it is claimed the Board or any Board employee has
failed or refused to comply with provisions of the Privacy Act or of the
rules contained in this part 1007, and (2) set forth the corrective
action the petitioner wishes the Board to take. The petitioner may, if
he or she wishes, state such facts and cite such legal or other
authorities as are considered appropriate.
(c) The Chairman will make a determination of any petition filed
pursuant to this subsection within thirty days (excluding Saturdays,
Sundays and legal public holidays) after receipt of the petition, unless
for good cause 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
[[Page 28]]
the portion which is disputed and include a copy of a concise statement
explaining its reasons for not making the amendments requested. Prior
recipients of the disputed record will be provided a copy of any
statement of dispute to the extent that an accounting of disclosures was
maintained.
Sec. 1007.10 Information supplied by the Board when collecting information
from an individual.
The Board will inform each individual whom it asks to supply
information, on the form which it uses to collect the information or on
a separate form that can be retained by the individual, of:
(a) The authority which authorizes the solicitation of the
information and whether disclosure of such information is mandatory or
voluntary;
(b) The principal purpose or purposes for which the information is
intended to be used;
(c) The routine uses which may be made of the information, as
published in the Federal Register; and,
(d) The effects on the individual of not providing all or any part
of the requested information.
Sec. 1007.11 Public notice of records systems.
(a) The Board will publish in the Federal Register, at least
annually, a notice of the existence and character of each of its system
of records, which notice shall include:
(1) The name and location of the system;
(2) The categories of individuals on whom records are maintained in
the system;
(3) The categories of records maintained in the system;
(4) Each routine use of the records contained in the system,
including the categories of users and purpose of such use;
(5) The policies and practices of the Board regarding storage,
retrieval, access controls, retention, and disposal of the records;
(6) The title and business address of the Board official who is
responsible for the system of records;
(7) The procedures whereby an individual can be notified at his or
her request if the system of records contains a record pertaining to
that individual;
(8) The procedures whereby an individual can be notified at his or
her request how he or she can gain access to any record pertaining to
that individual contained in the system of records, and how the content
of the record can be contested; and,
(9) The categories of sources of records in the system.
(b) Copies of the notices as printed in the Federal Register will be
available in each office of the Board. Mail requests should be directed
to the Privacy Officer, Surface Transportation Board, 1925 K Street, NW,
Washington, DC 20423. The first copy will be provided free of charge;
additional copies are subject to charge provided for in paragraph (e) of
this Sec. 1007.5.
[41 FR 3087, Jan. 21, 1976, as amended at 64 FR 53266, Oct. 1, 1999]
Sec. 1007.12 Exemptions.
(a) Investigatory materials compiled for law enforcement purposes
are exempt from portions of the Privacy Act of 1974 and of these rules
on the basis and to the extent that individual access to these files
could impair the effectiveness and orderly conduct of the Board's
enforcement program. Provided, however, That if any individual is denied
any right, privilege, or benefit to which he or she would otherwise be
entitled by Federal law, or for which he or she would otherwise be
eligible, as a 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
[[Page 29]]
whom information is sought to provide information to the Board which,
absent assurances of confidentiality, they might otherwise be unwilling
to give. However, if practicable, material identifying a confidential
source shall be extracted or summarized in a manner which protects the
source, and the summary or extract shall be provided to the requesting
individual.
(c) Complaints and investigatory materials compiled by the Board's
Office of Inspector General are exempt from the provisions of 5 U.S.C.
552a and the regulations in this part, pursuant to 5 U.S.C. 552a(j)(2),
except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6),
(7), (9), (10), and (11) and (i) to the extent that the system of
records pertains to the enforcement of criminal laws. Complaint and
investigatory materials compiled by the Board's Office of Inspector
General for law enforcement purposes also are exempt from the provisions
of 5 U.S.C. 552a and the regulations of this part, pursuant to 5 U.S.C.
552a(k)(2).
[41 FR 3087, Jan. 21, 1976, as amended at 58 FR 15291, Mar. 22, 1993; 58
FR 28520, May 14, 1993]
PART 1011_BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY--
Table of Contents
Sec.
1011.1 General.
1011.2 The Board.
1011.3 The Chairman, Vice Chairman, and Board Member.
1011.4 Delegations to individual Board Members.
1011.5 Employee boards.
1011.6 Delegations of authority by the Chairman.
1011.7 Delegations of authority by the Board to specific offices of the
Board.
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721, 11123,
11124, 11144, 14122, and 15722.
Source: 67 FR 60167, Sept. 25, 2002, unless otherwise noted.
Sec. 1011.1 General.
(a) This part describes the organization of the Board, and the
assignment of jurisdiction and the responsibilities to the Board,
individual Board Members or employees, and employee boards.
(b) As used in this part, matter includes any case, proceeding,
question, or other matter within the Board's jurisdiction; and decision
includes any decision, ruling, order, or requirement of the Board, an
individual Board Member or employee, or an employee board.
Sec. 1011.2 The Board.
(a) The Board reserves to itself for consideration and disposition:
(1) All rulemaking and similar proceedings involving the
promulgation of rules or the issuance of statements of general policy.
(2) All investigations and other proceedings instituted by the
Board, except as may be ordered in individual situations.
(3) All administrative appeals in a matter previously considered by
the Board.
(4) All other matters submitted for decision except those assigned
to an individual Board Member or employee or an employee board.
(5) Except for matters assigned to the Chairman of the Board under
Sec. 1011.4(a)(6):
(i) The determination of whether to reconsider a decision being
challenged in court;
(ii) The disposition of matters that have been the subject of an
adverse decision by a court; and
(iii) The determination of whether to file any memorandum or brief
or otherwise participate on behalf of the Board in any court.
(6) The disposition of all matters involving issues of general
transportation importance, and the determination whether issues of
general transportation importance are involved in any matter.
(7) All appeals of initial decisions issued by the Director of the
Office of Proceedings under the authority delegated by Sec. 1011.7(b).
Appeals must be filed within 10 days after service of the Director
decision or publication of the notice, and replies must be filed within
10 days after the due date for appeals or any extension thereof.
(b) The Board may bring before it any matter assigned to an
individual
[[Page 30]]
Board Member or employee or employee board.
Sec. 1011.3 The Chairman, Vice Chairman, and Board Member.
(a)(1) The Chairman of the Board is appointed by the President as
provided by 49 U.S.C. 701(c)(1). The Chairman has authority, duties, and
responsibilities assigned under 49 U.S.C. 701(c)(2) and described in
this part.
(2) The Vice Chairman is elected by the Board for the term of 1
calendar year.
(3) In the Chairman's absence, the Vice Chairman is acting Chairman,
and has the authority and responsibilities of the Chairman. In the Vice
Chairman's absence, the Chairman, if present, has the authority and
responsibilities of the Vice Chairman. In the absence of both the
Chairman and Vice Chairman, the remaining Board Member 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 responsibilities for:
(i) The overall management and functioning of the Board;
(ii) The formulation of plans and policies designed to assure the
effective administration of the Interstate Commerce Act and related
Acts;
(iii) Prompt identification and early resolution, at the appropriate
level, of major substantive regulatory problems; and
(iv) The development and use of effective staff support to carry out
the duties and functions of the Board.
(2) The Chairman of the Board exercises the executive and
administrative functions of the Board, including:
(i) The appointment, supervision, and removal of Board employees,
except those in the immediate offices of Board Members other than the
Chairman;
(ii) The distribution of business among such personnel and among
administrative units of the Board; and
(iii) The use and expenditures of funds.
(3) In carrying out his or her functions, the Chairman is governed
by general policies of the Board and by such regulatory decisions,
findings, and determinations as the Board by law is authorized to make.
(4) The appointment by the Chairman of the heads of offices is
subject to the approval of the Board. All heads of offices report to the
Chairman.
(c)(1) The Chairman presides at all sessions of the Board and sees
that every vote and official act of the Board required by law to be
recorded is accurately and promptly recorded by the Clearance Clerk or
the person designated by the Board for that purpose.
(2) Regular sessions of the Board are provided for by Board
regulations. The Chairman may call the Board into special session to
consider any matter or business of the Board. The Chairman shall convene
a special session to consider any matter or business on request of a
member of the Board unless a majority of the Board votes either not to
hold a special session or to delay conference consideration of that
item, or unless the Chairman finds that special circumstances warrant a
delay. Notwithstanding the two immediately preceding sentences of this
paragraph, on the written request of any member of the Board, the
Chairman shall schedule a Board conference to discuss and vote on
significant Board proceedings involving major transportation issues, and
such conference shall be held within a reasonable time following the
close of the record in the involved proceeding.
(3) The Chairman exercises general control over the Board's argument
calendar and conference agenda.
(4) The Chairman acts as correspondent and speaks for the Board in
all matters where an official expression of the Board is required.
(5) The Chairman brings any delay or failure in the work to the
attention of the supervising Board Member, employee, or board, and
initiates ways of correcting or preventing avoidable delays in the
performance of any work or the disposition of any matter.
(6) The Chairman may appoint such standing or ad hoc committees of
the Board as he or she considers necessary.
(7) The Chairman may reassign related proceedings to a board of
employees and may remove a matter from an individual Board Member or
employee
[[Page 31]]
or employee board for consideration and disposition by the Board.
(8) The Chairman may authorize any officer, employee, or
administrative unit of the Board to perform a function vested in or
delegated to the Chairman.
(9) The Chairman authorizes the institution of investigations on the
Board's own motion, and their discontinuance at any time before hearing.
(10) The Chairman approves for publication all publicly issued
documents by an office, except:
(i) Those authorized or adopted by the Board or an individual Board
Member that involve decisions in formal proceedings;
(ii) Decisions or informal opinions of an office; and
(iii) Documents prepared for court cases or for introduction into
evidence in a formal proceeding.
[67 FR 60167, Sept. 25, 2002, as amended at 74 FR 52903, Oct. 15, 2009]
Sec. 1011.4 Delegations to individual Board Members.
(a) The following matters are referred to the Chairman of the Board:
(1) Entry of reparation orders responsive to findings authorizing
the filing of statements of claimed damages as provided at 49 CFR part
1133.
(2) Extensions of time for compliance with orders and procedural
matters in any formal case or pending matter, except appeals taken from
the decision of a hearing officer on requests for discovery.
(3) Postponement of the effective date of orders in proceedings that
are the subject of suits brought in a court to enjoin, suspend, or set
aside the decision.
(4) Dismissal of complaints and applications on the unopposed motion
of any party.
(5) Requests for access to waybills and to statistics reported under
orders of the Board.
(6) Exercise of control over litigation arising under the Freedom of
Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a),
except for determinations whether to seek further judicial review of:
(i) A decision in which a court finds under 5 U.S.C. 552(a)(4)(F)
that Board personnel may have acted arbitrarily or capriciously in
improperly withholding records from disclosure; or
(ii) A decision in which a court finds under 5 U.S.C. 552a(g)(4)
that Board personnel acted intentionally or willfully in violating the
Privacy Act.
(7) Issuance of certificates and decisions authorizing Consolidated
Rail Corporation to abandon or discontinue service over lines for which
an application under section 308 of the Regional Rail Reorganization Act
of 1973 has been filed.
(8) Designation in writing of employees authorized to inspect and
copy records and to inspect and examine lands, buildings, and equipment
pursuant to 49 U.S.C. 11144, 14122, and 15722.
(9) Authority to act alone to take necessary actions in emergency
situations when the Chairman is the only Board member reasonably
available.
(b) The following matters are referred to the Vice Chairman of the
Board:
(1) Matters within the jurisdiction of the Accounting Board if
certified to the Vice Chairman by the Accounting Board or if removed
from the Accounting Board by the Vice Chairman.
(2) Matters involving the admission, disbarment, or discipline of
practitioners before the Board under 49 CFR part 1103.
(c) The Chairman, Vice Chairman, or other Board Member to whom a
matter is assigned under this part may certify such matter to the Board.
(d) The Chairman shall notify all Board Members that a petition for
a stay has been referred to the Chairman for disposition under
paragraphs (a)(2) or (3) of this section. The Chairman shall also inform
all Board Members of the decision on that petition before service of
such decision. At the request of a Board Member, made at any time before
the Chairman's decision is served, the petition will be referred to the
Board for decision.
