[Title 49 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2017 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]

          

          Title 49

Transportation


________________________

Parts 1000 to 1199

                         Revised as of October 1, 2017

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2017
                    Published by the Office of the Federal Register 
                    National Archives and Records Administration as a 
                    Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



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

  Title 49:
    SUBTITLE B--Other Regulations Relating to Transportation 
      (Continued)
          Chapter X--Surface Transportation Board                    5
  Finding Aids:
      Table of CFR Titles and Chapters........................     293
      Alphabetical List of Agencies Appearing in the CFR......     313
      List of CFR Sections Affected...........................     323

[[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, 2017), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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

OMB CONTROL NUMBERS

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

[[Page vi]]

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

PAST PROVISIONS OF THE CODE

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

``[RESERVED]'' TERMINOLOGY

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

INCORPORATION BY REFERENCE

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

CFR INDEXES AND TABULAR GUIDES

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

[[Page vii]]

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

REPUBLICATION OF MATERIAL

    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

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ELECTRONIC SERVICES

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CFR Sections Affected), The United States Government Manual, the Federal 
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    The Office of the Federal Register also offers a free service on the 
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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 e-CFR is a regularly updated, unofficial editorial compilation 
of CFR material and Federal Register amendments, produced by the Office 
of the Federal Register and the Government Publishing Office. It is 
available at www.ecfr.gov.

    Oliver A. Potts,
    Director,
    Office of the Federal Register.
    October 1, 2017.







[[Page ix]]



                               THIS TITLE

    Title 49--Transportation is composed of nine volumes. The parts in 
these volumes are arranged in the following order: Parts 1-99, parts 
100-177, parts 178-199, parts 200-299, parts 300-399, parts 400-571, 
parts 572-999, parts 1000-1199, and part 1200 to end. The first volume 
(parts 1-99) contains current regulations issued under subtitle A--
Office of the Secretary of Transportation; the second volume (parts 100-
177) and the third volume (parts 178-199) contain the current 
regulations issued under chapter I--Pipeline and Hazardous Materials 
Safety Administration (DOT); the fourth volume (parts 200-299) contains 
the current regulations issued under chapter II--Federal Railroad 
Administration (DOT); the fifth volume (parts 300-399) contains the 
current regulations issued under chapter III--Federal Motor Carrier 
Safety Administration (DOT); the sixth volume (parts 400-571) contains 
the current regulations issued under chapter IV--Coast Guard (DHS), and 
some of chapter V--National Highway Traffic Safety Administration (DOT); 
the seventh volume (parts 572-999) contains the rest of the regulations 
issued under chapter 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, 2017.

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

    For this volume, Robert J. Sheehan, III was Chief Editor. The Code 
of Federal Regulations publication program is under the direction of 
John Hyrum Martinez, assisted by Stephen J. Frattini.

[[Page 1]]



                        TITLE 49--TRANSPORTATION




                 (This book contains parts 1000 to 1199)

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

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

                                                                    Part

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

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

[[Page 5]]



                 CHAPTER X--SURFACE TRANSPORTATION BOARD




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


  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.....          20
1005            Principles and practices for the 
                    investigation and voluntary disposition 
                    of loss and damage claims and processing 
                    salvage.................................          20
1007            Records containing information about 
                    individuals.............................          23
1011            Board organization; delegations of authority          29
1012            Meetings of the Board.......................          35
1013            Guidelines for the proper use of voting 
                    trusts..................................          39
1014            Enforcement of nondiscrimination on the 
                    basis of handicap in programs or 
                    activities conducted by the Surface 
                    Transportation Board....................          40
1016            Special procedures governing the recovery of 
                    expenses by parties to Board 
                    adjudicatory proceedings................          46
1017            Debt collection--collection by offset from 
                    indebted government and former 
                    government employees....................          52
1018            Debt collection.............................          57
1019            Regulations governing conduct of Surface 
                    Transportation Board employees..........          69
                      PARTS 1021-1029--ENFORCEMENT
1021            Administrative collection of enforcement 
                    claims..................................          70

[[Page 6]]

1022            Civil monetary penalty inflation adjustment.          71
  PARTS 1030-1039--CARRIERS SUBJECT TO PART I, INTERSTATE COMMERCE ACT
1033            Car service.................................          73
1034            Routing of traffic..........................          75
1035            Bills of lading.............................          75
1037            Bulk grain and grain products--loss and 
                    damage claims...........................          81
1039            Exemptions..................................          82
1040            On-time performance of intercity passenger 
                    rail service............................          88
                       PARTS 1041-1089 [RESERVED]
               PARTS 1090-1099--INTERMODAL TRANSPORTATION
1090            Practices of carriers involved in the 
                    intermodal movement of containerized 
                    freight.................................          88
                     SUBCHAPTER B--RULES OF PRACTICE
             PARTS 1100-1129--RULES OF GENERAL APPLICABILITY
1100            General provisions..........................          90
1101            Definitions and construction................          90
1102            Communications..............................          91
1103            Practitioners...............................          92
1104            Filing with the board-copies-verification-
                    service-pleadings, generally............         102
1105            Procedures for implementation of 
                    environmental laws......................         106
1106            Procedures for Surface Transportation Board 
                    consideration of safety integration 
                    plans in cases involving railroad 
                    consolidations, mergers, and 
                    acquisitions of control.................         117
1107

[Reserved]

1108            Arbitration of certain disputes subject to 
                    the statutory jurisdiction of the 
                    Surface Transportation Board............         119
1109            Use of mediation in board proceedings.......         126
1110            Procedures governing informal rulemaking 
                    proceedings.............................         130
1111            Complaint and investigation procedures......         132
1112            Modified procedures.........................         135
1113            Oral hearing................................         137
1114            Evidence; discovery.........................         143
1115            Appellate procedures........................         153
1116            Oral argument before the Board..............         156
1117            Petitions (for relief) not otherwise covered         156

[[Page 7]]

1119            Compliance with Board decisions.............         156
1120            Use of 1977-1978 study of motor carrier 
                    platform handling factors...............         157
1121            Rail exemption procedures...................         157
1122            Board-initiated investigations..............         159
1123-1129

 [Reserved]

                    PARTS 1130-1149--RATE PROCEDURES
1130            Informal complaints.........................         162
1132            Protests requesting suspension and 
                    investigation of collective ratemaking 
                    actions.................................         164
1133            Recovery of damages.........................         165
1135            Railroad cost recovery procedures...........         166
1141            Procedures to calculate interest rates......         167
1144            Intramodal rail competition.................         168
1146            Expedited relief for service emergencies....         169
1147            Temporary relief under 49 U.S.C. 10705 and 
                    11102 for service inadequacies..........         170
1148-1149

 [Reserved]

                  PARTS 1150-1176--LICENSING PROCEDURES
               PARTS 1150-1159--RAIL LICENSING PROCEDURES
1150            Certificate to construct, acquire, or 
                    operate railroad lines..................         170
1151            Feeder railroad development program.........         184
1152            Abandonment and discontinuance of rail lines 
                    and rail transportation under 49 U.S.C. 
                    10903...................................         188
1155            Solid waste rail transfer facilities........         243
1156-1176

 [Reserved]

                   PARTS 1177-1199--FINANCE PROCEDURES
     PARTS 1177-1179--SECURITIES, SECURITY INTERESTS, AND FINANCIAL 
                               STRUCTURES
1177            Recordation of documents....................         254
1178-1179

 [Reserved]

               PARTS 1180-1189--COMBINATIONS AND OWNERSHIP
1180            Railroad acquisition, control, merger, 
                    consolidation project, trackage rights, 
                    and lease procedures....................         258
1182            Purchase, merger, and control of motor 
                    passenger carriers......................         281
1184            Motor carrier pooling operations............         286
1185            Interlocking officers.......................         287
1187-1199

 [Reserved]

[[Page 9]]



               SUBCHAPTER A_GENERAL RULES AND REGULATIONS



                   Parts 1000	1019_General Provisions

                          PART 1000 [RESERVED]



PART 1001_INSPECTION OF RECORDS--Table of Contents



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

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

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



Sec.  1001.1  Records available from the Board.

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



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

    (a) Request and determination. Requests to inspect records other 
than

[[Page 10]]

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

[81 FR 90750, Dec. 15, 2016]



Sec.  1001.4  Predisclosure notification procedures for confidential
commercial information.

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

[[Page 11]]

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



PART 1002_FEES--Table of Contents



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

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



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

    Certifications and copies of such tariffs, reports and other public 
records and documents on file with the Surface Transportation Board as 
may be practicable to furnish, as well as searches and copying of 
records not considered

[[Page 12]]

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, $19.00.
    (b) Services involved in examination of tariffs or schedules for 
preparation of certified copies of tariffs or schedules or extracts 
therefrom at the rate of $43.00 per hour.
    (c) Services involved in checking records to be certified to 
determine authenticity, including clerical work, etc. identical thereto, 
at the rate of $30.00 per hour.
    (d) Photocopies of tariffs, reports, and other public documents, at 
the rate of $1.50 per letter or legal size exposure. A minimum charge of 
$7.50 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 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 $76.00 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:

[[Page 13]]



----------------------------------------------------------------------------------------------------------------
                     Grade                           Rate                     Grade                    Rate
----------------------------------------------------------------------------------------------------------------
GS-1..........................................          $12.78  GS-9............................          $29.85
GS-2..........................................           13.92  GS-10...........................           32.88
GS-3..........................................           15.69  GS-11...........................           36.12
GS-4..........................................           17.61  GS-12...........................           43.29
GS-5..........................................           19.70  GS-13...........................           51.48
GS-6..........................................           21.96  GS-14...........................           60.83
GS-7..........................................           24.41  GS-15 and over..................           71.56
GS-8..........................................           27.03  ................................  ..............
----------------------------------------------------------------------------------------------------------------

    (7) The fee for photocopies shall be $1.50 per letter or legal size 
exposure with a minimum charge of $7.50.
    (8) The fees for computer data are set forth in paragraph (f) of 
this section.
    (9) If the cost of collecting any fee would be equal to or greater 
than the fee itself, it will not be assessed.
    (10) A fee may be charged for searches which are not productive and 
for searches for records or those parts 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.
    (15) No fees will be assessed if the FOIA Officer fails to comply 
with any

[[Page 14]]

time limit under the FOIA or these regulations, and has not timely 
notified the requester, in writing, that an unusual circumstance exists. 
If an unusual circumstance exists, and timely, written notice is given 
to the requester, the failure to meet the time limit may be excused an 
additional 10 working days before fees are automatically waived under 
this paragraph (g)(15).
    (16) If the FOIA Officer determines that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to a request, fees 
may be charged if timely, written notice to the requester is provided 
and discussed with the requester via mail, Email, or telephone (or if at 
least three good-faith attempts are made to do so) regarding how the 
requester could effectively limit the scope of the request.
    (17) If a court has determined that exceptional circumstances exist, 
a failure to comply with time limits imposed by these regulations or 
FOIA shall be excused for the length of time provided by court order.
    (18) Fees may not be avoided by filing multiple requests at the same 
time. When the FOIA Officer reasonably believes that a requester, alone 
or with others, is breaking down one request into a series of requests 
to avoid fees, the requests will be combined, and the requester or 
requesters will be charged accordingly.
    (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]

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



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

[[Page 15]]

process, the Board will refund the filing fee.
    (d) Related or consolidated proceedings. (1)(i) Except as provided 
for in paragraph (d)(1)(ii) of this section, separate fees need not be 
paid for related applications filed by the same applicant that would be 
the subject of one proceeding.
    (ii) In proceedings filed under the rail consolidation procedures at 
49 CFR part 1180, the applicable filing fee must be paid for each 
proceeding submitted concurrently with the primary application. The fee 
for each type of proceeding is set forth in the fee schedule contained 
in paragraph (f) of this section.
    (2) A separate fee will be assessed for the filing of an application 
for temporary authority to operate a motor carrier of passengers as 
provided for in paragraph (f)(5) of this section regardless of whether 
such application is related to a corresponding transfer proceeding as 
provided for in paragraph (f)(2) of this section.
    (3) The Board may reject concurrently filed applications, petitions, 
notices, contracts, or other documents asserted to be related and refund 
the filing fee if, in its judgment, they embrace two or more severable 
matters which should be the subject of separate proceedings.
    (e) Waiver or reduction of filing fees. It is the general policy of 
the Board not to waive or reduce filing fees except as described below:
    (1) Filing fees are waived for an application or other proceeding 
which is filed by a federal government agency, or a state or local 
government entity. For purposes of this section the phrases ``federal 
government agency'' or ``government entity'' do not include a quasi-
governmental corporation or government subsidized transportation 
company.
    (2) In extraordinary situations the Board will accept requests for 
waivers or fee reductions in accordance with the following procedure:
    (i) When to request. At the time that a filing is submitted to the 
Board the applicant may request a waiver or reduction of the fee 
prescribed in this part. Such request should be addressed to the 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 Into a Particular
 Financial Transaction or Joint
 Arrangement:
    (1) An application for the pooling or   $5,100.
     division of traffic.
    (2) (i) An application involving the    $2,300.
     purchase, lease, consolidation,
     merger, or acquisition of control of
     a motor carrier of passengers under
     49 U.S.C. 14303.
        (ii) A petition for exemption       $3,600.
         under 49 U.S.C. 13541 (other than
         a rulemaking) filed by a non-rail
         carrier not otherwise covered.
        (iii) A petition to revoke an       $3,000.
         exemption filed under 49 U.S.C.
         13541(d).
    (3) An application for approval of a    $31,800.
     non-rail rate association agreement.
     49 U.S.C. 13703.
    (4) An application for approval of an
     amendment to a non-rail rate
     association agreement:
        (i) Significant amendment.........  $5,200.
        (ii) Minor amendment..............  $100.
    (5) An application for temporary        $550.
     authority to operate a motor carrier
     of passengers. 49 U.S.C. 14303(i).
    (6) A notice of exemption for           $1,900.
     transaction within a motor passenger
     corporate family that does not result
     in adverse changes in service levels,
     significant operational changes, or a
     change in the competitive balance
     with motor passenger carriers outside
     the corporate family.
    (7)-(10) [Reserved]
PART II: Rail Licensing Proceedings other
 than Abandonment or Discontinuance
 Proceedings:
    (11) (i) An application for a           $8,300.
     certificate authorizing the
     extension, acquisition, or operation
     of lines of railroad. 49 U.S.C. 10901.
        (ii) Notice of exemption under 49   $2,000.
         CFR.
        1150.31-1150.35...................

[[Page 16]]

 
        (iii) Petition for exemption under  $14,400.
         49 U.S.C. 10502.
    (12) (i) An application involving the   $85,900.
     construction of a rail line.
        (ii) A notice of exemption          $2,000.
         involving construction of a rail
         line under 49 CFR 1150.36.
        (iii) A petition for exemption      $85,900.
         under 49 U.S.C. 10502 involving
         construction of a rail line.
        (iv) A request for determination    $300.
         of a dispute involving a rail
         construction that crosses the
         line of another carrier under 49
         U.S.C. 10902(d).
    (13) A Feeder Line Development Program  $2,600.
     application filed under 49 U.S.C.
     10907(b)(1)(A)(i) or
     10907(b)(1)(A)(ii).
    (14) (i) An application of a class II   $7,100.
     or class III carrier to acquire an
     extended or additional rail line
     under 49 U.S.C. 10902.
        (ii) Notice of exemption under 49   $2,000.
         CFR 1150.41-1150.45.
        (iii) Petition for exemption under  $7,600.
         49 U.S.C. 10502 relating to an
         exemption from the provisions of
         49 U.S.C. 10902.
    (15) A notice of a modified             $1,900.
     certificate of public convenience and
     necessity under 49 CFR 1150.21-
     1150.24.
    (16) An application for a land-use-     $6,900.
     exemption permit for a facility
     existing as of October 16, 2008 under
     49 U.S.C. 10909.
    (17) An application for a land-use-     $24,300.
     exemption permit for a facility not
     existing as of October 16, 2008 under
     49 U.S.C. 10909.
    (18)-(20) [Reserved]
PART III: Rail Abandonment or
 Discontinuance of Transportation Services
 Proceedings:
    (21) (i) An application for authority   $25,500.
     to abandon all or a portion of a line
     of railroad or discontinue operation
     thereof filed by a railroad (except
     applications filed by Consolidated
     Rail Corporation pursuant to the
     Northeast Rail Service Act [Subtitle
     E of Title XI of Pub. L. 97-35],
     bankrupt railroads, or exempt
     abandonments).
        (ii) Notice of an exempt            $4,100.
         abandonment or discontinuance
         under 49 CFR 1152.50.
        (iii) A petition for exemption      $7,200.
         under 49 U.S.C. 10502.
    (22) An application for authority to    $500.
     abandon all or a portion of a line of
     a railroad or operation thereof filed
     by Consolidated Rail Corporation
     pursuant to Northeast Rail Service
     Act.
    (23) Abandonments filed by bankrupt     $2,100.
     railroads.
    (24) A request for waiver of filing     $2,000.
     requirements for abandonment
     application proceedings.
    (25) An offer of financial assistance   $1,800.
     under 49 U.S.C. 10904 relating to the
     purchase of or subsidy for a rail
     line proposed for abandonment.
    (26) A request to set terms and         $26,100.
     conditions for the sale of or subsidy
     for a rail line proposed to be
     abandoned.
    (27) (i) A request for a trail use      $300.
     condition in an abandonment
     proceeding under 16 U.S.C.1247(d).
        (ii) A request to extend the        $500.
         period to negotiate a trail use
         agreement.
    (28)-(35) [Reserved]
PART IV: Rail Applications to Enter Into a
 Particular Financial Transaction or Joint
 Arrangement:
    (36) An application for use of          $21,800.
     terminal facilities or other
     applications under 49 U.S.C. 11102.
    (37) An application for the pooling or  $11,700.
     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.............  $1,716,200.
        (ii) Significant transaction......  $343,200.
        (iii) Minor transaction...........  $8,400.
        (iv) Notice of an exempt            $1,900.
         transaction under 49 CFR
         1180.2(d).
        (v) Responsive application........  $8,400.
        (vi) Petition for exemption under   $10,700.
         49 U.S.C. 10502.
        (vii) A request for waiver or       $6,300.
         clarification of regulations
         filed in a major financial
         proceeding as defined at 49 CFR
         1180.2(a).
    (39) An application of a non-carrier
     to acquire control of two or more
     carriers through ownership of stock
     or otherwise. 49 U.S.C. 11324:
        (i) Major transaction.............  $1,716,200.
        (ii) Significant transaction......  $343,200.
        (iii) Minor transaction...........  $8,400.
        (iv) A notice of an exempt          $1,400.
         transaction under 49 CFR
         1180.2(d).
        (v) Responsive application........  $8,400.
        (vi) Petition for exemption under   $10,700.
         49 U.S.C. 10502.
        (vii) A request for waiver or       $6,300.
         clarification of regulations
         filed in a major financial
         proceeding as defined at 49 CFR
         1180.2(a).
    (40) An application to acquire
     trackage rights over, joint ownership
     in, or joint use of any railroad
     lines owned and operated by any other
     carrier and terminals incidental
     thereto. 49 U.S.C. 11324:
        (i) Major transaction.............  $1,716,200.
        (ii) Significant transaction......  $343,200.

[[Page 17]]

 
        (iii) Minor transaction...........  $8,400.
        (iv) Notice of an exempt            $1,300.
         transaction under 49 CFR
         1180.2(d).
        (v) Responsive application........  $8,400.
        (vi) Petition for exemption under   $10,700.
         49 U.S.C. 10502.
        (vii) A request for waiver or       $6,300.
         clarification of regulations
         filed in a major financial
         proceeding as defined at 49 CFR
         1180.2(a).
    (41) An application of a carrier or
     carriers to purchase, lease, or
     contract to operate the properties of
     another, or to acquire control of
     another by purchase of stock or
     otherwise. 49 U.S.C. 11324:
        (i) Major transaction.............  $1,716,200.
        (ii) Significant transaction......  $343,200.
        (iii) Minor transaction...........  $8,400.
        (iv) Notice of an exempt            $1,500.
         transaction under 49 CFR
         1180.2(d).
        (v) Responsive application........  $8,400.
        (vi) Petition for exemption under   $7,600.
         49 U.S.C. 10502.
        (vii) A request for waiver or       $6,300.
         clarification of regulations
         filed in a major financial
         proceeding as defined at 49 CFR
         1180.2(a).
    (42) Notice of a joint project          $2,700.
     involving relocation of a rail line
     under 49 CFR 1180.2(d)(5).
    (43) An application for approval of a   $80,300.
     rail rate association agreement. 49
     U.S.C. 10706.
    (44) An application for approval of an
     amendment to a rail rate association
     agreement. 49 U.S.C. 10706:
        (i) Significant amendment.........  $14,800.
        (ii) Minor amendment..............  $100.
    (45) An application for authority to    $900.
     hold a position as officer or
     director under 49 U.S.C. 11328.
    (46) A petition for exemption under 49  $9,200.
     U.S.C. 10502 (other than a
     rulemaking) filed by rail carrier not
     otherwise covered.
    (47) National Railroad Passenger        $300.
     Corporation (Amtrak) conveyance
     proceeding under 45 U.S.C. 562.
    (48) National Railroad Passenger        $300.
     Corporation (Amtrak) compensation
     proceeding under Section 402(a) of
     the Rail Passenger Service Act.
    (49)-(55) [Reserved]
PART V: Formal Proceedings:
    (56) A formal complaint alleging
     unlawful rates or practices of
     carriers:
        (i) A formal complaint filed under  $350.
         the coal rate guidelines (Stand-
         Alone Cost Methodology) alleging
         unlawful rates and/or practices
         of rail carriers under 49 U.S.C.
         10704(c)(1).
        (ii) A formal complaint involving   $350.
         rail maximum rates filed under
         the Simplified-SAC methodology.
        (iii) A formal complaint involving  $150.
         rail maximum rates filed under
         the Three Benchmark methodology.
        (iv) All other formal complaints    $350.
         (except competitive access
         complaints).
        (v) Competitive access complaints.  $150.
        (vi) A request for an order         $300.
         compelling a rail carrier to
         establish a common carrier rate.
    (57) A complaint seeking or a petition  $10,200.
     requesting institution of an
     investigation seeking the
     prescription or division of joint
     rates or charges. 49 U.S.C. 10705.
    (58) A petition for declaratory order:
        (i) A petition for declaratory      $1,000.
         order involving a dispute over an
         existing rate or practice which
         is comparable to a complaint
         proceeding.
        (ii) All other petitions for        $1,400.
         declaratory order.
    (59) An application for shipper         $8,000.
     antitrust immunity. 49 U.S.C.
     10706(a)(5)(A).
    (60) Labor arbitration proceedings....  $300.
    (61) (i) An appeal of a Surface         $300.
     Transportation Board decision on the
     merits or petition to revoke an
     exemption pursuant to 49 U.S.C.
     10502(d).
        (ii) An appeal of a Surface         $400.
         Transportation Board decision on
         procedural matters except
         discovery rulings.
    (62) Motor carrier undercharge          $300.
     proceedings.
    (63) (i) Expedited relief for service   $300.
     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   $300.
         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            $650.
     clarification of regulations except
     one filed in an abandonment or
     discontinuance proceeding, or in a
     major financial proceeding as defined
     at 49 CFR 1180.2(a).
    (65)-(75) [Reserved]
PART VI: Informal Proceedings:
    (76) An application for authority to    $1,400.
     establish released value rates or
     ratings for motor carriers and
     freight forwarders of household goods
     under 49 U.S.C. 14706.
    (77) An application for special         $150.
     permission for short notice or the
     waiver of other tariff publishing
     requirements.

[[Page 18]]

 
    (78) The filing of tariffs, including   $1 per page.
     supplements, or contract summaries.    ($28 min. charge.)
    (79) Special docket applications from
     rail and water carriers:
        (i) Applications involving $25,000  $75.
         or less.
        (ii) Applications involving over    $150.
         $25,000.
    (80) Informal complaint about rail      $700.
     rate applications.
    (81) Tariff reconciliation petitions
     from motor common carriers:
        (i) Petitions involving $25,000 or  $75.
         less.
        (ii) Petitions involving over       $150.
         $25,000.
    (82) Request for a determination of     $250.
     the applicability or reasonableness
     of motor carrier rates under 49
     U.S.C. 13710(a)(2) and (3).
    (83) Filing of documents for            $47 per document.
     recordation. 49 U.S.C. 11301 and 49
     CFR 1177.3(c).
    (84) Informal opinions about rate       $300.
     applications (all modes).
    (85) A railroad accounting              $1,300.
     interpretation.
    (86) (i) A request for an informal      $1,700.
     opinion not otherwise covered.
        (ii) A proposal to use on a voting  $5,900.
         trust 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     $600.
         opinion on a voting trust
         agreement pursuant to 49 CFR
         1013.3(a) not otherwise covered.
    (87) Arbitration of Certain Disputes
     Subject to the Statutory Jurisdiction
     of the Surface Transportation Board
     under 49 CFR 1108:
        (i) Complaint.....................  $75.
        (ii) Answer (per defendant),        $75.
         Unless Declining to Submit to Any
         Arbitration.
        (iii) Third Party Complaint.......  $75.
        (iv) Third Party Answer (per        $75.
         defendant), Unless Declining to
         Submit to Any Arbitration.
        (v) Appeals of Arbitration          $150.
         Decisions or Petitions to Modify
         or Vacate an Arbitration Award.
    (88) Basic fee for STB adjudicatory     $300.
     services not otherwise covered.
    (89)-(95) [Reserved]
PART VII: Services:
    (96) Messenger delivery of decision to  $37 per delivery.
     a railroad carrier's Washington, DC,
     agent.
    (97) Request for service or pleading    $28 per list.
     list for proceedings.
    (98) Processing the paperwork related
     to a request for the Carload Waybill
     Sample to be used in an STB or State
     proceeding that:
        (i) Annual request does not
         require a Federal Register
         notice:
            (A) Set cost portion..........  $150.
            (B) Sliding cost portion......  $54 per party.
        (ii) Annual request does require a
         FR notice.
            (A) Set cost portion..........  $450.
            (B) Sliding cost portion......  $54 per party.
        (iii) Quarterly request does not
         require a FR notice:
            (A) Set cost portion..........  $46.
            (B) Sliding cost portion......  $13 per party.
        (iv) Quarterly request does
         require a FR notice:
            (A) Set cost portion..........  $230.
            (B) Sliding cost portion......  $13 per party.
        (v) Monthly request does not
         require a FR notice:
            (A) Set cost portion..........  $15.
            (B) Sliding cost portion......  $4 per party.
        (vi) Monthly request does require
         a FR notice:
            (A) Set cost portion..........  $180.
            (B) Sliding cost portion......  $4 per party.
    (99) (i) Application fee for the STB's  $200.
     Practitioners' Exam.
        (ii) Practitioners' Exam            $25.
         Information Package.
      (100) Carload Waybill Sample data:
        (i) Requests for Public Use File    $250 per year.
         for all years prior to the most
         current year Carload Waybill
         Sample data available, provided
         on CD-R.
        (ii) Specialized programming for    $119 per hour.
         Waybill requests to the Board.
------------------------------------------------------------------------

    (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

[[Page 19]]

    (iii) If payment is not made within the time specified by the Board, 
the proceeding will be dismissed or the filing may be rejected.
    (2) If a person repeatedly submits dishonored checks to the Board 
for filing fees, the Board may notify the person that all future filing 
fees must be submitted in the form of a certified or cashier's check or 
a money order.

[49 FR 18492, May 1, 1984]

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



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) All updated fees shall be rounded downward in the following 
manner:
    (1) Fees between $1-$30 will be rounded to the nearest $1;
    (2) Fees between $30-$100 will be rounded to the nearest $10;
    (3) Fees between $100-$999 will be rounded to the nearest $50; and
    (4) Fees above $1,000 will be rounded to the nearest $100. (This 
rounding procedure excludes copying, printing and search fees.)

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



PART 1003_FORMS--Table of Contents



    Authority: 49 U.S.C. 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.

[[Page 20]]

    (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]



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

[[Page 21]]

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 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

[[Page 22]]

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.

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

[81 FR 8850, Feb. 23, 2016]



Sec.  1005.6  Processing of salvage.

    (a) Whenever baggage or material, goods, or other property 
transported by a carrier subject to the provisions herein contained is 
damaged or alleged to be damaged and is, as a consequence thereof, not 
delivered or is rejected or refused upon tender thereof to the owner, 
consignee, or person entitled to receive such property, the carrier, 
after giving due notice, whenever practicable to do so, to the owner and 
other parties that may have an interest therein, and unless advised to 
the contrary after giving such notice, shall undertake to sell or 
dispose of such property directly or by the employment of a competent 
salvage agent. The carrier shall only dispose of the property in a 
manner that will fairly and equally protect the best interests of all 
persons having an interest therein. The carrier shall make an itemized 
record sufficient to identify the property involved so as to be able to 
correlate it to the shipment or transportation involved, and claim, if 
any, filed thereon. The carrier also shall assign to each lot of

[[Page 23]]

such property a successive lot number and note that lot number on its 
record of shipment and claim, if any claim is filed thereon.
    (b) Whenever disposition of salvage material or goods shall be made 
directly to an agent or employee of a carrier or through a salvage agent 
or company in which the carrier or one or more of its directors, 
officers, or managers has any interest, financial or otherwise, that 
carrier's salvage records shall fully reflect the particulars of each 
such transaction or relationship, or both, as the case may be.
    (c) Upon receipt of a claim on a shipment on which salvage has been 
processed in the manner hereinbefore prescribed, the carrier shall 
record in its claim file thereon the lot number assigned, the amount of 
money recovered, if any, from the disposition of such property, and the 
date of transmittal of such money to the person or persons lawfully 
entitled to receive the same.

[37 FR 4258, Mar. 1, 1972]



Sec.  1005.7  Weight as a measure of loss.

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

[41 FR 25908, June 23, 1976]



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



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

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

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



Sec.  1007.1  Purpose and scope.

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



Sec.  1007.2  Definitions.

    As used in this part:
    Board means the Surface Transportation Board.
    Chairman means the Presidentially appointed Board Member who is the 
administrative head of the Surface Transportation Board.
    Privacy Officer refers to the individual designated to process 
requests and handle various other matters relating to the Board's 
implementation of the Privacy Act of 1974.
    Individual means a citizen of the United States or an alien lawfully 
admitted for permanent residence.
    Maintain means the maintenance, collection, use, or dissemination 
(of records).
    Record means any item, collection or grouping of information about 
an individual that is maintained by an agency, including, but not 
limited to, his

[[Page 24]]

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 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:

[[Page 25]]

    (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.
    (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]

[[Page 26]]



Sec.  1007.6  Disclosure to third parties.

    (a) The Board shall not disclose to any agency or to any person by 
any means of communication a record pertaining to an individual which is 
contained in a system of records, except under the following 
circumstances:
    (1) The individual to whom the record pertains has given his written 
consent to the disclosure;
    (2) The disclosure is to officers and employees of the Board who 
need it in the performance of their duties;
    (3) Disclosure is required under the Freedom of Information Act (5 
U.S.C. 552).
    (4) Disclosure is for a routine use as defined in Sec.  1007.2 of 
these rules and described in the system notice for that system of 
records;
    (5) The disclosure is made to the Bureau of the Census for the 
purposes of planning or carrying out a census or survey or related 
activity;
    (6) The disclosure is made to a recipient who has provided the 
agency with advance adequate written assurance that the record will be 
used solely as a statistical research or reporting record, and the 
record is to be transferred in a form that is not individually 
identifiable;
    (7) The disclosure is made to another agency or to an 
instrumentality of any Governmental jurisdiction within or under the 
control of the United States for a civil or criminal law enforcement 
activity if the activity is authorized by law and if the head of the 
agency or instrumentality has made a written request to the Board 
specifying the particular portion desired and the law enforcement 
activity for which the record is sought;
    (8) The disclosure is made to the National Archives and Records 
Administration as a record which has sufficient historical or other 
value to warrant its continued preservation by the United States 
Government, or for evaluation by the Archivist of the United States or 
his designee to determine whether the record has such value.
    (9) The disclosure is made to a person pursuant to a showing of 
compelling circumstances affecting the health or safety of an individual 
if upon such disclosure notification is transmitted to the last known 
address of such individual;
    (10) The disclosure is made to either House of Congress, or, to the 
extent of matter(s) within its jurisdiction, any committee or 
subcommittee thereof, any joint committee of Congress or subcommittee of 
any such joint committee;
    (11) The disclosure is made to the Comptroller General, or any of 
his authorized representatives, in the course of the performance of the 
duties of the Government Accountability Office; or,
    (12) Pursuant to the order of a court of competent jurisdiction.
    (b) The Board, with respect to each system of records under its 
control, shall keep for at least five years an accurate accounting of 
certain disclosures:
    (1) A record shall be kept of all disclosures made under paragraph 
(a) of this section, except disclosures made with the consent of the 
individual to whom the record pertains (paragraph (a)(1) of this 
section), disclosures to authorized employees (paragraph (a)(2) of this 
section), and disclosures required under the Freedom of Information Act 
(paragraph (a)(3) of this section).
    (2) The record shall include:
    (i) The date, nature, and purpose of each disclosure of a record 
made to any person or to another agency;
    (ii) The name and address of the person or agency to whom the 
disclosure was made.
    (c) The accounting described in paragraph (b) of this section will 
be made available to the individual named in the record upon his written 
request, directed to the Privacy Officer, Surface Transportation Board, 
395 E Street, SW., Washington, DC 20423-0001, except that the accounting 
will not be revealed with respect to disclosures made under paragraph 
(a)(7) of this section 1107.6 pertaining to law enforcement activity, 
and will not be maintained as to disclosures involving systems of 
records exempted under section 1007.12.
    (d) Whenever an amendment or correction of a record or a notation of 
dispute concerning the accuracy of records is made by the Board in 
accordance with Sec. Sec.  1007.8 and 1007.9, the Board will inform any 
person or other agency

[[Page 27]]

to whom the record was previously disclosed, if an accounting of the 
disclosure was made pursuant to the requirements of paragraph (b) of 
this section.

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



Sec.  1007.7  Content of systems of records.

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



Sec.  1007.8  Amendment of a record.