[67 FR 60167, Sept. 25, 2002, as amended at 68 FR 8726, Feb. 25, 2003]
Sec. 1011.5 Employee boards.
This section covers matters assigned to the Accounting Board, a
board of employees of the Board.
[[Page 32]]
(a) The Accounting Board has authority:
(1) To permit departure from general rules prescribing uniform
systems of accounts for carriers and other persons under the Interstate
Commerce Act, and from the regulations governing accounting and
reporting forms;
(2) To prescribe rates of depreciation to be used by railroad and
water carriers;
(3) To issue special authorizations permitted by the regulations
governing the destruction of records of carriers subject to the
Interstate Commerce Act; and
(4) To grant extensions of time for filing annual, periodic, and
special reports in matters that do not involve taking testimony at a
public hearing or the submission of evidence by opposing parties in the
form of affidavits.
(b) The board may certify any matter assigned to it to the Board.
Sec. 1011.6 Delegations of authority by the Chairman.
(a)(1) This section provides for delegations of authority by the
Chairman of the Surface Transportation Board to individual Board
employees.
(2) The Chairman of the Board may remove for disposition any matter
delegated under this section, and any matter delegated under this
section may be referred by the Board employee to the Chairman for
disposition.
(b) The Board will decide appeals from decisions of employees acting
under authority delegated under this section. Appeals must be filed
within 10 days after the date of the employee's action, and replies must
be filed within 10 days after the due date for appeals. Appeals are not
favored and will be granted only in exceptional circumstances to correct
a clear error of judgment or to prevent manifest injustice.
(c)(1) As used in this paragraph, procedural matter includes, but is
not limited to, the assignment of the time and place for hearing; the
assignment of proceedings to administrative law judges; the issuance of
decisions directing special hearing procedures; the establishment of
dates for filing statements in cases assigned for hearing under modified
(non-oral hearing) procedure; the consolidation of proceedings for
hearing or disposition; the postponement of hearings and procedural
dates; the waiver of formal specifications for pleadings; and extensions
of time for filing pleadings. It does not include interlocutory appeals
from the rulings of hearing officers; nor does it include postponement
of the effective date of:
(i) Decisions pending judicial review,
(ii) Decisions of the entire Board,
(iii) Cease and desist orders, or
(iv) Final decisions where petitions for discretionary review have
been filed under 49 CFR 1115.3.
(2) Unless otherwise ordered by the Board in individual proceedings,
authority to dispose of procedural matters is delegated to
administrative law judges or Board Members in proceedings assigned to
them.
(3) Unless otherwise ordered by the Board in individual proceedings,
authority to dispose of routine procedural matters in proceedings
assigned for handling under modified procedure, other than those
assigned to an administrative law judge or a Board Member, is assigned
to the Director of the Office of Proceedings. The Director of the Office
of Proceedings shall also have authority, unless otherwise ordered by
the Chairman or by a majority of the Board in individual proceedings, to
decide whether complaint proceedings shall be handled under the modified
procedure or be assigned for oral hearings. In carrying out these
duties, the Director of the Office of Proceedings shall consult, as
necessary, with the General Counsel and the Director of any Board office
to which an individual proceeding has been assigned.
(d) Except as provided at 49 CFR 1113.3(b)(1), authority to dismiss
a complaint on complainant's request, or an application on applicant's
request, is delegated to the Director of the Office of Proceedings.
(e) Authority to grant or deny access to waybills and to statistics
reported under orders of the Board is delegated to the Director of the
Office of Economics, Environmental Analysis, and Administration.
(f) Certain accounts in the Uniform Systems of Accounts, 49 CFR
parts 1200 through 1207, require Board approval to
[[Page 33]]
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.
(g) The Director of the Office of Proceedings is delegated
authority, under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
to:
(1) Sign and transmit to the Small Business Administration
certifications of no significant economic effect for proposed rules,
that if adopted by the Board, will not have a significant economic
impact on a substantial number of small entities; and
(2) Sign and transmit findings regarding waiver or delay of an
initial regulatory flexibility analysis or delay of a final regulatory
flexibility analysis.
(h) Issuance of certificates and decisions authorizing Consolidated
Rail Corporation to abandon or discontinue service over lines for which
an application under section 308 of the Regional Rail Reorganization Act
of 1973 has been filed is delegated to the Director of the Office of
Proceedings.
[67 FR 60167, Sept. 25, 2002, as amended at 74 FR 52904, Oct. 15, 2009]
Sec. 1011.7 Delegations of authority by the Board to specific
offices of the Board.
(a) Office of Proceedings. (1) The Director of the Office of
Proceedings is delegated the following authority:
(i) Whether (in consultation with involved Offices) to waive filing
fees set forth at 49 CFR 1002.2(f).
(ii) To issue, on written request, informal opinions and
interpretations (exclusive of informal opinions and interpretations on
carrier tariff provisions), which are not binding on the Board. In
issuing informal opinions or interpretations, the Director of the Office
of Proceedings shall consult with the Directors of the appropriate Board
offices. Such requests must be directed to the Director of the Office of
Proceedings, Surface Transportation Board, Washington, DC 20423-0001.
Authority to issue informal opinions and interpretations on carrier
tariff provisions is delegated at paragraph (b)(2) of this section to
the Office of Public Assistance, Governmental Affairs, and Compliance.
(2) In addition to the authority delegated at 49 CFR 1011.6(c)(3),
(d), (g), and (h), the Director of the Office of Proceedings shall have
authority initially to determine the following:
(i) Whether to designate abandonment proceedings for oral hearings
on request.
(ii) Whether offers of financial assistance satisfy the statutory
standards of 49 U.S.C. 10904(d) for purposes of negotiations or, in
exemption proceedings, for purposes of partial revocation and
negotiations.
(iii) Whether:
(A) To impose, modify, or remove environmental or historic
preservation conditions; and
(B) In abandonment proceedings, to impose public use conditions
under 49 U.S.C. 10905 and the implementing regulations at 49 CFR
1152.28.
(iv) In abandonment proceedings, when a request for interim trail
use/rail banking is filed under 49 CFR 1152.29, to determine whether the
National Trails System Act, 16 U.S.C. 1247(d), is applicable and, where
appropriate, to issue Certificates of Interim Trail Use or Abandonment
(in application proceedings) or Notices of Interim Trail Use or
Abandonment (in exemption proceedings).
(v) In any abandonment proceeding where interim trail use/rail
banking is an issue, to make such findings and issue decisions as may be
necessary for the orderly administration of the National Trails System
Act, 16 U.S.C. 1247(d).
(vi) Whether to institute requested declaratory order proceedings
under 5 U.S.C. 554(e).
(vii) To issue decisions, after 60 days' notice by any person
discontinuing a subsidy established under 49 U.S.C. 10904 and at the
railroad's request:
(A) In application proceedings, immediately issuing decisions
authorizing abandonment or discontinuance; and
(B) In exemption proceedings, immediately vacating the decision that
postponed the effective date of the exemption.
(viii) In proceedings under the Feeder Railroad Development Program
under
[[Page 34]]
49 U.S.C. 10907 and the implementing regulations at 49 CFR part 1151:
(A) Whether to accept or reject primary applications under 49 CFR
1151.2(b); competing applications under section 1151.2(c); and
incomplete applications under 49 CFR 1151.2(d).
(B) Whether to grant waivers from specific provisions of 49 CFR part
1151.
(ix) In exemption proceedings subject to environmental or historic
preservation reporting requirements, to issue a decision, under 49 CFR
1105.10(g), making a finding of no significant impact where no
environmental or historic preservation issues have been raised by any
party or identified by the Board's Section of Environmental Analysis.
(x) Whether to issue notices of exemption under 49 U.S.C. 10502:
(A) For acquisition, lease, and operation transactions under 49
U.S.C. 10901 and 10902 and the implementing regulations at 49 CFR part
1150, subparts D and E;
(B) For connecting track constructions under 49 U.S.C. 10901 and the
implementing regulations at 49 CFR 1150.36;
(C) For rail transactions under 49 U.S.C. 11323 and the implementing
regulations at 49 CFR 1180.2(d); and
(D) For abandonments and discontinuances under 49 U.S.C. 10903 and
the implementing regulations at 49 CFR 1152.50.
(xi) When an application or a petition for exemption for abandonment
is filed, the Director will issue a notice of that filing pursuant to 49
CFR 1152.24(e)(2) and 49 CFR 1152.60, respectively.
(xii) Whether to issue a notice of exemption under 49 U.S.C. 13541
for a transaction under 49 U.S.C. 14303 within a motor passenger carrier
corporate family that does not result in adverse changes in service
levels, significant operational changes, or a change in the competitive
balance with motor passenger carriers outside the corporate family.
(xiii) Whether to issue rail modified certificates of public
convenience and necessity under 49 CFR part 1150, subpart C.
(xiv) Whether to waive the regulations at 49 CFR part 1152, subpart
C, on appropriate petition.
(xv) To reject applications, petitions for exemption, and verified
notices (filed in class exemption proceedings) for noncompliance with
the environmental rules at 49 CFR part 1105.
(xvi) To reject applications by BNSF Railway Company to abandon rail
lines in North Dakota exceeding the 350-mile cap of section 402 of
Public Law 97-102, 95 Stat. 1465 (1981), as amended by The Department of
Transportation and Related Agencies Appropriations Act, 1992, Public Law
102-143, section 343 (Oct. 28, 1991).
(b) Office of Public Assistance, Governmental Affairs, and
Compliance. The Office of Public Assistance, Governmental Affairs, and
Compliance is delegated the authority to:
(1) Reject tariffs and railroad transportation contract summaries
filed with the Board that violate applicable statutes, rules, or
regulations. Any rejection of a tariff or contract summary may be by
letter signed by or for the Director, Office of Public Assistance,
Governmental Affairs, and Compliance.
(2) Issue, on written request, informal opinions and interpretations
on carrier tariff provisions, which are not binding on the Board.
(3) Grant or withhold special tariff authority granting relief from
the provisions of 49 CFR part 1312. Any grant or withholding of such
relief may be by letter signed by or for the Director, Office of Public
Assistance, Governmental Affairs, and Compliance.
(4) Resolve any disputes that may arise concerning the applicability
of motor common carrier rates under 49 U.S.C. 13710(a)(2).
(5) Issue orders by the Director in an emergency under 49 U.S.C.
11123 and 11124 if no Board Member is reasonably available.
[75 FR 30711, June 2, 2010]
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.
[[Page 35]]
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 upon which the action taken is made public or
any decision or order adopted is served, in a public reading room or
other easily accessible place within the Board, or upon written request
to the Records Officer.
[42 FR 13796, Mar. 11, 1977, as amended at 64 FR 53266, 53267, Oct. 1,
1999; 74 FR 52905, Oct. 15, 2009]
Sec. 1012.2 Time and place of meetings.
(a) Conferences, oral arguments, and other meetings are held at the
Board's 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
Clearance Clerk of the Board for posting and for service on all parties
of record in any proceeding which is the subject of the meeting or any
other person who has requested notice with respect to meetings of the
Board, and by submitting a copy of the notice for publication in the
Federal Register.
(b) Public notice of a scheduled meeting will contain:
[[Page 36]]
(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), 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; 74
FR 52905, Oct. 15, 2009]
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.
[[Page 37]]
(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 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.
[[Page 38]]
Sec. 1012.7 Meetings which may be closed to the public.
(a) A meeting may be closed pursuant to this section only if a
majority of the Board Members eligible to participate in the conduct or
disposition of the matter which is the subject of the meeting votes to
close the meeting.
(b) A single vote may be taken to close a series of meetings on the
same particular matters held within 30 days of the initial meeting in
the series.
(c) With respect to any meeting closed to the public under this
section, the General Counsel of the Board will issue his or her
certification that, in his opinion, the meeting is one which may
properly be closed pursuant to one or more of the provisions of
paragraph (d) of this section.
(d) Meetings or portions of meetings may be closed to the public if
the meeting or portion thereof is likely to:
(1) Disclose matters (i) specifically authorized under criteria
established by an Executive order to be kept secret in the interests of
national defense or foreign policy and (ii) in fact properly classified
pursuant to such Executive order.
(2) Relate solely to the internal personnel rules and practices of
the Board.