    (a) Any individual may request amendment of information pertaining 
to him which is contained in a system of records maintained by the Board 
and which is filed under his name or other individual identifier if he 
believes the information is not accurate, relevant, timely or complete. 
A request for amendment shall be directed to the Privacy Officer.
    (b) A request for amendment may be made by mail or in person and 
shall: (1) Be in writing and signed by the person making the request; 
(2) describe the particular record to be amended with sufficient 
specificity to permit the record to be located among those maintained by 
the Board; and (3) specify the nature of the amendment sought and the 
justification for the requested change. The person making the request 
may be required to provide the information specified in Sec. Sec.  
1007.3 and 1007.4 in order to simplify identification of the record and 
permit verification of the identity of the person making the request for 
amendment.
    (c) Receipt of a request for amendment will be acknowledged in 
writing within ten days (excluding Saturdays, Sundays and legal public 
holidays); except that if the individual is given notice within the ten-
day period that his or her request will or will not be complied with, no 
acknowledgment is required.
    (d) Assistance in preparing a request to amend a record may be 
obtained from the Privacy Officer, Surface Transportation Board, 1925 K 
Street, NW, Washington, DC 20423.
    (e) Upon receipt of a request for amendment the Privacy Officer or a 
person designated by him shall promptly determine whether the record is 
materially inaccurate, incomplete, misleading, or is irrelevant or not 
timely, as claimed by the individual, and, if so, shall cause the record 
to be amended in accordance with the individual's request.
    (f) If the Privacy Officer or designee grants the request to amend 
the record, the individual shall promptly be advised of the decision and 
of the action taken, and notice shall be given of the correction and its 
substance to each person or agency to whom the record had previously 
been disclosed, as shown on the record of disclosures maintained in 
accordance with Sec.  1007.6(b).
    (g) If the Privacy Officer or designee disagrees in whole or in part 
with a request for amendment of a record, the individual shall promptly 
be notified of the complete or partial denial of his request and the 
reasons for the refusal. The individual shall also be notified of the 
procedures for administrative review by the Chairman of any complete or 
partial denial of a request for amendment, which are set forth in Sec.  
1007.9.

[[Page 28]]

    (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 the portion which is disputed and include a 
copy of a concise statement explaining its reasons for not making the 
amendments requested. Prior recipients of the disputed record will be 
provided a copy of any statement of dispute to the extent that an 
accounting of disclosures was maintained.



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

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



Sec.  1007.11  Public notice of records systems.

    (a) The Board will publish in the Federal Register, at least 
annually, a notice of the existence and character of each of its system 
of records, which notice shall include:

[[Page 29]]

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

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



Sec.  1007.12  Exemptions.

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

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



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



Sec.
1011.1 General.
1011.2 The Board.

[[Page 30]]

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(a), 
and all appeals of initial decisions issued by the Office of Public 
Assistance, Governmental Affairs, and Compliance under the authority 
delegated by Sec.  1011.7(b). Appeals must be filed within 10 days after 
service of the Director decision or publication of the notice, and 
replies must be filed within 10 days after the due date for appeals or 
any extension thereof.
    (b) The Board may bring before it any matter assigned to an 
individual Board Member or employee or employee board.

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



Sec.  1011.3  The Chairman, Vice Chairman, and Board 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

[[Page 31]]

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 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.

[[Page 32]]

    (2) Extensions of time for compliance with orders and procedural 
matters in any formal case or pending matter, except appeals taken from 
the decision of a hearing officer on requests for discovery.
    (3) Postponement of the effective date of orders in proceedings that 
are the subject of suits brought in a court to enjoin, suspend, or set 
aside the decision.
    (4) Dismissal of complaints and applications on the unopposed motion 
of any party.
    (5) Requests for access to waybills and to statistics reported under 
orders of the Board.
    (6) Exercise of control over litigation arising under the Freedom of 
Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a), 
except for determinations whether to seek further judicial review of:
    (i) A decision in which a court finds under 5 U.S.C. 552(a)(4)(F) 
that Board personnel may have acted arbitrarily or capriciously in 
improperly withholding records from disclosure; or
    (ii) A decision in which a court finds under 5 U.S.C. 552a(g)(4) 
that Board personnel acted intentionally or willfully in violating the 
Privacy Act.
    (7) Issuance of certificates and decisions authorizing Consolidated 
Rail Corporation to abandon or discontinue service over lines for which 
an application under section 308 of the Regional Rail Reorganization Act 
of 1973, 45 U.S.C. 748, has been filed.
    (8) Designation in writing of employees authorized to inspect and 
copy records and to inspect and examine lands, buildings, and equipment 
pursuant to 49 U.S.C. 11144, 14122, and 15722.
    (9) Authority to act alone to take necessary actions in emergency 
situations when the Chairman is the only Board member reasonably 
available.
    (b) The following matters are referred to the Vice Chairman of the 
Board:
    (1) Matters within the jurisdiction of the Accounting Board if 
certified to the Vice Chairman by the Accounting Board or if removed 
from the Accounting Board by the Vice Chairman.
    (2) Matters involving the admission, disbarment, or discipline of 
practitioners before the Board under 49 CFR part 1103.
    (c) The Chairman, Vice Chairman, or other Board Member to whom a 
matter is assigned under this part may certify such matter to the Board.
    (d) The Chairman shall notify all Board Members that a petition for 
a stay has been referred to the Chairman for disposition under 
paragraphs (a)(2) or (3) of this section. The Chairman shall also inform 
all Board Members of the decision on that petition before service of 
such decision. At the request of a Board Member, made at any time before 
the Chairman's decision is served, the petition will be referred to the 
Board for decision.

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



Sec.  1011.5  Employee boards.

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



Sec.  1011.6  Delegations of authority by the Chairman.

    (a)(1) This section provides for delegations of authority by the 
Chairman of the Surface Transportation Board to individual Board 
employees.

[[Page 33]]

    (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 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, 45 U.S.C. 748, has been filed is delegated

[[Page 34]]

to the Director of the Office of Proceedings.

[67 FR 60167, Sept. 25, 2002, as amended at 74 FR 52904, Oct. 15, 2009; 
81 FR 8851, Feb. 23, 2016]



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

    (a) Office of Proceedings. (1) The Director of the Office of 
Proceedings is delegated the authority to determine (in consultation 
with involved Offices) whether to waive filing fees set forth at 49 CFR 
1002.2(f).
    (2) In addition to the authority delegated at 49 CFR 1011.6(c)(3), 
(d), (g), and (h), the Director of the Office of Proceedings shall have 
authority initially to determine the following:
    (i) Whether to designate abandonment proceedings for oral hearings 
on request.
    (ii) Whether offers of financial assistance satisfy the statutory 
standards of 49 U.S.C. 10904(d) for purposes of negotiations or, in 
exemption proceedings, for purposes of partial revocation and 
negotiations.
    (iii) Whether:
    (A) To impose, modify, or remove environmental or historic 
preservation conditions; and
    (B) In abandonment proceedings, to impose public use conditions 
under 49 U.S.C. 10905 and the implementing regulations at 49 CFR 
1152.28.
    (iv) In abandonment proceedings, when a request for interim trail 
use/rail banking is filed under 49 CFR 1152.29, to determine whether the 
National Trails System Act, 16 U.S.C. 1247(d), is applicable and, where 
appropriate, to issue Certificates of Interim Trail Use or Abandonment 
(in application proceedings) or Notices of Interim Trail Use or 
Abandonment (in exemption proceedings).
    (v) In any abandonment proceeding where interim trail use/rail 
banking is an issue, to make such findings and issue decisions as may be 
necessary for the orderly administration of the National Trails System 
Act, 16 U.S.C. 1247(d).
    (vi) Whether to institute requested declaratory order proceedings 
under 5 U.S.C. 554(e).
    (vii) To issue decisions, after 60 days' notice by any person 
discontinuing a subsidy established under 49 U.S.C. 10904 and at the 
railroad's request:
    (A) In application proceedings, immediately issuing decisions 
authorizing abandonment or discontinuance; and
    (B) In exemption proceedings, immediately vacating the decision that 
postponed the effective date of the exemption.
    (viii) In proceedings under the Feeder Railroad Development Program 
under 49 U.S.C. 10907 and the implementing regulations at 49 CFR part 
1151:
    (A) Whether to accept or reject primary applications under 49 CFR 
1151.2(b); competing applications under section 1151.2(c); and 
incomplete applications under 49 CFR 1151.2(d).
    (B) Whether to grant waivers from specific provisions of 49 CFR part 
1151.
    (ix) In exemption proceedings subject to environmental or historic 
preservation reporting requirements, to issue a decision, under 49 CFR 
1105.10(g), making a finding of no significant impact where no 
environmental or historic preservation issues have been raised by any 
party or identified by the Board's 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

[[Page 35]]

changes in service levels, significant operational changes, or a change 
in the competitive balance with motor passenger carriers outside the 
corporate family.
    (xiii) Whether to issue rail modified certificates of public 
convenience and necessity under 49 CFR part 1150, subpart C.
    (xiv) Whether to waive the regulations at 49 CFR part 1152, subpart 
C, on appropriate petition.
    (xv) To reject applications, petitions for exemption, and verified 
notices (filed in class exemption proceedings) for noncompliance with 
the environmental rules at 49 CFR part 1105.
    (xvi) To reject applications by BNSF Railway Company to abandon rail 
lines in North Dakota exceeding the 350-mile cap of section 402 of 
Public Law 97-102, 95 Stat. 1465 (1981), as amended by The Department of 
Transportation and Related Agencies Appropriations Act, 1992, Public Law 
102-143, section 343 (Oct. 28, 1991).
    (xvii) To authorize parties to a proceeding before the Board, upon 
mutual request, to participate in mediation with a Board-appointed 
mediator, for a period of up to 30 days and to extend the mediation 
period at the mutual request of the parties.
    (xviii) To authorize a proceeding to be held in abeyance while 
mediation procedures are pursued, pursuant to the mutual request of the 
parties to the matter.
    (xix) To order arbitration of program-eligible matters under the 
Board's regulations at 49 CFR part 1108, or upon the mutual request of 
parties to a proceeding before the Board.
    (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.
    (6) Issue, on written request, informal opinions and interpretations 
which are not binding on the Board. In issuing informal opinions or 
interpretations, the Director of the Office of Public Assistance, 
Governmental Affairs, and Compliance shall consult with the Directors of 
the appropriate Board offices. Such requests must be directed to the 
Director of the Office of Public Assistance, Governmental Affairs, and 
Compliance, Surface Transportation Board, Washington, DC.

[75 FR 30711, June 2, 2010, as amended at 78 FR 29079, May 17, 2013; 81 
FR 8851, Feb. 23, 2016]



PART 1012_MEETINGS OF THE BOARD--Table of Contents



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

    Authority: 5 U.S.C. 552b(g), 49 U.S.C. 701, 721.

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



Sec.  1012.1  General provisions.

    (a) The regulations contained in this part are issued pursuant to 
the provisions of 5 U.S.C. 552b(g), added by section 3(a) of the 
Government in the Sunshine Act, Pub. L. 94-409 (Act), and section 17(3) 
of the Interstate Commerce

[[Page 36]]

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:
    (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

[[Page 37]]

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) of this section, public 
notice will be given at least one week before the date upon which a 
meeting is scheduled.
    (d) If a majority of the Board Members eligible to participate in 
the conduct or disposition of the matter which is the subject of a 
meeting determines, by recorded vote, that Board business requires that 
a meeting be called on less than one week's notice, the meeting may be 
called on short notice, and public notice will be posted and published 
at the earliest practicable time.
    (e) Changes in the scheduling of a meeting which has been the 
subject of a public notice will also be made the subject of a public 
notice, which will be posted at the earliest practicable time. Changes 
in, or additions to a conference agenda or in the open or closed status 
of a meeting will be made only if a majority of the Board Members 
eligible to participate in the conduct or disposition of the matter 
which is the subject of the meeting determines, by recorded vote, that 
the Board's business requires such change and that no earlier 
announcement of the change was possible. In such a case, the public 
notice of the change, will show the vote of each Board Member on the 
change.

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



Sec.  1012.4  Public participation.

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

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



Sec.  1012.5  Transcripts; minutes.

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

[[Page 38]]

    (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.



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.

[[Page 39]]

    (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).

    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.

[[Page 40]]



Sec.  1013.2  The irrevocability of the trust.

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

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



Sec.  1013.3  Review and reporting requirements for regulated carriers.

    (a) Any carrier choosing to utilize a voting trust may voluntarily 
submit a copy of the voting trust to the Board for review. The Board's 
staff will give an informal, nonbinding opinion as to whether the voting 
trust effectively insulates the settlor from any violation of Board 
policy against unauthorized acquisition of control of a regulated 
carrier.
    (b) Any person who establishes an independent trust for the receipt 
of the voting stock of carrier must file a copy of the trust, along with 
any auxiliary or modifying documents, with the Board.
    (c) Any carrier required to file a Schedule 13D with the Securities 
and Exchange Commission (17 CFR 240.13d-1) which reports the purchase of 
5 percent or more of the registered securities of another Board 
regulated carrier (or the listed shares of a company controlling 10 
percent or more of the stock of a Board regulated carrier), must 
simultaneously file a copy of that schedule with the Board, along with 
any supplements to that schedule.
    (d) Failure to comply with the reporting requirements in paragraphs 
(b) or (c) of this section will result in denial of the application in 
which acquisition of control, through the acquisition of the voting 
stock of another carrier, is sought, unless the applicant shows, by 
clear and convincing evidence, and the Board finds, that the failure to 
comply was unintentional and that denial of the application will 
substantially and adversely affect the public interest and the national 
transportation policy.

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



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



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

    Authority: 29 U.S.C. 794.

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



Sec.  1014.101  Purpose.

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

[[Page 41]]



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 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--

[[Page 42]]

    (1) With respect to preschool, elementary, or secondary education 
services provided by the agency, a handicapped person who is a member of 
a class of persons otherwise entitled by statute, regulation, or agency 
policy to receive education services from the agency.
    (2) With respect to any other agency program or activity under which 
a person is required to perform services or to achieve a level of 
accomplishment, a handicapped person who meets the essential eligibility 
requirements and who can achieve the purpose of the program or activity 
without modifications in the program or activity that the agency can 
demonstrate would result in a fundamental alteration in its nature;
    (3) With respect to any other program or activity, a handicapped 
person who meets the essential eligibility requirements for 
participation in, or receipt of benefits from, that program or activity; 
and
    (4) Qualified handicapped person is defined for purposes of 
employment in 29 CFR 1613.702(f), which is made applicable to this part 
by Sec.  1014.140.
    Section 504 means section 504 of the Rehabilitation Act of 1973 
(Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the 
Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), 
and the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used 
in this part, section 504 applies only to programs or activities 
conducted by Executive agencies and not to federally assisted programs.
    Substantial impairment means a significant loss of the integrity of 
finished materials, design quality, or special character resulting from 
a permanent alteration.



Sec. Sec.  1014.104-1014.110  [Reserved]



Sec.  1014.111  Notice.

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

[[Page 43]]

activities that are not separate or different, despite the existence of 
permissibly separate or different programs or activities.
    (3) The agency may not, directly or through contractual or other 
arrangements, utilize criteria or methods of administration the purpose 
or effect of which would--
    (i) Subject qualified handicapped persons to discrimination on the 
basis of handicap; or
    (ii) Defeat or substantially impair accomplishment of the objectives 
of a program or activity with respect to handicapped persons.
    (4) The agency may not, in determining the site or location of a 
facility, make selections the purpose or effect of which would--
    (i) Exclude handicapped persons from, deny them the benefits of, or 
otherwise subject them to discrimination under any program or activity 
conducted by the agency; or
    (ii) Defeat or substantially impair the accomplishment of the 
objectives of a program or activity with respect to handicapped persons.
    (5) The agency, in the selection of procurement contractors, may not 
use criteria that subject qualified handicapped persons to 
discrimination on the basis of handicap.
    (6) The agency may not administer a licensing or certification 
program in a manner that subjects qualified handicapped persons to 
discrimination on the basis of handicap, nor may the agency establish 
requirements for the programs or activities of licensees or certified 
entities that subject qualified handicapped persons to discrimination on 
the basis of handicap. However, the programs or activities of entities 
that are licensed or certified by the agency are not, themselves, 
covered by this part.
    (c) The exclusion of nonhandicapped persons from the benefits of a 
program limited by Federal statute or Executive order to handicapped 
persons or the exclusion of a specific class of handicapped persons from 
a program limited by Federal statute or Executive order to a different 
class of handicapped persons is not prohibited by this part.
    (d) The agency shall administer programs and activities in the most 
integrated setting appropriate to the needs of qualified handicapped 
persons.



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

[[Page 44]]

agency personnel believe that the proposed action would fundamentally 
alter the program or activity or would result in undue financial and 
administrative burdens, the agency has the burden of proving that 
compliance with Sec.  1014.150(a) would result in such alteration or 
burdens. The decision that compliance would result in such alteration or 
burdens must be made by the agency head or his or her designee after 
considering all agency resources available for use in the funding and 
operation of the conducted program or activity, and must be accompanied 
by a written statement of the reasons for reaching that conclusion. If 
an action would result in such an alteration or such burdens, the agency 
shall take any other action that would not result in such an alteration 
or such burdens but would nevertheless ensure that handicapped persons 
receive the benefits and services of the program or activity.
    (b) Methods--(1) General. The agency may comply with the 
requirements of this section through such means as redesign of 
equipment, reassignment of services to accessible buildings, assignment 
of aides to beneficiaries, home visits, delivery of services at 
alternate accessible sites, alteration of existing facilities and 
construction of new facilities, use of accessible rolling stock, or any 
other methods that result in making its programs or activities readily 
accessible to and usable by handicapped persons. The agency is not 
required to make structural changes in existing facilities where other 
methods are effective in achieving compliance with this section. The 
agency, in making alterations to existing buildings, shall meet 
accessibility requirements to the extent compelled by the Architectural 
Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any 
regulations implementing it. In choosing among available methods for 
meeting the requirements of this section, the agency shall give priority 
to those methods that offer programs and activities to qualified 
handicapped persons in the most integrated setting appropriate.
    (2) Historic preservation programs. In meeting the requirements of 
Sec.  1014.150(a) in historic preservation programs, the agency shall 
give priority to methods that provide physical access to handicapped 
persons. In cases where a physical alteration to an historic property is 
not required because of Sec.  1014.150(a)(2) or (a)(3), alternative 
methods of achieving program accessibility include--
    (i) Using audio-visual materials and devices to depict those 
portions of an historic property that cannot otherwise be made 
accessible;
    (ii) Assigning persons to guide handicapped persons into or through 
portions of historic properties that cannot otherwise be made 
accessible; or
    (iii) Adopting other innovative methods.
    (c) Time period for compliance. The agency shall comply with the 
obligations established under this section by October 21, 1986, except 
that where structural changes in facilities are undertaken, such changes 
shall be made by August 22, 1989, but in any event as expeditiously as 
possible.
    (d) Transition plan. In the event that structural changes to 
facilities will be undertaken to achieve program accessibility, the 
agency shall develop, by February 23, 1987, a transition plan setting 
forth the steps necessary to complete such changes. The agency shall 
provide an opportunity to interested persons, including handicapped 
persons or organizations representing handicapped persons, to 
participate in the development of the transition plan by submitting 
comments (both oral and written). A copy of the transition plan shall be 
made available for public inspection. The plan shall, at a minimum--
    (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.

[[Page 45]]



Sec.  1014.151  Program accessibility: New construction and alterations.

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



Sec. Sec.  1014.152-1014.159  [Reserved]



Sec.  1014.160  Communications.

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

[[Page 46]]

days of the alleged act of discrimination. The agency may extend this 
time period for good cause.
    (e) If the agency receives a complaint over which it does not have 
jurisdiction, it shall promptly notify the complainant and shall make 
reasonable efforts to refer the complaint to the appropriate government 
entity.
    (f) The agency shall notify the Architectural and Transportation 
Barriers Compliance Board upon receipt of any complaint alleging that a 
building or facility that is subject to the Architectural Barriers Act 
of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the 
Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily 
accessible to and usable by handicapped persons.
    (g) Within 180 days of the receipt of a complete complaint for which 
it has jurisdiction, the agency shall notify the complainant of the 
results of the investigation in a letter containing--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) A notice of the right to appeal.
    (h) Appeals of the findings of fact and conclusions of law or 
remedies must be filed by the complainant within 90 days of receipt from 
the agency of the letter required by Sec.  1014.170(g). The agency may 
extend this time for good cause.
    (i) Timely appeals shall be accepted and processed by the head of 
the agency.
    (j) The head of the agency shall notify the complainant of the 
results of the appeal within 60 days of the receipt of the request. If 
the head of the agency determines that additional information is needed 
from the complainant, he or she shall have 60 days from the date of 
receipt of the additional information to make his or her determination 
on the appeal.
    (k) The time limits cited in paragraphs (g) and (j) of this section 
may be extended with the permission of the Assistant Attorney General.
    (l) The agency may delegate its authority for conducting complaint 
investigations to other Federal agencies, except that the authority for 
making the final determination may not be delegated to another agency.

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



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.

[[Page 47]]

An eligible party may receive an award when it prevails over the Board 
or another agency of the United States participating in the Board 
proceeding, unless the Board's position in the proceeding, or that of 
the other agency, was substantially justified or special circumstances 
make an award unjust. The rules in this part describe the parties 
eligible for awards and the proceedings that are covered. They also 
explain how to apply for awards, and the procedures and standards that 
the Board will use to make them.



Sec.  1016.102  When the Act applies.

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

[54 FR 26379, June 23, 1989]



Sec.  1016.103  Proceedings covered.

    (a) The Act applies to adversary adjudications conducted by the 
Board under 5 U.S.C. 554 in which the position of this or any other 
agency of the United States, or any component of an agency, is presented 
by an attorney or other representative (hereinafter ``agency counsel'') 
who enters an appearance and participates in the proceeding. Proceedings 
for the purpose of establishing or fixing a rate are not covered by the 
Act. Proceedings to grant or renew licenses are also excluded, but 
proceedings to modify, suspend, or revoke licenses are covered if they 
are otherwise ``adversary adjudications.'' Generally, the types of Board 
proceedings covered by the Act include, but are not limited to, 
investigation proceedings instituted under 49 U.S.C. 11701 and 49 U.S.C. 
13905 and disciplinary proceedings conducted pursuant to 49 CFR 1103.5.
    (b) The Board may also designate a proceeding not listed in 
paragraph (a) of this section as an adversary adjudication for purposes 
of the Act by so stating in an order initiating the proceeding, 
designating the matter for hearing or at any other time during the 
proceeding. The Board's failure to designate a proceeding as an 
adversary adjudication shall not preclude the filing of an application 
by a party who believes the proceeding is covered by the Act; whether 
the proceeding is covered will then be an issue for resolution in 
proceedings on the application.
    (c) If a proceeding includes both matters covered by the Act and 
matters specifically excluded from coverage, any award made will include 
only fees and expenses related to covered issues.

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



Sec.  1016.104  Decisionmaking authority.

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

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



Sec.  1016.105  Eligibility of applicants.

    (a) To be eligible for an award of attorney fees and other expenses 
under the Act, the applicant must be a party to the adversary 
adjudication for which it seeks an award, it must have stood in an 
adversary relationship to the position taken by agency counsel, and it 
must have prevailed on one or more of the issues raised by agency 
counsel. The term ``party'' is defined in 5 U.S.C. 504(b)(1)(B). The 
applicant must show that it meets all conditions of eligibility set out 
in this subpart and in Subpart B.
    (b) The types of eligible applicants are as follows:
    (1) An individual whose net worth did not exceed $2 million at the 
time the adversary adjudication was initiated;

[[Page 48]]

    (2) Any owner of an unincorporated business, or any partnership, 
corporation, association, unit of local government, or organization 
whose net worth does not exceed $7 million and which had no more than 
500 employees at the time the adversary adjudication was initiated;
    (3) Any organization described in section 501(c)(3) of the Internal 
Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under 
section 501(a) of such Code, or a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), 
may be a party regardless of the net worth of such organization or 
cooperative association.
    (c) For the purpose of eligibility, the net worth and number of 
employees of an applicant shall be determined as of the date the 
proceeding was initiated.
    (d) The employees of an applicant include all persons who regularly 
perform services for remuneration for the applicant, under the 
applicant's direction and control. Part-time employees shall be included 
on a proportional basis. Independent contractors under lease to motor 
carriers are not employees of the carriers under these rules. Also, 
agents for motor common carriers of household goods are not employees of 
their respective principal carriers.
    (e) The net worth and number of employees of the applicant and all 
of its affiliates shall be aggregated to determine eligibility. Any 
individual, corporation or other entity that directly or indirectly 
controls or owns a majority of the voting shares or other interest of 
the applicant or any corporation or other entity of which the applicant 
directly or indirectly owns or controls a majority of the voting shares 
or other interest, will be considered an affiliate for purposes of this 
part, unless the adjudicative officer determines that such treatment 
would be unjust and contrary to the purposes of the Act in light of the 
actual relationship between the affiliated entities. In addition, the 
adjudicative officer may determine that financial relationships of the 
applicant other than those described in this paragraph constitute 
special circumstances that would make an award unjust.
    (f) An applicant that participates in a proceeding primarily on 
behalf of one or more other persons or entities that would be ineligible 
is not itself eligible for an award.

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



Sec.  1016.106  Standards for awards.

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

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



Sec.  1016.107  Allowable fees and expenses.

    (a) Awards will be based on rates customarily charged by persons 
engaged in the business of acting as attorneys, agents and expert 
witnesses, even if the services were made available without charge or at 
a reduced rate to the applicant.
    (b) No award for the fee of an attorney or agent under these rules 
may exceed the amount specified by 5 U.S.C. 504(b)(1)(A), unless a 
higher fee is justified. 5 U.S.C. 504(b)(1)(A). However, an award may 
also include the reasonable expenses of the attorney, agent, or witness 
as a separate item, if the attorney, agent, or witness ordinarily 
charges clients separately for such expenses.
    (c) In determining the reasonableness of the fee sought for an 
attorney, agent

[[Page 49]]

or expert witness, the adjudicative officer shall consider the 
following:
    (1) If the attorney, agent or witness is in private practice, his or 
her customary fee for similar services, or, if an employee of the 
applicant, the fully allocated cost of the services;
    (2) The prevailing rate for similar services in the community in 
which the attorney, agent, or witness ordinarily performs services;
    (3) The time actually spent in the representation of the applicant;
    (4) The time reasonably spent in light of the difficulty or 
complexity of the issues in the proceeding; and
    (5) Such other factors as may bear on the value of the services 
provided.
    (d) The reasonable cost of any study, analysis, engineering report, 
test, project or similar matter prepared on behalf of a party may be 
awarded, to the extent that the charge for the service does not exceed 
the prevailing rate for similar services, and the study or other matter 
was necessary for preparation of the applicant's case.

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



Sec.  1016.109  Awards against other agencies.

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



             Subpart B_Information Required From Applicants



Sec.  1016.201  Contents of application.

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

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



Sec.  1016.202  Net worth exhibit.

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

[[Page 50]]

that objects to public disclosure of information in any portion of the 
exhibit and believes that there are legal grounds for withholding it 
from disclosure may file a motion to withhold the information from 
public disclosure. The burden is on the moving party to justify the 
confidentiality of the information.

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



Sec.  1016.203  Documentation of fees and expenses.

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



            Subpart C_Procedures for Considering Applications



Sec.  1016.301  When an application may be filed.

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

[[Page 51]]

with the reply either supporting affidavits or a request for further 
proceedings under Sec.  1016.307.



Sec.  1016.305  Comments by other parties.

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

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



Sec.  1016.306  Settlement.

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



Sec.  1016.307  Further proceedings.

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

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



Sec.  1016.308  Decision.

    The adjudicative officer shall issue a decision on the application 
within 50 days after completion of proceedings on the application. The 
decision shall include written findings and conclusions on the 
applicant's eligibility and status as a prevailing party, and an 
explanation of the reasons for any difference between the amount 
requested and the amount awarded. The decision shall also include, if at 
issue, findings on whether the Board's or other agency's position was 
substantially justified, whether the applicant unduly protracted the 
proceedings, or whether special circumstances make an award unjust. If 
the applicant has sought an award against more than one agency, the 
decision shall allocate responsibility for payment of any award made 
among the agencies, and shall explain the reasons for the allocation 
made.

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



Sec.  1016.309  Agency review.

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

[54 FR 26380, June 23, 1989]



Sec.  1016.310  Judicial review.

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



Sec.  1016.311  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]

[[Page 52]]



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



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

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

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



Sec.  1017.1  Purpose and scope.

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

[[Page 53]]

an appropriate agency official to be owed to the United States from any 
person.
    (d) Disposable pay. The amount that remains from an employee's 
Federal pay after required deductions for social security; Federal, 
State, or local income taxes; health insurance premiums; retirement 
contributions; life insurance premiums; Federal employment taxes; and 
any other deductions that are required to be withheld by law.
    (e) FCCS. The Federal Claims Collection Standards jointly published 
by the Justice Department and the General Accounting Office at 4 CFR 
101.1 et seq.
    (f) Hearing official. The official responsible for conducting a 
hearing which is properly and timely requested by the debtor. An 
Administrative Law Judge shall be responsible for conducting the hearing 
and the Chief Administrative Law Judge shall determine which judicial 
official will be assigned the hearing.
    (g) Paying agency. The agency that employs the individual who owes 
the debt and authorizes the payment of his/her current pay.
    (h) Administrative offset. The withholding of monies payable by the 
United States to or held by the United States on behalf of an employee 
to satisfy a debt owed the United States by that employee.
    (i) Waiver. A cancellation, forgiveness, or non-recovery of a debt 
allegedly owed by an employee or former employee to the agency as 
permitted or required by law.



Sec.  1017.3  Applicability.

    These regulations are to be followed when:
    (a) The Board is owed a debt by a current employee;
    (b) The Board is owed a debt by an individual currently employed by 
another Federal agency;
    (c) The Board employs an individual who owes a debt to another 
Federal agency; and
    (d) The Board is owed a debt by an employee who separates from 
Federal Government service. The authority to collect debts owed by 
former Federal employees is found in the FCCS and 31 U.S.C. 3716.



Sec.  1017.4  Notice requirements.

    (a) Deductions shall not be made unless the employee is provided 
with written notice, signed by the debt collection official (Chief, 
Section of Financial Services), of the debt at least 30 days before 
administrative offset commences.
    (b) The written notice to current Federal employees shall be hand 
delivered if at headquarters or sent certified mail, return receipt 
requested, if located in a field office and shall contain:
    (1) A statement that the debt is owed and an explanation of its 
nature and amount;
    (2) The agency's intention to collect the debt by means of deduction 
from the employee's current disposable pay account;
    (3) The amount, frequency, proposed beginning date, and duration of 
the intended deduction(s);
    (4) An explanation of interest, penalties, and administrative 
charges, including a statement that such charges will be assessed unless 
excused in accordance with the FCCS (4 CFR 101.1 et seq.);
    (5) The employee's right to inspect, request, and copy Government 
records relating to the debt (if an employee is unable to physically 
inspect the Government records, the agency will reproduce copies of the 
records and may charge for those copies);
    (6) If not previously provided, the opportunity (under terms 
agreeable to the creditor agency) to establish a schedule for the 
voluntary repayment of the debt or to enter into a written agreement 
with the agency to establish a schedule for the voluntary repayment of 
the debt in lieu of offset. The agreement must be in writing, signed by 
both the employee and the creditor agency, and documented in the 
creditor agency's files (4 CFR 102.2(e));
    (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

[[Page 54]]

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

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



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.

[[Page 55]]

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



Sec.  1017.6  Result if employee fails to meet deadlines.

    An employee will not be granted a hearing and will have his/her 
disposable pay offset in accordance with the Board's offset schedule if 
the employee:
    (a) Fails to file a petition for a hearing in conformity with the 
requirements of Sec.  1017.4(b)(8) or Sec.  1017.4(c)(9) of this part, 
whichever is applicable. However, failure to file within the requisite 
time period set out in Sec.  1017.4(b)(8) or Sec.  1017.4(c)(9) of this 
part whichever is applicable, will not result in denial of a hearing or 
in immediate offset, if the Administrative Law Judge excuses the late 
filing if the employee can show that the delay was because of 
circumstances beyond his/her control or because of failure to receive 
notice of the filing deadline.
    (b) Is scheduled to appear and fails to appear at the hearing 
without good cause.



Sec.  1017.7  Written decision following hearing.

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



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

    The Board shall except from the provisions of Sec.  1017.4 through 
Sec.  1017.7 any adjustment to pay arising out of an employee's election 
of coverage or a change in coverage under a Federal benefits program, 
requiring periodic 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

[[Page 56]]

debt, the date on which payment is due, the date the Government's right 
to collect the debt accrued, that the Board's regulations for 
administrative offset have been approved by the Office of Personnel 
Management, and that the provisions of 4 CFR 102.3(f) have been fully 
complied with;
    (3) If collection must be made in installments, advise the paying 
agency of the amount or percentage of disposable pay to be collected in 
each installment;
    (4) Advise the paying agency of any action taken under 5 U.S.C. 
5514(a);
    (5) If the employee is in the process of separating, the Board must 
submit its debt claim to the paying agency as provided in this part. The 
paying agency must certify any amounts already collected, notify the 
employee, and send a copy of the certification and notice of the 
employee's separation to the creditor agency--if the paying agency is 
aware that the employee is entitled to money from the Civil Service 
Retirement and Disability Fund, it must certify to the Office of 
Personnel Management (OPM) that:
    (i) The debtor owes the U.S. a debt, including the amount of that 
debt;
    (ii) The Board has complied with the applicable statutes, 
regulations, and procedures of OPM; and
    (iii) The Board has complied with the requirements of 4 CFR 102.3, 
including any hearing or review; and
    (6) If the employee has already separated and all payments due from 
the paying agency have been paid, the Chief, Section of Financial 
Services, may request from OPM, unless otherwise prohibited, that money 
payable to the employee from the Civil Service Retirement and Disability 
Fund or other similar funds be collected by administrative offset and 
provide the certification described in paragraph (a)(5) of this section.
    (b) The Board as paying agency. (1) Upon receipt of a properly 
certified debt claim from another agency, deductions will be scheduled 
to begin at the next established pay interval. The employee must receive 
written notice that the Board has received a certified debt claim from 
the creditor agency, the amount of the debt, the date administrative 
offset will begin, and the amount of the deduction(s). The Board shall 
not review the merits of the creditor agency's determination of the 
validity or the amount of the certified claim.
    (2) When the Board receives an incomplete debt from another 
(creditor) agency, the Board must return the debt claim with a notice 
that procedures under 5 U.S.C. 5514 and 5 CFR 550.1109 must be followed 
and a properly certified debt claim received before action will be taken 
to collect from the employee's current pay account.
    (3) If the employee transfers to another agency after the creditor 
agency has submitted its debt claim to the Board and before the debt is 
fully collected, the Board must certify the total amount collected to 
the creditor agency, along with notice of the transfer, and furnish a 
copy of same to the employee.

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



Sec.  1017.10  Procedures for administrative offset.

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



Sec.  1017.11  Refunds.

    (a) The Board shall promptly refund any amounts deducted to satisfy 
debts owed to it when the debt is waived,

[[Page 57]]

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



Sec.  1017.12  Statute of limitations.

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



Sec.  1017.13  Nonwaiver of rights.

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



Sec.  1017.14  Interest, penalties, and administrative costs.

    (a) The rate of interest assessed shall be the rate of the current 
value of funds to the U.S. Treasury (i.e., the Treasury tax and loan 
account rate), as prescribed and published by the Secretary of the 
Treasury in the Federal Register and the Treasury Financial Manual 
Bulletins. A higher rate of interest can be assessed if the Board can 
reasonably determine that a higher rate is necessary to protect the 
interests of the United States. The rate of interest, as initially 
assessed, shall remain fixed for the duration of the indebtedness, 
except where a debtor has defaulted on a repayment agreement and seeks 
to enter into a new agreement. The Board may set a new interest rate 
which reflects the current value of funds to the Treasury at the time 
the new agreement is executed. The Board shall waive the collection of 
interest on the debt or any portion of the debt which is paid within 30 
days after the date on which interest began to accrue.
    (b) The Board shall assess a penalty charge not to exceed 6 percent 
a year on any portion of a debt that is delinquent as defined in 4 CFR 
101.2(b) for more than 90 days. This charge need not be calculated until 
the 91st day of delinquency, but shall accrue from the date that the 
debt became delinquent.
    (c) The Board shall assess against a debtor charges to cover 
administrative costs incurred as a result of a delinquent debt--that is, 
the additional costs incurred in processing and handling the debt 
because it became delinquent as defined in 4 CFR 101.2(b).
    (d) When a debt is paid in partial or installment payments, amounts 
received by the agency shall be applied first to outstanding penalty and 
administrative cost charges, second to accrued interest, and third to 
outstanding principal.



PART 1018_DEBT COLLECTION--Table of Contents



                   Subpart A_Application and Coverage

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

              Subpart B_Administrative Collection of Claims

1018.20 Written demand for payment.
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.

[[Page 58]]

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, 31 
CFR parts 900-904.

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



                   Subpart A_Application and Coverage



Sec.  1018.1  Application.

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

[[Page 59]]

with the Board after other payment arrangements have been made, the debt 
becomes a delinquent debt.
    (d) Payment in full means payment of the total debt due the United 
States, including any interest, penalty, and administrative costs of 
collection assessed against the debtor.



Sec.  1018.3  Communications.

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

[81 FR 8851, Feb. 23, 2016]



Sec.  1018.4  Claims that are covered.

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



Sec.  1018.5  Monetary limitation on Board authority.

    The Board's authority to compromise a claim or to terminate or 
suspend collection action on a claim covered by these procedures is 
limited by 31 U.S.C. 3711(a) to claims that:
    (a) Have not been referred to another Federal agency, including the 
GAO, for further collection action; and
    (b) Do not exceed $100,000, exclusive of interest, penalties, and 
administrative costs (the monetary limitation).



Sec.  1018.6  Omissions not a defense.

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

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



Sec.  1018.7  Conversion claims.

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



Sec.  1018.8  Subdivision of claims.

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

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



              Subpart B_Administrative Collection of Claims



Sec.  1018.20  Written demand for payment.

    (a) The Board shall make appropriate written demand upon the debtor 
for payment of money in terms which specify:
    (1) The basis for the indebtedness and the right of the debtor to 
request review within the Board;
    (2) The amount claimed;
    (3) The date by which payment is to be made, which normally should 
not be more than 30 days from the date that the initial demand letter 
statement was mailed, unless otherwise specified by contractual 
agreement, established

[[Page 60]]

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

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



Sec.  1018.21  Telephone inquiries and investigations.

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



Sec.  1018.22  Personal interviews.

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



Sec.  1018.23  Use of consumer reporting agencies.

    (a) In addition to assessing interest, penalties, and administrative 
costs under Sec.  1018.30 of this part, the Board may report a debt that 
has been delinquent for 90 days to a consumer reporting agency, if all 
the conditions of this paragraph are met.
    (1) The debtor has not:
    (i) Paid or agreed to pay the debt under a written payment plan that 
has been signed by the debtor and agreed to by the Board; or
    (ii) Filed for review of the debt under Sec.  1018.23(a)(2)(iv) of 
this section.

[[Page 61]]

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



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

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



Sec.  1018.25  Sanctions.

    (a) Closure of accounts. If a tariff filing fee account is past due 
more than 90 days, the Board will freeze the account until the account 
is made current. The Board will notify the account holder that the 
account has been frozen and that until the account balance including any 
applicable interest, penalties, and administrative costs are paid, all 
future filings, must be accompanied by a certified check, cashier's 
check, or money order. The Board reserves the right to refuse to 
maintain an account which is repeatedly delinquent.
    (b) Suspension or revocation of tariff filing privileges. If the 
account holder fails to satisfy all claims for tariff filing fees 
including applicable interest, penalties, and the administrative costs 
of collection of the debt, the Board may suspend or prohibit a tariff 
filing fee account holder from submitting tariff filings in its own name 
or on behalf of others.
    (c) Suspension or revocation of certificates, licenses, or permits 
granted by the Board. The Board may suspend or revoke any certificates, 
permits, or licenses which the Board has granted to an account holder or 
other debtor for any inexcusable, prolonged, or repeated failure or 
refusal to pay a delinquent debt.
    (d) Procedures for suspension or revocation of filing privileges, 
certificates, licenses, or permits for failure to pay tariff filing 
fees. Before suspending or revoking an account holder's privilege to

[[Page 62]]

submit tariff filings or suspending or revoking any certificate, 
license, or permit which the Board has granted to any account holder, 
the Board shall issue to the account holder an order to show cause why 
the tariff filing privilege or any certificate, license, or permit 
should not be suspended or revoked. The Board shall allow the debtor no 
more than 30 days to pay the debt in full including applicable interest, 
penalties, and administrative costs of collection of the delinquent 
debt. The Board may suspend or revoke any certificate, license, permit, 
approval or filing privilege at the end of this period upon a finding of 
willful noncompliance with the Board's order. If any certificate, 
license, permit, or filing privilege is revoked under this authority of 
this part, a new application with appropriate fees must be made to the 
Board, and all previous delinquent debts of the debtor to the Board must 
be paid before the Board will consider such application.
    (e) Other sanctions. The remedies and sanctions available to the 
Board in this area are not exclusive. The Board may impose other 
sanctions, where permitted by law for any inexcusable, prolonged, or 
repeated failure of a debtor to pay such claim. In such cases, the Board 
will provide notice and a hearing, as required by law, to the debtor 
prior to the imposition of any such sanctions.

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



Sec.  1018.26  Disputed debts.

    (a) A debtor who disputes a debt shall explain why the debt is 
incorrect in fact or law within 30 days from the date that the initial 
demand letter was mailed. The debtor may support the explanation by 
submitting affidavits, statements certified under penalty of perjury, 
canceled checks, or other relevant evidence.
    (b) The Board may extend the interest waiver period as described in 
Sec.  1018.30(j) pending a final determination of the existence or 
amount of the debt.
    (c) The Board may investigate the facts involved in the dispute and 
if necessary, the Board may arrange for a conference at which the debtor 
may present evidence and arguments in support of the debtor's positions.



Sec.  1018.27  Contracting for collection services.

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



Sec.  1018.28  Collection by administrative offset.

    (a) The Board may administratively undertake collection by offset on 
each claim which is liquidated or certain in amount in accordance with 
the guidelines and the standards contained in 31 CFR 901.2 and 901.3 and 
5 U.S.C. 5514, as applicable. The Board may not initiate administrative 
offset to collect a debt more than 10 years after the Government's right 
to the debt first accrued, unless facts material to the Government's 
right to collect the debt were not known and could not reasonably have 
been known to the Board.
    (b) Collection by administrative offset of amounts payable from the 
Civil Service Retirement and Disability Fund, the Federal Employees 
Retirement System, or other similar fund is made pursuant to 31 CFR 
901.3(e) and the provisions of paragraph (d) of this section.
    (c) Salary offset is governed by 5 U.S.C. 5514.
    (d) The following procedures apply when the Board seeks to collect a 
debt by offset against any payment to be made to a debtor or against the 
assets of a holder of a certificate, permit, license, or authorization 
issued by the Board.
    (1) Before the offset is made, the Board shall provide the debtor 
written notice of the nature and amount of the debt and:
    (i) Notice of the Board's intent to collect the debt by offset;
    (ii) An opportunity to inspect and copy Board records pertaining to 
the debt;
    (iii) An opportunity to request reconsideration of the debt by the 
Board, or

[[Page 63]]

if provided for by statute, waiver of the debt;
    (iv) An opportunity to enter into a written agreement with the Board 
to repay or pay the debt, as the case may be;
    (v) An explanation of the debtor's rights under this subpart; and
    (vi) An opportunity for a hearing when required under the provisions 
of 31 CFR 901.3(e).
    (2) If the Board learns that other agencies of the Government are 
holding funds payable to the debtor, the Board shall provide the other 
agencies with written certification that the debt is owed to the Board 
and that the Board has complied with the provisions of 4 CFR 102.3. The 
Board shall request that funds which are due the debtor and which are 
necessary to offset the debt to the Board be transferred to the Board.
    (3) The Board may accept a repayment or payment agreement, as 
appropriate, in lieu of offset, but will do so only after balancing the 
Government's interest in collecting the debts against fairness to the 
debtor. If the debt is delinquent and the debtor has not disputed its 
existence or amount, the Board may accept a repayment or payment 
agreement in lieu of offset only if the debtor is able to establish 
under sworn affidavit or statement certified under penalty of perjury 
that offset would result in financial hardship or would result in undue 
financial hardship or would be against equity and good conscience.
    (4) Administrative offset is not authorized with respect to:
    (i) Debts owed by any State or local government;
    (ii) Debts once they become subject to the salary offset provisions 
of 5 U.S.C. 5514; or
    (iii) Any case in which collection of the type of debt involved by 
administrative offset is explicitly provided for or prohibited by 
another statute.
    (5) The Board reserves the right to take any other action in respect 
to offset as is permitted under 4 CFR 102.3.
    (e) The Board shall make appropriate use of the cooperative efforts 
of other agencies including the Army Holdup List in effecting 
collections by offset. The Army Holdup List is a list of contractors 
indebted to the United States.

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



Sec.  1018.29  Payments.

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

[[Page 64]]

mailed or delivered to the Section of Financial Services, Surface 
Transportation Board, Washington, DC 20423, unless payment is:
    (1) Made pursuant to arrangements with the GAO or DOJ;
    (2) Ordered by a Court of the United States; or
    (3) Otherwise directed in any other part of this chapter.

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



Sec.  1018.30  Interest, penalties, and administrative costs.

    (a) The Board shall assess interest, penalties, and administrative 
costs on debts owed to the United States Government in accordance with 
the guidance provided under the Federal Claims Collection Standards, 31 
CFR 901.9 unless otherwise directed by statute, regulation, or contract.
    (b) Before assessing any charges on delinquent debts, the Board 
shall mail a written notice to debtor explaining its requirements 
concerning these charges under 31 CFR 901.2 and 901.9.
    (c) Interest begins to accrue from the date on which the initial 
invoice is first mailed to the debtor unless a different date is 
specified on a statute, regulation, or contract.
    (d) The Board shall assess interest based upon the rate of the 
current value of funds to the United States Treasury (the Treasury tax 
and loan account rate) prescribed by statute, regulation, or contract.
    (e) Interest is computed only on the principal of the debt, and the 
interest rate remains fixed for the duration of the indebtedness, unless 
the debtor defaults on a repayment agreement and seeks to enter into a 
new agreement.
    (f) The Board shall assess against a debtor charges to cover 
administrative costs incurred as a result of a delinquent debt. 
Administrative costs may include costs incurred in obtaining a credit 
report or in using a private debt collector, to the extent they are 
attributable to the delinquency.
    (g) The Board shall assess a penalty charge of six percent a year on 
any portion of a debt that is delinquent for more than 90 days. The 
charge accrues retroactively to the date that the debt became 
delinquent.
    (h) Amounts received by the Board as partial or installment payments 
are applied first to outstanding penalty and administrative cost 
charges, second to accrued interest, and third to outstanding principal.
    (i) The Board shall waive collection of interest on the debt or any 
portion of the debt which is paid in full within 30 days after the date 
on which interest began to accrue.
    (j) The Board may waive interest during the periods a debt disputed 
under Sec.  1018.26 is under investigation or review before the Board. 
This additional waiver is not automatic and must be requested before the 
expiration of the initial 30-day waiver period. The Board may grant the 
additional waiver only when it finds merit in the explanation the debtor 
has submitted under Sec.  1018.26.
    (k) The Board may waive the collection of interest, penalties, and 
administrative costs if it finds that one or more of the following 
conditions exists:
    (1) The debtor is unable to pay any significant sum toward the debt 
within a reasonable time;
    (2) Collection of interest, penalties, and administrative costs will 
jeopardize collection of the principal of the debt;
    (3) The Board is unable to enforce collection in full within a 
reasonable time by enforced collection proceedings; or
    (4) Collection would be against equity and good conscience or not in 
the best interest of the United States, including the situation in which 
an administrative offset or installment payment agreement is in effect.

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



Sec.  1018.31  Use of credit reports.

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

[[Page 65]]

    (e) The likelihood of collecting the debt.



Sec.  1018.32  Bankruptcy claims.

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



Sec.  1018.33  Use and disclosure of mailing addresses.

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



Sec.  1018.34  Additional administrative collection action.

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



                     Subpart C_Compromise of a Claim



Sec.  1018.50  When a claim may be compromised.

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

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



Sec.  1018.51  Reasons for compromising a claim.

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

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

[[Page 66]]



Sec.  1018.52  Restrictions on the compromise of a claim.

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



Sec.  1018.53  Finality of a compromise.

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



        Subpart D_Suspension or Termination of Collection Action



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

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



Sec.  1018.61  Reasons for suspending collection action.

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



Sec.  1018.62  Reasons for terminating collection action.

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



Sec.  1018.63  Termination of collection action.

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



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.

[[Page 67]]



                      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.



Sec.  1018.72  Referral to the Department of Justice.

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

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



              Subpart F_Internal Revenue Service Procedure



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

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

[[Page 68]]

which the debtor was legally discharged of all or a portion of the 
obligation.



                       Subpart G_Tax Refund Offset



Sec.  1018.90  Purpose.

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



Sec.  1018.91  Applicability and scope.

    (a) These regulations implement 31 U.S.C. 3720A which authorizes the 
IRS to reduce a tax refund by the amount of a past-due legally 
enforceable debt owed to the Government of the United States.
    (b) For purposes of this section, a past-due legally enforceable 
debt referable to the IRS is a debt which is owed to the Government of 
the United States and:
    (1) Except in the case of a judgment debt, has been delinquent for 
at least 3 months but has not been delinquent for more than 10 years at 
the time the offset is made;
    (2) Cannot be currently collected pursuant to the salary offset 
provisions of 5 U.S.C. 5514(a)(1);
    (3) Is ineligible for administrative offset under 31 U.S.C. 3716(a) 
by reason of 31 U.S.C. 3716(c)(2) or cannot be collected by 
administrative offset under 31 U.S.C. 3716(a) by the Board against 
amounts payable to or on behalf of the debtor by or on behalf of the 
Board;
    (4) With respect to which the Board has given the taxpayer at least 
60 days from the date of notification to present evidence that all or 
part of the debt is not past-due or legally enforceable, has considered 
evidence presented by such taxpayer, and has determined that an amount 
of such debt is past-due and legally enforceable;
    (5) Has been disclosed by the Board to a consumer reporting agency 
as authorized by 31 U.S.C. 3711(f), unless a consumer reporting agency 
would be prohibited from using such information by 15 U.S.C. 1681c, or 
unless the amount of the debt does not exceed $100.00;
    (6) With respect to which the Board has notified or has made a 
reasonable attempt to notify the taxpayer that the debt is past-due and, 
unless repaid within 60 days thereafter, the debt will be referred to 
the IRS for offset against any overpayment of tax;
    (7) Is at least $25.00; and
    (8) All other requirements of 31 U.S.C. 3720A and the Department of 
the Treasury regulations codified at 26 CFR 301.6402-6 relating to the 
eligibility of a debt for tax return offset have been satisfied.

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



Sec.  1018.92  Administrative charges.

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



Sec.  1018.93  Notice requirement before offset.

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



Sec.  1018.94  Review within the Board.

    (a) Notification by Debtor. A debtor who receives a Notice of Intent 
has the

[[Page 69]]

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.



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

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



Sec.  1019.3  Ex parte communications.

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



Sec.  1019.4  Use of intoxicants.

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

[[Page 70]]



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.
1021.6 Method of claim payment.

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

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



Sec.  1021.1  Standards.

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

[81 FR 8852, Feb. 23, 2016]



Sec.  1021.2  Enforcement claims and debtors.

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



Sec.  1021.3  Enforcement collection designee.

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

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



Sec.  1021.4  Notice of claim and demand.

    Initiation of administrative collection of enforcement claims will 
be commenced by the enforcement collection designee mailing a letter of 
notice of claim and demand to the debtor. Such letter will state the 
statutory

[[Page 71]]

basis for the claim, a brief resume of the factual basis for the claim, 
the amount of the claim, and indicate the availability of the designee 
or his personal agent for discussion of the claim should the debtor so 
desire.



Sec.  1021.5  Agreement and release.

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



Sec.  1021.6  Method of claim payment.

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



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



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

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

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



Sec.  1022.1  Scope and purpose.

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

[81 FR 72543, Oct. 20, 2016]



Sec.  1022.2  Definitions.

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

[[Page 72]]

the amount of such civil monetary penalty was established or adjusted 
under a provision of law.

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



Sec.  1022.3  Civil monetary penalty inflation adjustment.

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

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



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

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

----------------------------------------------------------------------------------------------------------------
                                                                                                    Adjusted
            U.S. code citation                   Civil monetary penalty           Baseline       penalty amount
                                                      description              penalty amount        (2017)
----------------------------------------------------------------------------------------------------------------
                                          Rail Carrier Civil Penalties
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 11901(a).......................  Unless otherwise specified,                  $7,512            $7,635
                                            maximum penalty for each knowing
                                            violation under this part, and
                                            for each day.
49 U.S.C. 11901(b).......................  For each violation under Sec.                   751               763
                                            11124(a)(2) or (b).
49 U.S.C. 11901(b).......................  For each day violation continues.                38                39
49 U.S.C. 11901(c).......................  Maximum penalty for each knowing              7,512             7,635
                                            violation under Sec.  Sec.
                                            10901-10906.
49 U.S.C. 11901(d).......................  For each violation under Sec.               150-751           152-763
                                            Sec.   11123 or 11124(a)(1).
49 U.S.C. 11901(d).......................  For each day violation continues.                75                76
49 U.S.C. 11901(e)(1)....................  For each violation under Sec.                   751               763
                                            Sec.   11141-11145.
49 U.S.C. 11901(e)(2)....................  For each violation under Sec.                   150               152
                                            11144(b)(1).
49 U.S.C. 11901(e)(3-4)..................  For each violation of reporting                 150               152
                                            requirements, for each day.
----------------------------------------------------------------------------------------------------------------
                                     Motor and Water Carrier Civil Penalties
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 14901(a).......................  Minimum penalty for each                      1,028             1,045
                                            violation and for each day.
49 U.S.C. 14901(a).......................  For each violation under Sec.                10,282            10,450
                                            Sec.   13901 or 13902(c).
49 U.S.C. 14901(a).......................  For each violation related to                25,705            26,126
                                            transportation of passengers.
49 U.S.C. 14901(b).......................  For each violation of the             20,564-41,128     20,900-41,801
                                            hazardous waste rules under Sec.
                                              3001 of the Solid Waste
                                            Disposal Act.
49 U.S.C. 14901(d)(1)....................  Minimum penalty for each                      1,502             1,527
                                            violation of household good
                                            regulations, and for each day.
49 U.S.C. 14901(d)(2)....................  Minimum penalty for each instance            15,025            15,271
                                            of transportation of household
                                            goods if broker provides
                                            estimate without carrier
                                            agreement.
49 U.S.C. 14901(d)(3)....................  Minimum penalty for each instance            37,561            38,175
                                            of transportation of household
                                            goods without being registered.
49 U.S.C. 14901(e).......................  Minimum penalty for each                      3,005             3,054
                                            violation of a transportation
                                            rule.
49 U.S.C. 14901(e).......................  Minimum penalty for each                      7,512             7,635
                                            additional violation.
49 U.S.C. 14903(a).......................  Maximum penalty for undercharge             150,245           152,703
                                            or overcharge of tariff rate,
                                            for each violation.
49 U.S.C. 14904(a).......................  For first violation, rebates at                 300               305
                                            less than the rate in effect.
49 U.S.C. 14904(a).......................  For all subsequent violations....               376               382
49 U.S.C. 14904(b)(1)....................  Maximum penalty for first                       751               763
                                            violation for undercharges by
                                            freight forwarders.
49 U.S.C. 14904(b)(1)....................  Maximum penalty for subsequent                3,005             3,054
                                            violations.
49 U.S.C. 14904(b)(2)....................  Maximum penalty for other first                 751               763
                                            violations under Sec.   13702.
49 U.S.C. 14904(b)(2)....................  Maximum penalty for subsequent                3,005             3,054
                                            violations.
49 U.S.C. 14905(a).......................  Maximum penalty for each knowing             15,025            15,271
                                            violation of Sec.   14103(a),
                                            and knowingly authorizing,
                                            consenting to, or permitting a
                                            violation of Sec.   14103(a) &
                                            (b).
49 U.S.C. 14906..........................  Minimum penalty for first attempt             2,056             2,090
                                            to evade regulation.

[[Page 73]]

 
49 U.S.C. 14906..........................  Minimum amount for each                       5,141             5,225
                                            subsequent attempt to evade
                                            regulation.
49 U.S.C. 14907..........................  Maximum penalty for recordkeeping/            7,512             7,635
                                            reporting violations.
49 U.S.C. 14908(a)(2)....................  Maximum penalty for violation of              3,005             3,054
                                            Sec.   14908(a)(1).
49 U.S.C. 14910..........................  When another civil penalty is not               751               763
                                            specified under this part, for
                                            each violation, for each day.
49 U.S.C. 14915(a)(1) & (2)..............  Minimum penalty for holding a                11,940            12,135
                                            household goods shipment
                                            hostage, for each day.
----------------------------------------------------------------------------------------------------------------
                                        Pipeline Carrier Civil Penalties
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 16101(a).......................  Maximum penalty for violation of              7,512             7,635
                                            this part, for each day.
49 U.S.C. 16101(b)(1) & (4)..............  For each recordkeeping violation                751               763
                                            under Sec.   15722, each day.
49 U.S.C. 16101(b)(2) & (4)..............  For each inspection violation                   150               152
                                            liable under Sec.   15722, each
                                            day.
49 U.S.C. 16101(b)(3) & (4)..............  For each reporting violation                    150               152
                                            under Sec.   15723, each day.
49 U.S.C. 16103(a).......................  Maximum penalty for improper                  1,502             1,527
                                            disclosure of information.
----------------------------------------------------------------------------------------------------------------


[81 FR 72543, Oct. 20, 2016, as amended at 82 FR 4797, Jan. 17, 2017]

   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 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:

[[Page 74]]

    (i) The car becoming a market rate car; or
    (ii) The expiration date provided in Association of American 
Railroads Circular No. OT-37.
    (2) Upon termination of the 10-year period specified in paragraph 
(b)(1) of this section, all fixed rate cars shall be deemed to be market 
rate cars and shall be governed by paragraph (c) of this section.
    (3) (i) During each calendar year beginning January 1, 1994, a rail 
carrier may voluntarily elect to designate up to 10% of the cars in its 
fleet as of January 1, 1993 to be treated as market rate cars for the 
purposes of this section. The 10% limitation shall apply each calendar 
year and shall be noncumulative. Cars designated to be treated as market 
rate cars shall be governed by paragraph (c) of this section. Such 
election shall be effective only in accordance with the following 
provisions:
    (A) An election shall be irrevocable and binding as to the rail 
carrier making the election and all users and subsequent owners if:
    (1) The rail carrier making the election has legal title to the car; 
or
    (2) The rail carrier making the election does not have legal title 
to the car but obtains written consent for such election from the party 
holding legal title; or
    (3) The transaction pursuant to which the party holding legal title 
to the car has furnished the car to the rail carrier making the election 
was entered into after January 1, 1991.
    (B) An election shall be irrevocable and binding only for the term 
of the transaction pursuant to which the car was furnished to the rail 
carrier making the election as to that rail carrier and all users and 
subsequent owners if:
    (1) That rail carrier does not have legal title to the car and does 
not obtain written consent or such election from the party holding legal 
title;
    (2) The transaction was entered into prior to January 1, 1991; and
    (3) The transaction does not provide that the compensation to be 
paid to the party furnishing the car is to be based in whole or in part 
directly on the car hire earnings of the car; provided, however, that if 
the rail carrier making the election subsequently obtains legal title to 
the car, such election shall then be irrevocable and binding as to the 
rail carrier and all users and subsequent owners.
    (C) The party holding legal title to the car may revoke an election 
subject to the provisions of paragraph (b)(3)(i)(B) of this section 
only:
    (1) At the time the transaction pursuant to which the car was 
furnished to the rail carrier making the election is first extended or 
renewed after January 1, 1991; or
    (2) If such transaction is not extended or renewed, at the time such 
transaction terminates.

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

[[Page 75]]



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 electronic notice to the Association of American Railroads 
and the Board's Office of Public Assistance, Governmental Affairs, and 
Compliance explaining why the rerouting is necessary, when it began, 
when the disability occurred, why an extension is necessary, the 
specific lines disabled, the rerouting to be continued, which shippers 
are affected, and any other important facts.
    (b) Concurrence by carriers. A railroad rerouting traffic must 
receive the concurrence of other railroads to which the traffic will be 
diverted or rerouted, before the rerouting or diversion begins. A 
rerouting carrier must also confirm the inability of a disabled 
receiving carrier to handle the traffic before rerouting that traffic. 
If the receiving carrier is no longer disabled, it must accept the 
traffic according to the routing originally designated.
    (c) Notice by rerouting carrier. A rerouting carrier must notify the 
Board's Office of Public Assistance, Governmental Affairs, and 
Compliance, the Association of American Railroads, Car Service Division, 
as agent of all railroads subscribing to car service and car hire 
agreements, and the American Short Line Railroad Association before the 
rerouting or diversion begins. The originating carrier must notify each 
shipper at the time each shipment is rerouted or diverted and furnish to 
each shipper the rerouting, except when the disability requiring the 
rerouting occurs after the movement has begun. When a rerouting carrier 
submits to the Board a notice and explanation for an extension of the 
rerouting period, it must immediately also submit a copy of that notice 
and explanation to the AAR, the ASLRA and all shippers that have been 
affected or that the carrier believes will be affected or that request a 
copy.
    (d) Notice by AAR. The AAR shall notify all carriers affected by 
rerouting or by an extension of a rerouting period, in a manner similar 
to that used for embargoes.
    (e) Applicable rates. The rates applicable on shipments rerouted or 
diverted will be the rates applicable over the route originally 
designated at the time the shipments are tendered.
    (f) Divisions. The carriers involved in the rerouting or diversion 
shall proceed even though no contracts, agreements, or arrangements 
exist between them at the time concerning the divisions of the rates 
applicable to the traffic. Divisions shall be, during the time the 
rerouting is in effect, those voluntarily agreed upon by the carriers.

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



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.

[[Page 76]]


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



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

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



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

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



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

                     Uniform Straight Bill of Lading

                        Original--Not Negotiable

Shipper's No____________________________________________________________

Agent's No______________________________________________________________

Company_________________________________________________________________

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

at--------------------------, 20----

from____________________________________________________________________

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

Destination_____________________________________________________________

State of________________________________________________________________

County of_______________________________________________________________

Route___________________________________________________________________

Delivering Carrier______________________________________________________

Car Initial_____________________________________________________________

Car No__________________________________________________________________

Trailer Initials/Number_________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Container Initials/Number_______________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________

Length__________________________________________________________________

Plan____________________________________________________________________


[[Page 77]]

________________________________________________________________________

----------------------------------------------------------------------------------------------------------------
                           Description of
                         articles, special    *Weight      Class or      Check
      No. packages           marks, and     (subject to      rate        column
                             exceptions     correction)
----------------------------------------------------------------------------------------------------------------
                         .................  ...........  ...........  ...........  Subject to Section 7 of
                                                                                    conditions, if this shipment
                                                                                    is to be delivered to the
                                                                                    consignee without recourse
                                                                                    on the consignor, the
                                                                                    consignor shall sign the
                                                                                    following statement:
                         .................  ...........  ...........  ...........     ..........................
                         .................  ...........  ...........  ...........  The carrier shall not make
                                                                                    delivery of this shipment
                                                                                    without payment of freight
                                                                                    and all other lawful
                                                                                    charges.
                         .................  ...........  ...........  ...........  .............................
                         .................  ...........  ...........  ...........  .............................
                         .................  ...........  ...........  ...........  .............................
                                                                                    .....................
                                                                                    (Signature of consignor)
                         .................  ...........  ...........  ...........  .............................
                                                                                  ==============================
                         .................  ...........  ...........  ...........  If charges are to be prepaid,
                                                                                    write or stamp here,
                         .................  ...........  ...........  ...........  ``To be Prepaid.''
                         .................  ...........  ...........  ...........  .............................
                         .................  ...........  ...........  ...........  Received $------ to apply in
                                                                                    prepayment of the charges on
                                                                                    the property described
                                                                                    hereon.
                         .................  ...........  ...........  ...........  .............................
                         .................  ...........  ...........  ...........  .............................
                                                                                    .....................
                                                                                    Agent or Cashier
                         .................  ...........  ...........  ...........  Per----------------
                         .................  ...........  ...........  ...........  (The signature here
                                                                                    acknowledges only the amount
                                                                                    prepaid.)
                         .................  ...........  ...........  ...........  .............................
                                                                                  ==============================
 
----------------------------------------------------------------------------------------------------------------
 *If the shipment moves between two ports by a carrier by water, the law requires that the bill of lading shall
  state whether it is ``carrier's or shipper's weight.''
Note. Where the rate is dependent on value, shippers are required to state specifically in writing the agreed or
  declared value of the property.
The agreed or declared value of the property is hereby specifically stated by the shipper to be not exceeding--
---------------------------------------- per----------------------------------------
 
Charges advanced: ----------------------------------------
 
Shipper
 
Agent
 
Per
 
Per
 
Permanent post office address of shipper


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



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

                      Contract Terms and Conditions

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

[[Page 78]]

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

[[Page 79]]

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

[[Page 80]]

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

[[Page 81]]

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

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



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



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

    Authority: 49 U.S.C. 721.

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



Sec.  1037.1  Weights and weighing.

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

[[Page 82]]

weight is official, board-of-trade, grain-exchange, State, or other 
supervised weight. This information should be furnished at the time the 
claim is filed.
    (e) A difference in weights at origin and destination, both of which 
are based on supervised scales, establishes prima facie that the loss 
occurred in transit and that the railroad is liable. When a difference 
in weights is based in part on an unsupervised weight, which 
nevertheless, was accepted by the railroad as the basis for assessing 
freight charges, such unsupervised weight in combination with a 
supervised weight establishes prima facie that the loss occurred in 
transit and the railroad is liable. When a difference in weights is 
based in part on an unsupervised weight, with the above exception, a 
prima facie case of railroad liability for loss in transit has not been 
established. Such difference in weights is a factor, however, to be 
considered in connection with other evidence that a clear-record car 
arrived at destination with seals intact and unbroken or that the 
shipper made a written complaint that any car placed for loading was 
defective, in response to which the railroad filed a written report 
after investigation of the complaint. See paragraph (c) of Sec.  1037.3.



Sec.  1037.2  Cars.

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

[57 FR 54334, Nov. 18, 1992]



Sec.  1037.3  Claims.

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



PART 1039_EXEMPTIONS--Table of Contents



Sec.
1039.10 Exemption of agricultural commodities except grain, soybeans, 
          and sunflower seeds.
1039.11 Miscellaneous commodities exemptions.
1039.13 Rail intermodal transportation exemption.
1039.14 Boxcar transportation exemptions and rules.
1039.16 Exemption of new highway trailers or containers.

[[Page 83]]

1039.17 Protective service contracts exemption.
1039.20 Storage leases.
1039.22 Exemption of certain payments, services, and commitments from 
          the Elkins Act and related provisions.

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

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



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

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

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


and shall embrace all articles assigned additional digits. The STCC 
shall be those code numbers in effect as of January 1, 1979, as shown in 
Standard Transportation Commodity Code Tariff 1-G, STB STCC 6001-C. 
Nothing in this exemption shall be construed to affect our jurisdiction 
under section 10502 or our ability to enforce this decision or any 
subsequent decision made under authority of this exemption section. 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.