(3) Disclose matters specifically exempted from disclosure by
statute (other than 5 U.S.C. 552); Provided, That such statute (A)
requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of matters to be
withheld.
(4) Disclose trade secrets or commercial information obtained from a
person and privileged or confidential.
(5) Involve accusing any person of a crime, or formally censuring
any person.
(6) Disclose information of a personal nature where disclosure would
constitute a clearly unwarranted invasion of personal privacy.
(7) Disclose investigatory records compiled for law enforcement
purposes, or information which if written would be contained in such
records, but only to the extent that the production of such records or
information would (i) interfere with enforcement proceedings, (ii)
deprive a person of a right to a fair trial or an impartial
adjudication, (iii) constitute an unwarranted invasion of personal
privacy, (iv) disclose the identity of a confidential source and (in the
case of a record compiled by a criminal law enforcement authority in the
course of a criminal investigation, or by an agency conducting a lawful
national security intelligence investigation) disclose confidential
information furnished only by the confidential source, (v) disclose
investigative techniques and procedures, or (vi) endanger the life or
physical safety of law enforcement personnel.
(8) Disclose information the premature disclosure of which could (i)
lead to significant financial speculation in currencies, securities, or
commodities, or (ii) significantly endanger the stability of any
financial institution.
(9) Disclose information, the premature disclosure of which would be
likely significantly to frustrate implementation of a proposed Board
action, except that this subparagraph shall not apply in any instance
after the content or nature of the proposed Board action has already
been disclosed to the public by the Board, or where the Board is
required by law to make such disclosure prior to the taking of final
Board action on such proposal.
(10) Specifically concern the issuance of a subpoena.
(11) Specifically concern the Board's participation in a civil
action or proceeding or an arbitration.
(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).
[[Page 39]]
Source: 44 FR 59909, Oct. 17, 1979, unless otherwise noted.
Sec. 1013.1 The independence of the trustee of a voting trust.
(a) In order to avoid an unlawful control violation, the independent
voting trust should be established before a controlling block of voting
securities is purchased.
(b) In voting the trusteed stock, the trustee should maintain
complete independence from the creator of the trust (the settlor).
(c) Neither the trustee, the settlor, nor their respective
affiliates should have any officers or board members in common or direct
business arrangements, other than the voting trust, that could be
construed as creating an indicium of control by the settlor over the
trustee.
(d) The trustee should not use the voting power of the trust in any
way which would create any dependence or intercorporate relationship
between the settlor and the carrier whose corporate securities
constitute the corpus of the trust.
(e) The trustee should be entitled to receive cash dividends
declared and paid upon the trusteed voting stock and turn them over to
the settlor. Dividends other than cash should be received and held by
the trustee upon the same terms and conditions as the stock which
constitutes the corpus of the trust.
(f) If the trustee becomes disqualified because of a violation of
the trust agreement or if the trustee resigns, the settlor should
appoint a successor trustee within 15 days.
Sec. 1013.2 The irrevocability of the trust.
(a) The trust and the nomination of the trustee during the term of
the trust should be irrevocable.
(b) The trust should remain in effect until certain events,
specified in the trust, occur. For example, the trust might remain in
effect until (1) all the deposited stock is sold to a person not
affiliated with the settlor or (2) the trustee receives a Board decision
authorizing the settlor to acquire control of the carrier or authorizing
the release of the securities for any reason.
(c) The settlor should not be able to control the events terminating
the trust except by filing with this Board an application to control the
carrier whose stock is held in trust.
(d) The trust agreement should contain provisions to ensure that no
violations of 49 U.S.C. 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.
[[Page 40]]
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.
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
[[Page 41]]
not limited to, such diseases and conditions as orthopedic, visual,
speech, and hearing impairments, cerebral palsy, epilepsy, muscular
dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental
retardation, emotional illness, and drug addiction and alcoholism.
(2) Major life activities includes functions such as caring for
one's self performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(4) Is regarded as having an impairment means--
(i) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by the agency as constituting
such a limitation;
(ii) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this
definition but is treated by the agency as having such an impairment.
Historic preservation programs means programs conducted by the
agency that have preservation of historic properties as a primary
purpose.
Historic properties means those properties that are listed or
eligible for listing in the National Register of Historic Places or
properties designated as historic under a statute of the appropriate
State or local government body.
Qualified handicapped person means--
(1) With respect to preschool, elementary, or secondary education
services provided by the agency, a handicapped person who is a member of
a class of persons otherwise entitled by statute, regulation, or agency
policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which
a person is required to perform services or to achieve a level of
accomplishment, a handicapped person who meets the essential eligibility
requirements and who can achieve the purpose of the program or activity
without modifications in the program or activity that the agency can
demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, a handicapped
person who meets the essential eligibility requirements for
participation in, or receipt of benefits from, that program or activity;
and
(4) Qualified handicapped person is defined for purposes of
employment in 29 CFR 1613.702(f), which is made applicable to this part
by Sec. 1014.140.
Section 504 means section 504 of the Rehabilitation Act of 1973
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617),
and the Rehabilitation, Comprehensive Services, and Developmental
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used
in this part, section 504 applies only to programs or activities
conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of
finished materials, design quality, or special character resulting from
a permanent alteration.
Sec. Sec. 1014.104-1014.109 [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:
[[Page 42]]
(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.
Sec. Sec. 1014.112-1014.129 [Reserved]
Sec. 1014.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap,
be excluded from participation in, be denied the benefits of, or
otherwise be subjected to discrimination under any program or activity
conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements,
on the basis of handicap--
(i) Deny a qualified handicapped person the opportunity to
participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to
participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit,
or service that is not as effective in affording equal opportunity to
obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to
handicapped persons or to any class of handicapped persons than is
provided to others unless such action is necessary to provide qualified
handicapped persons with aid, benefits, or services that are as
effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to
participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the
opportunity to participate in programs or activities that are not
separate or different, despite the existence of permissibly separate or
different programs or activities.
(3) The agency may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration the purpose
or effect of which would--
(i) Subject qualified handicapped persons to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives
of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a
facility, make selections the purpose or effect of which would--
(i) Exclude handicapped persons from, deny them the benefits of, or
otherwise subject them to discrimination under any program or activity
conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the
objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not
use criteria that subject qualified handicapped persons to
discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification
program in a manner that subjects qualified handicapped persons to
discrimination on the basis of handicap, nor may the agency establish
requirements for the programs or activities of licensees or certified
entities that subject qualified handicapped persons to discrimination on
the basis of handicap. However, the programs or activities of entities
that
[[Page 43]]
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.
Sec. Sec. 1014.131-1014.139 [Reserved]
Sec. 1014.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be
subjected to discrimination in employment under any program or activity
conducted by the agency. The definitions, requirements, and procedures
of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613, shall apply to employment in federally conducted programs or
activities.
Sec. Sec. 1014.141-1014.148 [Reserved]
Sec. 1014.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in Sec. 1014.150, no qualified
handicapped person shall, because the agency's facilities are
inaccessible to or unusable by handicapped persons, be denied the
benefits of, be excluded from participation in, or otherwise be
subjected to discrimination under any program or activity conducted by
the agency.
Sec. 1014.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so
that the program or activity, when viewed in its entirety, is readily
accessible to and usable by handicapped persons. This paragraph does
not--
(1) Necessarily require the agency to make each of its existing
facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the
agency to take any action that would result in a substantial impairment
of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a program or
activity or in undue financial and administrative burdens. In those
circumstances where agency personnel believe that the proposed action
would fundamentally alter the program or activity or would result in
undue financial and administrative burdens, the agency has the burden of
proving that compliance with Sec. 1014.150(a) would result in such
alteration or burdens. The decision that compliance would result in such
alteration or burdens must be made by the agency head or his or her
designee after considering all agency resources available for use in the
funding and operation of the conducted program or activity, and must be
accompanied by a written statement of the reasons for reaching that
conclusion. If an action would result in such an alteration or such
burdens, the agency shall take any other action that would not result in
such an alteration or such burdens but would nevertheless ensure that
handicapped persons receive the benefits and services of the program or
activity.
(b) Methods--(1) General. The agency may comply with the
requirements of this section through such means as redesign of
equipment, reassignment of services to accessible buildings, assignment
of aides to beneficiaries, home visits, delivery of services at
alternate accessible sites, alteration of existing facilities and
construction of new facilities, use of accessible rolling stock, or any
other methods that result in making its programs or activities readily
accessible to and usable by handicapped persons. The agency is not
required to make structural changes in existing facilities where other
methods are effective in achieving compliance with this section. The
agency, in making alterations to existing buildings, shall meet
accessibility requirements
[[Page 44]]
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--
(1) Identify physical obstacles in the agency's facilities that
limit the accessibility of its programs or activities to handicapped
persons;
(2) Describe in detail the methods that will be used to make the
facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition
plan is longer than one year, identify steps that will be taken during
each year of the transition period; and
(4) Indicate the official responsible for implementation of the
plan.
Sec. 1014.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered
by, on behalf of, or for the use of the agency shall be designed,
constructed, or altered so as to be readily accessible to and usable by
handicapped persons. The definitions, requirements, and standards of the
Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41
CFR 101-19.600 to 101-19.607, apply to buildings covered by this
section.
Sec. Sec. 1014.152-1014.159 [Reserved]
Sec. 1014.160 Communications.
(a) The agency shall take appropriate steps to ensure effective
communication with applicants, participants, personnel of other Federal
entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where
necessary to afford a handicapped person an equal opportunity to
participate in, and enjoy the benefits of, a program or activity
conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the
agency shall give primary consideration to the requests of the
handicapped person.
(ii) The agency need not provide individually prescribed devices,
readers for personal use or study, or other devices of a personal
nature.
(2) Where the agency communicates with applicants and beneficiaries
by telephone, telecommunication devices for deaf person (TDD's) or
equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including
persons
[[Page 45]]
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 administrative
burdens. In those circumstances where agency personnel believe that the
proposed action would fundamentally alter the program or activity or
would result in undue financial and administrative burdens, the agency
has the burden of proving that compliance with Sec. 1014.160 would
result in such alteration or burdens. The decision that compliance would
result in such alteration or burdens must be made by the agency head or
his or her designee after considering all agency resources available for
use in the funding and operation of the conducted program or activity,
and must be accompanied by a written statement of the reasons for
reaching that conclusion. If an action required to comply with this
section would result in such an alteration or such burdens, the agency
shall take any other action that would not result in such an alteration
or such burdens but would nevertheless ensure that, to the maximum
extent possible, handicapped persons receive the benefits and services
of the program or activity.
Sec. Sec. 1014.161-1014.169 [Reserved]
Sec. 1014.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this
section applies to all allegations of discrimination on the basis of
handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of
section 504 with respect to employment according to the procedures
established by the Equal Employment Opportunity Commission in 29 CFR
part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29
U.S.C. 791).
(c) The Equal Opportunity Officer shall be responsible for
coordinating implementation of this section. Complaints may be sent to
the Section of Personnel Services, Surface Transportation Board,
Washington, DC 20423.
(d) The agency shall accept and investigate all complete complaints
for which it has jurisdiction. All complete complaints must be filed
within 180 days of the alleged act of discrimination. The agency may
extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have
jurisdiction, it shall promptly notify the complainant and shall make
reasonable efforts to refer the complaint to the appropriate government
entity.
(f) The agency shall notify the Architectural and Transportation
Barriers Compliance Board upon receipt of any complaint alleging that a
building or facility that is subject to the Architectural Barriers Act
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily
accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which
it has jurisdiction, the agency shall notify the complainant of the
results of the investigation in a letter containing--
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or
remedies must be filed by the complainant within 90 days of receipt from
the agency of the letter required by Sec. 1014.170(g). The agency may
extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of
the agency.
(j) The head of the agency shall notify the complainant of the
results of the appeal within 60 days of the receipt of the request. If
the head of the agency determines that additional information is needed
from the complainant, he or she shall have 60 days from the
[[Page 46]]
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]
Sec. Sec. 1014.171-1014.999 [Reserved]
PART 1016_SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY
PARTIES TO BOARD ADJUDICATORY PROCEEDINGS--Table of Contents
Subpart A_General Provisions
Sec.
1016.101 Purpose of these rules.
1016.102 When the Act applies.
1016.103 Proceedings covered.
1016.104 Decisionmaking authority.
1016.105 Eligibility of applicants.
1016.106 Standards for awards.
1016.107 Allowable fees and expenses.
1016.109 Awards against other agencies.
Subpart B_Information Required From Applicants
1016.201 Contents of application.
1016.202 Net worth exhibit.
1016.203 Documentation of fees and expenses.
Subpart C_Procedures for Considering Applications
1016.301 When an application may be filed.
1016.302 Filing and service of documents.
1016.303 Answer to application.
1016.304 Reply.
1016.305 Comments by other parties.
1016.306 Settlement.
1016.307 Further proceedings.
1016.308 Decision.
1016.309 Agency review.
1016.310 Judicial review.
1016.311 General provisions.
Authority: 5 U.S.C. 504(c)(1), 49 U.S.C. 721.
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
[[Page 47]]
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. 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
[[Page 48]]
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 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
[[Page 49]]
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 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
[[Page 50]]
fees shall be stayed pending final disposition of the underlying
controversy.
(c) For purposes of this rule, see the Board's rules governing
appellate procedures at Sec. Sec. 1115.2 and 1115.3 to determine when a
decision becomes administratively final.
[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]
Sec. 1016.302 Filing and service of documents.
Any application for an award or other pleading or document related
to an application shall be filed and served on all parties to the
proceeding in the same manner as other pleadings in the proceeding,
except as provided in Sec. 1016.202(b) for confidential financial
information.
Sec. 1016.303 Answer to application.
(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought may file an
answer to the application. Unless agency counsel requests an extension
of time for filing or files a statement of intent to negotiate under
paragraph (b) of this section, failure to file an answer within the 30-
day period may be treated as a consent to the award requested.
(b) If agency counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement of
their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted as justified.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied on in support of agency
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, agency counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under Sec. 1016.307.
[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]
Sec. 1016.304 Reply.
Within 15 days after service of an answer, the applicant may file a
reply. If the reply is based on any alleged facts not already in the
record of the proceeding, the applicant shall include with the reply
either supporting affidavits or a request for further proceedings under
Sec. 1016.307.
Sec. 1016.305 Comments by other parties.
Any party to a proceeding other than the applicant and agency
counsel may file comments on an application within 30 days after it is
served or on an answer within 15 days after it is served. A commenting
party may not broaden the issues.
[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]
Sec. 1016.306 Settlement.
The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying proceeding, or after the
underlying proceeding has been concluded. If a prevailing party and
agency counsel agree on a proposed settlement of an award before an
application has been filed, the application shall be filed with the
proposed settlement.
Sec. 1016.307 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the applicant
or agency counsel or on his or her own initiative, the adjudicative
officer may order further proceedings when necessary.
(b) A request that the adjudicative officer order further
proceedings under this section shall specifically identify the
information sought or the disputed issues and shall explain why the
additional proceedings are necessary to resolve the issues.
[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]
Sec. 1016.308 Decision.
The adjudicative officer shall issue a decision on the application
within 50 days after completion of proceedings on the application. The
decision shall include written findings and conclusions on the
applicant's eligibility and
[[Page 51]]
status as a prevailing party, and an explanation of the reasons for any
difference between the amount requested and the amount awarded. The
decision shall also include, if at issue, findings on whether the
Board's or other agency's position was substantially justified, whether
the applicant unduly protracted the proceedings, or whether special
circumstances make an award unjust. If the applicant has sought an award
against more than one agency, the decision shall allocate responsibility
for payment of any award made among the agencies, and shall explain the
reasons for the allocation made.
[46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989]
Sec. 1016.309 Agency review.
In the event the adjudicative officer is not the entire Board, the
applicant or agency counsel may seek review of the initial decision on
the fee application, or the Board may review the decision on its own
initiative, in accordance with Sec. 1115.2. If no appeal is taken, the
initial decision becomes the action of the Board 20 days after it is
issued. If the adjudicative officer is the entire Board, Sec. 1115.3
applies.
[54 FR 26380, June 23, 1989]
Sec. 1016.310 Judicial review.
Judicial review of final Board decisions on awards may be sought as
provided in 5 U.S.C. 504(c)(2).
Sec. 1016.311 General provisions.
An applicant seeking payment of an award shall submit to the
appropriate official of the paying agency a copy of the Board's final
decision granting the award, accompanied by a statement that the
applicant will not seek review of the decision in the United States
courts. Where the award is granted against the Surface Transportation
Board the applicant shall make its submission to the Chief, Section of
Financial Services, Surface Transportation Board, Washington, DC 20423-
0001. The Board will pay the amount awarded to the applicant within 60
days of the applicant's submission unless the judicial review of the
award or of the underlying decision of the adversary adjudication has
been sought by the applicant or any other party to the proceeding.
[74 FR 52905, Oct. 15, 2009]
PART 1017_DEBT COLLECTION_COLLECTION BY OFFSET FROM INDEBTED
GOVERNMENT AND FORMER GOVERNMENT EMPLOYEES--Table of Contents
Sec.
1017.1 Purpose and scope.
1017.2 Definitions.
1017.3 Applicability.
1017.4 Notice requirements.
1017.5 Hearing procedures.
1017.6 Result if employee fails to meet deadlines.
1017.7 Written decision following hearing.
1017.8 Exception to entitlement to notice, hearing, written responses
and final decisions.
1017.9 Coordinating offset with another Federal agency.
1017.10 Procedures for administrative offset.
1017.11 Refunds.
1017.12 Statute of limitations.
1017.13 Nonwaiver of rights.
1017.14 Interest, penalties, and administrative costs.
Authority: 31 U.S.C. 3716, 5 U.S.C. 5514; Pub. L. 97-365; 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
[[Page 52]]
regulations covered in this part apply to all current and former Federal
employees who owe debts to the Board and to current Board employees who
owe debts to other Federal agencies. The regulations set forth herein do
not apply when the employee consents to recovery from his/her current
pay account.
(c) These regulations do not apply to debts or claims arising under:
(1) The Social Security Act;
(2) The Internal Revenue Code of 1954;
(3) The tariff laws of the United States; or
(4) Any case where a collection of a debt by salary offset is
explicitly provided for or prohibited by another statute.
(d) These regulations also do not preclude the compromise,
suspension, or termination of collection action, where appropriate,
under the standards implementing the Federal Claims Collection Act (31
U.S.C. 3711 et seq., 4 CFR 101.1 et seq.). These regulations do not
preclude an employee's requesting a waiver of a salary overpayment
(i.e., alleged indebtedness) under 5 U.S.C. 5584, 10 U.S.C. 2774, or 32
U.S.C. 716, or in any way questioning the amount or validity of a debt
by submitting a claim to the General Accounting Office (GAO), or
requesting a waiver under statutory provisions pertaining to the
particular debt.
(e) The Board's regulations governing debt collection for entities
and individuals who are not current or former government employees are
contained in 49 CFR part 1018.
[56 FR 32333, July 16, 1991, as amended at 58 FR 7749, Feb. 9, 1993]
Sec. 1017.2 Definitions.
For the purposes of these regulations, the following definitions
will apply:
(a) Agency. An executive agency as defined at 5 U.S.C. 105,
including the U.S. Postal Service; the U.S. Postal Rate Board; a
military department as defined at 5 U.S.C. 102; an agency or court in
the Judicial Branch; an agency of the Legislative Branch, including the
U.S. Senate and House of Representatives; and other independent
establishments that are entities of the Federal Government.
(b) Creditor agency. The agency to which the debt is owed.
(c) Debt. An amount of money or property which has been determined
by an appropriate agency official to be owed to the United States from
any person.
(d) Disposable pay. The amount that remains from an employee's
Federal pay after required deductions for social security; Federal,
State, or local income taxes; health insurance premiums; retirement
contributions; life insurance premiums; Federal employment taxes; and
any other deductions that are required to be withheld by law.
(e) FCCS. The Federal Claims Collection Standards jointly published
by the Justice Department and the General Accounting Office at 4 CFR
101.1 et seq.
(f) Hearing official. The official responsible for conducting a
hearing which is properly and timely requested by the debtor. An
Administrative Law Judge shall be responsible for conducting the hearing
and the Chief Administrative Law Judge shall determine which judicial
official will be assigned the hearing.
(g) Paying agency. The agency that employs the individual who owes
the debt and authorizes the payment of his/her current pay.
(h) Administrative offset. The withholding of monies payable by the
United States to or held by the United States on behalf of an employee
to satisfy a debt owed the United States by that employee.
(i) Waiver. A cancellation, forgiveness, or non-recovery of a debt
allegedly owed by an employee or former employee to the agency as
permitted or required by law.
Sec. 1017.3 Applicability.
These regulations are to be followed when:
(a) The Board is owed a debt by a current employee;
(b) The Board is owed a debt by an individual currently employed by
another Federal agency;
(c) The Board employs an individual who owes a debt to another
Federal agency; and
(d) The Board is owed a debt by an employee who separates from
Federal
[[Page 53]]
Government service. The authority to collect debts owed by former
Federal employees is found in the FCCS and 31 U.S.C. 3716.
Sec. 1017.4 Notice requirements.
(a) Deductions shall not be made unless the employee is provided
with written notice, signed by the debt collection official (Chief,
Section of Financial Services), of the debt at least 30 days before
administrative offset commences.
(b) The written notice to current Federal employees shall be hand
delivered if at headquarters or sent certified mail, return receipt
requested, if located in a field office and shall contain:
(1) A statement that the debt is owed and an explanation of its
nature and amount;
(2) The agency's intention to collect the debt by means of deduction
from the employee's current disposable pay account;
(3) The amount, frequency, proposed beginning date, and duration of
the intended deduction(s);
(4) An explanation of interest, penalties, and administrative
charges, including a statement that such charges will be assessed unless
excused in accordance with the FCCS (4 CFR 101.1 et seq.);
(5) The employee's right to inspect, request, and copy Government
records relating to the debt (if an employee is unable to physically
inspect the Government records, the agency will reproduce copies of the
records and may charge for those copies);
(6) If not previously provided, the opportunity (under terms
agreeable to the creditor agency) to establish a schedule for the
voluntary repayment of the debt or to enter into a written agreement
with the agency to establish a schedule for the voluntary repayment of
the debt in lieu of offset. The agreement must be in writing, signed by
both the employee and the creditor agency, and documented in the
creditor agency's files (4 CFR 102.2(e));
(7) The right to a hearing conducted by an impartial hearing
official concerning the existence or amount of the debt and the
repayment schedule, if it was not established by a written agreement
between the employee and the creditor agency;
(8) The method and time period for petitioning for a hearing;
(9) A statement that the timely filing of a petition for a hearing
(on or before the 15th day following receipt of the written notice) will
stay the commencement of collection proceedings, together with
instructions on how and where to file a petition;
(10) A statement that a final decision on the hearing (if one is
requested) will be issued not later than 60 days after the filing of the
petition requesting the hearing unless the employee requests, and the
hearing official grants, a delay in the proceedings;
(11) A statement that knowingly false or frivolous statements,
representations, or evidence may subject the employee to appropriate
disciplinary procedures and criminal penalties (i.e., for false
certification, etc.);
(12) A statement of other rights and remedies available to the
employee under statutes or regulations governing the program for which
the collection is being made; and
(13) Unless there are contractual or statutory provisions to the
contrary, a statement that amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the employee.