[[Page 84]]

 
                                                                20 4 Grain mill products.
                                                                20 6 Sugar, beet or cane.
                                                                20 8 Beverages or flavoring extracts.
                                                                20 911 Cottonseed oil, crude or refined.
                                                                20 914 Cottonseed cake or meal or by-products.
                                                                20 92 Soybean oil or by-products.
                                                                20 93 Nut or vegetable oils or by-products.
22...................................  ......do...............  Textile mill products.
23...................................  ......do...............  Apparel or other finished textile products or
                                                                 knit apparel.
24...................................  ......do...............  Lumber or wood products.
25...................................  ......do...............  Furniture or fixtures.
26...................................  ......do...............  Pulp, paper or allied products except
                                                                26 1 Pulp or pulp mill products.
                                                                26 211 Newsprint.
                                                                26 212 Ground wood paper, uncoated.
                                                                26 213 Printing paper, coated or uncoated, etc.
                                                                26 214 Wrapping paper, wrappers or coarse paper.
                                                                26 218 Sanitary tissue stock.
                                                                26 471 Sanitary tissues or health products.
                                                                26 6 Building paper or building board except
                                                                26 613 Wallboard.
27...................................  ......do...............  Printed matter.
28 195 22-23.........................  ......do...............  Iron chloride, liquid.
28 195 27-30.........................  ......do...............  Iron sulphate.
28 195 68-69.........................  ......do...............  Ferrous sulphate.
29 914...............................  ......do...............  Coke produced from coal.
29 915...............................  ......do...............  Distillate or residual fuel oil from coal
                                                                 refining.
30...................................  ......do...............  Rubber or miscellaneous plastics products except
                                                                30 111 Rubber pneumatic tires or parts.
31...................................  ......do...............  Leather or leather products.
32...................................  ......do...............  Clay, concrete, glass or stone products except
                                                                32 411 Hydraulic cement, natural, portland or
                                                                 masonry.
                                                                32 741 Lime or lime plaster.
                                                                32 95 Nonmetallic earths or minerals, ground or
                                                                 treated in any other manner except
                                                                32 952 15 Cinders, clay, shale expanded shale),
                                                                 slate or volcanic (not pumice stone), or
                                                                 haydrite.
33...................................  ......do...............  Primary metal products, including galvanized.
34...................................  ......do...............  Fabricated metal products except
                                                                34 6 Metal stampings.
                                                                34 919 40 Radioactive material shipping
                                                                 containers, etc.
35...................................  ......do...............  Machinery except
                                                                35 11 Steam engines, turbines, turbine generator
                                                                 sets, or parts.
                                                                35 85 Refrigerators or refrigeration machinery
                                                                 or complete air-conditioning units.
36...................................  ......do...............  Electrical machinery, equipment or supplies
                                                                 except
                                                                36 12 Power, distribution or specialty
                                                                 transformers.
                                                                36 21 Motors or generators.
37 11................................  ......do...............  Motor vehicles.
37 14................................  ......do...............  Motor vehicle parts or accessories.
38...................................  ......do...............  Instruments, photographic goods, optical goods,
                                                                 watches or clocks.
39...................................  ......do...............  Miscellaneous products of manufacturing.
41 118...............................  6001-U, eff. 1-1-93....  Used vehicles.
14 715...............................  6001-V, eff. 1-1-94....  Rock salt.
20 143...............................  ......do...............  Grease or inedible tallow.
28 133...............................  ......do...............  Carbon dioxide.
28 991...............................  ......do...............  Salt.
32-4.................................  ......do...............  Hydraulic cement.
34 912...............................  6001-W, eff. 1-1-95....  Steel shipping containers.
40 211...............................  ......do...............  Iron and steel scrap.
33 119...............................  6001-X, eff. 1-11-96...  Blast furnace, open hearth, rolling mill or coke
                                                                 oven products, NEC.
20511................................  6001-X, eff. 1-1-96....  Bread or other bakery products exc. biscuits,
                                                                 crackers, pretzels or other dry bakery
                                                                 products. See 20521-20529.
22941................................  ......do...............  Textile waste, garnetted, processed, or
                                                                 recovered or recovered fibres or flock exc.
                                                                 packing or wiping cloths or rags. See 22994.
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.

[[Page 85]]

 
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 or revoked 
by a subsequent order of this Board.

[48 FR 24901, June 3, 1983]

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



Sec.  1039.13  Rail intermodal transportation exemption.

    See Part 1090.

[52 FR 23660, June 24, 1987]



Sec.  1039.14  Boxcar transportation exemptions and rules.

    (a) The Rail transportation of all commodities in boxcars is exempt 
from the provisions of 49 U.S.C. subtitle IV except as otherwise 
provided in this section.
    (b) The Board retains jurisdiction in the following areas:
    (1) Car hire and car service;
    (2) Mandatory interchange of equipment;
    (3) Reciprocal switching or joint use of terminal facilities;
    (4) Car supply;
    (5) Freight car pooling agreements; and
    (6) Freight rates applicable to boxcar traffic originating or 
terminating at an industry facility served physically by a Class III 
rail carrier, to the extent provided in paragraphs (c)(4) and (c)(5) of 
this section.
    (c)(1) Except as provided in paragraph (c)(2) of this section, 
carriers are authorized to take the following actions with respect to 
boxcar equipment use:
    (i) Assess charges for empty movement of cars where movements are 
made at the request of the car owner,

[[Page 86]]

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

Except as prohibited above, carriers may use car ownership or car marks 
for identification purposes when establishing rates.
    (5) The provisions of 49 U.S.C. 10705 and 10705a applicable to joint 
rates and through routes will be effective as to rates and routes 
applicable to boxcar traffic originating or terminating at an industry 
facility served physically by a Class III rail carrier.

[[Page 87]]

    (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; 81 FR 8852, Feb. 23, 
2016]



Sec.  1039.16  Exemption of new highway trailers or containers.

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

[52 FR 17404, May 8, 1987]



Sec.  1039.17  Protective service contracts exemption.

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

[49 FR 19025, May 4, 1984]



Sec.  1039.20  Storage leases.

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

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



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

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

and reasonably determines that such payments, services or commitments 
would not be eligible for inclusion in rail contracts under 49 U.S.C. 
10709, such transaction(s) shall be exempt from 49 U.S.C. 13702(a), 
13702(b)-(d), 11902, 11903, and 11904(a), subject to the conditions set 
forth in paragraphs (b) through (e) of this section.
    (b) If any interested person(s) believes a transaction is eligible 
for inclusion in one or more contracts under 49 U.S.C. 10713, that 
person's exclusive remedy shall be to request the Board to so determine, 
and if the Board does so, the transaction shall no longer be exempted by 
this section commencing 60 days after the date of the Board's 
determination.
    (c) Transactions that are exempt under paragraph (a) of this section 
shall be subject to all other applicable provisions of Title 49 U.S.C. 
Subtitle IV and to the antitrust laws to the extent that the activity 
does not fall within the Board's exclusive jurisdiction.
    (d) For any actual movement of traffic, a carrier must file any 
required tariff or section 10713 contract, and

[[Page 88]]

conform to all other applicable provisions of the Interstate Commerce 
Act, but this paragraph shall not be interpreted to limit, revoke, or 
remove the effect of the exemption granted under paragraph (a) of this 
section with respect to any payments, services, or commitments made 
prior to the filing of the rate or contract.
    (e) When any person files with the Board a petition to revoke the 
exemption granted by this section as to any specific transaction, the 
rail carrier shall have the burden of showing that, with respect to such 
transaction, all requirements of paragraph (a) of this section were met, 
and the carrier reasonably expected, before undertaking such payments, 
services or commitments, that such payments, services or commitments 
would result, within a reasonable time, in a contribution to the 
carrier's going concern value.
    (f) This exemption shall remain in effect unless modified or revoked 
by a subsequent order of this Board.

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



PART 1040_ON-TIME PERFORMANCE OF INTERCITY PASSENGER RAIL SERVICE
--Table of Contents



Sec.
1040.1 Purpose.
1040.2 Definition of ``on time''.
1040.3 Calculation of quarterly on-time performance.

    Authority: 49 U.S.C. 1321 and 24308(f).

    Source: 81 FR 51348, Aug. 4, 2016, unless otherwise noted.



Sec.  1040.1  Purpose.

    This part defines ``on time'' and specifies the formula for 
calculating on-time performance for the purpose of implementing Section 
213 of the Passenger Rail Investment and Improvement Act of 2008, 49 
U.S.C. 24308(f).



Sec.  1040.2  Definition of ``on time.''

    An intercity passenger train's arrival at, or departure from, a 
given station is on time if it occurs no later than 15 minutes after its 
scheduled time.



Sec.  1040.3  Calculation of quarterly on-time performance.

    In any given calendar quarter, an intercity passenger train's on-
time performance shall be the percentage equivalent to the fraction 
calculated using the following formula:
    (a) The denominator shall be the total number of the train's actual: 
Departures from its origin station, arrivals at all intermediate 
stations, and arrivals at its destination station, during that calendar 
quarter; and
    (b) The numerator shall be the total number of the train's actual: 
Departures from its origin station, arrivals at all intermediate 
stations, and arrivals at its destination station, during that calendar 
quarter, that are on time as defined in Sec.  1040.2.

                       PARTS 1041	1089 [RESERVED]

                Parts 1090	1099_Intermodal Transportation



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



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

    Authority: 49 U.S.C. 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

[[Page 89]]

and designed to be transported by more than one mode of transportation, 
or
    (5) Any of the foregoing types of equipment when empty and being 
transported incidental to its previous or subsequent use in TOFC/COFC 
service.
    (b) Highway TOFC/COFC service means the highway transportation, in 
interstate or foreign commerce, of any of the types of equipment listed 
in paragraph (a) of this section as part of a continuous intermodal 
movement that includes rail TOFC/COFC service, and during which the 
trailer or container is not unloaded.

[52 FR 23660, June 24, 1987]



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

    Except as provided in 49 U.S.C. 10502(e) and (g) and 13902, rail 
TOFC/COFC service and highway TOFC/COFC service provided by a rail 
carrier either itself or jointly with a motor carrier as part of a 
continuous intermodal freight movement is exempt from the requirements 
of 49 U.S.C. subtitle IV, regardless of the type, affiliation, or 
ownership of the carrier performing the highway portion of the service. 
Motor carrier TOFC/COFC pickup and delivery services arranged 
independently with the shipper or receiver (or its representative/agent) 
and performed immediately before or after a TOFC/COFC movement provided 
by a rail carrier are similarly exempt. Tariffs heretofore applicable to 
any transportation service exempted by this section shall no longer 
apply to such service. The exemption does not apply to a motor carrier 
service in which a rail carrier participates only as the motor carrier's 
agent (Plan I TOFC/COFC), nor does the exemption operate to relieve any 
carrier of any obligation it would otherwise have, absent the exemption, 
with respect to providing contractual terms for liability and claims.

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



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

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

[52 FR 27811, July 24, 1987]

[[Page 90]]



                     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 91]]

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

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



Sec.  1101.3  Construction.

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



PART 1102_COMMUNICATIONS--Table of Contents



Sec.
1102.1 How addressed.
1102.2 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 92]]

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, 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, 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; 81 FR 8853, Feb. 23, 2016]



PART 1103_PRACTITIONERS--Table of Contents



                      Subpart A_General Information

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

                       Subpart B_Canons of Ethics

1103.10 Introduction.

     The Practitioner's Duties and Responsibilities Toward the Board

1103.11 Standards of ethical conduct in courts of the United States to 
          be observed.
1103.12 The practitioner's duty to and attitude toward the Board.

[[Page 93]]

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;
    (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

[[Page 94]]

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)(99)(i). Payment must be made either by check, money 
order or credit card payable to the Surface Transportation Board. Cash 
payment will not be accepted.
    (e) Additional certification. (1) When an application meets the 
required standards, a copy will be referred to the Association of 
Surface Transportation Board Practitioners for a report to the Board as 
to the reputation and character of the applicant. Inquiry also will be 
made by the Board of the sponsors as to their knowledge of the 
applicant's legal and technical qualifications as contemplated by the 
Board's Rules of Practice. If the Board is satisfied as to the 
applicant's qualifications, reputation and character, then applicant 
will be considered eligible to take the examination.
    (2) The Board may require an applicant's sponsors to provide a 
detailed statement of the nature and extent of their knowledge of 
applicant's qualifications. Upon consideration of this material, if the 
Board is not satisfied as to the adequacy of applicant's qualifications, 
the applicant will be notified by registered mail. Applicant may then 
request a hearing to prove his qualifications. If applicant makes such a 
request, the Board will allow a hearing. In the absence of a request for 
a hearing within 20 days after receipt of the notice, the application 
will be considered withdrawn.
    (f) Scope of examination. If applicant meets the educational and 
experience standards, and is found to be of good character, the 
applicant will be permitted to take the examination. The examination 
tests the applicant's experience and knowledge of the principal 
regulations, laws, and economic principles in the field of 
transportation as well as knowledge of the Board's Rules of Practice and 
Canons of Ethics.
    (g) Time and place of examination. The examination will be conducted 
once a year on the second Tuesday in July. Notice of the time and place 
to appear for the examination will be mailed to qualifying applicants 
approximately 30 days prior to the date of the examination.
    (h) Location of examination. Examinations will be conducted at the 
Board's office in Washington, DC.
    (i) Cancellation of examination. If the Board determines that there 
is an insufficient number of applicants to warrant conducting the 
examination, the Board will cancel the examination for that year. Notice 
of the cancellation will be mailed to applicants on or before June 15 
and the application fee will be refunded. The Board will conduct the 
examination the next year following the cancellation of the examination.
    (j) Examination results. Results will be released within 90 days 
after the examination. Individual results will be forwarded to the 
applicants at least 1 week before being publicly released. To protect 
the privacy of those taking the

[[Page 95]]

examination, individual grades will not be released over the telephone 
to anyone. Requests for grades may, however, be submitted in writing to 
the Office of Public Assistance, Governmental Affairs, and Compliance to 
the attention of the address stated in the application form.
    (k) Failure to appear for examination. Applicants who have failed to 
appear for, or postponed taking an examination, a total of three times 
without showing good cause will have any subsequently filed application 
returned.
    (l) Failing or postponing the examination. Applicants who fail the 
examination may reapply by submitting a request in writing with an 
additional filing fee in the amount set forth in 49 CFR 
1002.2(f)(99)(i). Applicants who postpone taking the examination three 
times without showing good cause will have their applications returned.
    (m) The filing fee in the amount set forth in 49 CFR 
1002.2(f)(99)(i) is not refundable.
    (n) Any application resubmitted to the Board after being returned 
must be accompanied by a filing fee in the amount set forth in 49 CFR 
1002.2(f)(99)(i).
    (o) Content and grading of examination. A Board staff member is 
responsible, under the general supervision of the Vice Chairman, for the 
examination of non-attorney applicants, the preparation of examination 
questions, and the grading of examinations. The staff member is 
appointed by the Chairman, with the approval of the Board. The staff 
member must be an attorney and must have at least two years of 
experience with the Board.
    (p) Applicant's oath. No applicant shall be admitted to practice 
before the Board until applicant shall subscribe to an oath or 
affirmation that applicant will conduct practice uprightly and according 
to the law, as a practitioner before the Board, and that applicant will 
support the Constitution of the United States and laws of the United 
States and will conform to the rules and regulations of the Board.

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



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 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.

[[Page 96]]



                       Subpart B_Canons of Ethics



Sec.  1103.10  Introduction.

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

     The Practitioner's Duties and Responsibilities Toward the Board



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

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



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

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



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

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



Sec.  1103.14  Private communications with the Board are prohibited.

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

     The Practitioner's Duties and Responsibilities Toward a Client



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

    The practitioner shall be respectful of the law and its official 
ministers, and shall not be involved in corruption of public officials 
or deception of the public. In giving improper service or

[[Page 97]]

advice, the practitioner invites and deserves stern condemnation. The 
practitioner shall observe and advise all clients to observe the 
statutory law to the best of his knowledge or as interpreted by 
competent adjudication. The practitioner owes a general duty to practice 
candor toward his client with respect to all aspects to his service to 
the client.



Sec.  1103.16  Adverse influences and conflicting interests.

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

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



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

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



Sec.  1103.18  Withdrawal from employment.

    The right of a practitioner to withdraw from employment, once begun, 
arises only from good cause. The desire or consent of the client is not 
always sufficient cause for withdrawal. The practitioner shall not 
abandon the unfinished task to the detriment of the client except for 
reasons of honor, or the client's persistence over the practitioner's 
remonstrance in presenting frivolous defenses, or the client's 
deliberate disregard of an obligation as to fees or expenses. In these 
cases, the practitioner may be warranted in withdrawing after due notice 
to the client with time allowed for the employment of another 
practitioner. Other reasons for withdrawal might include instances in 
which a practitioner discovers that his client has no cause and the 
client is determined to continue the cause, or the practitioner's own 
inability to conduct a case effectively. Upon withdrawing from a case, 
the practitioner shall refund any part of a retainer which clearly has 
not been earned.



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

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

[[Page 98]]



Sec.  1103.20  Practitioner's fees and related practices.

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

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



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

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



Sec.  1103.22  Restraining clients from improprieties.

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

[[Page 99]]



Sec.  1103.23  Confidences of a client.

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

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



Sec.  1103.24  Use of adverse witnesses.

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



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

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



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

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



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

    (a) The conduct of practitioners before the Board and with other 
practitioners should be characterized by candor and fairness. The 
practitioner shall observe scrupulously the principles of fair dealing 
and just consideration for the rights of others.
    (b) It is not candid or fair for a practitioner knowingly to 
misstate or misquote the contents of a paper, the testimony of a 
witness, the language or the argument of an opposing practitioner, or 
the language or effect of a decision or a text book; or, with knowledge 
of its invalidity to cite as authority a decision which has been 
overruled or otherwise impaired as a precedent or a statute which has 
been repealed; or in argument to assert as a fact that which has not 
been proved, or to mislead his opponent by concealing or withholding 
positions in his opening argument upon which his side then intends to 
rely.
    (c) It is dishonorable to deal other than candidly with the facts in 
taking the statements of witnesses, in drawing

[[Page 100]]

affidavits and other documents, and in the presentation of cases.
    (d) A practitioner shall not offer evidence which he knows the Board 
should reject, in order to get the same before the Board by argument for 
its admissibility, or arguments upon any point not properly calling for 
determination. He shall not introduce into an argument remarks or 
statements intended to influence the bystanders.
    (e) A practitioner shall rely on his judgment concerning matters 
incidental to the trial which may, in some cases, affect the proceeding. 
For example, a practitioner should not force a matter to trial when 
there is affliction or bereavement on the part of the opposing 
practitioner if no harm will come from postponing the proceeding.
    (f) A practitioner shall not ignore known customs or practice of the 
Board, even when the law permits, without giving timely notice to the 
opposing practitioner.
    (g) Insofar as is possible, important agreements affecting the 
rights of the clients should be made in writing. It is, however, 
dishonorable to avoid performance of an agreement fairly made only 
because it is not made in writing.



Sec.  1103.28  Negotiations with opposing party.

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



Sec.  1103.29  Public communication and solicitation.

    (a) A practitioner shall not make any public communication or 
solicitation for employment containing a false, fraudulent, misleading, 
or deceptive statement or claim. This prohibition includes, but is not 
limited to:
    (1) The use of statements containing a material misrepresentation of 
fact or omission of a material fact necessary to keep the statement from 
being misleading;
    (2) Statements intended or likely to create an unjustifiable 
expectation; statements of fee information which are not complete and 
accurate;
    (3) Statements containing information on past performance or 
prediction of future success;
    (4) Statements of prior Board employment outside the context of 
biographical information; statements containing a testimonial about or 
endorsement of a practitioner;
    (5) Statements containing an opinion as to the quality of a 
practitioner's services, or statements intended or likely to attract 
clients by the use of showmanship, puffery, or self-laudation, including 
the use of slogans, jingles, or sensational language or format.
    (b) A practitioner shall not solicit a potential client who has 
given the practitioner adequate notice that he does not want to receive 
communications from the practitioner, nor shall a practitioner make a 
solicitation which involves the use of undue influence.
    (c) A practitioner shall not solicit a potential client who is 
apparently in a physical or mental condition which would make it 
unlikely that he could exercise reasonable, considered judgment as to 
the selection of a practitioner.
    (d) A practitioner shall not pay or otherwise assist any other 
person who is not also a practitioner and a member or associate of the 
same firm to solicit employment for the practitioner.
    (e) If a public communication is to be made through use of radio or 
television, it must be prerecorded and approved for broadcast by the 
practitioner. A recording of the actual transmission must be retained by 
the practitioner for a period of 1 year after the date of the final 
transmission.
    (f) A paid advertisement must be identified as such unless it is 
apparent from the context that it is a paid advertisement.
    (g) A practitioner shall not compensate or give anything of value to 
a representative of any communication medium in anticipation of or in 
return

[[Page 101]]

for professional publicity in a news item.



Sec.  1103.30  Acceptance of employment.

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



Sec.  1103.31  Responsibility for litigation.

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



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

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



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

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



Sec.  1103.34  Intermediaries.

    (a) The services of a practitioner should not be controlled or 
exploited by any lay agency, personal or corporate, which intervenes 
between client and practitioner. The responsibility and qualifications 
of the practitioner are individual. The practitioner shall avoid all 
relations which direct the performance of his duties in the interest of 
such intermediaries. The practitioner's relationship and responsibility 
to the client should be direct.
    (b) The practitioner may accept employment from any organization 
(such as an association, club or trade organization) authorized by law 
to be a party to proceedings before the Board, to render services in 
such proceedings in any matter in which the organization, as an entity, 
is interested. This employment should only include the rendering of such 
services to the members of the organization in respect to the individual 
affairs as are consistent with the free and faithful performance of his 
duties to the Board.
    (c) Nothing in this canon shall be construed as conflicting with 
Sec.  1103.20(d).



Sec.  1103.35  Partnership or professional corporation names and titles.

    In the formation of a partnership or professional corporation among 
practitioners care should be taken to avoid any misleading name or 
representation which would create a false impression as to the position 
or privileges of a

[[Page 102]]

member not duly authorized to practice. No person should be held as a 
practitioner who is not duly qualified under Sec.  1103.2 or Sec.  
1103.3 of these rules. No person who is not duly admitted to practice 
should be held out in a way which will give the impression that he is so 
admitted. No false or assumed or trade name should be used to disguise 
the practitioner or his partnership or professional corporation.



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



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

    Authority: 5 U.S.C. 553 and 559; 18 U.S.C. 1621; 21 U.S.C. 862; and 
49 U.S.C. 721.

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



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

    (a) Except as provided in Sec.  1115.7, pleadings should be 
addressed to the ``Chief, Section of Administration, Office of 
Proceedings, Surface Transportation Board, Washington, DC 20423-0001,'' 
and should designate the docket number and title of the proceeding, if 
known.
    (b) The address of the person filing the pleading should be included 
on the first page of the pleading.
    (c) All envelopes in which a pleading is being submitted should be 
marked in the lower left hand corner with the docket number, if known, 
(not the full title) and the pleading type.
    (d) All multi-volume pleadings must be sequentially numbered on the 
cover of each volume to indicate the volume number of the pleading and 
the total number of volumes filed (e.g., the first volume in a 4-volume 
set should be labeled ``volume 1 of 4,'' the second volume ``volume 2 of 
4'' and so forth).
    (e) Persons filing pleadings and documents with the Board have the 
option of electronically filing (e-filing) certain types of pleadings 
and documents instead of filing paper copies. Details regarding the 
types of pleadings and documents eligible for e-filing, the procedures 
to be followed, and other pertinent information are available on the 
Board's Web site, http://www.stb.dot.gov. If the e-filing option is 
chosen (for those pleadings and documents that are appropriate for e-
filing, as determined by reference to the information on the Board's Web 
site), then the applicable requirements will be those specified on the 
Web site, and any requirements of 49 CFR part 1104 that are specifically 
applicable to filing of paper copies will not apply to the e-filed 
pleadings and documents (these requirements include, but are not limited 
to, number of copies, stapling or binding specifications, submission of 
compact disks or floppy diskettes for documents of 20 pages or more, 
signature ``in ink,'' etc.). Persons are not required to e-file, and may 
continue to use the Board's processes for filing paper copies.

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



Sec.  1104.2  Document specifications.

    (a) Documents, except electronic filings, filed with the Board must 
be on white paper not larger than 8\1/2\ by 11 inches, including any 
tables, charts, or other documents that may be included. Ink must be 
dark enough to provide substantial contrast for scanning and 
photographic reproduction. Text must be double-spaced (except for 
footnotes and long quotations, which may be single-spaced), using type 
not smaller than 12 point. Printing may appear only on one side of the 
paper for original documents, but copies of filings

[[Page 103]]

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

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



Sec.  1104.3  Copies.

    (a) An executed original, plus 10 copies, of every paper pleading, 
document, or paper permitted or required to be filed under this 
subchapter, including correspondence, must be furnished for the use of 
the Board, unless otherwise specifically directed by another Board 
regulation or notice in an individual proceeding. Copies may be 
reproduced by any duplicating process, provided all copies are clear and 
legible. Appropriate notes or other indications shall be used so that 
matters shown in color on the original, but in black and white on the 
copies, will be accurately identified on all copies. When confidential 
documents are filed, redacted versions must also be filed.
    (b) Electronic submissions accompanying paper filings must be 
furnished as follows:
    (1) Textual submissions of 20 or more pages must be accompanied by 
three electronic copies submitted on compact discs or 3.5-inch IBM-
compatible formatted floppy diskettes.
    (2) Three sets of evidence or workpapers consisting of mathematical 
computations must be submitted as functioning electronic spreadsheets in 
Lotus 1-2-3 Release 9 or Microsoft Excel 97, or compatible versions, on 
compact discs or 3.5-inch IBM-compatible formatted floppy diskettes. In 
order to fully evaluate evidence, all spreadsheets must be fully 
accessible and manipulable. Electronic databases placed in evidence or 
offered as support for spreadsheet calculations must be compatible with 
the Microsoft Open Database Connectivity (ODBC) standard. ODBC is a 
Windows technology that allows a database software package to import 
data from a database created using a different software package. We 
currently use Microsoft Access 97 and databases submitted should be in 
either this format or another ODBC-compatible format. All databases must 
be supported with adequate documentation on data attributes, SQL 
queries, programmed reports, and so forth.

[[Page 104]]

    (3) One copy of each diskette or compact disc submitted to the Board 
should, if possible, be provided to any other party requesting a copy.
    (4) Each diskette and compact disc must be clearly labeled with the 
Docket Number of the proceeding in which it is filed; the name(s) of the 
party(ies) on whose behalf the filing is made, and ``CONFIDENTIAL'' or 
``REDACTED'' as appropriate. If more than one diskette or disc is 
submitted for one filing, the label of each must be sequentially 
numbered to indicate the diskette or disc number and the total number of 
diskettes or discs filed (e.g., the first disc of a 4-disc set should be 
labeled ``Disc 1 of 4,'' the second disc ``Disc 2 of 4,'' and so forth).

[67 FR 5515, Feb. 6, 2002, as amended at 69 FR 18499, Apr. 8, 2004; 81 
FR 8853, Feb. 23, 2016]



Sec.  1104.4  Attestation and verification.

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

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

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



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

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

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

 Signature

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

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



Sec.  1104.6  Timely filing required.

    Documents must be received for filing at the Board's offices in 
Washington, DC within the time limits set for filing. The date of 
receipt at the Board, and not the date of deposit in the mail, 
determines the timeliness of filing. However, if a document is mailed by 
United States express mail, postmarked at least one day prior to

[[Page 105]]

the due date, it will be accepted as timely. Other express mail, 
received by the private express mail carrier at least one day prior to 
the due date, also will be accepted as timely filed. The term express 
mail means that the carrier or delivery service offers next day delivery 
to Washington, DC. If the e-filing option is chosen (for those pleadings 
and documents that are appropriate for e-filing, as determined by 
reference to the information on the Board's Web site), then the e-filed 
pleading or document is timely filed if the e-filing process is 
completed before 11:59 p.m. eastern time on the due date.

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



Sec.  1104.7  Computation and extension of time.

    (a) Computation. In computing any period of time, the day of the 
act, event, or default upon which the designated period of time begins 
to run is not included. The last day of the period is included unless it 
is Saturday, Sunday, or a legal holiday in the District of Columbia, in 
which event the period runs until the end of the next day which is not a 
Saturday, Sunday or holiday. This rule applies to forward and backward 
measurement of time.
    (b) Extensions. Any time period, except those provided by law or 
specified in these rules respecting informal complaints seeking damage 
may be extended by the Board in its discretion, upon request and for 
good cause. Requests for extensions must be served on all parties of 
record at the same time and by the same means as service is made on the 
Board, except if service is made on the Board in person and personal 
service on other parties is not feasible, service on other parties 
should be made by first class or express mail. A request for an 
extension must be filed not less than 10 days before the due date. Only 
the original of the request and certificate of service need be filed 
with the Board. If granted, the party making the request should promptly 
notify all parties to the proceeding of the extension and so certify to 
the Board, except that this notification is not required in rulemaking 
proceedings.
    (c) Exception to time computation rules. See 49 CFR part 1152 for 
special abandonment rules.

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



Sec.  1104.8  Objectionable matter.

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

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



Sec.  1104.9  [Reserved]



Sec.  1104.10  Rejection of a deficient document.

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

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



Sec.  1104.11  Amendments.

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

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



Sec.  1104.12  Service of pleadings and papers.

    (a) Generally. Every document filed with the Board should include a 
certificate showing simultaneous service upon all parties to the 
proceeding. Service on the parties should be by the same method and 
class of service used in serving the Board, with charges, if any, 
prepaid. One copy should be served on each party. If service is made on 
the Board in person, and personal service on other parties is not 
feasible, service should be made by first-class or express mail. If a 
document is filed with the Board through the e-filing process, a copy of 
the e-filed document should be emailed to other parties if that means of 
service is acceptable to those other parties, or a paper copy of the 
document should be personally served on

[[Page 106]]

the other parties, but if email is not acceptable to the receiving party 
and personal service is not feasible, service of a paper copy should be 
by first-class or express mail. When a party is represented by a 
practitioner or attorney, service upon the practitioner is deemed to be 
service upon the party. If a document is filed with the Board through 
the e-filing process, a copy of the e-filed document should be emailed 
to other parties, or a paper copy of the document should be personally 
served on the other parties, but if neither email nor personal service 
is feasible, service of a paper copy should be by first-class or express 
mail.
    (b) Exceptions. Copies of letters to the Board relating to oral 
argument under part 1116, and subpoenas under Sec.  1113.2, need not be 
served on other parties of the proceeding. Service of comments in 
rulemaking proceedings is not required, unless specifically directed by 
the Board.
    (c) Sample Certificate of Service.

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

________________________________________________________________________

Signature Date

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

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



Sec.  1104.13  Replies and motions.

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

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



Sec.  1104.14  Protective orders to maintain confidentiality.

    (a) Segregation of confidential material. A party submitting 
materials which it believes are entitled to be kept confidential and not 
made part of the public docket should submit these materials as a 
separate package, clearly marked on the outside ``Confidential materials 
subject to a request for a protective order.'' When confidential 
documents are filed, redacted versions must also be filed.
    (b) Requests for protective orders. A request that materials 
submitted to the Board be kept confidential should be submitted as a 
separate pleading and clearly headed ``Motion for protective order.''

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



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

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

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

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



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



Sec.
1105.1 Purpose.

[[Page 107]]

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

    Authority: 16 U.S.C. 1456 and 1536; 42 U.S.C. 4332 and 6362(b); 49 
U.S.C. 701 note (1995) (Savings Provisions), 721(a), 10502, and 10903-
10905; 54 U.S.C. 306108.

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



Sec.  1105.1  Purpose.

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



Sec.  1105.2  Responsibility for administration of these rules.

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

[81 FR 8853, Feb. 23, 2016]



Sec.  1105.3  Information and assistance.

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

[81 FR 8853, Feb. 23, 2016]



Sec.  1105.4  Definitions.

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

[[Page 108]]

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

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



Sec.  1105.5  Determinative criteria.

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

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

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



Sec.  1105.6  Classification of actions.

    (a) Environmental Impact Statements will normally be prepared for 
rail construction proposals other than those described in paragraph 
(b)(1) of this section.
    (b) Environmental Assessments will normally be prepared for the 
following proposed actions:
    (1) Construction of connecting track within existing rail rights-of-
way, or on land owned by the connecting railroads;
    (2) Abandonment of a rail line (unless proposed under the Northeast 
Rail Services Act or the Bankruptcy Act);
    (3) Discontinuance of passenger train service or freight service 
(except for discontinuances of freight service under modified 
certificates issued under 49 CFR 1150.21 and discontinuances of trackage 
rights where the affected line will continue to be operated);
    (4) An acquisition, lease or operation under 49 U.S.C. 10901, 10902, 
or 10907, or consolidation, merger or acquisition of control under 49 
U.S.C. 11323 and 14303, if it will result in either
    (i) Operational changes that would exceed any of the thresholds 
established in Sec.  1105.7(e) (4) or (5); or
    (ii) An action that would normally require environmental 
documentation (such as a construction or abandonment);
    (5) A rulemaking, policy statement, or legislative proposal that has 
the potential for significant environmental impacts; and
    (6) Any other proceeding not listed in paragraphs (a) or (c) of this 
section.
    (c) No environmental documentation will normally be prepared 
(although a Historic Report may be required under section 1105.8) for 
the following actions:

[[Page 109]]

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

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



Sec.  1105.7  Environmental reports.

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

[[Page 110]]

    (7) The U.S. Army Corps of Engineers;
    (8) The National Park Service;
    (9) The U.S. Soil Conservation Service;
    (10) The National Geodetic Survey (formerly known as the Coast and 
Geodetic Survey) as designated agent for the National Geodetic Survey 
and the U.S. Geological Survey; and
    (11) Any other agencies that have been consulted in preparing the 
report.

For information regarding the names and addresses of the agencies to be 
contacted, interested parties may contact SEA at the address and 
telephone number indicated in Sec.  1105.3.
    (c) Certification. In its Environmental Report, the applicant must 
certify that it has sent copies of the Environmental Report to the 
agencies listed and within the time period specified in paragraph (b) of 
this section and that it has consulted with all appropriate agencies in 
preparing the report. These consultations should be made far enough in 
advance to afford those agencies a reasonable opportunity to provide 
meaningful input. Finally, in every abandonment exemption case, 
applicant shall certify that it has published in a newspaper of general 
circulation in each county through which the line passes a notice that 
alerts the public to the proposed abandonment, to available reuse 
alternatives, and to how it may participate in the STB proceeding.
    (d) Documentation. Any written responses received from agencies that 
were contacted in preparing the Environmental Report shall be attached 
to the report. Oral responses from such agencies shall be briefly 
summarized in the report and the names, titles, and telephone numbers of 
the persons contacted shall be supplied. A copy of, or appropriate 
citation to, any reference materials relied upon also shall be provided.
    (e) Content. The Environmental Report shall include all of the 
information specified in this paragraph, except to the extent that 
applicant explains why any portion(s) are inapplicable. If an historic 
report is required under Sec.  1105.8, the Environmental Report should 
also include the Historic Report required by that section.
    (1) Proposed action and alternatives. Describe the proposed action, 
including commodities transported, the planned disposition (if any) of 
any rail line and other structures that may be involved, and any 
possible changes in current operations or maintenance practices. Also 
describe any reasonable alternatives to the proposed action. Include a 
readable, detailed map and drawings clearly delineating the project.
    (2) Transportation system. Describe the effects of the proposed 
action on regional or local transportation systems and patterns. 
Estimate the amount of traffic (passenger or freight) that will be 
diverted to other transportation systems or modes as a result of the 
proposed action.
    (3) Land use. (i) Based on consultation with local and/or regional 
planning agencies and/or a review of the official planning documents 
prepared by such agencies, state whether the proposed action is 
consistent with existing land use plans. Describe any inconsistencies.
    (ii) Based on consultation with the U.S. Soil Conservation Service, 
state the effect of the proposed action on any prime agricultural land.
    (iii) If the action affects land or water uses within a designated 
coastal zone, include the coastal zone information required by Sec.  
1105.9.
    (iv) If the proposed action is an abandonment, state whether or not 
the right-of-way is suitable for alternative public use under 49 U.S.C. 
10905 and explain why.
    (4) Energy. (i) Describe the effect of the proposed action on 
transportation of energy resources.
    (ii) Describe the effect of the proposed action on recyclable 
commodities.
    (iii) State whether the proposed action will result in an increase 
or decrease in overall energy efficiency and explain why.
    (iv) If the proposed action will cause diversions from rail to motor 
carriage of more than:
    (A) 1,000 rail carloads a year; or
    (B) An average of 50 rail carloads per mile per year for any part of 
the affected line, quantify the resulting net change in energy 
consumption and show the data and methodology used to

[[Page 111]]

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

[[Page 112]]

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

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



Sec.  1105.8  Historic Reports.