(c) The written notice to former Federal employees shall be sent
certified mail, return receipt requested, and shall contain:
(1) A statement that the debt is owed and an explanation of its
nature and amount;
(2) The agency's intention to collect the debt by administrative
offset against amounts due and payable to the debtor from the Civil
Service Retirement and Disability Fund or by use of a collection service
to recover the delinquent debt;
(3) An explanation of interest, penalties, and administrative
charges, including a statement that such charges will be assessed unless
excused in accordance with 4 CFR 101.1 et seq.;
(4) The former employee's rights to inspect, request, and copy
Government records relating to the debt (if the
[[Page 54]]
former employee is unable to physically inspect the Government records,
the agency will reproduce copies of the records and may charge for those
copies);
(5) The opportunity to enter into a written agreement with the
agency to establish a schedule for the voluntary repayment of the debt;
(6) The right to a hearing conducted by an impartial hearing
official concerning the existence or amount of the debt and the
repayment schedule, if it was not established by a written agreement
between the former employee and the creditor agency;
(7) The method and time period for petitioning for a hearing;
(8) A statement that the timely filing of a petition for a hearing
(on or before the 15th day following receipt of the written notice) will
stay the commencement of collection proceedings, together with
instructions on how and where to file a petition;
(9) A statement that a final decision on the hearing will be issued
not later than 60 days after the filing of the petition requesting the
hearing unless the former employee requests, and the hearing official
grants, a delay in the proceedings;
(10) A statement that knowingly false or frivolous statements,
representations, or evidence may subject the former employee to
appropriate criminal penalties (i.e., for false certification, etc.);
(11) A statement of other rights and remedies available to the
former employee under statutes or regulations governing the program for
which the collection is being made; and
(12) Unless there are contractual or statutory provisions to the
contrary, a statement that amounts paid on or deducted for the debt
which are later waived or found not owed to the United States will be
promptly refunded to the former employee.
[56 FR 32333, July 16, 1991, as amended at 64 FR 53267, Oct. 1, 1999]
Sec. 1017.5 Hearing procedures.
(a) Upon the Administrative Law Judge's determination of an
employee's compliance with Sec. Sec. 1017.4(b)(8) or 1017.4(c)(7) of
this part, whichever is applicable, he/she shall set the time, date, and
location for the hearing, paying due consideration to convenience to the
employee.
(b) All significant matters discussed at the hearing shall be
documented, although a verbatim transcript of the hearing shall not be
made.
(c) The Administrative Law Judge may exclude any evidence he/she
deems irrelevant, immaterial, or unduly repetitious.
(d) Any party to a hearing under these regulations is entitled to
present his or her case or defense by oral or documentary evidence, and
to conduct such cross-examination as may be required for a full and true
disclosure of the facts.
(e) The Board has the initial burden of proof as to the existence
and amount of the debt.
(f) The employee requesting the hearing shall bear the ultimate
burden of proof.
(g) The evidence presented by the employee must prove that no debt
exists or cast sufficient doubt that reasonable minds could differ as to
the existence or amount of the debt.
(h) Where the employee files a petition for a hearing contesting the
offset schedule imposed by the Board, the Administrative Law Judge shall
take into consideration all relevant factors as to the employee's
financial situation in determining whether said offset schedule should
be altered.
(i) Any party to a hearing under these regulations is entitled to be
accompanied, represented, and advised by counsel, as well as to appear
in person or by or with counsel.
(j) The Administrative Law Judge shall issue a final written
decision at the earliest practicable date, but not later than 60 days
after the filing of the petition requesting the hearing, as stated in
Sec. 1017.4(b)(10) or Sec. 1017.4(c)(9) of this part, whichever is
applicable.
Sec. 1017.6 Result if employee fails to meet deadlines.
An employee will not be granted a hearing and will have his/her
disposable pay offset in accordance with the Board's offset schedule if
the employee:
(a) Fails to file a petition for a hearing in conformity with the
requirements of Sec. 1017.4(b)(8) or Sec. 1017.4(c)(9) of
[[Page 55]]
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 deductions from pay, if the amount to be recovered
was accumulated over four pay periods or less.
Sec. 1017.9 Coordinating offset with another Federal agency.
(a) The Board as creditor agency. When the Chief, Section of
Financial Services, determines that an employee of another Federal
agency owes a delinquent debt to the Board, he/she shall:
(1) Arrange for a hearing upon proper petitioning by the employee;
(2) Certify in writing to the other Federal agency that the employee
owes the debt, the amount and basis of the debt, the date on which
payment is due, the date the Government's right to collect the debt
accrued, that the Board's regulations for administrative offset have
been approved by the Office of Personnel Management, and that the
provisions of 4 CFR 102.3(f) have been fully complied with;
(3) If collection must be made in installments, advise the paying
agency of the amount or percentage of disposable pay to be collected in
each installment;
(4) Advise the paying agency of any action taken under 5 U.S.C.
5514(a);
(5) If the employee is in the process of separating, the Board must
submit its debt claim to the paying agency as provided in this part. The
paying agency must certify any amounts already collected, notify the
employee, and send a copy of the certification and notice of the
employee's separation to the creditor agency--if the paying agency is
aware that the employee is entitled to money from the Civil Service
Retirement and Disability Fund, it must certify to the Office of
Personnel Management (OPM) that:
(i) The debtor owes the U.S. a debt, including the amount of that
debt;
(ii) The Board has complied with the applicable statutes,
regulations, and procedures of OPM; and
(iii) The Board has complied with the requirements of 4 CFR 102.3,
including any hearing or review; and
(6) If the employee has already separated and all payments due from
the paying agency have been paid, the Chief, Section of Financial
Services, may request from OPM, unless otherwise prohibited, that money
payable to the employee from the Civil Service Retirement and Disability
Fund or other similar funds be collected by administrative offset and
provide the certification described in paragraph (a)(5) of this section.
(b) The Board as paying agency. (1) Upon receipt of a properly
certified debt claim from another agency, deductions will be scheduled
to begin at
[[Page 56]]
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 ability to pay. The deduction for the pay intervals
for any period shall not exceed 15 percent of disposable pay, unless the
employee has agreed in writing to a deduction of a greater amount.
(d) Unliquidated debts may be offset against any financial payment
due to a separated employee (including, but not limited to, final salary
payment or lump-sum payment for leave).
Sec. 1017.11 Refunds.
(a) The Board shall promptly refund any amounts deducted to satisfy
debts owed to it when the debt is waived, found not owed to the Board,
or when directed by an administrative or judicial order.
(b) A creditor agency will promptly return any amounts deducted by
the Board to satisfy debts owed to a creditor agency when the debt is
waived, found not owed, or when directed by an administrative or
judicial order.
(c) Unless required by law, refunds under this subsection shall not
bear interest.
Sec. 1017.12 Statute of limitations.
If a debt has been outstanding for more than 10 years after the
agency's right to collect the debt first accrued, the agency may not
collect by salary offset unless facts material to the Government's right
to collect were not known and could not reasonably have been known by
the official or officials who were charged with the responsibility for
discovery and collection of such debts.
Sec. 1017.13 Nonwaiver of rights.
An employee's involuntary payment of all or any part of a debt
collected under these regulations will not be construed as a waiver of
any rights that employee may have under 5 U.S.C. 5514 or any other
provision of law.
Sec. 1017.14 Interest, penalties, and administrative costs.
(a) The rate of interest assessed shall be the rate of the current
value of funds to the U.S. Treasury (i.e., the Treasury tax and loan
account rate), as prescribed and published by the Secretary of the
Treasury in the Federal Register and the Treasury Financial Manual
Bulletins. A higher rate of interest can be assessed if the Board can
reasonably determine that a higher rate is necessary to protect the
interests of the United States. The rate of interest, as initially
assessed, shall remain fixed for the duration of the indebtedness,
except where a debtor has defaulted on a repayment agreement
[[Page 57]]
and seeks to enter into a new agreement. The Board may set a new
interest rate which reflects the current value of funds to the Treasury
at the time the new agreement is executed. The Board shall waive the
collection of interest on the debt or any portion of the debt which is
paid within 30 days after the date on which interest began to accrue.
(b) The Board shall assess a penalty charge not to exceed 6 percent
a year on any portion of a debt that is delinquent as defined in 4 CFR
101.2(b) for more than 90 days. This charge need not be calculated until
the 91st day of delinquency, but shall accrue from the date that the
debt became delinquent.
(c) The Board shall assess against a debtor charges to cover
administrative costs incurred as a result of a delinquent debt--that is,
the additional costs incurred in processing and handling the debt
because it became delinquent as defined in 4 CFR 101.2(b).
(d) When a debt is paid in partial or installment payments, amounts
received by the agency shall be applied first to outstanding penalty and
administrative cost charges, second to accrued interest, and third to
outstanding principal.
PART 1018_DEBT COLLECTION--Table of Contents
Subpart A_Application and Coverage
Sec.
1018.1 Application.
1018.2 Definitions.
1018.3 Communications.
1018.4 Claims that are covered.
1018.5 Monetary limitation on Board authority.
1018.6 Omissions not a defense.
1018.7 Conversion claims.
1018.8 Subdivision of claims.
Subpart B_Administrative Collection of Claims
1018.20 Written demand for payment.
1018.21 Telephone inquiries and investigations.
1018.22 Personal interviews.
1018.23 Use of consumer reporting agencies.
1018.24 Contact with the debtor's employing agency.
1018.25 Sanctions.
1018.26 Disputed debts.
1018.27 Contracting for collection services.
1018.28 Collection by administrative offset.
1018.29 Payments.
1018.30 Interest, penalties, and administrative costs.
1018.31 Use of credit reports.
1018.32 Bankruptcy claims.
1018.33 Use and disclosure of mailing addresses.
1018.34 Additional administrative collection action.
Subpart C_Compromise of a Claim
1018.50 When a claim may be compromised.
1018.51 Reasons for compromising of a claim.
1018.52 Restrictions on the compromise of a claim.
1018.53 Finality of a compromise.
Subpart D_Suspension or Termination of Collection Action
1018.60 When collection action may be suspended or terminated.
1018.61 Reasons for suspending collection action.
1018.62 Reasons for terminating collection action.
1018.63 Termination of collection action.
1018.64 Transfer of a claim.
Subpart E_Referral of a Claim
1018.70 Prompt referral.
1018.71 Referral of a compromise offer.
1018.72 Referral to the Department of Justice.
Subpart F_Internal Revenue Service Procedure
1018.80 Reporting discharged debts to the Internal Revenue Service.
Subpart G_Tax Refund Offset
1018.90 Purpose.
1018.91 Applicability and scope.
1018.92 Administrative charges.
1018.93 Notice requirement before offset.
1018.94 Review within the Board.
1018.95 Board determination.
1018.96 Stay of offset.
Authority: 31 U.S.C. 3701, 31 U.S.C. 3711 et seq., 49 U.S.C. 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
[[Page 58]]
money or property and unless a different procedure is specified in a
statute, regulation, or a contractual agreement with the Board,
prescribes procedures by which the Board:
(1) Collects, compromises, suspends, and terminates collection
actions for claims;
(2) Determines and collects interest and other charges on these
claims; and
(3) Refers unpaid claims to the General Accounting Office (GAO) and
the Department of Justice (DOJ) for litigation.
(b) The following are examples of the kinds of debts to which
special statutory and administrative procedures apply:
(1) A claim against an employee for erroneous payment of pay and
allowances subject to waiver under 5 U.S.C. 5584 and other claims
against employees which are handled under 49 CFR part 1017.
(2) A claim involving the payment of civil penalties or forfeitures
which may arise under provisions of the Interstate Commerce Act or
legislation supplemental thereto. Those claims are handled under
procedures set forth in 49 CFR part 1021.
(3) A claim involved in a case pending before any Federal Contract
Appeals Board or Grant Appeals Board. However, nothing in this part
prevents negotiation and settlement of a claim pending before a Board.
Sec. 1018.2 Definitions.
(a) Administrative offset means withholding money payable by the
United States to, or held by the Government for, a person to satisfy a
debt the person owes the Government.
(b) Claim and debt are used synonymously and interchangeably for
purposes of this part. These terms refer to an amount of money or
property which has been determined by an appropriate agency official to
be owed to the United States by any person, organization, or entity
except another Federal agency.
(c) Delinquent. A debt is considered delinquent if it has not been
paid by the date specified in the initial written demand for payment or
applicable contractual agreement with the Board, unless other
satisfactory payment arrangements have been made by that date. If the
debtor fails to satisfy an obligation under a payment agreement with the
Board after other payment arrangements have been made, the debt becomes
a delinquent debt.
(d) Payment in full means payment of the total debt due the United
States, including any interest, penalty, and administrative costs of
collection assessed against the debtor.
Sec. 1018.3 Communications.
Unless otherwise specified, all communications concerning the
regulations in this part should be addressed to 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
[[Page 59]]
(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:
(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]
[[Page 60]]
Sec. 1018.21 Telephone inquiries and investigations.
(a) If a debtor has not responded to one or more written demands,
the Board shall make reasonable efforts by telephone to determine the
debtor's intentions. If the debtor cannot be reached by telephone at the
debtor's place of employment, the Board may telephone the debtor at his
or her residence between 8 a.m. and 9 p.m.
(b) The Board may undertake an investigation to locate a debtor, if
the whereabouts of a debtor is a problem, or if a debtor cannot be
contacted by telephone. The Board may also send a representative to a
debtor's place of employment if the debtor cannot be contacted by phone
or the debtor does not respond to written demands by the Board for
payment of claims.
(c) The Board under 15 U.S.C. 1681(f) may obtain consumer credit
information from private firms, including name, address, former address,
place of employment, and former place of employment of a debtor.
Sec. 1018.22 Personal interviews.
(a) The Board may seek an interview with the debtor at the offices
of the Board when:
(1) A matter involved in the claim needs clarification;
(2) Information is needed concerning the debtor's circumstances; or
(3) An agreement of payment might be negotiated.
(b) The Board shall grant an interview with a debtor upon the
debtor's request. The Board will not reimburse a debtor's interview
expenses.
Sec. 1018.23 Use of consumer reporting agencies.
(a) In addition to assessing interest, penalties, and administrative
costs under Sec. 1018.30 of this part, the Board may report a debt that
has been delinquent for 90 days to a consumer reporting agency, if all
the conditions of this paragraph are met.
(1) The debtor has not:
(i) Paid or agreed to pay the debt under a written payment plan that
has been signed by the debtor and agreed to by the Board; or
(ii) Filed for review of the debt under Sec. 1018.23(a)(2)(iv) of
this section.
(2) The Board has included a notification in the third written
demand (see Sec. 1018.20(b)) to the debtor stating:
(i) That the account has been reviewed and payment of the debt is
delinquent;
(ii) That, within not less than 60 days after the date of
notification, the Board intends to disclose to a consumer reporting
agency that the individual is responsible for the debt;
(iii) The specific information to be disclosed to the consumer
reporting agency; and
(iv) That the debtor has the right to a complete explanation of the
debt (if that has not already been given), to dispute information on
Board records about the debt, and to request reconsideration of the debt
by administrative appeal or review of the debt.
(3) The Board has sent at least one written demand by either
registered or certified mail with the notification described in
paragraph (a)(2) of this section.
(4) The Board has reconsidered its initial decision on the debt when
the debtor has requested a review under Sec. 1018.23(a)(2)(iv).
(5) The Board has taken reasonable action to locate a debtor for
whom the Board does not have a current address to send the notifications
provided for in paragraph (a)(2) of this section.
(b) If there is a substantial change in the condition or amount of
the debt, the Board shall:
(1) Promptly disclose that fact(s) to each consumer reporting agency
to which the original disclosure was made;
(2) Promptly verify or correct information about the debt, on
request of a consumer reporting agency for verification of any or all
information so disclosed by the Board; and
(3) Obtain satisfactory assurances from each consumer reporting
agency that they are complying with all applicable Federal, state, and
local laws relating to its use of consumer credit information.
(c) The information the Board discloses to the consumer reporting
agency is limited to:
[[Page 61]]
(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 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.
[[Page 62]]
(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.
(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.
[[Page 63]]
(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 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
[[Page 64]]
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:
(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
[[Page 65]]
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:
(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
[[Page 66]]
claim and the amount which may be realized on it; or
(b) When the debtor owns no substantial equity in realty and is
unable to make payments on the Government's claim or effect a compromise
on it at the time, but the debtor's future prospects justify retention
of the claim for periodic review and action:
(1) The applicable statute of limitations has been tolled or started
anew; or
(2) Future collection can be effected by offset notwithstanding the
statute of limitations.
Sec. 1018.62 Reasons for terminating collection action.
Collection action may be terminated:
(a) When it becomes clear that the Government cannot collect or
enforce collection of any significant sum from the debtor having due
regard for the judicial remedies available to the Government, the
debtor's future financial prospects, and the exemptions available to the
debtor under State and Federal law;
(b) When the debtor cannot be located, there is no security
remaining to be liquidated, the applicable statute of limitations has
run, and the prospects of collecting by offset, notwithstanding the bar
of the statute of limitations, are too remote to justify retention of
the claim; or
(c) When it is likely that the cost of the collection action will
exceed the amount recoverable.
Sec. 1018.63 Termination of collection action.
Collection action shall be terminated:
(a) Whenever it is determined that the claim is legally without
merit; or
(b) When it is determined that the evidence necessary to prove the
claim cannot be produced, or necessary witnesses are unavailable, and
efforts to induce voluntary payments have been unavailing.
Sec. 1018.64 Transfer of a claim.
The Board may refer a claim to GAO when there is doubt as to whether
or not a collection action should be suspended or terminated.
Subpart E_Referral of a Claim
Sec. 1018.70 Prompt referral.
(a) A claim which requires enforced collection is referred to GAO or
DOJ for litigation. A referral is made as early as possible consistent
with aggressive collection action and, in, any event, well within the
time required to bring a timely suit against the debtor. Ordinarily,
referrals are made within 1 year of the Board's final determination of
the fact and the amount of the debt.
(b) When the merits of the Board's claim, the amount owed on the
claim, or the propriety of acceptance of a proposed compromise,
suspension, or termination of collection actions is in doubt, the Board
shall refer the matter to GAO for resolution and instruction prior to
proceeding with collection actions and/or referral to DOJ for
litigation.
(c) The Board may refer a claim to GAO or DOJ even though the
termination of collection activity might otherwise be given
consideration under Sec. 1018.63 if:
(1) A significant enforcement policy is involved in reducing a
statutory penalty or forfeiture to judgment; or
(2) Recovery of a judgment is a prerequisite to the imposition of
administrative sanctions, such as suspension or revocation of a license
or privilege of participating in a Government sponsored program.
(d) Once a claim has been referred to GAO or DOJ under this subpart,
the Board shall refrain from any contact with the debtor and shall
direct the debtor to GAO or DOJ as appropriate, when questions
concerning the claim are raised by the debtor. The Board shall
immediately advise GAO or DOJ, as appropriate, of any payments by the
debtor.
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.
[[Page 67]]
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 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
[[Page 68]]
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 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.
[[Page 69]]
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 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
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.
[[Page 70]]
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.
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
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
[[Page 71]]
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 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
[[Page 72]]
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]
PART 1034_ROUTING OF TRAFFIC--Table of Contents
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
[[Page 73]]
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.
Sec. 1035.1 Requirement for certain forms of bills of lading.
(a) All common carriers, except express companies, engaged in the
transportation of property other than livestock and wild animals, by
rail or by water subject to the Interstate Commerce Act are required to
use straight bills of lading as prescribed in Appendix A and B to this
part, or order bills of lading as prescribed in Appendix A and B to this
Part, except that order bills of lading shall:
(1) Be entitled ``Uniform Order Bill of Lading'' and be designated
as ``Negotiable'' on the front (appendix A to this part);
(2) Indicate consignment ``to the order of * * * '' on the front
(appendix A to this part); and
(3) Provide for endorsement on the back portion (appendix B to this
part).
(b) All such bills of lading:
(1) May be either documented on paper or issued electronically;
(2) May be a copy, reprographic or otherwise, of a printed bill of
lading, free from erasure and interlineation;
(3) May vary in the arrangement and spacing of the printed matter on
the face of the form.
Sec. 1035.2 Modification of front of uniform bill of lading.
Notwithstanding any other provision of Sec. 1035.1(a), with respect
to the information called for, the front portion only (appendix A to
this part) of a bill of lading may deviate from the language prescribed
in this part so long as the deviation conforms with approved national
standards for the electronic data interchange or other commercial
requirements for bill of lading information; provided that no such
deviation in the language shall affect the obligations of any shipper to
provide information absent the consent of such shipper nor shall such
deviation be deemed to alter any rights or obligations conferred by
statute or regulation on either carriers or shippers with respect to the
preparation or issuance of bills of lading.
Sec. Appendix A to Part 1035--Uniform Straight Bill of Lading
Uniform Straight Bill of Lading
Original--Not Negotiable
Shipper's No____________________________________________________________
Agent's No______________________________________________________________
Company_________________________________________________________________
[[Page 74]]
________________________________________________________________________
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____________________________________________________________________
----------------------------------------------------------------------------------------------------------------
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
[[Page 75]]
Agent
Per
Per
Permanent post office address of shipper
Sec. Appendix B to Part 1035--Contract Terms and Conditions
Contract Terms and Conditions
Sec. 1. (a) The carrier or party in possession of any of the
property herein described shall be liable as at common law for any loss
thereof or damage thereto, except as hereinafter provided.
(b) No carrier or party in possession of all or any of the property
herein described shall be liable for any loss thereof or damage thereto
or delay caused by the act of God, the public enemy, the authority of
law, or the act or default of the shipper or owner, or for natural
shrinkage. The carrier's liability shall be that of warehouseman, only,
for loss, damage, or delay caused by fire occurring after the expiration
of the free time allowed by tariffs lawfully on file (such free time to
be computed as therein provided) after notice of the arrival of the
property at destination or at the port of export (if intended for
export) has been duly sent or given, and after placement of the property
for delivery at destination, or tender of delivery of the property to
the party entitled to receive it, has been made. Except in case of
negligence of the carrier or party in possession (and the burden to
prove freedom from such negligence shall be on the carrier or party in
possession), the carrier or party in possession shall not be liable for
loss, damage, or delay occurring while the property is stopped and held
in transit upon the request of the shipper, owner, or party entitled to
make such request, or resulting from a defect or vice in the property,
or for country damage to cotton, or from riots or strikes.
(c) In case of quarantine the property may be discharged at risk and
expense of owners into quarantine depot or elsewhere, as required by
quarantine regulations or authorities, or for the carrier's dispatch at
nearest available point in carrier's judgment, and in any such case
carrier's responsibility shall cease when property is so discharged, or
property may be returned by carrier at owner's expense to shipping
point, earning freight both ways. Quarantine expenses of whatever nature
or kind upon or in respect to property shall be borne by the owners of
the property or be a lien thereon. The carrier shall not be liable for
loss or damage occasioned by fumigation or disinfection or other acts
required or done by quarantine regulations or authorities even though
the same may have been done by carrier's officers, agents, or employees,
nor for detention, loss, or damage of any kind occasioned by quarantine
or the enforcement thereof. No carrier shall be liable, except in case
of negligence, for any mistake or inaccuracy in any information
furnished by the carrier, its agents, or officers, as to quarantine laws
or regulations. The shipper shall hold the carriers harmless from any
expense they may incur, or damages they may be required to pay, by
reason of the introduction of the property covered by this contract into
any place against the quarantine laws or regulations in effect at such
place.
Sec. 2. (a) No carrier is bound to transport said property by any
particular train or vessel, or in time for any particular market or
otherwise than with reasonable dispatch. Every carrier shall have the
right in case of physical necessity to forward said property by any
carrier or route between the point of shipment and the point of
destination. In all cases not prohibited by law, where a lower value
than actual value has been represented in writing by the shipper or has
been agreed upon in writing as the released value of the property as
determined by the classification or tariffs upon which the rate is
based, such lower value plus freight charges if paid shall be the
maximum amount to be recovered, whether or not such loss or damage
occurs from negligence.
(b) As a condition precedent to recovery, claims must be filed in
writing with the receiving or delivering carrier, or carrier issuing
this bill of lading, or carrier on whose line the loss, damage, injury
or delay occurred, within nine months after delivery of the property
(or, in case of export traffic, within nine months after delivery at
port of export) or, in case of failure to make delivery, then within
nine months after a reasonable time for delivery has elapsed; and suits
shall be instituted against any carrier only within two years and one
day from the day when notice in writing is given by the carrier to the
claimant that the carrier has disallowed the claim or any part or parts
thereof specified in the notice. Where claims are not filed or suits are
not instituted thereon in accordance with the foregoing provisions, no
carrier hereunder shall be liable, and such claims will not be paid.
(c) Any carrier or party liable on account of loss of or damage to
any of said property shall have the full benefit of any insurance that
may have been effected upon or on account of said property, so far as
this shall not avoid the policies or contracts of insurance: Provided,
That the carrier reimburse the claimant for the premium paid thereon.
[[Page 76]]
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 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
[[Page 77]]
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 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
[[Page 78]]
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 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.
[[Page 79]]
(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 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
[[Page 80]]
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.