    (a) Filing. An applicant proposing an action identified in Sec.  
1105.6 (a) or (b), or an action in Sec.  1105.6(c) that will result in 
the lease, transfer, or sale of a railroad's line, sites or structures, 
must submit (with its application, petition or notice) the Historic 
Report described in paragraph (d) of this section, unless excepted under 
paragraph (b) of this section. This report should be combined with the 
Environmental Report where one is required. The purpose of the Historic 
Report is to provide the Board with sufficient information to conduct 
the consultation process required by the National Historic Preservation 
Act. The Historic Report may be filed with the Board electronically.
    (b) Exceptions. The following proposals do not require an historic 
report:
    (1) A sale, lease or transfer of a rail line for the purpose of 
continued rail operations where further STB approval is required to 
abandon any service and

[[Page 113]]

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

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

[[Page 114]]



Sec.  1105.9  Coastal Zone Management Act requirements.

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



Sec.  1105.10  Board procedures.

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

[[Page 115]]

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

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



Sec.  1105.11  Transmittal letter for Applicant's Report.

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

[[Page 116]]

in transmitting the Environmental and/or Historic Reports.

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

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

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

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



Sec.  1105.12  Sample newspaper notices for abandonment exemption cases.

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

           Appendix to Sec.  1105.12--Sample Newspaper Notices

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

       Notice of Intent To Abandon or To Discontinue Rail Service

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

[[Page 117]]

for conditions should be served on the applicant's representative: 
(Name, address and phone number).

 Sample Local Newspaper Notice for Petitions for Abandonment Exemptions

       Notice of Intent To Abandon or To Discontinue Rail Service

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

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



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



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

    Authority: 5 U.S.C. 553; 5 U.S.C. 559; 49 U.S.C. 721; 49 U.S.C. 
10101; 49 U.S.C. 11323-11325; 42 U.S.C. 4332.

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



Sec.  1106.1  Purpose.

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



Sec.  1106.2  Definitions.

    The following definitions apply to this part:
    Act means the ICC Termination Act of 1995, Pub. L. 104-88, 109 Stat. 
803 (1995).
    Amalgamation of operations, as defined by the Federal Railroad 
Administration at 49 CFR 244.9, means the migration, combination, or 
unification of one set of railroad operations with another

[[Page 118]]

set of railroad operations, including, but not limited to, the 
allocation of resources affecting railroad operations (e.g., changes in 
personnel, track, bridges, or communication or signal systems; or use or 
deployment of maintenance-of-way equipment, locomotives, or freight or 
passenger cars).
    Applicant means a Class I railroad or a Class II railroad engaging 
in a transaction subject to this part.
    Board means the Surface Transportation Board.
    Class I or Class II railroad has the meaning assigned by the Board's 
regulations (49 CFR part 1201; General Instructions 1-1), as those 
regulations may be revised by the Board (including modifications in 
class thresholds based on the revenue deflator formula) from time to 
time.
    Environmental documentation means either an Environmental Assessment 
or an Environmental Impact Statement prepared in accordance with the 
National Environmental Policy Act and Board's environmental rules at 49 
CFR part 1105.
    Federal Railroad Administration (``FRA'') means the agency within 
the Department of Transportation responsible for railroad safety.
    Safety Integration Plan (``SIP'') means a comprehensive written 
plan, prepared in accordance with FRA guidelines or regulations, 
explaining the process by which Applicants intend to integrate the 
operation of the properties involved in a manner that would maintain 
safety at every step of the integration process, in the event the Board 
approves the transaction that requires a SIP.
    Section of Environmental Analysis (``SEA'') means the Section that 
prepares the Board's environmental documents and analyses.
    Transaction means an application by a Class I railroad that proposes 
to consolidate with, merge with, or acquire control under 49 U.S.C. 
11323(a) of another Class I railroad, or with a Class II railroad where 
there is a proposed amalgamation of operations, as defined by FRA's 
regulations at 49 CFR 244.9. ``Transaction'' also includes a proceeding 
other than those specified above if the Board concludes that a SIP is 
necessary in its proper consideration of the application or other 
request for authority.



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

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



Sec.  1106.4  The Safety Integration Plan process.

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

[[Page 119]]

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



Sec.  1106.5  Waiver.

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



Sec.  1106.6  Reservation of Jurisdiction.

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

                          PART 1107 [RESERVED]



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



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

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

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



Sec.  1108.1  Definitions.

    As used in this part:
    (a) Arbitrator means a single person appointed to arbitrate pursuant 
to these rules.
    (b) Arbitrator Panel means a group of three people appointed to 
arbitrate pursuant to these rules. One panel member would be selected 
from the roster by each side to the arbitration dispute, and the parties 
would mutually agree to the selection of the third-lead arbitrator under 
the ``strike'' methodology described in Sec.  1108.6(c).
    (c) Arbitration program means the program established by the Surface 
Transportation Board in this part under which participating parties, 
including rail carriers and shippers, have agreed voluntarily in 
advance, or on a case-by-case basis to resolve disputes about 
arbitration-program-eligible matters brought before the Board using the 
Board's arbitration procedures.
    (d) Arbitration-program-eligible matters are those disputes or 
components of disputes, that may be resolved using the Board's 
arbitration program and include disputes involving one or more of the 
following subjects: rates; Demurrage; accessorial charges; misrouting or 
mishandling of rail cars; and disputes involving a carrier's published 
rules and practices as applied to particular rail transportation.
    (e) Counterclaim is an independent arbitration claim filed by a 
respondent against a complainant arising out of the same set of 
circumstances or is substantially related to the underlying arbitration 
complaint and subject to the Board's jurisdiction.
    (f) Final arbitration decision is the unredacted decision served 
upon the

[[Page 120]]

parties 30 days after the close of the arbitration's evidentiary phase.
    (g) Interstate Commerce Act means the Interstate Commerce Act as 
amended by the ICC Termination Act of 1995 and the Surface 
Transportation Board Reauthorization Act of 2015.
    (h) Lead arbitrator or single arbitrator means the arbitrator 
selected by the strike methodology outlined in Sec.  1108.6(c).
    (i) Monetary award cap means a limit on awardable damages of 
$25,000,000 in rate disputes, including any rate prescription, and 
$2,000,000 in practice disputes, unless the parties mutually agree to a 
lower award cap. If parties bring one or more counterclaims, such 
counterclaims will be subject to a separate monetary award cap.
    (j) Practice disputes are disputes involving demurrage; accessorial 
charges; misrouting or mishandling of rail cars; and disputes involving 
a carrier's published rules and practices as applied to particular rail 
transportation.
    (k) Statutory jurisdiction means the jurisdiction conferred on the 
STB by the Interstate Commerce Act, including jurisdiction over rail 
transportation or services that have been exempted from regulation.
    (l) STB or Board means the Surface Transportation Board.
    (m) Rate disputes are disputes involving the reasonableness of a 
rail carrier's rates.

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



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

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

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



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

    (a) Opt-in procedures. Any rail carrier, shipper, or other party 
eligible to bring or defend disputes before the Board may at any time 
voluntarily choose to opt into the Board's arbitration program. Opting 
in may be for a particular dispute or for all potential disputes before 
the Board unless and until the party exercises the opt-out procedures 
discussed in Sec.  1108.3(b). To opt in parties may:
    (1) File a notice with the Board, under Docket No. EP 699, advising 
the Board of the party's intent to participate in the arbitration 
program. Such notice may be filed at any time and shall be effective 
upon receipt by the Board.

[[Page 121]]

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

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



Sec.  1108.4  Use of arbitration.

    (a) Arbitration-program-eligible matters. Matters eligible for 
arbitration under the Board's program are: rates; Demurrage; accessorial 
charges; misrouting or mishandling of rail cars; and disputes involving 
a carrier's published rules and practices as applied to particular rail 
transportation. Parties may agree in writing to arbitrate additional 
matters on a case-by-case basis as provided in paragraph (e) of this 
section.
    (b) Monetary award cap. Arbitration claims will be subject to the 
arbitration program award cap of $25,000,000, including any rate 
prescription, per rate dispute and $2,000,000 per practice dispute 
unless:
    (1) The defending party's opt-in notice provides for a lower 
monetary cap or;
    (2) The parties agree to select a lower award cap that will govern 
their arbitration proceeding. The parties may change the award cap by 
incorporating an appropriate provision in their agreement to arbitrate.
    (3) Counterclaims will not offset against the monetary award cap of 
the initiating claim. A counterclaim is an independent claim and is 
subject to a monetary award cap of $25,000,000, including any rate 
prescription, per rate dispute and $2,000,000 per practice dispute, 
separate from the initiating claim, or to a lower cap agreed upon by the 
parties in accordance with Sec.  1108.4(b)(2).
    (c) Assignment of arbitration-program-eligible matters. The Board 
shall assign to arbitration all arbitration-program-eligible disputes 
where all parties to the proceeding are participants in the Board's 
arbitration program, or where one or more parties to the matter are 
participants in the Board's arbitration program, and all other parties 
to the proceeding request or consent to arbitration for a particular 
dispute.
    (d) Matters partially arbitration-program-eligible. Where the issues 
in a proceeding before the Board relate in part

[[Page 122]]

to arbitration-program-eligible matters, only those parts of the dispute 
related to arbitration-program-eligible matters may be arbitrated 
pursuant to the arbitration program, unless the parties petition the 
Board in accordance with paragraph (e) of this section to include 
additional disputes.
    (e) Other matters. Parties may petition the Board, on a case-by-case 
basis, to assign to arbitration disputes, or portions of disputes, not 
listed as arbitration-program-eligible matters. This may include 
counterclaims and affirmative defenses. Such disputes are subject to a 
monetary award cap of $2,000,000 or to a lower cap agreed upon by the 
parties in accordance with paragraph (b)(2) of this section. The Board 
will not consider for arbitration types of disputes that are expressly 
prohibited in Sec.  1108.2(b).
    (f) Arbitration clauses. Nothing in the Board's regulations shall 
preempt the applicability of, or otherwise supersede, any new or 
existing arbitration clauses contained in agreements between shippers 
and carriers.
    (g) Rate disputes. Arbitration of rate disputes will only be 
available to parties if the rail carrier has market dominance as 
determined by the Board under 49 U.S.C. 10707. In rate disputes, the 
arbitrator or panel of arbitrators, as applicable, shall consider the 
Board's methodologies for setting maximum lawful rates, giving due 
consideration to the need for differential pricing to permit a rail 
carrier to collect adequate revenues (as determined under 49 U.S.C. 
10704(a)(2)).

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



Sec.  1108.5  Arbitration commencement procedures.

    (a) Complaint. Except as provided in paragraph (e) of this section, 
arbitration under these rules shall commence with a written complaint, 
which shall be filed and served in accordance with Board rules contained 
at part 1104 of this chapter. Each complaint must contain a statement 
that the complainant and the respondent are participants in the Board's 
arbitration program pursuant to Sec.  1108.3(a), or that the complainant 
is willing to arbitrate voluntarily all or part of the dispute pursuant 
to the Board's arbitration procedures, and the relief requested.
    (1) If the complainant desires arbitration with a single arbitrator 
instead of a three-member arbitration panel, the complaint must make 
such a request in its complaint.
    (2) If the complainant is not a participant in the arbitration 
program, the complaint may specify the issues that the complainant is 
willing to arbitrate.
    (3) If the complainant desires to set a lower amount of potential 
liability than the monetary award cap that would otherwise apply, the 
complaint should specify what amount of potential liability the 
complainant is willing to incur.
    (b) Answer to the complaint. Any respondent must, within 20 days of 
the date of the filing of a complaint, answer the complaint. The answer 
must state whether the respondent is a participant in the Board's 
arbitration program, or whether the respondent is willing to arbitrate 
the particular dispute.
    (1) If the complaint requests arbitration by a single arbitrator 
instead of by an arbitration panel, the answer must contain a statement 
consenting to arbitration by a single arbitrator or an express rejection 
of that request.
    (i) The respondent may also initiate a request to use a single 
arbitrator instead of an arbitration panel.
    (ii) Absent the parties agreeing to arbitration through a single 
arbitrator, the Board will assign the case to arbitration by a panel of 
three arbitrators as provided by Sec.  1108.6(a) through (d). The party 
requesting the single arbitrator shall at that time provide written 
notice to the Board and the other parties if it continues to object to a 
three-member arbitration panel. Upon timely receipt of the notice, the 
Board shall the set the case for formal adjudication by the Board.
    (2) When the complaint limits the arbitrable issues, the answer must 
state whether the respondent agrees to those limitations or, if the 
respondent is already a participant in the Board's arbitration program, 
whether those limitations are consistent with the respondent's opt-in 
notice filed with the Board

[[Page 123]]

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

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



Sec.  1108.6  Arbitrators.

    (a) Panel of arbitrators. Unless otherwise requested in writing 
pursuant to Sec.  1108.5(a)(1) and agreed to by all parties to the 
arbitration, all matters arbitrated under these rules shall be resolved 
by a panel of three arbitrators.
    (b) Roster. Arbitration shall be conducted by an arbitrator (or 
panel of arbitrators) selected, as provided herein, from a roster of 
persons with rail transportation, economic regulation, professional or 
business experience, including agriculture, in the private sector. 
Persons seeking to be included on the roster must have training in 
dispute resolution and/or experience in arbitration or other forms of 
dispute resolution. The Board will establish the initial roster of 
arbitrators by no-objection vote. The Board may modify the roster at any 
time by no-objection vote to include other eligible arbitrators or 
remove arbitrators who are no longer available. The Board's roster will 
provide a brief biographical sketch

[[Page 124]]

of each arbitrator, including information such as background, area(s) of 
expertise, arbitration experience, and geographical location, as well as 
general contact information and fees, based on the information supplied 
by the arbitrator. The roster shall be published on the Board's Web 
site. The Board will update the roster every year. The Board will seek 
public comment on any modifications that should be made to the roster, 
including requesting the names and qualifications of new arbitrators who 
wish to be placed on the roster, and updates from arbitrators appearing 
on the roster to confirm that the biographical information on file with 
the Board remains accurate. Arbitrators who wish to remain on the roster 
must notify the Board of their continued availability.
    (c) Selecting the lead arbitrator. If the parties cannot mutually 
agree on a lead arbitrator for a panel of arbitrators, the parties shall 
use the following process to select a lead arbitrator: First, each party 
will be given three peremptory strikes to remove names from the Board's 
roster. Then, from the remaining names on the roster, each party will 
submit a list of up to 10 potential arbitrators. If only one arbitrator 
appears on both lists, he or she would be selected as the single or lead 
arbitrator. If multiple arbitrators appear on both lists, the parties 
would alternatively strike names of the jointly listed arbitrators until 
one remains, beginning with complainant. If no name appears on both 
lists, the parties would alternatively strike from the Board's entire 
roster, as amended based on the peremptory strikes. A lead arbitrator 
shall be selected within 14 days of the Board initiating the arbitration 
process.
    (1) The parties are responsible for conducting their own due 
diligence in striking names from the lead arbitrator list. The final 
selection of a lead arbitrator is not challengeable before the Board.
    (2) The lead arbitrator appointed through the strike methodology 
shall serve as the head of the arbitration panel and will be responsible 
for ensuring that the tasks detailed in Sec. Sec.  1108.7 and 1108.9 are 
accomplished.
    (d) Party-appointed arbitrators. The party or parties on each side 
of an arbitration dispute shall select one arbitrator from the roster, 
regardless of whether the other party struck the arbitrator's name in 
selecting a lead arbitrator. The party or parties on each side will 
appoint that side's own arbitrator within 14 days of the Board 
initiating the arbitration process. Parties on one side of an 
arbitration proceeding may not challenge the arbitrator selected by the 
opposing side.
    (e) Use of a single arbitrator. Parties to arbitration may request 
the use of a single arbitrator. Requests for use of a single arbitrator 
must be included in a complaint or an answer as required in Sec.  
1108.5(a)(1), or in the joint notice filed under Sec.  1108.5(e). 
Parties to both sides of an arbitration dispute must agree to the use of 
a single arbitrator in writing. If the single-arbitrator option is 
selected, and if parties cannot mutually agree on a single arbitrator, 
the arbitrator selection procedures outlined in paragraph (c) of this 
section shall apply.
    (f) Arbitrator incapacitation. If at any time during the arbitration 
process a selected arbitrator becomes incapacitated or is unwilling or 
unable to fulfill his or her duties, a replacement arbitrator shall be 
promptly selected by either of the following processes:
    (1) If the incapacitated arbitrator was appointed directly by a 
party to the arbitration, the appointing party shall, without delay, 
appoint a replacement arbitrator pursuant to the procedures set forth in 
Sec.  1108.6(d).
    (2) If the incapacitated arbitrator was the lead or single 
arbitrator, the parties shall promptly inform the Board of the 
arbitrator's incapacitation and the selection procedures set forth in 
paragraph (c) of this section shall apply.

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



Sec.  1108.7  Arbitration procedures.

    (a) Initiation. With the exception of rate dispute arbitration 
proceedings, the Board shall initiate the arbitration process within 40 
days after submission of a written complaint or joint notice filed under 
Sec.  1108.5(e). In arbitrations involving rate disputes, the Board 
shall

[[Page 125]]

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

[81 FR 69416, Oct. 6, 2016]



Sec.  1108.8  Relief.

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

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



Sec.  1108.9  Decisions.

    (a) Decision requirements. Whether by a panel of arbitrators or a 
single arbitrator, all arbitration decisions shall be in writing and 
shall contain findings of fact and conclusions of law. All arbitration 
decisions must be consistent with sound principles of rail regulation 
economics. The arbitrator shall provide an unredacted draft of the 
arbitration decision to the parties to the dispute, in accordance with 
any protective order governing the release of confidential and highly 
confidential information pursuant to Sec.  1108.7(e).
    (b) Redacting arbitration decision. The lead or single arbitrator 
shall also provide the parties with a draft of the decision that redacts 
or omits all proprietary business information and confidential 
information pursuant to any such requests of the parties under the 
arbitration agreement.
    (c) Party input. The parties may then suggest what, if any, 
additional redactions they think are required to protect against the 
disclosure of proprietary and confidential information in the decision.
    (d) Lead or single arbitrator authority. The lead or single 
arbitrator shall retain the final authority to determine what, if any, 
additional redactions are appropriate to make.
    (e) Service of arbitration decision. The lead or single arbitrator 
shall serve copies of the unredacted decision upon the parties in 
accordance with the timetable and requirements set forth in Sec.  
1108.7(c). The lead or single arbitrator shall also serve copies of the 
redacted decision upon the parties and the Board in accordance with the 
timetable and requirements set forth in Sec.  1108.7(c). The arbitrator 
may serve the decision via any service method permitted by the Board's 
regulations.
    (f) Service in the case of an appeal. In the event an arbitration 
decision is appealed to the Board, the lead or single arbitrator shall, 
without delay and under seal, serve upon the Board an unredacted copy of 
the arbitration decision.
    (g) Publication of decision. Redacted copies of the arbitration 
decisions shall be published and maintained on the Board's Web site.

[[Page 126]]

    (h) Arbitration decisions are binding. By arbitrating pursuant to 
these procedures, each party agrees that the decision and award of the 
arbitrator(s) shall be binding and judicially enforceable in any court 
of appropriate jurisdiction, subject to the rights of appeal provided in 
Sec.  1108.11.

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



Sec.  1108.10  Precedent.

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



Sec.  1108.11  Enforcement and appeals.

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

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



Sec.  1108.12  Fees and costs.

    (a) Filing fees. When parties use the Board's arbitration procedures 
to resolve a dispute, the party filing the complaint or an answer shall 
pay the applicable filing fee pursuant to 49 CFR part 1002.
    (b) Costs. The parties shall share the costs incurred by the Board 
and arbitrators equally, with each party responsible for paying its own 
legal and other associated arbitration costs.

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



Sec.  1108.13  Additional parties per side.

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



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



Sec.
1109.1 Mediation statement of purpose, organization, and jurisdiction.
1109.2 Commencement of mediation.
1109.3 Mediation procedures.
1109.4 Mandatory mediation in rate cases to be considered under the 
          stand-alone cost methodology.

[[Page 127]]

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

    Authority: 5 U.S.C. 571 et seq. and 49 U.S.C. 1321(a), 24712(c), and 
24905(c).

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



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

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



Sec.  1109.2  Commencement of mediation.

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



Sec.  1109.3  Mediation procedures.

    (a) Mediation model. The Chairman will appoint one or more Board 
employees trained in mediation to mediate any dispute assigned for 
mediation. Alternatively, the parties to a matter may agree to use a 
non-Board mediator if they so inform the Board within 10 days of an 
order assigning the dispute to mediation. If a non-Board mediator is 
used, the parties shall share equally the fees and/or costs of the 
mediator. The following restrictions apply to any mediator selected by 
the Board or the parties:
    (1) No person serving as a mediator may thereafter serve as an 
advocate for a party in any other proceeding arising from or related to 
the mediated dispute, including, without limitation, representation of a 
party to the mediation before any other federal court or agency; and
    (2) If the mediation does not fully resolve all issues in the docket 
before the Board, the Board employees serving as mediators may not 
thereafter advise the Board regarding the future disposition of the 
remaining issues in the docket.
    (b) Mediation period. The mediation period shall be 30 days, 
beginning on the date of the first mediation session. The Board may 
extend mediation for additional periods of time not to exceed 30 days 
per period, pursuant to mutual written requests of all parties to the 
mediation proceeding. The Board will not extend mediation for additional 
periods of time where one or more parties to mediation do not agree to 
an extension. The Board will not order mediation more than once in any 
particular proceeding, but may permit it if all parties to a matter 
mutually request another round of mediation. The mediator(s) shall 
notify the Board whether the parties have reached any agreement by the 
end of the 30-day period.
    (c) Party representatives. At least one principal of each party, who 
has the authority to bind that party, shall participate in the mediation 
and be

[[Page 128]]

present at any session at which the mediator(s) request that principal 
to be present.
    (d) Confidentiality. Mediation is a confidential process, governed 
by the confidentiality rules of the Administrative Dispute Resolution 
Act of 1996 (ADRA) (5 U.S.C. 574). In addition to the confidentiality 
rules set forth in the ADRA, the Board requires the following additional 
confidentiality protections:
    (1) All parties to Board sponsored mediation will sign an Agreement 
to Mediate. The Agreement to Mediate shall incorporate these rules by 
reference.
    (2) As a condition of participation, the parties and any interested 
parties joining the mediation must agree to the confidentiality of the 
mediation process as provided in this section and further detailed in an 
agreement to mediate. The parties to mediation, including the 
mediator(s), shall not testify in administrative or judicial proceedings 
concerning the issues discussed in mediation, nor submit any report or 
record of the mediation discussions, other than the settlement agreement 
with the consent of all parties, except as required by law.
    (3) Evidence of conduct or statements made during mediation is not 
admissible in any Board proceeding. If mediation fails to result in a 
full resolution of the dispute, evidence that is otherwise discoverable 
may not be excluded from introduction into the record of the underlying 
proceeding merely because it was presented during mediation. Such 
materials may be used if they are disclosed through formal discovery 
procedures established by the Board or other adjudicatory bodies.
    (e) Abeyance. Except as otherwise provided for in Sec.  1109.4(f) 
and part 1111 of this chapter, any party may request that a proceeding 
be held in abeyance while mediation procedures are pursued. Any such 
request should be submitted to the Chief, Section of Administration, 
Office of Proceedings. The Board shall promptly issue an order in 
response to such requests. Except as otherwise provided for in Sec.  
1109.4(g) and part 1111 of this chapter, the Board may also direct that 
a proceeding be held in abeyance pending the conclusion of mediation. 
Where both parties to mediation voluntarily consent to mediation, the 
period during which any proceeding is held in abeyance shall toll 
applicable statutory deadlines. Where one or both parties to mediation 
do not voluntarily consent to mediation, the Board will not hold the 
underlying proceeding in abeyance and statutory deadlines will not be 
tolled.
    (f) Mediated settlements. Any settlement agreement reached during or 
as a result of mediation must be in writing, and signed by all parties 
to the mediation. The parties need not provide a copy of the settlement 
agreement to the Board, or otherwise make the terms of the agreement 
public, but the parties, or the mediator(s), shall notify the Board that 
the parties have reached a mutually agreeable resolution and request 
that the Board terminate the underlying Board proceeding. Parties to the 
settlement agreement shall waive all rights of administrative appeal to 
the issues resolved by the settlement agreement.
    (g) Partial resolution of mediated issues. If the parties reach only 
a partial resolution of their dispute, they or the mediator(s) shall so 
inform the Board, and the parties shall file any stipulations they have 
mutually reached, and ask the Board to reactivate the procedural 
schedule in the underlying proceeding to decide the remaining issues.



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

    (a) Mandatory use of mediation. A shipper seeking rate relief from a 
railroad or railroads in a case involving the stand-alone cost 
methodology must engage in non-binding mediation of its dispute with the 
railroad upon filing a formal complaint under 49 CFR part 1111.
    (b) Assignment of mediators. Within 10 business days after the 
shipper files its formal complaint, the Board will assign one or more 
mediators to the case. Within 5 business days of the assignment to 
mediate, the mediator(s) shall contact the parties to discuss ground 
rules and the time and location of any meeting.
    (c) Party representatives. At least one principal of each party, who 
has the

[[Page 129]]

authority to bind that party, shall participate in the mediation and be 
present at any session at which the mediator(s) requests that the 
principal be present.
    (d) Settlement. The mediator(s) will work with the parties to try to 
reach a settlement of all or some of their dispute or to narrow the 
issues in dispute, and reach stipulations that may be incorporated into 
any adjudication before the Board if mediation does not fully resolve 
the dispute. If the parties reach a settlement, the mediator(s) may 
assist in preparing a written settlement agreement.
    (e) Confidentiality. The entire mediation process shall be private 
and confidential. No party may use any concessions made or information 
disclosed to either the mediator(s) or the opposing party before the 
Board or in any other forum without the consent of the other party. The 
confidentiality provision of Sec.  1109.3(d) and the mediation agreement 
shall apply to all mediations conducted under this section.
    (f) Mediation period. The mediation shall be completed within 60 
days of the appointment of the mediator(s). The mediation may be 
terminated prior to the end of the 60-day period only with the 
certification of the mediator(s) to the Board. Requests to extend 
mediation, or to re-engage it later, will be entertained on a case-by-
case basis, but only if filed by all interested parties.
    (g) Procedural schedule. Absent a specific order from the Board, the 
onset of mediation will not affect the procedural schedule in stand 
alone cost rate cases set forth at 49 CFR 1111.8(a).



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

    (a) In addition to the mediation procedures under this part that are 
available following the filing of a complaint in a proceeding before the 
Board, Amtrak or a State member of the State Supported Route Committee 
established under 49 U.S.C. 24712 may request that the Board informally 
assist in securing outside professional mediation services in order to 
resolve disputes arising from: Implementation of, or compliance with, 
the cost allocation methodology for State-Supported Routes developed 
under section 209 of the Passenger Rail Investment and Improvement Act 
of 2008 or amended under 49 U.S.C. 24712(a)(6); invoices or reports 
provided under 49 U.S.C. 24712(b); or rules and procedures implemented 
by the State Supported Route Committee under 49 U.S.C. 24712(a)(4). With 
respect to a particular dispute, such a request for informal assistance 
in securing outside professional mediation services may be submitted to 
the Board:
    (1) In the absence of a complaint proceeding before the Board; or
    (2) If, while a formal complaint is pending before the Board, a 
motion is filed in that formal proceeding requesting that it be held in 
abeyance in light of the request for informal assistance.
    (b) In addition to the mediation procedures under this part that are 
available following the filing of a complaint in a proceeding before the 
Board, the Northeast Corridor Commission established under 49 U.S.C. 
24905, Amtrak, or public authorities providing commuter rail passenger 
transportation on the Northeast Corridor may request that the Board 
informally assist in securing outside professional mediation services in 
order to resolve disputes involving implementation of, or compliance 
with, the policy developed under 49 U.S.C. 24905(c)(1). With respect to 
a particular dispute, such a request for informal assistance in securing 
outside professional mediation services may be submitted to the Board:
    (1) In the absence of a complaint proceeding before the Board; or
    (2) If, while a formal complaint is pending before the Board, a 
motion is filed in that formal proceeding requesting that it be held in 
abeyance in light of the request for informal assistance.
    (c) A request for informal Board assistance in securing outside 
professional mediation services under paragraph (a) or (b) of this 
section shall be submitted by letter duly authorized to be submitted to 
the Board by the requesting party. The request letter shall be addressed 
to the Director of the Board's Office of Public Assistance, Governmental 
Affairs, and Compliance, and shall include a concise description

[[Page 130]]

of the issues for which outside professional mediation services are 
sought. The Office of Public Assistance, Governmental Affairs, and 
Compliance shall contact the requesting party in response to such 
request within 14 days of receipt of the request.

[81 FR 85904, Nov. 29, 2016]



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



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

    Authority: 49 U.S.C. 721.

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



Sec.  1110.1  Applicability.

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



Sec.  1110.2  Opening of proceeding.

    (a) The Board may open a rulemaking proceeding on its own motion. In 
doing so, it may consider the recommendations of other agencies of the 
United States and of other persons.
    (b) Any person may petition the Board to open a proceeding to issue, 
amend, or repeal a rule.
    (c) Each petition seeking the institution of a proceeding, filed 
under this section must:
    (1) Be submitted, along with 15 copies, to the Chief, Section of 
Administration, Office of Proceedings, Surface Transportation Board, 
Washington DC;
    (2) Set forth the text or substance of the rule or amendment 
proposed or specify the rule that the petitioner wants to have repealed 
or modified;
    (3) Explain the interest of the petitioner in the action requested; 
and
    (4) Contain any information and arguments available to the 
petitioner to support the action sought and may detail any 
environmental, energy, or small business considerations.
    (d) In rail cases, the Board will grant or deny a petition within 
120 days of its receipt.
    (e) If the Board determines that a petition contains adequate 
justification, it will open a rulemaking proceeding pursuant to Sec.  
1110.3 and will notify the petitioner of its action.
    (f) If the Board determines that the petition does not contain 
adequate justification for opening a rulemaking proceeding, the petition 
will be denied, with a brief statement of the grounds for denial, and 
the petitioner will be notified of the Board's action.
    (g) If a petition under this section concerning a common carrier by 
railroad is granted, the Board will proceed as soon as it is 
practicable. If the petition is denied, the Board will publish a 
statement of the reasons for the denial in the Federal Register.

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



Sec.  1110.3  Publication of notices.

    (a) Interpretive rules, general statements of policy, and rules 
relating to organization, procedure, or practice may be issued as final 
without notice or other public rulemaking proceedings.
    (b) General rulemaking proceedings will be opened by the issuance of 
either a notice of intent to institute a rulemaking proceeding, an 
advance notice of proposed rulemaking, or a notice of proposed rules. 
The Board will publish the notice in the Federal Register, and it will 
invite the public to participate in the rulemaking proceeding. No notice 
will be issued when the Board finds for good cause, that notice is 
impractical or unnecessary or contrary to the public interest.
    (c) Notices of proposed rulemakings will include:
    (1) The proposed rules, if prepared;

[[Page 131]]

    (2) A discussion of why the rulemakings are needed and what they are 
intended to accomplish;
    (3) Identification of significant dates in the proceedings, such as 
dates by which comments must be filed or on which the rules are proposed 
to take effect;
    (4) Any relevant addresses;
    (5) The name and phone number of an individual within the Board who 
can provide further information concerning the proceedings;
    (6) Any supplementary information required; and
    (7) Reference to the legal authority under which the rules are 
proposed.
    (d) In addition to being published in the Federal Register, notices 
of proposed rulemaking and subsequent notices and decisions in 
rulemaking proceedings, will be served on the parties by the Office of 
Proceedings and made available to the public through the Office of 
Public Assistance, Governmental Affairs, and Compliance. To the extent 
possible, the date of service will be the same as the date of 
publication in the Federal Register. When the service and publication 
dates are not the same, the date of publication in the Federal Register 
is controlling for the purpose of determining time periods set by these 
procedures or by notices issued in individual proceedings.

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



Sec.  1110.4  Participation.

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



Sec.  1110.5  Consideration of comments received.

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

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



Sec.  1110.6  Petitions for extension of time to comment.

    (a) Any person may petition the Board for an extension of time to 
submit comments in response to a notice of proposed rulemaking. The 
petition and one copy must be submitted at least 10 days prior to the 
deadline for filing comments. The filing of the petition does not 
automatically extend the time for the filing of petitioner's comments.
    (b) The Board will grant the petition only if the petitioner shows a 
substantive interest in the proposed rule and good cause for the 
extension, and if the extension is in the public interest. If an 
extension is granted, notice of it will be published in the Federal 
Register, and it will apply to all persons.



Sec.  1110.7  Availability of dockets.

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

[74 FR 52907, Oct. 15, 2009]



Sec.  1110.8  Adoption of final rules.

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



Sec.  1110.9  Petition for waiver.

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

[74 FR 52907, Oct. 15, 2009]



Sec.  1110.10  Petitions for reconsideration.

    Any person may file a petition for reconsideration of the Board's 
decision in a rulemaking proceeding. Petitions should be filed within 20 
days of the date that the final decision is published

[[Page 132]]

in the Federal Register and should identify the interest of the 
petitioner, the specific action sought, and the arguments favoring that 
action.



PART 1111_COMPLAINT AND INVESTIGATION PROCEDURES--Table of Contents



Sec.
1111.1 Content of formal complaints; joinder.
1111.2 Amended and supplemental complaints.
1111.3 Service.
1111.4 Answers and cross complaints.
1111.5 Motions to dismiss or to make more definite.
1111.6 Satisfaction of complaint.
1111.7 Investigations on the Board's own motion.
1111.8 Procedural schedule in stand-alone cost cases.
1111.9 Procedural schedule in cases using simplified procedures.
1111.10 Meeting to discuss procedural matters.

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

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



Sec.  1111.1  Content of formal complaints; joinder.