Authority: 49 U.S.C. 10502, 13301.
Source: 47 FR 50262, Nov. 5, 1982, unless otherwise noted.
Sec. 1039.10 Exemption of agricultural commodities except grain,
soybeans, and sunflower seeds.
The rail transportation of the commodities listed below is exempt
from the provisions of subtitle IV of title 49, except that carriers
must continue to comply with Board accounting and reporting
requirements, including a brief statement in their annual reports of
operations under this exemption, and must maintain copies of rates,
charges, rules or regulations, for traffic moved under this exemption,
at their principal office, subject to inspection, and send a letter of
notification to the docket [Ex Parte No. 346 (Sub-No. 14)], within 30
days, of the fact that they are using the exemption. All tariffs
pertaining to the transportation of these miscellaneous commodities will
no longer apply except to the extent adopted by carrier quotations. The
categories of commodities which are exempt under this decision, by
Standard Transportation Commodity Code (STCC) number are:
01.................................. Farm products, with the exception
of grain (STCC No. 0113),
soybeans (STCC No. 01144), and
sunflower seeds (STCC No.
0114940).
09.................................. Fresh fish and other marine
products.
20-11............................... Fresh meat.
20-15............................... Fresh dressed poultry.
20-17............................... Processed poultry.
20-21............................... Creamery Butter.
20-23............................... Condensed, Evaporated or Dried
Milk.
20-25............................... Cheese and Special Dairy Products.
20-26............................... Processed Whole Milk.
20-141.............................. Hides and Skins.
20-144.............................. Animal refuse, tankage, or meat
meal.
20-421-27........................... Citrus pomace.
20-712-12........................... Shelled walnuts.
20-914-25........................... Cottonseed hulls.
20-915.............................. Cotton linters.
20-999-29........................... Butter and honey mixed.
20-999-41........................... Honey, comb, granulated or
strained, or heat treated to
retard granulation.
20-999-76........................... Freeze-dried poultry.
20-999-77........................... Freeze-dried meat.
20-999-78........................... Freeze-dried salad ingredients.
20-999-93........................... Fresh and salted meat and products
mixed, not hung.
20-999-94........................... Fresh and salted meat and products
mixed, hung and not hung.
21-4................................ Stemmed or redried tobacco.
22-811-30........................... Cotton, carded, dyed or not dyed,
but not spun, woven or knitted,
but including cotton lap.
22-911-63........................... Mattress felt, nec, cjors, not
finished.
22-911-74........................... Felts, cotton, nec.
22-971-35........................... Wool, nec, scoured.
22-995-22........................... Flax fibre.
22-999-26........................... Cotton linters, bleached or dyed.
28-423-37........................... Beeswax.
and shall embrace all articles assigned additional digits. The STCC
shall be those code numbers in effect as of January 1, 1979, as shown in
Standard Transportation Commodity Code Tariff 1-G, STB STCC 6001-C.
Nothing in this exemption shall be construed to affect
[[Page 81]]
our jurisdiction under section 10502 or our ability to enforce this
decision or any subsequent decision made under authority of this
exemption section. This exemption shall remain in effect, unless
modified or revoked by a subsequent order of this Board.
[48 FR 9277, Mar. 4, 1983; 49 FR 22095, May 25, 1984, as amended at 49
FR 26745, June 29, 1984; 49 FR 27321, July 3, 1984; 64 FR 53267, Oct. 1,
1999; 69 FR 58365, Sept. 30, 2004]
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. 1-1-92.... Dimension stone, quarry.
14 2................................. ......do............... Crushed or broken stone or riprap.
14 411............................... ......do............... Sand (aggregate or ballast).
14 412............................... ......do............... Gravel (aggregate or ballast).
20................................... ......do............... Food or kindred products except
20 143 Grease or inedible tallow.
20 32 Canned specialties.
20 33 Canned fruits, jams, jellies, preserves or
vegetables.
20 4 Grain mill products.
20 6 Sugar, beet or cane.
20 8 Beverages or flavoring extracts.
20 911 Cottonseed oil, crude or refined.
20 914 Cottonseed cake or meal or by-products.
20 92 Soybean oil or by-products.
20 93 Nut or vegetable oils or by-products.
22................................... ......do............... Textile mill products.
23................................... ......do............... Apparel or other finished textile products or
knit apparel.
24................................... ......do............... Lumber or wood products.
25................................... ......do............... Furniture or fixtures.
26................................... ......do............... Pulp, paper or allied products except
26 1 Pulp or pulp mill products.
26 211 Newsprint.
26 212 Ground wood paper, uncoated.
26 213 Printing paper, coated or uncoated, etc.
26 214 Wrapping paper, wrappers or coarse paper.
26 218 Sanitary tissue stock.
26 471 Sanitary tissues or health products.
26 6 Building paper or building board except
26 613 Wallboard.
27................................... ......do............... Printed matter.
28 195 22-23......................... ......do............... Iron chloride, liquid.
28 195 27-30......................... ......do............... Iron sulphate.
28 195 68-69......................... ......do............... Ferrous sulphate.
29 914............................... ......do............... Coke produced from coal.
29 915............................... ......do............... Distillate or residual fuel oil from coal
refining.
30................................... ......do............... Rubber or miscellaneous plastics products except
30 111 Rubber pneumatic tires or parts.
31................................... ......do............... Leather or leather products.
32................................... ......do............... Clay, concrete, glass or stone products except
32 411 Hydraulic cement, natural, portland or
masonry.
32 741 Lime or lime plaster.
32 95 Nonmetallic earths or minerals, ground or
treated in any other manner except
32 952 15 Cinders, clay, shale expanded shale),
slate or volcanic (not pumice stone), or
haydrite.
33................................... ......do............... Primary metal products, including galvanized.
34................................... ......do............... Fabricated metal products except
34 6 Metal stampings.
34 919 40 Radioactive material shipping
containers, etc.
35................................... ......do............... Machinery except
35 11 Steam engines, turbines, turbine generator
sets, or parts.
35 85 Refrigerators or refrigeration machinery
or complete air-conditioning units.
36................................... ......do............... Electrical machinery, equipment or supplies
except
36 12 Power, distribution or specialty
transformers.
36 21 Motors or generators.
37 11................................ ......do............... Motor vehicles.
[[Page 82]]
37 14................................ ......do............... Motor vehicle parts or accessories.
38................................... ......do............... Instruments, photographic goods, optical goods,
watches or clocks.
39................................... ......do............... Miscellaneous products of manufacturing.
41 118............................... 6001-U, eff. 1-1-93.... Used vehicles.
14 715............................... 6001-V, eff. 1-1-94.... Rock salt.
20 143............................... ......do............... Grease or inedible tallow.
28 133............................... ......do............... Carbon dioxide.
28 991............................... ......do............... Salt.
32-4................................. ......do............... Hydraulic cement.
34 912............................... 6001-W, eff. 1-1-95.... Steel shipping containers.
40 211............................... ......do............... Iron and steel scrap.
33 119............................... 6001-X, eff. 1-11-96... Blast furnace, open hearth, rolling mill or coke
oven products, NEC.
20511................................ 6001-X, eff. 1-1-96.... Bread or other bakery products exc. biscuits,
crackers, pretzels or other dry bakery
products. See 20521-20529.
22941................................ ......do............... Textile waste, garnetted, processed, or
recovered or recovered fibres or flock exc.
packing or wiping cloths or rags. See 22994.
22973................................ ......do............... Textile fibres, laps, noils, nubs, roving,
sliver or slubs, prepared for spinning, combed
or converted.
22994................................ ......do............... Packing or wiping cloths or rags (processed
textile wastes).
24293................................ ......do............... Shavings or sawdust.
30311................................ ......do............... Reclaimed rubber.
3229924.............................. ......do............... Cullet (broken glass).
33312................................ ......do............... Copper matte, speiss, flue dust, or residues,
etc.
33322................................ ......do............... Lead matte, speiss, flue dust, dross, slag,
skimmings, etc.
33332................................ ......do............... Zinc dross, residues, ashes, etc.
33342................................ ......do............... Aluminum residues, etc.
33398................................ ......do............... Misc. nonferrous metal residues, including
solder babbitt or type metal residues.
40112................................ ......do............... Ashes.
40212................................ ......do............... Brass, bronze, copper or alloy scrap, tailings,
or wastes.
40213................................ ......do............... Lead, zinc, or alloy scrap, tailings or wastes.
40214................................ ......do............... Aluminum or alloy scrap, tailings or wastes.
4021960.............................. ......do............... Tin scrap, consisting of scraps or pieces of
metallic tin, clippings, drippings, shavings,
turnings, or old worn-out block tin pipe having
value for remelting purposes only.
40221................................ ......do............... Textile waste, scrap or sweepings.
40231................................ ......do............... Wood scrap or waste.
40241................................ ......do............... Paper waste or scrap.
40251................................ ......do............... Chemical or petroleum waste, including spent.
40261................................ ......do............... Rubber or plastic scrap or waste.
4029114.............................. ......do............... Municipal garbage waste, solid, digested and
ground, other than sewage waste or fertilizer.
4029176.............................. ......do............... Automobile shredder residue.
4111434.............................. ......do............... Bags, old, burlap, gunny, istle (ixtle), jute,
or sisal, NEC.
41115................................ ......do............... Articles, used, returned for repair or
reconditioning.
42111................................ ......do............... Nonrevenue movement of containers, bags,
barrels, bottles, boxes, crates, cores, drums,
kegs, reels, tubes, or carriers, NEC, empty,
returning in reverse of route used in loaded
movement, and so certified.
42112................................ ......do............... Nonrevenue movement of shipping devices,
consisting of blocking, bolsters, cradles,
pallets, racks, skids, etc., empty, returning
in reverse of route used in loaded movement,
and so certified.
42311................................ ......do............... Revenue movement of containers, bags, barrels,
bottles, boxes, crates, cores, drums, kegs,
reels, tubes, or carriers, NEC., empty,
returning in reverse of route used in loaded
movement and so certified.
----------------------------------------------------------------------------------------------------------------
Excluded from this exemption are any movements for which a finding of
market dominance has been made. However, this exemption shall not be
construed as affecting in any way the existing regulations, agreements,
prescriptions, conditions, allowances or levels of compensation
regarding the use of equipment, whether shipper or railroad owned or
leased, including car hire, per diem and mileage allowances, and also
including exemption from the anti-trust laws necessary to negotiate car
service regulations or mandatory interchange of equipment or to maintain
and execute such agreements. Nor shall this exemption be construed to
affect existing Class III railroad ``protections'' in the case of
boxcars.
(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
[[Page 83]]
or revoked by a subsequent order of this Board.
[48 FR 24901, June 3, 1983]
Editorial Note: For Federal Register citations affecting Sec.
1039.11, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and on GPO Access.
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:
(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
[[Page 84]]
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 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]
[[Page 85]]
Sec. 1039.17 Protective service contracts exemption.
Contracts for protective services against heat or cold, provided to
or on behalf of rail carriers and express companies, are exempt from the
requirements of 49 U.S.C. 11105. Nothing in this exemption shall be
construed to affect our jurisdiction under section 10505 or our ability
to enforce this decision or any subsequent decision made under authority
of this exemption section. This exemption shall remain in effect, unless
modified or revoked by a subsequent order of this Board.
[49 FR 19025, May 4, 1984]
Sec. 1039.20 Storage leases.
Storage leases for all equipment for all carriers are exempt from
the provisions of 49 U.S.C. subtitle IV except for 49 U.S.C. 11123.
Nothing in this exemption should be construed to affect our jurisdiction
under section 10502 or our ability to enforce this decision or any
subsequent decision made under authority of this exemption section. This
exemption shall remain in effect, unless modified or revoked by a
subsequent decision of this Board.
[51 FR 46675, Dec. 24, 1986, as amended at 69 FR 58365, Sept. 30, 2004]
Sec. 1039.21 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 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 1040 1089 [RESERVED]
[[Page 86]]
Parts 1090 1099_Intermodal Transportation
PART 1090_PRACTICES OF CARRIERS INVOLVED IN THE INTERMODAL MOVEMENT
OF CONTAINERIZED FREIGHT--Table of Contents
Sec.
1090.1 Definition of TOFC/COFC service.
1090.2 Exemption of rail and highway TOFC/COFC service.
1090.3 Use of TOFC/COFC service by motor and water carriers.
Authority: 49 U.S.C. 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 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
performance of all or any portion of their authorized service.
(b) Motor and water common carriers may use rail TOFC/COFC service
only if their tariff publications give notice that such service may be
used at their option, but that the right is reserved to the user of
their services to direct that in any particular instance TOFC/COFC
service not be used.
(c) Motor and water contract carriers may use rail TOFC/COFC service
only if their transportation contracts and tariffs (for water carriers)
make appropriate provisions therefor.
(d) Tariffs of motor and water common or water contract carriers
providing for the use of rail TOFC/COFC service shall set forth the
points between which TOFC/COFC service may be used.
[52 FR 27811, July 24, 1987]
[[Page 87]]
SUBCHAPTER B_RULES OF PRACTICE
Parts 1100 1129_Rules of General Applicability
PART 1100_GENERAL PROVISIONS--Table of Contents
Sec.
1100.1 Scope of rules.
1100.2 Applicability.
1100.3 Liberal construction.
1100.4 Information and inquiries.
Authority: 49 U.S.C. 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 Director, Office of Public Assistance,
Governmental Affairs, and Compliance, Surface Transportation Board or
should telephone the Office of Public Assistance, Governmental Affairs,
and Compliance.
[74 FR 52905, Oct. 15, 2009]
PART 1101_DEFINITIONS AND CONSTRUCTION--Table of Contents
Sec.
1101.1 Statutory definitions.
1101.2 Definitions applicable to this subchapter.
1101.3 Construction.
Authority: 49 U.S.C. 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 88]]
(1) An informal complaint filed under Sec. Sec. 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. 10502 requesting
the Board to exempt from application all or part of subtitle IV of title
49 of the United States Code any person, class of persons, transaction,
or service related to a rail carrier.
[47 FR 49548, Nov. 1, 1982, as amended at 50 FR 30275, July 25, 1985; 64
FR 53267, Oct. 1, 1999; 69 FR 58365, Sept. 30, 2004]
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 Chief, Section of
Administration, Office of Proceedings, Surface Transportation Board,
Washington, DC 20423-0001 unless otherwise specifically directed by
another Board regulation. All communications should designate the docket
number and title, if any. The person communicating shall state his
address, and the party he represents.
[74 FR 52905, Oct. 15, 2009]
Sec. 1102.2 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
[[Page 89]]
respect to pending on-the-record proceedings.
(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 Chief, Section of Administration,
Office of Proceedings, Surface Transportation Board. The Section Chief
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 Chief, Section of Administration, Office of
Proceedings, shall promptly notify the Chairman of the Board of such ex
parte communications sent to the Section Chief. The Designated Agency
Ethics Official shall promptly notify the Chairman of all requests for
rulings sent to the Designated Agency Ethics Official. The Chairman may
require that any communication be placed in the correspondence section
of the docket when fairness requires that it be made public, even if it
is not a prohibited communication. The Chairman may direct the taking of
such other action as may be appropriate under the circumstances.
(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; 74
FR 52905, Oct. 15, 2009]
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.
[[Page 90]]
The Practitioner's Duties and Responsibilities Toward the Board
1103.11 Standards of ethical conduct in courts of the United States to
be observed.
1103.12 The practitioner's duty to and attitude toward the Board.
1103.13 Attempts to exert political or personal influence on the Board
are prohibited.
1103.14 Private communications with the Board are prohibited.
The Practitioner's Duties and Responsibilities Toward a Client
1103.15 The practitioner's duty to clients, generally.
1103.16 Adverse influences and conflicting interests.
1103.17 Joint association of practitioners and conflicts of opinion.
1103.18 Withdrawal from employment.
1103.19 Advising upon the merits of a client's cause.
1103.20 Practitioner's fees and related practices.
1103.21 How far a practitioner may go in supporting a client's cause.
1103.22 Restraining clients from improprieties.
1103.23 Confidences of a client.
The Practitioner's Duties and Responsibilities Regarding Witnesses,
Other Litigants and the Public
1103.24 Use of adverse witnesses.
1103.25 Treatment of witnesses, litigants and other counsel.
1103.26 Discussion of pending litigation in the public press.
1103.27 Candor and fairness in dealing with other litigants.
1103.28 Negotiations with opposing party.
1103.29 Public communication and solicitation.
1103.30 Acceptance of employment.
1103.31 Responsibility for litigation.
1103.32 Discovery of imposition and deception and duty to report corrupt
or dishonest conduct.
1103.33 Responsibility when proposing a person for admission to practice
before the Board.
1103.34 Intermediaries.
1103.35 Partnership or professional corporation names and titles.
Authority: 21 U.S.C. 862; 49 U.S.C. 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;
[[Page 91]]
(3) An applicant must have received a bachelor's degree with at
least 12 semester hours or 18 quarter hours in transportation or
business; or
(4) An applicant must have received a bachelor's degree and worked
in the field of transportation for at least one year. An applicant's
statement of college education must be supported by a transcript of
records attached to the original application. Transcripts from any
college accredited by the U.S. Department of Education will be accepted
without question. With all other institutions, the burden of proof is on
the applicant to establish that the formal education satisfies the
standards set forth above. The qualifications standards are intended as
general guidelines. Individual situations that vary from the standards
will continue to be evaluated on their own merits.
(c)(1) Application for admission. An application filed pursuant to
this rule under oath for admission to practice shall be submitted
between January and May 1 of the year in which the examination is to be
taken. The application is to be completed in full on the form provided
by the Board, and shall be addressed to the Director, Office of Public
Assistance, Governmental Affairs, and Compliance, Surface Transportation
Board, Washington, DC 20423-0001, to the attention of the room number
indicated on the form.
(2) Certification: All applicants must complete the following
certification:
I, ---------- (Name) ----------, certify under penalty of perjury
under the laws of the United States, that I have not been convicted,
after September 1, 1989, of any Federal or State offense involving the
distribution or possession of a controlled substance, or that if I have
been so convicted, I am not ineligible to receive Federal Benefits,
either by court order or operation of law, pursuant to 21 U.S.C. 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
[[Page 92]]
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.
(j) Examination results. Results will be released within 90 days
after the examination. Individual results will be forwarded to the
applicants at least 1 week before being publicly released. To protect
the privacy of those taking the examination, individual grades will not
be released over the telephone to anyone. Requests for grades may,
however, be submitted in writing to the Office of Public Assistance,
Governmental Affairs, and Compliance to the attention of the address
stated in the application form.
(k) Failure to appear for examination. Applicants who have failed to
appear for, or postponed taking an examination, a total of three times
without showing good cause will have any subsequently filed application
returned.
(l) Failing or postponing the examination. Applicants who fail the
examination may reapply by submitting a request in writing with an
additional filing fee in the amount set forth in 49 CFR 1002.2(f)(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; 74 FR 52906, Oct. 15, 2009]
Sec. 1103.4 Initial appearances.
Practitioners shall file a declaration that they are authorized to
represent the particular party on whose behalf they appear at the time
of making an initial appearance, in all proceedings. This requirement
can be met by:
(a) Entering the practitioner's name as the representative of an
applicant in the appropriate space on an application form;
(b) Signing any complaint, petition, protest, reply or other
pleading with a designation following the practitioner's signature that
he is the representative of a party;
(c) Entering an appearance at any hearing on the form provided; or
(d) Filing a letter with the Chief, Section of Administration,
Office of Proceedings, Surface Transportation Board stating that
practitioner is authorized to represent a party. The party represented,
their address, and the docket number of the proceeding
[[Page 93]]
must also be identified at the time of the initial appearance.
[47 FR 49549, Nov. 1, 1982, as amended at 74 FR 52906, Oct. 15, 2009]
Sec. 1103.5 Discipline.
(a) A member of the Board's bar may be subject to suspension,
disbarment, or other disciplinary action if it is shown that the
practitioner:
(1) Has been suspended or disbarred from practice in any court of
record;
(2) Violated any of the Board's rules including the Canons of Ethics
set out in Sec. Sec. 1103.10 through 1103.35; or
(3) Engaged in conduct unbecoming a member of the bar of the Board.
(b) The practitioner will be afforded an opportunity to show why he
should not be suspended, disbarred, or otherwise disciplined. Upon the
practitioner's timely response to the show cause order after any
requested hearing, or upon failure to make a timely response to the show
cause order, the Board shall issue an appropriate decision.
Subpart B_Canons of Ethics
Sec. 1103.10 Introduction.
The following canons of ethics are adopted as a general guide for
those admitted to practice before the Surface Transportation Board. The
practitioners before the Board include (a) lawyers, who have been
regularly admitted to practice law and (b) others who have fulfilled the
requirements set forth in Sec. 1103.3. The former are bound by a broad
code of ethics and unwritten rules of professional conduct which apply
to every activity of a lawyer. The canons do not release the lawyer from
any of the duties or principles of professional conduct by which lawyers
are bound. They apply similarly to all practitioners before the Board,
but do not negate the applicability of other ethical codes. The canons
are organized under three headings, The Practitioner's Duties and
Responsibilities to the Board, The Practitioner's Duties and
Responsibilities to the Client, The Practitioner's Duties and
Responsibilities to Other Litigants, Witnesses and the Public.
The Practitioner's Duties and Responsibilities Toward the Board
Sec. 1103.11 Standards of ethical conduct in courts of the
United States to be observed.
These canons further the purpose of the Board's Rules of Practice
which direct all persons appearing in proceedings before it to conform,
as nearly as possible, to the standards of ethical conduct required of
practice before the courts of the United States. Such standards are
taken as the basis for these specifications and are modified as the
nature of the practice before the Board requires.
Sec. 1103.12 The practitioner's duty to and attitude toward the Board.
(a) It is the duty of the practitioner to maintain a respectful
attitude toward the Board and for the importance of the functions it
administers. In many respects the Board functions as a Court, and
practitioners should regard themselves as officers of that Court and
uphold its honor and dignity.
(b) It is the right and duty of the practitioner to submit
grievances about a member or employee of the Board to the proper
authorities when proper grounds for complaint exists. In such cases,
charges should be encouraged and the person making them should be
protected.
(c) It is the duty of the practitioner to be punctual in attendance,
and to be concise and direct in the trial and disposition of causes.
Sec. 1103.13 Attempts to exert political or personal influence on
the Board are prohibited.
(a) It is unethical for a practitioner to attempt to influence the
judgment of the Board by threats of political or personal reprisal.
(b) Marked attention and unusual hospitality on the part of a
practitioner to a Board Member, administrative law judge, or other
representative of the Board, which is unwarranted by the personal
relationship of the parties, is subject to misconstruction of motive and
should be avoided.
[[Page 94]]
Sec. 1103.14 Private communications with the Board are prohibited.
To the extent that the Board acts in a quasi-judicial capacity, it
is improper for litigants, directly or through any counsel or
representative, to communicate privately with a Board Member,
administrative law judge, or other representative of the Board about a
pending case, or to argue privately the merits thereof in the absence of
the adversaries or without notice to them. Practitioners at all times
shall scrupulously refrain from going beyond ex parte representations
which are clearly proper in view of the administrative work of the Board
in their communication with the Board and its staff.
The Practitioner's Duties and Responsibilities Toward a Client
Sec. 1103.15 The practitioner's duty to clients, generally.
The practitioner shall be respectful of the law and its official
ministers, and shall not be involved in corruption of public officials
or deception of the public. In giving improper service or advice, the
practitioner invites and deserves stern condemnation. The practitioner
shall observe and advise all clients to observe the statutory law to the
best of his knowledge or as interpreted by competent adjudication. The
practitioner owes a general duty to practice candor toward his client
with respect to all aspects to his service to the client.
Sec. 1103.16 Adverse influences and conflicting interests.
(a) At the time of the retainer, the practitioner shall disclose to
the client all circumstances of his relations to the parties, and any
interest in or connection with the case.
(b) It is unethical for a practitioner to represent conflicting
interests, except by express consent of all concerned given after a full
disclosure of the facts. Within the meaning of this section, a
practitioner represents conflicting interest, when on behalf of one
client, it is his duty to contend for that which duty to another client
requires him to oppose.
(c) The obligation to represent the client with undivided fidelity
and not to divulge secrets or 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.