    (a) General. A formal complaint must contain the correct, 
unabbreviated names and addresses of each complainant and defendant. It 
should set forth briefly and in plain language the facts upon which it 
is based. It should include specific reference to pertinent statutory 
provisions and Board regulations, and should advise the Board and the 
defendant fully in what respects these provisions or regulations have 
been violated. The complaint should contain a detailed statement of the 
relief requested. Relief in the alternative or of several different 
types may be demanded, but the issues raised in the formal complaint 
should not be broader than those to which complainant's evidence is to 
be directed. In a complaint challenging the reasonableness of a rail 
rate, the complainant should indicate whether, in its view, the 
reasonableness of the rate should be examined using constrained market 
pricing or using the simplified standards adopted pursuant to 49 U.S.C. 
10701(d)(3). If the complainant seeks to use the simplified standards, 
it should support this request by submitting, at a minimum, the 
following information:
    (1) The carrier or region identifier.
    (2) The type of shipment (local, received-terminated, etc.).
    (3) The one-way distance of the shipment.
    (4) The type of car (by URCS code).
    (5) The number of cars.
    (6) The car ownership (private or railroad).
    (7) The commodity type (STCC code).
    (8) The weight of the shipment (in tons per car).
    (9) The type of movement (individual, multi-car, or unit train).
    (10) A narrative addressing whether there is any feasible 
transportation alternative for the challenged movements.
    (11) For matters for which voluntary, binding arbitration is 
available pursuant to 49 CFR part 1108, the complaint shall state that 
arbitration was considered, but rejected, as a means of resolving the 
dispute.
    (b) Disclosure with simplified standards complaint. The complainant 
must provide to the defendant all documents relied upon in formulating 
its assessment of a feasible transportation alternative and all 
documents relied upon to determine the inputs to the URCS Phase III 
program.
    (c) Multiple causes of action. Two or more grounds of complaint 
concerning the same principle, subject, or statement of facts may be 
included in one complaint, but should be stated and numbered separately.
    (d) Joinder. Two or more complainants may join in one complaint 
against one or more defendants if their respective causes of action 
concern substantially the same alleged violations and like facts.
    (e) Request for access to waybill data. Parties needing access to 
the Waybill Sample to prepare their case should follow the procedures 
set forth at 49 CFR 1244.9.

[61 FR 52711, Oct. 8, 1996, as amended at 63 FR 2639, Jan. 16, 1998; 67 
FR 36822, May 28, 2002; 72 FR 51375, Sept. 7, 2007; 81 FR 8854, Feb. 23, 
2016]

[[Page 133]]



Sec.  1111.2  Amended and supplemental complaints.

    (a) Generally. An amended or supplemental complaint may be tendered 
for filing by a complainant against a defendant or defendants named in 
the original complaint, stating a cause of action alleged to have 
accrued within the statutory period immediately preceding the date of 
such tender, in favor of complainant and against the defendant or 
defendants. The time limits for responding to an amended or supplemental 
complaint are computed pursuant to Sec. Sec.  1111.4 and 1111.5 of this 
part, as if the amended or supplemental complaint was an original 
complaint.
    (b) Simplified standards. A complaint filed under the simplified 
standards may be amended once before the filing of opening evidence to 
opt for a different rate reasonableness methodology, among Three-
Benchmark, Simplified-SAC or Full-SAC. If so amended, the procedural 
schedule begins again under the new methodology as set forth at 
Sec. Sec.  1111.8 and 1111.9. However, only one mediation period per 
complaint shall be required.

[72 FR 51375, Sept. 7, 2007]



Sec.  1111.3  Service.

    A complainant is responsible for serving formal complaints, amended 
or supplemental complaints, and cross complaints on the defendant(s). 
Service shall be made by sending a copy of such complaint to the chief 
legal officer of each defendant by either confirmed facsimile and first-
class mail or express overnight courier. The cover page of each such 
facsimile and the front of each such first-class mail or overnight 
express courier envelope shall include the following legend: ``Service 
of STB Complaint''. Service of the complaint shall be deemed completed 
on the date on which the complaint is served by confirmed facsimile or, 
if service is made by express overnight courier, on the date such 
complaint is actually received by the defendant. When the complaint 
involves more than one defendant, service of the complaint shall be 
deemed completed on the date on which all defendants have been served. 
An original and ten copies of the complaint should be filed with the 
Board together with an acknowledgment of service by the persons served 
or proof of service in the form of a statement of the date and manner of 
service, of the names of the persons served, and of the addresses to 
which the papers were mailed or at which they were delivered, certified 
by the person who made service. If complainant cannot serve the 
complaint, an original of each complaint accompanied by a sufficient 
number of copies to enable the Board to serve one upon each defendant 
and to retain 10 copies in addition to the original should be filed with 
the Board.

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



Sec.  1111.4  Answers and cross complaints.

    (a) Generally. An answer shall be filed within the time provided in 
paragraph (c) of this section. An answer should be responsive to the 
complaint and should fully advise the Board and the parties of the 
nature of the defense. In answering a complaint challenging the 
reasonableness of a rail rate, the defendant should indicate whether it 
will contend that the Board is deprived of jurisdiction to hear the 
complaint because the revenue-variable cost percentage generated by the 
traffic is less than 180 percent, or the traffic is subject to effective 
product or geographic competition. In response to a complaint filed 
under the simplified standards, the answer must include the defendant's 
preliminary estimate of the variable cost of each challenged movement 
calculated using the unadjusted figures produced by the URCS Phase III 
program.
    (b) Disclosure with simplified standards answer. The defendant must 
provide to the complainant all documents that it relied upon to 
determine the inputs used in the URCS Phase III program.
    (c) Time for filing; copies; service. An answer must be filed within 
20 days after the service of the complaint or within such additional 
time as the Board may provide. The original and 10 copies of an answer 
must be filed with the Board. The defendant must serve copies of the 
answer upon the complainant and any other defendants.
    (d) Cross complaints. A cross complaint alleging violations by other 
parties to the proceeding or seeking relief

[[Page 134]]

against them may be filed with the answer. An answer to a cross 
complaint shall be filed within 20 days after the service date of the 
cross complaint. The party shall serve copies of an answer to a cross 
complaint upon the other parties.
    (e) Failure to answer complaint. Averments in a complaint are 
admitted when not denied in an answer to the complaint.

[72 FR 51376, Sept. 7, 2007]



Sec.  1111.5  Motions to dismiss or to make more definite.

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



Sec.  1111.6  Satisfaction of complaint.

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



Sec.  1111.7  Investigations on the Board's own motion.

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



Sec.  1111.8  Procedural schedule in stand-alone cost cases.

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

    Day 0--Complaint filed, discovery period begins.
    Day 7 or before--Conference of the parties convened pursuant to 
Sec.  1111.10(b).
    Day 20--Defendant's answer to complaint due.
    Day 150--Discovery completed.
    Day 210--Complainant files opening evidence on absence of intermodal 
and intramodal competition, variable cost, and stand-alone cost issues.
    Day 270--Defendant files reply evidence to complainant's opening 
evidence.
    Day 305--Complainant files rebuttal evidence to defendant's reply 
evidence.
    Day 335--Complainant and defendant file final briefs.
    Day 485 or before--The Board issues its decision.

    (b) Conferences with parties. (1) The Board will convene a technical 
conference of the parties with Board staff prior to the filing of any 
evidence in a stand-alone cost rate case, for the purpose of reaching 
agreement on the operating characteristics that are used in the variable 
cost calculations for the movements at issue. The parties should jointly 
propose a schedule for this technical conference.
    (2) In addition, the Board may convene a conference of the parties 
with Board staff, after discovery requests are served but before any 
motions to compel may be filed, to discuss discovery matters in stand-
alone cost rate cases. The parties should jointly propose a schedule for 
this discovery conference.

[61 FR 52711, Oct. 8, 1996; 61 FR 53996, Oct. 16, 1996, as amended at 63 
FR 2639, Jan. 16, 1998; 68 FR 17313, Apr. 9, 2003; 81 FR 13287, Mar. 14, 
2016]



Sec.  1111.9  Procedural schedule in cases using simplified standards.

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

Day 0--Complaint filed (including complainant's disclosure).

[[Page 135]]

Day 10--Mediation begins.
Day 20--Defendant's answer to complaint (including defendant's initial 
disclosure).
Day 30--Mediation ends; discovery begins.
Day 140--Defendant's second disclosure.
Day 150--Discovery closes.
Day 220--Opening evidence.
Day 280--Reply evidence.
Day 310--Rebuttal evidence
Day 320--Technical conference (market dominance and merits).
Day 330--Final briefs.

    (2) In cases relying upon the Three-Benchmark method:

Day 0--Complaint filed (including complainant's disclosure).
Day 10--Mediation begins. (STB production of unmasked Waybill Sample.)
Day 20--Defendant's answer to complaint (including defendant's initial 
disclosure).
Day 30--Mediation ends; discovery begins.
Day 60--Discovery closes.
Day 90--Complainant's opening (initial tender of comparison group and 
opening evidence on market dominance). Defendant's opening (initial 
tender of comparison group).
Day 95--Technical conference on comparison group.
Day 120--Parties' final tenders on comparison group. Defendant's reply 
on market dominance.
Day 150--Parties' replies to final tenders. Complainant's rebuttal on 
market dominance.

    (b) Defendant's second disclosure. In cases using the Simplified-SAC 
methodology, the defendant must make the following disclosures to the 
complainant by Day 170 of the procedural schedule.
    (1) Identification of all traffic that moved over the routes 
replicated by the SARR in the Test Year.
    (2) Information about those movements, in electronic format, 
aggregated by origin-destination pair and shipper, showing the origin, 
destination, volume, and total revenues from each movement.
    (3) Total operating and equipment cost calculations for each of 
those movements, provided in electronic format.
    (4) Revenue allocation for the on-SARR portion of each cross-over 
movement in the traffic group provided in electronic format.
    (5) Total trackage rights payments paid or received during the Test 
Year associated with the route replicated by the SARR.
    (6) All workpapers and documentation necessary to support the 
calculations.
    (c) Conferences with parties. The Board may convene a conference of 
the parties with Board staff to facilitate voluntary resolution of 
discovery disputes and to address technical issues that may arise.
    (d) Complaint filed with a petition to revoke a class exemption. If 
a complaint is filed simultaneously with a petition to revoke a class 
exemption, the Board will take no action on the complaint and the 
procedural schedule will be held in abeyance automatically until the 
petition to revoke is adjudicated.

[72 FR 51376, Sept. 7, 2007]



Sec.  1111.10  Meeting to discuss procedural matters.

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

[72 FR 51376, Sept. 7, 2007, as amended at 78 FR 29084, May 17, 2013]



PART 1112_MODIFIED PROCEDURES--Table of Contents



Sec.
1112.1 When modified procedure is used.
1112.2 Decisions directing modified procedure.

[[Page 136]]

1112.3 Default for failure to comply with schedule; effect of default.
1112.4 Petitions to intervene.
1112.5 Joint pleadings.
1112.6 Verified statements; contents.
1112.7 Records in other Board proceedings.
1112.8 Verification.
1112.9 Sample verification for statement of fact under modified 
          procedure.
1112.10 Requests for oral hearings and cross examination.
1112.11 Authority of officers.

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

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



Sec.  1112.1  When modified procedure is used.

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

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



Sec.  1112.2  Decisions directing modified procedure.

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

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



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

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



Sec.  1112.4  Petitions to intervene.

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

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



Sec.  1112.5  Joint pleadings.

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



Sec.  1112.6  Verified statements; contents.

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



Sec.  1112.7  Records in other Board proceedings.

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

[[Page 137]]

evidence, a true copy should be presented for the record.

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



Sec.  1112.8  Verification.

    The original of any pleading filed must show the signature, 
capacity, and seal, if any, of the person administering the oath, and 
the date thereof.



Sec.  1112.9  Sample verification for statement of fact under modified
procedure.

State of --------------------,
County of --------------------,
SS:
-------------------- being duly sworn, deposes and says that he has read 
the foregoing statement, knows the facts asserted there are true and 
that the same are true as stated.
Signed --------------------.
Subscribed and sworn to before me this ---------- day of --------------
------.
Notary Public of --------------------.
My Commission expires --------------------.



Sec.  1112.10  Requests for oral hearings and cross examination.

    (a) Requests. Requests for oral hearings in matters originally 
assigned for handling under modified procedure must include the reasons 
why the matter cannot be properly resolved under modified procedure. 
Requests for cross examination of witnesses must include the name of the 
witness and the subject matter of the desired cross examination.
    (b) Disposition. Unless material facts are in dispute, oral hearings 
will not be held. If held, oral hearings will normally be confined to 
material issues upon which the parties disagree. The decision setting a 
matter for oral hearing will define the scope of the hearing.

[61 FR 52712, Oct. 8, 1996]



Sec.  1112.11  Authority of officers.

    Except to the extent that they apply only to the conduct of a public 
hearing, the officer assigned to handle a proceeding under the modified 
procedure shall have the same authority as officers assigned to conduct 
oral hearings as described in Sec.  1113.3(a) and (b).



PART 1113_ORAL HEARING--Table of Contents



Sec.
1113.1 Scheduling hearings; continued hearings.
1113.2 Subpoenas.
1113.3 Authority of officers.
1113.4 Prehearing conferences.
1113.5 Stipulations.
1113.6 Appearances; withdrawal or absence from hearing.
1113.7 Intervention; petitions.
1113.8 Witness examination; order of procedure.
1113.9 Prepared statements.
1113.10 Records in other Board proceedings.
1113.11 Abstracts of documents.
1113.12 Exhibits.
1113.13 Filing evidence subsequent to hearing; copies.
1113.14 Objections to rulings.
1113.15 Interlocutory appeals.
1113.16 Oral argument before the hearing officer.
1113.17 Transcript of record.
1113.18 Briefs.
1113.19 Pleadings: part of the record.
1113.20-1113.30 [Reserved]

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

    Source: 47 FR 49559, Nov. 1, 1982, unless otherwise noted.



Sec.  1113.1  Scheduling hearings; continued hearings.

    (a) Assignment; service and posting of notice. In those proceedings 
in which an oral hearing is to be held, the Board will assign a time and 
place for hearing. Notice of hearings will be posted on the Board's Web 
site, will be served upon the parties and such other persons as may be 
entitled to receive notice under the Act, and will be available for 
inspection at the Board's office.
    (b) Requests for changes in assignment. Requests for postponements 
of date of hearing will be granted only in exceptional circumstances.
    (c) Continuances. (1) A continuance may be granted at the discretion 
of the presiding officer.
    (2) If the presiding officer announces the time and place of a 
continued hearing on the record, no further notice need be given.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 74 
FR 52907, Oct. 15, 2009]

[[Page 138]]



Sec.  1113.2  Subpoenas.

    (a) Issuance. A subpoena may be issued upon the direction of the 
Board on its own motion or upon request. A subpoena may be issued by the 
Board or by the officer presiding at a hearing and must be signed by the 
Director of the Office of Proceedings or a member of the Board.
    (b) Requests. (1) A request for a subpoena to compel the appearance 
of a person at a hearing to give oral testimony, but not to produce 
documents, may be made either by letter (only the original need be filed 
with the Board) or orally upon the record at the hearing. A showing of 
general relevance and reasonable scope of the evidence sought to be 
introduced through the subpoenaed person may be required.
    (2) A request for a subpoena to compel a witness to produce 
documentary evidence should be made in writing by petition. The petition 
should specify with particularity the books, papers, or documents 
desired and facts expected to be proved, and should show the general 
relevance and reasonable scope of the evidence sought. The officer 
presiding at a hearing may grant a request for such a subpoena made 
orally upon the record.
    (c) Service. The original subpoena should be exhibited to the person 
served, should be read to him if he is unable to read, and a copy should 
be delivered to him by the officer or person making service.
    (d) Return. If service of subpoena is made by a United States 
marshal or his deputy, service should be evidenced by his return of the 
subpoena. If made by any other person, such person shall make an 
affidavit stating the date, time and manner of service; and return such 
affidavit on, or with, the original subpoena in accordance with the form 
thereon. In case of failure to make service the reasons for the failure 
should be stated on the original subpoena. The written acceptance of 
service of a subpoena by the person subpoenaed will be sufficient 
without other evidence of return. The original subpoena bearing or 
accompanied by the required return, affidavit, statement, or acceptance 
of service, should be returned forthwith to the Chief, Section of 
Administration, Office of Proceedings, unless otherwise directed.
    (e) Witness fees. A witness who is summoned and responds to the 
summons is entitled to the same fee as is paid for like service in the 
courts of the United States. Such fee is to be paid by the party at 
whose insistence the testimony is taken at the time the subpoena is 
served, except that when the subpoena is issued on behalf of the United 
States or an officer or agency thereof, fees and mileage need not be 
tendered at the time of service.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 74 
FR 52907, Oct. 15, 2009; 81 FR 8854, Feb. 23, 2016]



Sec.  1113.3  Authority of officers.

    (a) General. (1) The presiding officer has the authority to regulate 
the procedure in the hearing before him, and has authority to take all 
measures necessary or proper for the efficient performance of the duties 
assigned him. These include authority: (i) To hold hearings; (ii) to 
administer oaths and affirmations; (iii) to grant intervention; (iv) to 
accept any pleading; (v) to establish special rules of procedure 
appropriate to the effective handling of the particular proceeding; (vi) 
to examine witnesses; (vii) to issue subpoenas at the hearing; (viii) to 
dispose of requests for discovery; (ix) to hold conferences for the 
settlement and simplification of issues; (x) to rule on motions and 
dispose of procedural requests; (xi) to make initial decisions; (xii) to 
exclude any person from the hearing for contemptuous conduct; and (xiii) 
to take any other action authorized by this part, by the Administrative 
Procedure Act, or by the Interstate Commerce Act and related acts.
    (2) The presiding officer has the authority: (i) To terminate 
examination or cross-examination of repetitious or cumulative nature; 
(ii) to limit direct examination to material matters; (iii) to limit 
cross-examination to disputed material facts; (iv) to require that 
principal examination or cross-examination be conducted by one or more 
counsel representing similar interests in proceedings where several 
parties are involved; (v) to set reasonable schedules for the 
presentation of witnesses; (vi) and to set reasonable time

[[Page 139]]

limits for the examination or cross-examination of witnesses. In order 
to enforce this paragraph, the officer may require a clear statement on 
the record of the nature of the testimony to be given by any witness.
    (b) Motions to dismiss; amendments. (1) The presiding officer shall 
have power to decide any motion to dismiss the proceeding or other 
motion which involves final determination of the merits of the 
proceeding.
    (2) The presiding officer may grant leave to amend any application 
or complaint.
    (c) Preparation of the decision by the prevailing party. Any 
proceeding in which an oral hearing is held and in which the officer is 
able to announce his decision either:
    (1) On the record after the close of the taking of testimony and the 
hearing of arguments by the officer, or
    (2) By appropriate notification to the parties after the close of 
the hearing, may be made the subject of an initial decision prepared by 
a party or parties in whose favor the officer decides, within a period 
specified by the officer, and subject to such changes as the officer 
considers appropriate in the draft prepared for him.
    (d) Recording; media coverage. The presiding officer shall have 
authority to permit or to refuse to permit the recording of the hearing 
by means of live or delayed television or radio broadcast, or the use of 
a tape recorder or other electronic or photographic equipment by any 
person other than the official reporter.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 81 
FR 8854, Feb. 23, 2016]



Sec.  1113.4  Prehearing conferences.

    (a) Purposes. Upon written notice by the Board in any proceeding, or 
upon written or oral instruction of an officer, parties or their 
representatives may be directed to appear before an officer at a 
specified time and place for a conference, prior to or during the course 
of a hearing, or in lieu of personally appearing, to submit suggestions 
in writing, for the purpose of formulating issues and considering:
    (1) The simplification of issues;
    (2) The necessity or desirability of amending the pleadings either 
for the purpose of clarification, amplification, or limitation;
    (3) The possibility of making admissions of certain averments of 
fact or stipulations concerning the use by any or all parties of matters 
of public record, such as annual reports and the like, to avoid the 
unnecessary introduction of proof;
    (4) The procedure at the hearing;
    (5) The limitation of the number of witnesses;
    (6) The propriety of prior mutual exchange between or among the 
parties of prepared testimony and exhibits; and
    (7) Such other matters, including disposition of requests for 
discovery, as may aid in the simplification of the evidence and 
disposition of the proceeding. Parties may request a prehearing 
conference.
    (b) Facts disclosed privileged. Facts disclosed in the course of the 
prehearing conference are privileged and, except by agreement, will not 
be used against participating parties either before the Board or 
elsewhere unless fully corroborated by other evidence.
    (c) Recordation and decision. Action taken at the conference, 
including a recitation of the amendments allowed to the pleadings, the 
agreements made by the parties as to any of the matters considered, and 
defining the issues, will be recorded in an appropriate decision unless 
the parties enter into a written stipulation as to such matters, or 
agree to a statement thereof made on the record by the officer.
    (d) Objection to the decision; subsequent proceedings. If a decision 
is entered, the parties may, within 20 days of the date of service, or 
within such lesser time as is set by the officer, present objections on 
the grounds that the decision does not fully or correctly embody the 
agreements reached at the conference. Thereafter the terms of the 
written stipulation or statement of the officer, as the case may be, 
will determine the subsequent course of the proceedings, unless modified 
to prevent manifest injustice.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]

[[Page 140]]



Sec.  1113.5  Stipulations.

    Apart from the procedure contemplated by the prehearing provisions, 
the parties may, by stipulation in writing filed with the Board at any 
stage of the proceeding, or orally made at the hearing, agree upon any 
pertinent facts in the proceeding. The parties should agree to facts in 
this manner whenever practicable.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]



Sec.  1113.6  Appearances; withdrawal or absence from hearing.

    (a) Who may appear. Any individual may appear for himself. Any 
member of a partnership which is a party to any proceeding may appear 
for such partnerships upon adequate identification. A bona fide officer 
or a full-time employee of a corporation, association, or of an 
individual may appear for such corporation, association, or individual 
by permission of the officer presiding at the hearing. A party also may 
be represented by a practitioner.
    (b) Withdrawal or absence from hearing. A practitioner who has 
entered his appearance at the hearing shall not be permitted to withdraw 
from the hearing, or willfully be absent therefrom, except for good 
cause and, wherever practicable, only with the permission of the 
presiding officer. If a person who has entered an appearance withdraws 
from the hearing in a manner other than that specified, the Board or the 
Officer may take such action as, in the interest of justice and the 
protection of the lawful rights of all parties to the proceeding, the 
circumstances of the case may warrant, including the striking out of all 
or any part of any pleading of the offending party, and including the 
possible dismissal of the action or proceeding, or any part thereof, the 
entry of an order of default against that party, or if the withdrawal is 
without the permission of the presiding officer, disciplining of the 
practitioner concerned.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]



Sec.  1113.7  Intervention; petitions.

    (a) How requested. Intervention will normally be granted only upon 
petition. In exceptional circumstances, where the issues would not be 
broadened or the proceeding delayed, an officer may, at his or her 
discretion, allow intervention upon motion made orally at the hearing.
    (b) Content generally. A petition for leave to intervene must set 
forth the grounds for the proposed intervention, the position and 
interest of the petitioner in the proceeding, and whether petitioner's 
position is in support of or in opposition to the relief sought. If the 
proceeding is by formal complaint and affirmative relief is sought by 
petitioner, the petition should conform to the requirements for a formal 
complaint.
    (c) When filed. A petition for leave to intervene in any proceeding 
should be filed prior to or at the time the proceeding is called for 
hearing, but not after, except for good cause shown.
    (d) Broadening issues; filing. If the petition seeks a broadening of 
the issues and shows that they would not thereby be unduly broadened, 
and in respect thereof seeks affirmative relief, the petition should be 
filed in time to permit service upon and answer by the parties in 
advance of the hearing.
    (e) Copies; service; replies. When a petition for leave to intervene 
is tendered at the hearing, sufficient copies of the petition must be 
provided for distribution to the parties represented at the hearing. If 
leave is granted at the hearing, 10 copies of the petition must be 
furnished for the use of the Board. When a petition for leave to 
intervene is not tendered at the hearing, the original and 10 copies of 
the petition should be submitted to the Board together with a 
certificate that service has been made by petitioner. Any reply in 
opposition to a petition for leave to intervene not tendered at the 
hearing must be filed within 20 days after service of the petition to 
intervene. At the discretion of the Board leave to intervene may be 
granted or denied before the expiration of the time allowed for replies.
    (f) Disposition. Leave to intervene will be granted only when the 
petitioner addresses issues reasonably pertinent to the issues already 
presented and which do not unduly broaden them.

[[Page 141]]

If leave is granted the petitioner becomes an intervener and a party to 
the proceeding.

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



Sec.  1113.8  Witness examination; order of procedure.

    Witnesses will be orally examined under oath before the officer 
unless the facts are presented to the Board in the manner provided under 
modified procedure. In formal complaint, application, and investigation 
proceedings, complainant, applicant, and respondent, respectively, shall 
open and close at the hearing. In the event of further hearings granted 
on petition, the petitioners requesting further hearing shall open and 
close the proceeding. Instances exist in which parties other than the 
respondent may open and close in investigations where the burden of 
proof is not upon the respondent. Interveners shall follow the party on 
whose behalf the intervention is made. The foregoing order of 
presentation may be varied by the officer.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 81 
FR 8854, Feb. 23, 2016]



Sec.  1113.9  Prepared statements.

    With the approval of the officer, a witness may read into the 
record, as his testimony, statements of fact or expressions of opinion 
prepared by the witness, or written answers to interrogatories of 
counsel. A prepared statement of a witness who is present at the hearing 
may be received as an exhibit, provided that the statement does not 
include argument. Before any such statement is read or admitted in 
evidence, the witness shall deliver to the officer, the reporter, and to 
opposing counsel, as may be directed by the officer, a copy of such 
statement or of such interrogatories and the written answers thereto. 
The admissibility of the evidence contained in such statement will be 
subject to the same rules as if such testimony was produced orally, 
including the right of cross-examination of the witness. The officer may 
require that the witness testify orally if, in the officer's opinion, 
the memory or demeanor of the witness may be of importance.



Sec.  1113.10  Records in other Board proceedings.

    A portion of the record before the Board in another proceeding may 
be offered in evidence at an oral hearing. A party making such an offer 
must provide, as an exhibit, a certified copy of the material sought to 
be introduced. A hearing officer may waive the requirement that a copy 
be provided, subject to such conditions as he or she may impose to 
assure that a copy will be available later, if needed, at no expense to 
the Board and to assure that the interests of other parties are not 
prejudiced. An offer of evidence under this section will be subject to 
objection by other parties.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]



Sec.  1113.11  Abstracts of documents.

    When documents, such as freight bills or bills of lading, are 
numerous, the officer may refuse to receive all the documents in 
evidence and instead admit only a limited number of representative 
documents. He may instruct, if the proffer be for the purpose of proving 
damages, that introduction be deferred until there is opportunity to 
comply with Sec.  1133.2. If the proffer be for another purpose the 
officer may require the party in orderly fashion to abstract the 
relevant data from the documents, affording other parties reasonable 
opportunity to examine both the documents and the abstract, and 
thereupon offer such abstract in evidence in exhibit form.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 81 
FR 8854, Feb. 23, 2016]



Sec.  1113.12  Exhibits.

    (a) Copies. Unless the officer otherwise directs, the original and 
10 copies of each exhibit of a documentary character should be furnished 
for the use of the Board. The original will be delivered to the 
reporter, and the copy to the officer. If the hearing is before a board, 
a copy of the exhibit should be furnished to each member of the board,

[[Page 142]]

unless the board otherwise directs. Unless the officer for cause directs 
otherwise, a reasonable number of copies should be furnished to counsel 
in attendance at the hearing.
    (b) Interchange prior to hearing. Whenever practicable, the parties 
should interchange copies of exhibits or other pertinent material or 
matter before or at the commencement of the hearing; and the Board or 
presiding officer may so direct.
    (c) When excluded how treated. When exhibit has been identified, 
objected to, and excluded, the officer will develop whether the party 
offering the exhibit withdraws the offer, and if so, permit the return 
of the exhibit to him. If the excluded exhibit is not withdrawn, it 
should be given an exhibit number for identification and be incorporated 
in the record. Exhibit numbers once used for identification will not be 
duplicated thereafter.

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



Sec.  1113.13  Filing evidence subsequent to hearing; copies.

    Except as provided in this section or as expressly may be permitted 
in a particular instance, the Board will not receive in evidence or 
consider as part of the record any documents, letters, or other writings 
submitted for consideration in connection with any proceeding after 
close of the hearing, and may return any such documents to the sender. 
Before the close of a hearing the officer may, at the request of a party 
or upon his own motion, or upon agreement of the parties, require that a 
party furnish additional documentary evidence that supplements the 
existing record, within a stated period of time. Documentary evidence to 
be furnished in this way will be given an exhibit number at the time of 
filing and the parties advised accordingly. Unless otherwise directed by 
the officer, the original and 10 copies of such submission should be 
filed with the Board.

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



Sec.  1113.14  Objections to rulings.

    It is sufficient that a party, at the time the ruling is made or 
sought, make known to the officer on the record the action which he 
desires the officer to take or his objection to the action of the 
officer and his grounds for that objection. An objection not pressed in 
brief will be considered as waived. Where no brief is filed an objection 
will be considered as waived if not pressed in an appeal or reply to an 
appeal, if filed, or in a separate petition dealing only with that 
objection.



Sec.  1113.15  Interlocutory appeals.

    Rulings of the presiding officer may be appealed prior to service of 
the initial decision only if:
    (a) The ruling denies or terminates any person's participation,
    (b) The ruling grants a request for the inspection of documents not 
ordinarily available for public inspection,
    (c) The ruling overrules an objection based on privilege, the result 
of which ruling is to require the presentation of testimony or 
documents, or
    (d) The presiding officer finds that the ruling may result in 
substantial irreparable harm, substantial detriment to the public 
interest, or undue prejudice to a party.



Sec.  1113.16  Oral argument before the hearing officer.

    At the discretion of the hearing officer and upon reasonable notice 
to the parties, oral argument may be made at the close of testimony 
before him as an alternative to the filing of written briefs. Such 
argument, which should include requested findings and conclusions, will 
be recorded and made a part of the transcript of testimony, and will be 
available to the Board for consideration in deciding the case. The 
making of such argument will not preclude oral argument before the 
Board.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]



Sec.  1113.17  Transcript of record.

    (a) Filing. After the close of the hearing, the complete transcript 
of the testimony taken and the exhibits shall be part of the record in 
the proceeding.

[[Page 143]]

    (b) Corrections. A suggested correction in a transcript ordinarily 
will be considered only if offered not later than 20 days after the date 
each transcript is filed with the Board. A copy of the letter (original 
only need be filed with the Board) requesting the suggested corrections 
should be served upon all parties of record and with 2 copies to the 
official reporter.
    (c) Objections to corrections. Parties disagreeing with corrections 
suggested pursuant to paragraph (b) of this section should file written 
objections in the same manner as suggested corrections are to be filed. 
Objections to suggested corrections should be filed not later than 15 
days after the filing with the Board of suggested corrections. If no 
objections are timely filed, the Office of Proceedings shall make the 
suggested corrections to the transcript. If objections are timely filed, 
the officer who presided at the hearing shall determine the merits of 
the suggested correction and enter an appropriate decision in the 
proceeding.
    (d) No free copies. The Board will not furnish free copies of the 
transcript to any party to any proceeding.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 74 
FR 52907, Oct. 15, 2009]



Sec.  1113.18  Briefs.

    (a) When filed. In a proceeding which has been the subject of oral 
hearing, and in which briefs are to be filed, that fact will be stated 
by the officer on the record. The officer shall fix the time for filing 
briefs. Simultaneous filing will normally be required, and reply briefs 
will not normally be permitted.
    (b) Evidence abstract. A brief filed after a hearing may contain an 
abstract of the evidence relied upon by the party filing it, preferably 
assembled by subjects, with reference to the pages of the record, if 
written, or exhibit where the evidence appears. In the event the party 
elects not to include a separate abstract in his brief, he should give 
specific reference to the portions of the record, whether transcript or 
otherwise, relied upon in support of the respective statements of fact 
made throughout the brief.
    (c) Requested findings. Each brief should include such requests for 
specific findings, separately stated and numbered, as the party desires 
the Board to make.
    (d) Exhibit reproduction. Exhibits should not be reproduced in the 
brief, but may be shown, within reasonable limits, in an appendix to the 
brief. Analysis of such exhibits should be included in the brief where 
pertinent.

[47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996]



Sec.  1113.19  Pleadings: part of the record.

    Matters of fact that are verified and filed prior to oral hearing 
and that are not specifically denied constitute evidence and are part of 
the record. A witness, who would present such evidence, must be made 
available for cross-examination if a request is reasonably made. This 
rule does not apply to protests against tariffs or schedules.

[47 FR 49559, Nov. 1, 1982, as amended at 64 FR 53268, Oct. 1, 1999]



Sec. Sec.  1113.20-1113.30  [Reserved]



PART 1114_EVIDENCE; DISCOVERY--Table of Contents



                   Subpart A_General Rules of Evidence

Sec.
1114.1 Admissibility.
1114.2 Official records.
1114.3 Admissibility of business records.
1114.4 Documents in Board's files.
1114.5 Records in other Board proceedings.
1114.6 Official notice of corroborative material.
1114.7 Exhibits.

                           Subpart B_Discovery

1114.21 Applicability; general provisions.
1114.22 Deposition.
1114.23 Depositions; location, officer, time, fees, absence, 
          disqualification.
1114.24 Depositions; procedures.
1114.25 Effect of errors and irregularities in depositions.
1114.26 Written interrogatories to parties.
1114.27 Request for admission.
1114.28 Depositions, requests for admission, written interrogatories, 
          and responses thereto: inclusion in record.
1114.29 Supplementation of responses.
1114.30 Production of documents and records and entry upon land for 
          inspection and other purposes.
1114.31 Failure to respond to discovery.

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

[[Page 144]]


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



                   Subpart A_General Rules of Evidence



Sec.  1114.1  Admissibility.

    Any evidence which is sufficiently reliable and probative to support 
a decision under the provisions of the Administrative Procedure Act, or 
which would be admissible under the general statutes of the United 
States, or under the rules of evidence governing proceedings in matters 
not involving trial by jury in the courts of the United States, will be 
admissible in hearings before the Board. The rules of evidence will be 
applied in any proceeding to the end that necessary and proper evidence 
will be conveniently, inexpensively, and speedily produced, while 
preserving the substantial rights of the parties.

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



Sec.  1114.2  Official records.

    An official record or an entry therein, when admissible for any 
purpose, may be evidenced by an official publication thereof or by a 
copy attested by the officer having the legal custody of the record, or 
by a deputy, and accompanied with a certificate that such officer has 
the custody. If the office in which the record is kept is within the 
United States or within a territory or insular possession subject to the 
dominion of the United States, the certificate may be made by a judge of 
a court of record of the district or political subdivision in which the 
record is kept, authenticated by the seal of the court, or may be made 
by any public officer having a seal of office and having official duties 
in the district or political subdivision in which the record is kept, 
authenticated by the seal of his office. If the office in which the 
record is kept is in a foreign state or country, the certificate may be 
made by a secretary of embassy or legation, consul general, consul, vice 
consul, or consular agent or by officer in the foreign service of the 
United States stationed in the foreign state or country in which the 
record is kept, and authenticated by the seal of his office. A written 
statement signed by an officer having the custody of an official record 
or by his deputy that after diligent search no record or entry of a 
specified tenor is found to exist in the records of his office, 
accompanied by a certificate as above provided, is admissible as 
evidence that the records of this office contain no such record or 
entry. This section does not prevent the proof of official records or of 
entry or lack of entry therein or official notice thereof by a method 
authorized by any applicable statute or by the rules of evidence.



Sec.  1114.3  Admissibility of business records.

    Any writing or record, whether in the form of an entry in a book or 
otherwise, made as a memorandum or record of any act, transaction, 
occurrence, or event, will be admissible as evidence thereof if it 
appears that it was made in the regular course of business, and that it 
was the regular course of business to make such memorandum or record at 
the time such record was made, or within a reasonable time thereafter.



Sec.  1114.4  Documents in Board's files.

    If a party offers in evidence any matter contained in a report or 
other document open to public inspection in the files of the Board, such 
report or other document need not be made available at the hearing.

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



Sec.  1114.5  Records in other Board proceedings.

    If any portion of the record before the Board in any proceeding 
other than the proceeding at issue is offered in evidence, a true copy 
will be presented for the record.

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



Sec.  1114.6  Official notice of corroborative material.

    The Board or a hearing officer may take notice of official records, 
records in other Board proceedings, or other materials which are 
otherwise subject to specific rules governing admissibility regardless 
of compliance with

[[Page 145]]

the full technical provisions of such rules, where the admissibility of 
the evidence is for purposes of corroboration of testimony presented or 
to evaluate the credibility of testimony or allegations made in 
proceedings where the public interest is not otherwise adequately 
represented by counsel capable of fully complying with such rules.

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



Sec.  1114.7  Exhibits.

    Whenever practical the sheets of each exhibit and the lines of each 
sheet should be numbered. If the exhibit consists of five or more 
sheets, the first sheet or title-page should be confined to a brief 
statement of what the exhibit purports to show with reference by sheet 
and line to illustrative or typical examples contained therein. The 
exhibit should bear an identifying number, letter, or short title which 
will readily distinguish it from other exhibits offered by the same 
party. It is desirable that, whenever practicable, evidence should be 
condensed into tables. Whenever practicable, especially in proceedings 
in which it is likely that many documents will be offered, all the 
documents produced by a single witness should be assembled and bound 
together, suitably arranged and indexed, so that they may be identified 
and offered as one exhibit. Exhibits should not be argumentative and 
should be limited to statements of facts, and be relevant and material 
to the issue, which can better be shown in that form than by oral 
testimony.

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



                           Subpart B_Discovery



Sec.  1114.21  Applicability; general provisions.

    (a) When discovery is available. (1) Parties may obtain discovery 
under this subpart regarding any matter, not privileged, which is 
relevant to the subject matter involved in a proceeding other than an 
informal proceeding. For the purpose of this subchapter, informal 
proceedings are those not required to be determined on the record after 
hearing and include informal complaints and all proceedings assigned for 
initial disposition to employee boards under Sec.  1011.5.
    (2) It is not grounds for objection that the information sought will 
be inadmissible as evidence if the information sought appears reasonably 
calculated to lead to the discovery of admissible evidence.
    (3) In cases using the simplified standards Three-Benchmark method, 
the number of discovery requests that either party can submit is limited 
as set forth in Sec. Sec.  1114.22, 1114.26, and 1114.30, absent advance 
authorization from the Board.
    (b) How discovery is obtained. All discovery procedures may be used 
by parties without filing a petition and obtaining prior Board approval.
    (c) Protective conditions. Upon motion by any party, by the person 
from whom discovery is sought, or by any person with a reasonable 
interest in the data, information, or material sought to be discovered 
and for good cause shown, any order which justice requires may be 
entered to protect a party or person from annoyance, embarrassment, 
oppression, or undue burden or expense, or to prevent the raising of 
issues untimely or inappropriate to the proceeding. Relief through a 
protective order may include one or more of the following:
    (1) That the discovery not be had;
    (2) That the discovery may be had only on specified terms and 
conditions, including a designation of the time and place;
    (3) That the discovery may be had only upon such terms and 
conditions as the Board may impose to insure financial responsibility 
indemnifying the party or person against whom discovery is sought to 
cover the reasonable expenses incurred;
    (4) That the discovery may be had only by a method other than that 
selected by the party seeking discovery;
    (5) That certain matters not be inquired into or that the scope of 
discovery be limited to certain matters;
    (6) That discovery be conducted with no one present except persons 
designated in the protective order;

[[Page 146]]

    (7) That a deposition after being sealed be opened only by order of 
the Board;
    (8) That a trade secret or other confidential research development 
or commercial information not be disclosed or be disclosed only in a 
designated way; and
    (9) That the parties simultaneously file specified documents or 
information enclosed in sealed envelopes to be opened only upon 
direction or order of the Board.

If the motion for a protective order is denied in whole or in part, the 
Board may, on such terms and conditions as it deems just, enter an order 
requiring any party or person to provide or permit discovery. A 
protective order under this paragraph may only be sought after, or in 
conjunction with, an effort by any party to obtain relief under Sec.  
1114.24(a), Sec.  1114.26(a), or Sec.  1114.31.
    (d) Sequence and timing of discovery. Unless the Board upon motion, 
for the convenience of parties and witnesses and in the interest of 
justice, orders otherwise, methods of discovery may be used in any 
sequence and the fact that a party is conducting discovery, whether by 
deposition or otherwise, should not operate to delay any party's 
discovery.
    (e) Stipulations regarding discovery. Unless otherwise ordered, a 
written stipulation entered into by all the parties and filed with the 
Board may:
    (1) Provide that depositions be taken before any person, at any time 
or place, upon sufficient notice, and in any manner and when so taken 
may be used like other depositions; and
    (2) Modify the procedures provided by these rules for other methods 
of discovery.
    (f) Service of discovery materials. Unless otherwise ordered by the 
Board, depositions, interrogatories, requests for documents, requests 
for admissions, and answers and responses thereto, shall be served on 
other counsel and parties, but shall not be filed with the Board. Any 
such materials, or portions thereof, should be appended to the 
appropriate pleading when used to support or to reply to a motion, or 
when used as an evidentiary submission.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 72 
FR 51377, Sept. 7, 2007; 81 FR 8854, Feb. 23, 2016]



Sec.  1114.22  Deposition.

    (a) Purpose. The testimony of any person, including a party, may be 
taken by deposition upon oral examination.
    (b) Request. A party requesting to take a deposition and perpetuate 
testimony:
    (1) Should notify all parties to the proceeding and the person 
sought to be deposed; and
    (2) Should set forth the name and address of the witness, the place 
where, the time when, the name and office of the officer before whom, 
and the cause or reason why such deposition will be taken.
    (c) Limitation under simplified standards. In a case using the 
Three-Benchmark methodology, each party is limited to one deposition 
absent advance authorization from the Board.

[61 FR 52713, Oct. 8, 1996, as amended at 72 FR 51377, Sept. 7, 2007]



Sec.  1114.23  Depositions; location, officer, time, fees, absence,
disqualification.

    (a) Where deposition should be taken. Unless otherwise ordered or 
agreed to by stipulation, depositions should be taken in the city or 
municipality where the deponent is located.
    (b) Officer before whom taken. Within the United States or within a 
territory or insular possession subject to the dominion of the United 
States, depositions should be taken before an officer authorized to 
administer oaths by the laws of the United States or of the place where 
the examination is held. Within a foreign country, depositions may be 
taken before an officer or person designated by the Board or agreed upon 
by the parties by stipulation in writing to be filed with the Board.
    (c) Fees. A witness whose deposition is taken pursuant to these 
rules and the officer taking same, unless he be employed by the Board, 
shall be entitled to the same fee paid for like service in the courts of 
the United States, which fee should be paid by the party

[[Page 147]]

at whose instance the deposition is taken.
    (d) Failure to attend or to serve subpoena; expenses. (1) If the 
party who filed a petition for discovery fails to attend and proceed 
with the taking of the deposition and another party attends in person or 
by representative pursuant to an order of the Board granting discovery 
the Board may order the party who filed the petition to pay to such 
other party the reasonable expenses incurred by him and his 
representative in so attending, including reasonable attorney's fees.
    (2) If the party who filed a petition for discovery fails to serve a 
subpoena upon the witness and the witness because of such failure does 
not attend, and if another party attends in person or by representative 
because he expects the deposition of the witness to be taken, the Board 
may order the party who filed the petition to pay to such other party 
the reasonable expenses incurred by him and his representative in so 
attending, including reasonable attorney's fees.
    (e) Disqualification for interest. No deposition should be taken 
before a person who is a relative or employee or representative or 
counsel of any of the parties, or is a relative or employee of such 
representative or counsel or is financially interested in the 
proceeding.

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



Sec.  1114.24  Depositions; procedures.

    (a) Examination. Examination and cross-examination of witnesses 
should proceed as permitted at a hearing and should be limited to the 
subject matter specified in the order granting discovery. All objections 
made at the time of the examination to the qualifications of the officer 
taking the deposition, or to the manner of taking it, or to the evidence 
presented, or to the conduct of any party, and any other objection to 
the proceedings, should be noted by the officer upon the deposition. 
Evidence objected to should be taken subject to the objections. In lieu 
of participating in the oral examination, parties may serve written 
questions in a sealed envelope on the party taking the deposition, and 
shall transmit them to the officer, who shall open the sealed envelope, 
propound the questions to the witness, and record the answers verbatim.
    (b) Use of depositions. At the hearings, any part or all of a 
deposition, so far as admissible under the rules of evidence, may be 
used against any party who was present or represented at the taking of 
the deposition or who had due notice thereof, in accordance with any one 
of the following provisions:
    (1) Any deposition may be used by any party for the purpose of 
contradicting or impeaching the testimony of the deponent as a witness.
    (2) The deposition of a party or of anyone who at the time of taking 
the deposition was an officer, director, or managing agent, or a person 
designated to testify on behalf of a public or private corporation, 
partnership, association or governmental agency (other than this Board, 
except in those instances where the Board itself is a party to the 
proceeding) which is a party, may be used by an adverse party for any 
purpose.
    (3) The deposition of a witness, whether or not a party, may be used 
by any party for any purpose if the presiding officer or Board finds:
    (i) That the witness is dead; or
    (ii) That the witness is at a greater distance than 100 miles from 
the place of hearing or is out of the United States, unless it appears 
that the absence of the witness was procured by the party offering the 
deposition; or
    (iii) That the witness is unable to attend or testify because of 
age, illness, infirmity, or imprisonment; or
    (iv) That the party offering the deposition has been unable to 
procure the attendance of the witness by subpoena; or
    (v) Upon application and notice, that such exceptional circumstances 
exist as to make it desirable, in the interest of justice and with due 
regard to the importance of presenting the testimony of witness orally 
at public hearing, to allow the deposition to be used.
    (4) If only part of a deposition is offered in evidence by a party, 
an adverse party may require him to introduce any other part which ought 
in fairness to be considered with the part introduced, and any party may 
introduce any other parts. Substitution of parties

[[Page 148]]

does not affect the right to use depositions previously taken.
    (c) Effect of taking or using depositions. A party should not be 
deemed to make a person his own witness for any purpose by taking his 
deposition. The introduction in evidence of the deposition or any part 
thereof for any purpose other than that of contradicting or impeaching 
the deponent makes the deponent the witness of the party introducing the 
deposition, but this should not apply to the use of an adverse party of 
a deposition under paragraph (b)(2) of this section. At the hearing any 
party may rebut any relevant evidence contained in a deposition whether 
introduced by him or by any other party.
    (d) Motions to protect. At any time during the taking of the 
deposition, on motion of any party or of the deponent and upon a showing 
that the examination is being conducted in bad faith or in such manner 
as unreasonably to annoy, embarrass, or oppress the deponent or party, 
the Board may order the officer conducting the examination to cease 
forthwith from taking the deposition, or may limit the scope and manner 
of the taking of the deposition as provided in Sec.  1114.21(c). If the 
order made terminates the examination, it should be resumed thereafter 
only if so ordered. Upon demand of the objecting party or deponent, the 
taking of the deposition should be suspended for the time necessary to 
make a motion for an order.
    (e) Recordation. The officer before whom the deposition is to be 
taken shall observe the provisions of Sec.  1113.6 respecting 
appearances and typographical specifications, shall put the witness 
under oath, and shall personally, or by someone acting under his 
direction and in his presence, record and transcribe the testimony of 
the witness as required by these rules.
    (f) Signing. When the testimony is fully transcribed or otherwise 
recorded, the deposition should be submitted to the witness for 
examination and should be read to or by him unless such examination and 
reading are waived by the witness and the parties. Any changes in form 
or substance which the witness desires to make should be entered upon 
the deposition by the officer with a statement of the reasons given by 
the witness for making them. The witness shall then sign the deposition, 
unless the parties by stipulation waive the signing or the witness is 
ill or cannot be found or refuses to sign. If the deposition is not 
signed by the witness within 15 days of its submission to him, the 
officer shall sign it and state on the record the fact of the waiver or 
of the illness or absence of the witness or the fact of the refusal to 
sign together with the reason, if any, given therefor; and the 
deposition may then be used fully as though signed, unless, on a motion 
to suppress, it is found that the reasons given for refusal to sign 
require rejection of the deposition in whole or in part.
    (g) Attestation. The officer shall certify on the deposition that 
the witness was duly sworn by him and that the deposition is a true 
record of the testimony given by the witness, and that the officer is: 
(1) not a relative, employee, representative or counsel of any of the 
parties, (2) not a relative or employee of such representative or 
counsel, and (3) not financially interested in the proceeding.
    (h) Return. The officer shall securely seal the deposition in an 
envelope endorsed with sufficient information to identify the proceeding 
and marked ``Deposition of (here insert name of witness)'' and shall 
either personally deliver or promptly send the original and one copy of 
all exhibits by registered mail to the Office of Proceedings. A 
deposition to be offered in evidence must reach the Board not later than 
5 days before the date it is to be so offered.
    (i) Notice. The party taking the deposition shall give prompt notice 
of its filing to all other parties.
    (j) Copies. Upon payment of reasonable charges, the officer before 
whom the deposition is taken shall furnish a copy of it to any 
interested party or to the deponent.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 74 
FR 52908, Oct. 15, 2009; 81 FR 8854, Feb. 23, 2016]



Sec.  1114.25  Effect of errors and irregularities in depositions.

    (a) As to disqualification of officer. Objection to taking a 
deposition because

[[Page 149]]

of disqualification of the officer before whom it is to be taken is 
waived unless made before the taking of the deposition begins or as soon 
thereafter as the disqualification becomes known or could be discovered 
with reasonable diligence.
    (b) As to taking of deposition. (1) Objections to the competency of 
a witness or to the competency, relevancy, or materiality of testimony 
are not waived by failure to make them before or during the taking of 
the deposition, unless the ground of the objection is one which might 
have been obviated or removed if presented at that time.
    (2) Errors and irregularities occurring at the oral examination in 
the manner of taking the deposition, in the form of the questions or 
answers in the oath or affirmation, or in the conduct of parties, and 
errors of any kind which might be obviated, removed, or cured if 
promptly presented, are waived unless reasonable objection thereto is 
made at the taking of the deposition.
    (c) As to completion and return of deposition. Objections to errors 
and irregularities in the manner in which the testimony is transcribed 
or the deposition is prepared, signed, certified, sealed, endorsed, 
transmitted, filed, or otherwise dealt with by the officer under Sec.  
1114.23 and 1114.24 are waived unless a motion to suppress the 
deposition or some part thereof is made with reasonable promptness after 
such defect is, or with due diligence might have been, ascertained.

[47 FR 49562, Nov. 1, 1982, as amended at 81 FR 8854, Feb. 23, 2016]



Sec.  1114.26  Written interrogatories to parties.

    (a) Availability; procedures for use. Subject to the provisions of 
Sec.  1114.21(a), any party may serve upon any other party written 
interrogatories to be answered by the party served, or if the party 
served is a public or private corporation, partnership, association, or 
Governmental agency (other than this Board, except in those instances 
where the Board itself is a party to the proceeding), by any officer or 
agent, who shall furnish such information as is available to the party. 
Each interrogatory should be answered separately and fully in writing, 
unless it is objected to, in which event the reasons for objection 
should be stated in lieu of an answer. The answers are to be signed by 
the person making them and subscribed by an appropriate verification 
generally in the form prescribed in Sec.  1112.9. Objections are to be 
signed by the representative or counsel making them. The person upon 
whom the interrogatories have been served shall serve a copy of the 
answers and objections within the time period designated by the party 
submitting the interrogatories, but not less than 15 days after the 
service thereof.
    (b) Option to produce business records. Where the answer to an 
interrogatory may be derived or ascertained from the business records of 
the party upon whom the interrogatory has been served or from an 
examination, audit, or inspection of such business records or from a 
compilation, abstract, or summary based thereon, and the burden of 
deriving or ascertaining the answer is substantially the same for the 
party serving the interrogatory as for the party served, it is a 
sufficient answer to such interrogatory to specify the records from 
which the answer may be derived or ascertained and to afford to the 
party serving the interrogatory reasonable opportunity to examine, 
audit, or inspect such records and to make copies thereof, or 
compilation, abstracts, or summaries therefrom. If information sought is 
contained in computer runs, punchcards, or tapes which also contain 
privileged or proprietary information or information the disclosure of 
which is proscribed by the act, it will be sufficient response under 
these rules that the person upon whom the interrogatory has been served 
is willing to make available to and permit an independent professional 
organization not interested in the proceeding and paid by the party 
serving the interrogatory to extract from such runs, punchcards, or 
tapes the information sought in the interrogatory that is not privileged 
or proprietary information or information the disclosure of which is 
proscribed by the act.
    (c) Service of interrogatories in those proceedings not requiring a 
petition. No written interrogatories shall be served within 20 days 
prior to the date assigned for commencement of hearing or

[[Page 150]]

the filing of opening statements of fact and argument under the modified 
procedure, and when the written interrogatories are to be served in a 
foreign country, they shall not be served within 40 days prior to such 
date.
    (d) Limitation under simplified standards. In a case using the 
Three-Benchmark methodology, each party is limited to ten 
interrogatories (including subparts) absent advance authorization from 
the Board.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 72 
FR 51377, Sept. 7, 2007; 81 FR 8855, Feb. 23, 2016]



Sec.  1114.27  Request for admission.

    (a) Availability; procedures for use. Subject to the provisions of 
Sec.  1114.21(a), a party may serve upon any other party a written 
request for the admission, for purposes of the pending proceeding only, 
of the truth of any matters within the scope of Sec.  1114.21 set forth 
in the request, including the genuineness of any documents described in 
the request for admission. Copies of documents should be served with the 
request unless they have been or are otherwise furnished or made 
available for inspection and copying. Each matter of which an admission 
is requested should be separately set forth. The matter is admitted 
unless, within a period designated in the request, not less than 15 days 
after service thereof, the party to whom the request is directed serves 
upon the party requesting the admission a written answer or objection 
addressed to the matter, signed by the party or his representative or 
counsel. If objection is made, the reasons therefor should be stated. 
The answer should specifically deny the matter or set forth in detail 
the reasons why the answering party cannot truthfully admit or deny the 
matter. A denial should fairly meet the substance of the requested 
admission, and when good faith requires that a party qualify his answer 
or deny only a part of the matter of which an admission is requested, he 
shall specify so much of it as is true and qualify or deny the 
remainder. An answering party may not give lack of information or 
knowledge as a reason for failure to admit or deny unless he states that 
he has made reasonable inquiry and that the information known or readily 
obtainable by him is insufficient to enable him to admit or deny. A 
party who considers that a matter of which an admission has been 
requested presents a genuine issue for hearing may not, on that ground 
alone, object to the request; he may, subject to the provisions of Sec.  
1114.31, deny the matter or set forth reasons why he cannot admit or 
deny it.
    (b) Effect of admission. Any matter admitted under this rule is 
conclusively established unless upon petition and a showing of good 
cause the Board enters an order permitting withdrawal or amendment of 
the admission. Any admission made by a party under this rule is for the 
purpose of the pending proceeding only and is not an admission by him 
for any other purpose nor may it be used against him in any other 
proceeding.
    (c) Service of written requests for admission in those proceedings 
not requiring a petition. No requests for admission should be served 
within 20 days prior to the date assigned for commencement of hearing or 
the filing of opening statements of fact and argument under the modified 
procedure, and when requests for admission are to be served in a foreign 
country they should not be served within 40 days prior to such date.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 81 
FR 8855, Feb. 23, 2016]



Sec.  1114.28  Depositions, requests for admission, written
interrogatories, and responses thereto: inclusion in record.

    At the oral hearing, or upon the submission of statements under the 
modified procedure, depositions, requests for admission and written 
interrogatories, and respective responses may be offered in evidence by 
the party at whose instance they were taken. If not offered by such 
party, they may be offered in whole or in part by any other party. If 
only part of a deposition, request for admission or written 
interrogatory, or response thereto is offered in evidence by a party, 
any other party (where the matter is being heard orally) may require him 
to introduce all of it which is relevant to the part introduced, and any 
party may introduce

[[Page 151]]

any other parts. Such depositions, requests for admission and written 
interrogatories, and responses thereto should be admissible in evidence 
subject to such objections as to competency of the witness, or 
competency, relevancy, or materiality of the testimony as were noted at 
the time of their taking or are made at the time they are offered in 
evidence.



Sec.  1114.29  Supplementation of responses.

    A party who has responded to a request for discovery with a response 
that was complete when made is under a duty to supplement his response 
to include information thereafter acquired in the following instances:
    (a) A party is under a duty seasonably to supplement his response 
with respect to any question directly addressed to:
    (1) The identity and locations of persons having knowledge of 
discoverable matters, and
    (2) The identity of each person expected to be called as an expert 
witness at the hearing, the subject matter on which he is expected to 
testify, and the substance of his testimony.
    (b) A party who knows or later learns that his response is incorrect 
is under a duty seasonably to correct his response.
    (c) A duty to supplement responses may be imposed by order, 
agreement of the parties, or at any time prior to the hearing or the 
submission of verified statements under the modified procedure through 
new requests for supplementation of prior responses.



Sec.  1114.30  Production of documents and records and entry upon land 
for inspection and other purposes.

    (a) Scope. Any party may serve on any other party a request:
    (1) To produce and permit the party making the request to inspect 
any designated documents (including writings, drawings, graphs, charts, 
photographs, phonograph records, tapes, and other data compilations from 
which information can be obtained, translated, if necessary, with or 
without the use of detection devices into reasonably usable form), or to 
inspect and copy, test, or sample any tangible things which are in the 
possession, custody, or control of the party upon whom the request is 
served, but if the writings or data compilations include privileged or 
proprietary information or information the disclosure of which is 
proscribed by the Act, such writings or data compilations need not be 
produced under this rule but may be provided pursuant to Sec.  
1114.26(b) of this part; or
    (2) To permit, subject to appropriate liability releases and safety 
and operating considerations, entry upon designated land or other 
property in the possession or control of the party upon whom the request 
is served for the purpose of inspecting and measuring, surveying, 
photographing, testing, or sampling the property or any designated 
object or operation thereon.
    (b) Procedure. Any request filed pursuant to this rule should set 
forth the items to be inspected either by individual item or by category 
and describe each item and category with reasonable particularity. The 
request should specify a reasonable time, place, and manner of making 
the inspection and performing the related acts.
    (c) Limitation under simplified standards. In a case using the 
Three-Benchmark methodology, each party is limited to ten document 
requests (including subparts) absent advance authorization from the 
Board.
    (d) Agreements containing interchange commitments. In any proceeding 
involving the reasonableness of provisions related to an existing rail 
carrier sale or lease agreement that serve to induce a party to the 
agreement to interchange traffic with another party to the agreement, 
rather than with a third-party connecting carrier, whether by outright 
prohibition, per-car penalty, adjustment in the purchase price or 
rental, positive economic inducement, or other means, a party to the 
proceeding with a need for the information may obtain a confidential, 
complete version of the agreement, with the prior approval of the Board. 
The party seeking such approval must file an appropriate motion 
containing an explanation of the party's need for the information and a 
draft protective order and undertaking(s) that will ensure the agreement 
is kept confidential. The motion seeking approval may be filed at any

[[Page 152]]

time after the initial complaint or petition, including before the 
answer to the complaint or petition is due. A reply to such a motion 
must be filed within 5 days thereafter. The motion will be considered by 
the Board in an expedited manner.

[61 FR 52713, Oct. 8, 1996, as amended at 72 FR 51377, Sept. 7, 2007; 73 
FR 31034, May 30, 2008]



Sec.  1114.31  Failure to respond to discovery.

    (a) Failure to answer. If a deponent fails to answer or gives an 
evasive answer or incomplete answer to a question propounded under Sec.  
1114.24(a), or a party fails to answer or gives evasive or incomplete 
answers to written interrogatories served pursuant to Sec.  1114.26(a), 
the party seeking discovery may apply for an order compelling an answer 
by motion filed with the Board and served on all parties and deponents. 
Such motion to compel an answer must be filed with the Board and served 
on all parties and deponents. Such motion to compel an answer must be 
filed with the Board within 10 days after the failure to obtain a 
responsive answer upon deposition, or within 10 days after expiration of 
the period allowed for submission of answers to interrogatories. On 
matters relating to a deposition on oral examination, the proponent of 
the question may complete or adjourn the examination before he applies 
for an order.
    (1) Reply to motion to compel generally. Except in rate cases to be 
considered under the stand-alone cost methodology or simplified 
standards, the time for filing a reply to a motion to compel is governed 
by 49 CFR 1104.13.
    (2) Reply to motion to compel in stand-alone cost and simplified 
standards rate cases. A reply to a motion to compel must be filed with 
the Board within 10 days thereafter in a rate case to be considered 
under the stand-alone cost methodology or under the simplified 
standards.
    (3) Conference with parties on motion to compel. Within 5 business 
days after the filing of a reply to a motion to compel in a rate case to 
be considered under the stand-alone cost methodology or under the 
simplified standards, Board staff may convene a conference with the 
parties to discuss the dispute, attempt to narrow the issues, and gather 
any further information needed to render a ruling.
    (4) Ruling on motion to compel in stand-alone cost and simplified 
standards rate cases. Within 5 business days after a conference with the 
parties convened pursuant to paragraph (a)(3) of this section, the 
Director of the Office of Proceedings will issue a summary ruling on the 
motion to compel discovery. If no conference is convened, the Director 
of the Office of Proceedings will issue this summary ruling within 10 
days after the filing of the reply to the motion to compel. Appeals of a 
Director's ruling will proceed under 49 CFR 1115.9, and the Board will 
attempt to rule on such appeals within 20 days after the filing of the 
reply to the appeal.
    (b) Failure to comply with order. (1) If a party or other witness 
refuses to be sworn or refuses to answer any question after being 
directed to do so by the Board, such refusal may subject the refusing 
party or person to action by the Board under 49 U.S.C. 721(c) and (d) to 
compel appearance and compliance with the Board's order.
    (2) If any party or an officer, director, managing agent, or 
employee of a party or person refuses to obey an order made under 
paragraph (a) of this section requiring him to answer designated 
questions, or an order made under Sec.  1114.30 requiring him to produce 
any document or other thing for inspection, copying, testing, sampling, 
or photographing or to permit it to be done, or to permit entry upon 
land or other property, the Board may make such orders in regard to the 
refusal as are just, and among others the following:
    (i) An order that the matters regarding which questions were asked, 
or the character or description of the thing or land, or the contents of 
the paper, or any other designated facts should be taken to be 
established for the purposes of the proceeding in accordance with the 
claim of the party obtaining the order:
    (ii) An order refusing to allow the disobedient party to support or 
oppose designated claims or defenses, or prohibiting him from 
introducing in evidence designated documents or things or items of 
testimony:

[[Page 153]]

    (iii) An order striking out pleadings or parts thereof, or staying 
further proceedings until the order is obeyed, or dismissing the 
proceedings or any party thereof.
    (iv) In lieu of any of the foregoing orders, or in addition thereto, 
the Board shall require the party failing to obey the order or the 
attorney advising that party, or both, to pay the reasonable expenses, 
including attorney's fees, caused by the failure, unless the Board finds 
that the failure was substantially justified or that other circumstances 
make an award of expenses unjust.
    (c) Expenses on refusal to admit. If a party, after being served 
with a request under Sec.  1114.27 to admit the genuineness of any 
document or the truth of any matter of fact, serves a sworn denial 
thereof, and if the party requesting the admission thereafter proves the 
genuineness of any such document or the truth of any such matter of fact 
the Board may order the party making such denial to pay to such other 
party the reasonable expenses incurred in making that proof, including 
reasonable attorney's fees.
    (d) Failure of party to attend or serve answers. If a party or a 
person or an officer, director, managing agent, or employee of a party 
or person willfully fails to appear before the officer who is to take 
his deposition, after being served with a proper notice, or fails to 
serve answers to interrogatories submitted under Sec.  1114.26, after 
proper service of such interrogatories, the Board on motion and notice 
may strike out all or any part of any pleading of that party or person, 
or dismiss the proceeding or any part thereof. In lieu of any such order 
or in addition thereto, the Board shall require the party failing to act 
or the attorney advising that party or both to pay the reasonable 
expenses, including attorney's fees, caused by the failure, unless the 
Board finds that the failure was substantially justified or that other 
circumstances make an award of expenses unjust.
    (e) Expenses against United States. Expenses and attorney's fees are 
not to be imposed upon the United States under this rule.

[47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 68 
FR 17313, Apr. 9, 2003; 69 FR 58366, Sept. 30, 2004; 72 FR 51377, Sept. 
7, 2007; 74 FR 52908, Oct. 15, 2009]



PART 1115_APPELLATE PROCEDURES--Table of Contents



Sec.
1115.1 Scope of rule.
1115.2 Initial decisions.
1115.3 Board actions other than initial decisions.
1115.4 Petitions to reopen administratively final actions.
1115.5 Petitions for other relief.
1115.6 Exhaustion of remedies and judicial review.
1115.7 Petitions for judicial review; mailing address.
1115.8 Petitions to review arbitration decisions.
1115.9 Interlocutory appeals.

    Authority: 5 U.S.C. 559; 49 U.S.C. 1321; 49 U.S.C. 11708.

    Source: 47 FR 49568, Nov. 1, 1982, unless otherwise noted.



Sec.  1115.1  Scope of rule.

    (a) These appellate procedures apply in cases where a hearing is 
required by law or Board action. They do not apply to informal matters 
such as car service, temporary authority, suspension, special permission 
actions, or to other matters of an interlocutory nature. Abandonments 
and discontinuance proceedings instituted under 49 U.S.C. 10903 are 
governed by separate appellate procedures exclusive to those 
proceedings. (See 49 CFR part 1152)
    (b) Requests for appellate relief may relate either to initial 
decisions or to Board actions other than initial decisions. For each 
category, this rule describes the types of appeal permitted, the 
requirements to be observed in filing an appeal, provisions for stay of 
the action, and the status of the action in the absence of a stay.
    (c) Appeals from the decisions of employees acting under authority 
delegated to them by the Chairman of the Board pursuant to Sec.  1011.6 
will be acted upon by the entire Board. Appeals must be filed within 10 
days of the date of the action taken by the employee, and responses to 
appeals must be filed

[[Page 154]]

within 10 days thereafter. Such appeals are not favored; they will be 
granted only in exceptional circumstances to correct a clear error of 
judgment or to prevent manifest injustice.

[47 FR 49568, Nov. 1, 1982, as amended at 61 FR 52714, Oct. 8, 1996; 69 
FR 12806, Mar. 18, 2004]



Sec.  1115.2  Initial decisions.

    This category includes the initial decision of an administrative law 
judge, individual Board Member, or employee board.
    (a) An appeal of right is permitted.
    (b) Appeals must be based on one or more of the following grounds:
    (1) That a necessary finding of fact is omitted, erroneous, or 
unsupported by substantial evidence of record;
    (2) That a necessary legal conclusion, or finding is contrary to 
law, Board precedent, or policy;
    (3) That an important question of law, policy, or discretion is 
involved which is without governing precedent; or
    (4) That prejudicial procedural error has occurred.
    (c) Appeals must detail the assailed findings with supporting 
citations to the record and authorities.
    (d) Appeals and replies shall not exceed 30 pages in length, 
including argument, and appendices or other attachments, but excluding a 
table of cases and an index of subject matter.
    (e) Appeals must be filed within 20 days after the service date of 
the decision or within any further period (not to exceed 20 days) the 
Board may authorize. Replies must be filed within 20 days of the date 
the appeal is filed.
    (f) The timely filing of an appeal to an initial decision will stay 
the effect of the action pending determination of the appeal.
    (g) If an appeal of an initial decision is not timely filed or the 
Board does not stay the effectiveness on its own motion, the order set 
forth in the initial decision shall become the action of the Board and 
be effective at the expiration of the time for filing, unless otherwise 
provided.

[47 FR 49568, Nov. 1, 1982, as amended at 54 FR 19894, May 9, 1989; 61 
FR 52714, Oct. 8, 1996; 81 FR 8855, Feb. 23, 2016]



Sec.  1115.3  Board actions other than initial decisions.

    (a) A discretionary appeal of an entire Board action is permitted. 
Such an appeal should be designated a ``petition for reconsideration.''
    (b) The petition will be granted only upon a showing of one or more 
of the following points:
    (1) The prior action will be affected materially because of new 
evidence or changed circumstances.
    (2) The prior action involves material error.
    (c) The petition must state in detail the nature of and reasons for 
the relief requested. When, in a petition filed under this section, a 
party seeks an opportunity to introduce evidence, the evidence must be 
stated briefly and must not appear to be cumulative, and an explanation 
must be given why it was not previously adduced.
    (d) The petition and any reply must not exceed 20 pages in length. A 
separate preface and summary of argument, not exceeding 3 pages, may 
accompany petitions and replies and must accompany those that exceed 10 
pages in length.
    (e) Petitions must be filed within 20 days after the service of the 
action or within any further period (not to exceed 20 days) as the Board 
may authorize.
    (f) The filing of a petition will not automatically stay the effect 
of a prior action, but the Board may stay the effect of the action on 
its own motion or on petition. A petition to stay may be filed in 
advance of the petition for reconsideration and shall be filed within 10 
days of service of the action. No reply need be filed. However, if a 
party elects to file a reply, it must reach the Board no later than 16 
days after service of the action. In all proceedings, the action, if not 
stayed, will become effective 30 days after it is served, unless the 
Board provides for the action to become effective at a different date. 
On the day the action is served parties may initiate judicial review.

[61 FR 52714, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996]

[[Page 155]]



Sec.  1115.4  Petitions to reopen administratively final actions.

    A person at any time may file a petition to reopen any 
administratively final action of the Board pursuant to the requirements 
of Sec.  1115.3 (c) and (d) of this part. A petition to reopen must 
state in detail the respects in which the proceeding involves material 
error, new evidence, or substantially changed circumstances and must 
include a request that the Board make such a determination.

[61 FR 52714, Oct. 8, 1996]



Sec.  1115.5  Petitions for other relief.

    (a) A party may petition for a stay of an action pending a request 
for judicial review, for extension of the compliance date, or for 
modification of the date the terms of the decision take effect. The 
reasons for the desired relief must be stated in the petition, and the 
petition must be filed not less than 10 days prior to the date the terms 
of the action take effect. No reply need be filed. If a party elects to 
file a reply, the reply must reach the Board no later than 5 days after 
the petition is filed.
    (b) When the terms of a Board action take effect on less than 15 
days' notice, a petition for stay pending a request for judicial review 
must be filed prior to the institution of court action and as close to 
the service date as practicable. No reply need be filed. Where time 
permits, a party may elect to file a reply.
    (c) A petition or reply must not exceed 10 pages in length.

[47 FR 49568, Nov. 1, 1982, as amended at 61 FR 52714, Oct. 8, 1996]



Sec.  1115.6  Exhaustion of remedies and judicial review.

    These rules do not relieve the requirement that a party exhaust its 
administrative remedies before going to court. Any action appealable as 
of right must be timely appealed. If an appeal, discretionary appeal, or 
petition seeking reopening is filed under Sec.  1115.2 or Sec.  1115.3 
of this part, before or after a petition seeking judicial review is 
filed with the courts, the Board will act upon the appeal or petition 
after advising the court of its pendency unless action might interfere 
with the court's jurisdiction.

[47 FR 49568, Nov. 1, 1982, as amended at 61 FR 52714, Oct. 8, 1996]



Sec.  1115.7  Petitions for judicial review; mailing address.

    Petitions for judicial review of final agency orders may be served 
on the Board pursuant to 28 U.S.C. 2112(a) and be addressed to ``General 
Counsel, Office of the General Counsel, Surface Transportation Board, 
Washington, DC 20423.''

[53 FR 20854, June 7, 1988, as amended at 61 FR 52714, Oct. 8, 1996]



Sec.  1115.8  Petitions to review arbitration decisions.

    An appeal of right to the Board is permitted. The appeal must be 
filed within 20 days upon the Board of a final arbitration decision, 
unless a later date is authorized by the Board, and is subject to the 
page limitations of Sec.  1115.2(d). For arbitrations authorized under 
part 1108 of this chapter, the Board's standard of review of arbitration 
decisions will be narrow, and relief will only be granted on grounds 
that the decision is inconsistent with sound principles of rail 
regulation economics, a clear abuse of arbitral authority or discretion 
occurred, the decision directly contravenes statutory authority, or the 
award limitation was violated. For labor arbitration decisions, the 
Board's standard of review is set forth in Chicago and North Western 
Transportation Company--Abandonment--near Dubuque & Oelwein, Iowa, 3 
I.C.C.2d 729 (1987), aff'd sub nom. International Brotherhood of 
Electrical Workers v. Interstate Commerce Commission, 862 F.2d 330 (D.C. 
Cir. 1988). The timely filing of a petition will not automatically stay 
the effect of the arbitration decision. A stay may be requested under 
Sec.  1115.3(f).

[81 FR 69417, Oct. 6, 2016]



Sec.  1115.9  Interlocutory appeals.

    (a) Rulings of Board employees, including administrative law judges, 
may be appealed prior to service of the initial decision only if:
    (1) The ruling denies or terminates any person's participation;

[[Page 156]]

    (2) The ruling grants a request for the inspection of documents not 
ordinarily available for public inspection;
    (3) The ruling overrules an objection based on privilege, the result 
of which ruling is to require the presentation of testimony or 
documents; or
    (4) The ruling may result in substantial irreparable harm, 
substantial detriment to the public interest, or undue prejudice to a 
party.
    (b) In stand-alone cost complaints or in cases filed under the 
simplified standards, any interlocutory appeal of a ruling shall be 
filed with the Board within three (3) business days of the ruling. 
Replies to any interlocutory appeal shall be filed with the Board within 
three (3) business days after the filing of any such appeal. In all 
other cases, interlocutory appeals shall be filed with the Board within 
seven (7) calendar days of the ruling and replies to interlocutory 
appeals shall be filed with Board within seven (7) calendar days after 
the filing of any such appeal as computed under 49 CFR 1104.7.

[61 FR 52714, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996; 72 
FR 51377, Sept. 7, 2007]



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



Sec.
1116.1 Requests.
1116.2 Manner of presentation.

    Authority: 49 U.S.C. 721.

    Source: 47 FR 49569, Nov. 1, 1982, unless otherwise noted.



Sec.  1116.1  Requests.

    (a) Addressee. Requests for oral argument should be addressed to the 
Chief, Section of Administration, Office of Proceedings, Surface 
Transportation Board, Washington, DC 20423-0001.
    (b) Who may request? Any party may submit a written request for oral 
argument and state the reasons for the request. No replies from other 
parties to the request shall be made.
    (c) When to file a request. Requests for oral argument should be 
filed within 20 days after the date of service of the decision, order, 
or requirement being appealed, unless the Board by order prescribes a 
different time period.
    (d) Granting of request. The Board will rule upon requests by 
decision, and the granting of requests is entirely at the discretion of 
the Board.

[47 FR 49569, Nov. 1, 1982, as amended at 74 FR 52908, Oct. 15, 2009]



Sec.  1116.2  Manner of presentation.

    Proponents of a rule or order will be heard first, and opponents 
will be heard second. One counsel only will usually be heard for each of 
the opposing interests, unless additional presentations are specifically 
authorized.



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



    Authority: 49 U.S.C. 721.



Sec.  1117.1  Petitions.

    A party seeking relief not provided for in any other rule may file a 
petition for such relief. The petition should contain (a) a short, plain 
statement of the grounds upon which the Board's jurisdiction is based; 
(b) a short plain statement of the claim showing that the petitioner is 
entitled to relief; and (c) a demand for the relief the petitioner 
believes is appropriate.

[47 FR 49569, Nov. 1, 1982]



PART 1119_COMPLIANCE WITH BOARD DECISIONS--Table of Contents



    Authority: 49 U.S.C. 721.



Sec.  1119.1  Compliance.

    A defendant or respondent directed by the Board to do or desist from 
doing a particular thing must notify the Board on or before the 
compliance date specified in the decision of the manner of compliance. 
Notification should be by verified affidavit showing simultaneous 
service upon all parties to the proceeding. Where a change in rates or 
schedules is directed, notification specifying the Surface 
Transportation Board tariff or schedule numbers must be given in 
addition to the filing of proper tariffs or schedules.

[47 FR 49570, Nov. 1, 1982]

[[Page 157]]



PART 1120_USE OF 1977	1978 STUDY OF MOTOR CARRIER PLATFORM HANDLING
FACTORS--Table of Contents



Sec.
1120.1 Scope.
1120.2 Purpose.

    Authority: 49 U.S.C. 721, 13701, 13703.



Sec.  1120.1  Scope.

    The provisions of this part apply only to Class I and II motor 
common carriers of general freight subject to accounting instruction 
number 27 of the Board's Uniform System of Accounts (49 CFR Part 1207).

[47 FR 36184, Aug. 19, 1982. Redesignated at 47 FR 49570, Nov. 1, 1982]



Sec.  1120.2  Purpose.

    In any proceeding requiring the development of platform handling 
times for distribution of platform expense, carriers may use the results 
of the national weight formula contained in the Board's study, entitled 
1977-1978 Motor Carrier Platform Study, Statement 2S1-79.

[47 FR 36184, Aug. 19, 1982. Redesignated at 47 FR 49570, Nov. 1, 1982]



PART 1121_RAIL EXEMPTION PROCEDURES--Table of Contents



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

    Authority: 49 U.S.C. 10502 and 10704.

    Source: 61 FR 52714, Oct. 8, 1996, unless otherwise noted.



Sec.  1121.1  Scope.

    These procedures generally govern petitions filed under 49 U.S.C. 
10502 to exempt a transaction or service from 49 U.S.C. subtitle IV, or 
any provision of 49 U.S.C. subtitle IV, or to revoke an exemption 
previously granted. These procedures also apply to notices of exemption.



Sec.  1121.2  Discovery.

    Discovery shall follow the procedures set forth at 49 CFR part 1114, 
subpart B. Discovery may begin upon the filing of the petition for 
exemption or petition for revocation of an exemption. In petitions to 
revoke an exemption, a party must indicate in the petition whether it is 
seeking discovery. If it is, the party must file its discovery requests 
at the same time it files its petition to revoke. Discovery shall be 
completed 30 days after the petition to revoke is filed. The party 
seeking discovery may supplement its petition to revoke 45 days after 
the petition is filed. Replies to the supplemental petition are due 15 
days after the supplemental petition is filed.



Sec.  1121.3  Content.

    (a) A party filing a petition for exemption shall provide its case-
in-chief, along with its supporting evidence, workpapers, and related 
documents at the time it files its petition.
    (b) A petition must comply with environmental or historic reporting 
and notice requirements of 49 CFR part 1105, if applicable.
    (c) A party seeking revocation of an exemption or a notice of 
exemption shall provide all of its supporting information at the time it 
files its petition. Information later obtained through discovery can be 
submitted in a supplemental petition pursuant to 49 CFR 1121.2.
    (d) Interchange Commitments. (1) The filing party must certify 
whether or not a proposed acquisition or operation of a rail line 
involves a provision or agreement that may limit future interchange with 
a third-party connecting carrier, whether by outright prohibition, per-
car penalty, adjustment in the purchase price or rental, positive 
economic inducement, or other means (``interchange commitment''). If 
such a provision exists, the following additional information must be 
provided (the information in paragraphs (d)(1)(ii), (iv), (vii) of this 
section may be filed with the Board under 49 CFR 1104.14(a) and will be 
kept confidential without need for the filing of an accompanying motion 
for a protective order under 49 CFR 1104.14(b)):
    (i) The existence of that provision or agreement and identification 
of the affected interchange points; and

[[Page 158]]

    (ii) A confidential, complete version of the document(s) containing 
or addressing that provision or agreement;
    (iii) A list of shippers that currently use or have used the line in 
question within the last two years;
    (iv) The aggregate number of carloads those shippers specified in 
paragraph (d)(1)(iii) of this section originated or terminated 
(confidential);
    (v) A certification that the filing party has provided notice of the 
proposed transaction and interchange commitment to the shippers 
identified in paragraph (d)(1)(iii) of this section;
    (vi) A list of third party railroads that could physically 
interchange with the line sought to be acquired or leased;
    (vii) An estimate of the difference between the sale or lease price 
with and without the interchange commitment (confidential);
    (viii) A change in the case caption so that the existence of an 
interchange commitment is apparent from the case title.
    (2) To obtain information about an interchange commitment for use in 
a proceeding before the Board, a shipper or other affected party may be 
granted access to the confidential documents filed pursuant to paragraph 
(d)(1) of this section by filing, and serving upon the petitioner, a 
``Motion for Access to Confidential Documents,'' containing:
    (i) An explanation of the party's need for the information; and
    (ii) An appropriate draft protective order and confidentiality 
undertaking(s) that will ensure that the documents are kept 
confidential.
    (3) Deadlines. (i) Replies to a Motion for Access are due within 5 
days after the motion is filed.
    (ii) The Board will rule on a Motion for Access within 30 days after 
the motion is filed.
    (iii) Parties must produce the relevant documents within 5 days of 
receipt of a Board approved, signed confidentiality agreement.

[61 FR 52714, Oct. 8, 1996, as amended at 73 FR 31034, May 30, 2008; 78 
FR 54590, Sept. 5, 2013]



Sec.  1121.4  Procedures.

    (a) Exemption proceedings are informal, and public comments are 
generally not sought during consideration of exemption petition 
proposals, except as provided in Sec.  1121.4(c). However, the Board may 
consider during its deliberation any public comments filed in response 
to a petition for exemption.
    (b) If the Board determines that the criteria in 49 U.S.C. 10502 are 
met for the proposed exemption, it will issue the exemption and publish 
a notice of exemption in the Federal Register.
    (c)(1) If the impact of the proposed individual exemption cannot be 
ascertained from the information contained in the petition or 
accompanying submissions, or significant adverse impacts might occur if 
the proposed exemption were granted, the Board may, in its discretion:
    (i) Direct that additional information be filed; or
    (ii) Publish a notice in the Federal Register requesting public 
comments.
    (2) If a petition for a new class exemption is filed, the Board will 
publish a notice in the Federal Register requesting public comments 
before granting the class exemption. This requirement does not pertain 
to individual notices of exemption filed under existing class 
exemptions. The Board may deny a request for a class exemption without 
seeking public comments.
    (d) Exemption petitions containing proposals that are directly 
related to and concurrently filed with a primary application will be 
considered along with that primary application.
    (e) Unless otherwise specified in the decision, an exemption 
generally will be effective 30 days from the service date of the 
decision granting the exemption. Unless otherwise provided in the 
decision, petitions to stay must be filed within 10 days of the service 
date, and petitions for reconsideration or petitions to reopen under 49 
CFR part 1115 or 49 CFR 1152.25(e) must be filed within 20 days of the 
service date.
    (f) Petitions to revoke an exemption or the notice of exemption may 
be filed at any time. The person seeking revocation has the burden of 
showing that the revocation criteria of 49 U.S.C. 10502(d) have been 
met.
    (g) In abandonment exemptions, petitions to revoke in part to impose 
public use conditions under 49 CFR 1152.28, or to invoke the Trails Act, 
16 U.S.C. 1247(d), may be filed at any time prior

[[Page 159]]

to the consummation of the abandonment, except that public use 
conditions may not prohibit disposal of the properties for any more than 
the statutory limit of 180 days after the effective date of the decision 
granting the exemption.
    (h) In transactions for the acquisition or operation of rail lines 
by Class II rail carriers under 49 U.S.C. 10902, the exemption may not 
become effective until 60 days after applicant certifies to the Board 
that it has posted at the workplace of the employees on the affected 
line(s) and served a notice of the transaction on the national offices 
of the labor unions with employees on the affected line(s), setting 
forth the types and numbers of jobs expected to be available, the terms 
of employment and principles of employee selection, and the lines that 
are to be transferred.

[61 FR 52714, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996; 62 
FR 47583, Sept. 10, 1997; 64 FR 46595, Aug. 26, 1999]



PART 1122_BOARD-INITIATED INVESTIGATIONS--Table of Contents



Sec.
1122.1 Definitions.
1122.2 Scope and applicability of this part.
1122.3 Preliminary Fact-Finding.
1122.4 Board-Initiated Investigations.
1122.5 Procedural rules.
1122.6 Confidentiality.
1122.7 Request for confidential treatment.
1122.8 Limitation on participation.
1122.9 Power of persons conducting Board-Initiated Investigations.
1122.10 Transcripts.
1122.11 Rights of witnesses.
1122.12 Certifications and false statements.
1122.13 Right to submit statements.

Appendix A to Part 1122--Informal Procedure Relating to Recommendations 
          and Summary of Findings from the Board-Initiated Investigation

    Authority: 49 U.S.C. 1321, 11144, 11701.

    Source: 81 FR 90239, Dec. 14, 2016, unless otherwise noted.



Sec.  1122.1  Definitions.

    (a) Board-Initiated Investigation means an investigation instituted 
by the Board pursuant to an Order of Investigation and conducted in 
accordance with Section 12 of the Surface Transportation Board 
Reauthorization Act of 2015, now incorporated and codified at 49 U.S.C. 
11701.
    (b) Formal Board Proceeding means a public proceeding instituted by 
the Board pursuant to an Order to Show Cause after a Board-Initiated 
Investigation has been conducted.
    (c) Investigating officer(s) means the individual(s) designated by 
the Board in an Order of Investigation to conduct a Board-Initiated 
Investigation.
    (d) Preliminary Fact-Finding means an informal fact-gathering 
inquiry conducted by Board staff prior to the opening of a Board-
Initiated Investigation.



Sec.  1122.2  Scope and applicability of this part.

    This part applies only to matters subject to Section 12 of the 
Surface Transportation Board Reauthorization Act of 2015, 49 U.S.C. 
11701.



Sec.  1122.3  Preliminary Fact-Finding.

    The Board staff may, in its discretion, conduct nonpublic 
Preliminary Fact-Finding, subject to the provisions of Sec.  1122.6, to 
determine if a matter presents an alleged violation that could be of 
national or regional significance and subject to the Board's 
jurisdiction under 49 U.S.C. Subtitle IV, Part A, and warrants a Board-
Initiated Investigation. Board staff shall inform the subject of 
Preliminary Fact-Finding that Preliminary Fact-Finding has commenced. 
Where it appears from Preliminary Fact-Finding that a Board-Initiated 
Investigation is warranted, staff shall so recommend to the Board. Where 
it appears from the Preliminary Fact-Finding that a Board-Initiated 
Investigation is not warranted, staff shall conclude its Preliminary 
Fact-Finding and notify any parties involved that the process has been 
terminated.



Sec.  1122.4  Board-Initiated Investigations.

    The Board may, in its discretion, commence a nonpublic Board-
Initiated Investigation of any matter of national or regional 
significance that is subject to the jurisdiction of the Board under 49 
U.S.C. Subtitle IV, Part A, subject to the provisions of Sec.  1122.6, 
by issuing an Order of Investigation. Orders of Investigation shall 
state the basis for the

[[Page 160]]

Board-Initiated Investigation and identify all Board staff who are 
authorized to conduct the investigation as Investigating Officer(s). The 
Board may add or remove Investigating Officer(s) during the course of a 
Board-Initiated Investigation. To the extent practicable, an 
Investigating Officer shall not participate in any decisionmaking 
functions in any Formal Board Proceeding(s) opened as a result of any 
Board-Initiated Investigation(s) that he or she conducted.



Sec.  1122.5  Procedural rules.

    (a) After notifying the party subject to Preliminary Fact-Finding 
that Preliminary Fact-Finding has commenced, the Board staff shall, 
within a reasonable period of time, either:
    (1) Conclude Preliminary Fact-Finding and notify any parties 
involved that the process has been terminated; or
    (2) Recommend to the Board that a Board-Initiated Investigation is 
warranted.
    (b) Not later than 30 days after commencing a Board-Initiated 
Investigation, the Investigating Officer(s) shall provide the parties 
under investigation a copy of the Order of Investigation. If the Board 
adds or removes Investigating Officer(s) during the course of the Board-
Initiated Investigation, it shall provide written notification to the 
parties under investigation.
    (c) Not later than 275 days after issuance of the Order of 
Investigation, the Investigating Officer(s) shall submit to the Board 
and the parties under investigation:
    (1) Any recommendations made as a result of the Board-Initiated 
Investigation; and
    (2) A summary of the findings that support such recommendations.
    (d) Not later than 90 days after receiving the recommendations and 
summary of findings, the Board shall decide whether to dismiss the 
Board-Initiated Investigation if no further action is warranted or 
initiate a Formal Board Proceeding to determine whether any provision of 
49 U.S.C. Subtitle IV, Part A, has been violated in accordance with 
section 12 of the Surface Transportation Board Reauthorization Act of 
2015. The Board shall dismiss any Board-Initiated Investigation that is 
not concluded with administrative finality within one year after the 
date on which it was commenced.
    (e) A Formal Board Proceeding commences upon issuance of a public 
Order to Show Cause. The Order to Show Cause shall state the basis for, 
and the issues to be considered during, the Formal Board Proceeding and 
set forth a procedural schedule.



Sec.  1122.6  Confidentiality.

    (a) All information and documents obtained under Sec.  1122.3 or 
Sec.  1122.4, whether or not obtained pursuant to a Board request or 
subpoena, and all activities conducted by the Board under this part 
prior to the opening of a Formal Board Proceeding, shall be treated as 
nonpublic by the Board and its staff except to the extent that:
    (1) The Board, in accordance with 49 CFR 1001.4(c), (d), and (e), 
directs or authorizes the public disclosure of activities conducted 
under this part prior to the opening of a Formal Board Proceeding. If 
any of the activities being publicly disclosed implicate records claimed 
to be confidential commercial information, the Board shall notify the 
submitter prior to disclosure in accordance with 49 CFR 1001.4(b) and 
provide an opportunity to object to disclosure in accordance with 49 CFR 
1001.4(d);
    (2) The information or documents are made a matter of public record 
during the course of an administrative proceeding; or
    (3) Disclosure is required by the Freedom of Information Act, 5 
U.S.C. 552 or other relevant provision of law.
    (b) Procedures by which persons submitting information to the Board 
pursuant to this part of title 49, chapter X, subchapter B, of the Code 
of Federal Regulations may specifically seek confidential treatment of 
information for purposes of the Freedom of Information Act disclosure 
are set forth in Sec.  1122.7. A request for confidential treatment of 
information for purposes of Freedom of Information Act disclosure shall 
not, however, prevent disclosure for law enforcement purposes or when 
disclosure is otherwise found appropriate in the public interest and 
permitted by law.

[[Page 161]]



Sec.  1122.7  Request for confidential treatment.

    Any person that produces documents to the Board pursuant to Sec.  
1122.3 or Sec.  1122.4 may claim that some or all of the information 
contained in a particular document or documents is exempt from the 
mandatory public disclosure requirements of the Freedom of Information 
Act (FOIA), 5 U.S.C. 552, is information referred to in 18 U.S.C. 1905, 
or is otherwise exempt by law from public disclosure. In such case, the 
person making such a claim shall, at the time the person produces the 
document to the Board, indicate on the document that a request for 
confidential treatment is being made for some or all of the information 
in the document. In such case, the person making such a claim also shall 
file a brief statement specifying the specific statutory justification 
for non-disclosure of the information in the document for which 
confidential treatment is claimed. If the person states that the 
information comes within the exception in 5 U.S.C. 552(b)(4) for trade 
secrets and commercial or financial information, and the information is 
responsive to a subsequent FOIA request to the Board, 49 CFR 1001.4 
shall apply.



Sec.  1122.8  Limitation on participation.

    No party who is not the subject of a Board-Initiated Investigation 
may intervene or participate as a matter of right in any such Board-
Initiated Investigation under this part.



Sec.  1122.9  Power of persons conducting Board-Initiated Investigations.

    The Investigating Officer(s), in connection with any Board-Initiated 
Investigation, may interview or depose witnesses, inspect property and 
facilities, and request and require the production of any information, 
documents, books, papers, correspondence, memoranda, agreements, or 
other records, in any form or media, that are likely to be directly 
relevant to the issues of the Board-Initiated Investigation. The 
Investigating Officer(s), in connection with a Board-Initiated 
Investigation, also may issue subpoenas, in accordance with 49 U.S.C. 
1321, to compel the attendance of witnesses, the production of any of 
the records and other documentary evidence listed above, and access to 
property and facilities.



Sec.  1122.10  Transcripts.

    Transcripts, if any, of investigative testimony shall be recorded 
solely by the official reporter or other person or by means authorized 
by the Board or by the Investigating Officer(s). A witness who has given 
testimony pursuant to this part shall be entitled, upon written request, 
to procure a transcript of the witness' own testimony or, upon proper 
identification, shall have the right to inspect the official transcript 
of the witness' own testimony.



Sec.  1122.11  Rights of witnesses.

    (a) Any person who is compelled or requested to furnish documentary 
evidence or testimony in a Board-Initiated Investigation shall, upon 
request, be shown the Order of Investigation. Copies of Orders of 
Investigation shall not be furnished, for their retention, to such 
persons requesting the same except with the express approval of the 
Chairman.
    (b) Any person compelled to appear, or who appears in person at a 
Board-Initiated Investigation by request or permission of the 
Investigating Officer may be accompanied, represented, and advised by 
counsel, as provided by the Board's regulations.
    (c) The right to be accompanied, represented, and advised by counsel 
shall mean the right of a person testifying to have an attorney present 
with him during any aspect of a Board-Initiated Investigation and to 
have this attorney advise his client before, during and after the 
conclusion of such examination.



Sec.  1122.12  Certifications and false statements.

    (a) When producing documents under Sec.  1122.4, the producing party 
shall submit a statement certifying that such person has made a 
reasonable search for the responsive documents and is producing all the 
documents called for by the Investigating Officer(s), subject to any 
search protocols agreed to by

[[Page 162]]

the Investigating Officer(s) and producing parties. If any responsive 
document(s) are not produced for any reason, the producing party shall 
state the reason therefor.
    (b) If any responsive documents are withheld because of a claim of 
the attorney-client privilege, work product privilege, or other 
applicable privilege, the producing party shall submit a list of such 
documents which shall, for each document, identify the attorney 
involved, the client involved, the date of the document, the person(s) 
shown on the document to have prepared and/or sent the document, and the 
person(s) shown on the document to have received copies of the document.



Sec.  1122.13  Right to submit statements.

    Any party subject to a Board-Initiated Investigation may, at any 
time during the course of a Board-Initiated Investigation, submit to the 
Board written statements of facts or circumstances, with any relevant 
supporting evidence, concerning the subject of that investigation.



      Sec. Appendix A to Part 1122--Informal Procedure Relating to 
    Recommendations and Summary of Findings From the Board-Initiated 
                              Investigation

    (a) After conducting sufficient investigation and prior to 
submitting recommendations and a summary of findings to the Board, the 
Investigating Officer, in his or her discretion, may inform the parties 
under investigation (orally or in writing) of the proposed 
recommendations and summary of findings that may be submitted to the 
Board. If the Investigating Officer so chooses, he or she shall also 
advise the parties under investigation that they may submit a written 
statement, as explained below, to the Investigating Officer prior to the 
consideration by the Board of the recommendations and summary of 
findings. This optional process is in addition to, and does not limit in 
any way, the rights of parties under investigation otherwise provided 
for in this part.
    (b) Unless otherwise provided for by the Investigating Officer, 
parties under investigation may submit a written statement, as described 
above, within 14 days after of being informed by the Investigating 
Officer of the proposed recommendation(s) and summary of findings. Such 
statements shall be no more than 20 pages, not including any supporting 
data, evidence, and verified statements that may be attached to the 
written statement, double spaced on 8\1/2\ by 11 inch paper, setting 
forth the views of the parties under investigation of factual or legal 
matters or other arguments relevant to the commencement of a Formal 
Board Proceeding. Any statement of fact included in the submission must 
be sworn to by a person with personal knowledge of such fact.
    (c) Such written statements, if the parties under investigation 
choose to submit, shall be submitted to the Investigating Officer. The 
Investigating Officer shall provide any written statement(s) from the 
parties under investigation to the Board at the same time that he or she 
submits his or her recommendations and summary of findings to the Board.

                       PARTS 1123	1129 [RESERVED]

                     Parts 1130	1149_Rate Procedures



PART 1130_INFORMAL COMPLAINTS--Table of Contents



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

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



Sec.  1130.1  When no damages sought.

    (a) Form and content; copies. Informal complaint may be by letter or 
other writing and will be serially numbered as filed. The complaint must 
contain the essential elements of a formal complaint as specified at 49 
CFR 1111.1(a) and may embrace supporting papers. The original and one 
copy must be filed with the Board.
    (b) Correspondence handling. When an informal complaint appears 
susceptible of informal adjustment, the Board will send a copy or 
statement of the complaint to each subject of the complaint in an 
attempt to have it satisfied by correspondence, thereby avoiding the 
filing of a formal complaint.
    (c) Discontinuance of informal proceeding. The filing of an informal 
complaint does not preclude complainant from filing a formal complaint. 
If a formal complaint is filed, the informal proceeding will be 
discontinued.

[47 FR 49570, Nov. 1, 1982, as amended at 48 FR 44827, Sept. 30, 1983; 
69 FR 12806, Mar. 18, 2004]

[[Page 163]]



Sec.  1130.2  When damages sought.

    (a) Actual filing required. Notification to the Board that an 
informal complaint may or will be filed later seeking damages is not a 
filing within the meaning of the statute.
    (b) Content. An informal complaint seeking damages must be filed 
within the statutory period, and should identify with reasonable 
definiteness the involved shipments or transportation services. The 
complaint should include:
    (1) A statement that complainant seeks to recover damages;
    (2) The names of each individual seeking damages;
    (3) The names and addresses of defendants against which claim is 
made;
    (4) The commodities, the rate applied, the date on which the charges 
were paid, the names of the parties paying the charges, and, if 
different, the names of the parties bearing the charges;
    (5) The period of time within which or the specific dates upon which 
the shipments were made, and the dates when they were delivered or 
tendered for delivery;
    (6) The specific origin and destination points or, where they are 
numerous, the territorial or rate group of the origin and destination 
points and, if known, the routes of movement; and
    (7) The nature and amount of the injury sustained by each claimant.
    (c) Statement of prior claim. A complaint filed under paragraph (b) 
of this section containing a claim which has been the subject of a 
previous informal or formal complaint must specifically refer to the 
previous complaint.
    (d) Copies. The original of an informal complaint seeking damages 
must be accompanied by a sufficient number of copies to enable the Board 
to send one to each defendant named.
    (e) [Reserved]
    (f) Notification to the parties; six months' rule. If an informal 
complaint seeking damages (other than a contested tariff reconciliation 
petition) cannot be disposed of informally or is denied or withdrawn by 
complainant, the parties affected will be so notified in writing by the 
Board. Contested tariff reconciliation petitions either will be granted 
or denied by the entry of a decision. Unless within six months after the 
date on which a notice is mailed or a decision is served, a party either 
files a formal complaint or resubmits its informal complaint on an 
additional-fact basis, the matter in the complaint or petition will not 
be reconsidered. The claim will be considered abandoned and no complaint 
seeking damages on the same cause of action will be accepted unless 
filed within the statutory period. Any filing or resubmission satisfying 
the six months' requirement will be considered filed as of the date of 
the original filing and must specifically refer to that date and to the 
Board's file number. An original and 10 copies of a petition for 
reconsideration should be filed.
    (g) Tariff reconciliation proceedings for motor common carriers--(1) 
Petitions to waive collection or permit payment. Subject to Board review 
and approval, motor common carriers (other than household goods 
carriers) and shippers may resolve, by mutual consent, overcharge and 
undercharge claims under the provisions of 49 U.S.C. 14709. Petitions 
for appropriate authority may be filed by either the carrier, shipper or 
consignee on the Board's tariff reconciliation docket by submitting a 
letter of intent to depart from the filed rate. The petitions will be 
deemed the equivalent of an informal complaint and answer admitting the 
matters stated in the petition. Petitions shall be sent to the Office of 
Compliance and Enforcement, Surface Transportation Board, Washington, DC 
20423. The petitions shall contain, at a minimum, the following 
information:
    (i) The name(s) and address(es) of the payer(s) of the freight 
charges;
    (ii) The name(s) of the carrier(s) involved in the traffic;
    (iii) An estimate of the amount(s) involved;
    (iv) The time period when the shipment(s) involved were delivered or 
tendered for delivery;
    (v) A general description of the point(s) of origin and destination 
of the shipment(s);
    (vi) A general description of the commodity(ies) transported;
    (vii) A statement certifying that the carrier(s) and shipper(s) 
participating in the shipment(s) or the payer(s) of the freight charges 
concur(s) with the

[[Page 164]]

intent to depart from the filed rate; and
    (viii) A brief explanation of the incorrect tariff provision(s) or 
billing error(s) causing the request to depart from the filed rate.
    (2) Public notice and protest. Tariff reconciliation petitions 
(letters of intent) shall be served on all parties named in the petition 
by the party that files the petition and will be made available by the 
Board for public inspection in the Office of Compliance and Enforcement 
Public File, Surface Transportation Board, Washington, DC 20423. Any 
interested person may protest the granting of a petition by filing a 
letter of objection with the Office of Compliance and Enforcement within 
30 days of Board receipt of the petition. Letters of objection shall 
identify the tariff reconciliation proceeding, shall clearly state the 
reasons for the objection, and shall certify that a copy of the letter 
of objection has been served on all parties named in the petition. The 
Board may initiate an investigation of the petition on its own motion.
    (3) Uncontested petitions. If a petition is not contested, and if 
the Board does not initiate an investigation of the petition on its own 
motion, approval is deemed granted without further action by the Board, 
effective 45 days after Board receipt of the petition.
    (4) Contested petitions. If a petition is contested or the Board 
initiates an investigation of the petition on its own motion, 15 days 
will be allowed for reply. The 15-day period will commence on the date 
of service of the objections or, if the Board initiates an investigation 
on its own motion, on the date of service of the decision initiating the 
investigation. After the period for reply has expired, the Board will 
issue a decision approving or disapproving the petition, or requesting 
further submissions from the parties, and then will issue a decision 
based on the further submissions.

[47 FR 49570, Nov. 1, 1982, as amended at 50 FR 15901, Apr. 23, 1985; 51 
FR 5713, Feb. 18, 1986; 52 FR 26479, July 15, 1987; 53 FR 19301, May 27, 
1988; 60 FR 2544, Jan. 10, 1995; 62 FR 50884, Sept. 29, 1997]



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



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

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

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



Sec.  1132.1  Protest against collective ratemaking actions.

    (a) Content. The protested collective ratemaking action sought to be 
suspended, whether or not contained in a tariff filed with the Board, 
should be identified by making reference to: The name of the publishing 
carrier or collective ratemaking organization; the identification of the 
tariff, if applicable, or the identification of the collective 
ratemaking action publication if it is not contained in a tariff filed 
with the Board; the specific items or particular provisions protested; 
and the effective date of the tariff or other collective ratemaking 
action publication. Reference should also be made to the tariff or 
collective ratemaking action, and the specific provisions proposed to be 
superseded. The protest should state the grounds in support thereof, and 
indicate in what respect the protested collective ratemaking action is 
considered to be unlawful. Such protests will be considered as addressed 
to the discretion of the Board. Should a protestant desire to proceed 
further against a collective ratemaking action which is not suspended, 
or which has been suspended and the suspension vacated, a separate later 
formal complaint or petition should be filed.
    (b) When filed. Protests against, and requests for suspension of, 
collective ratemaking actions will not be considered unless made in 
writing and filed with the Board at Washington, DC. If the protestant 
desires action by the Board before the effective date of the collective 
action, protests and requests for suspension shall reach the Board at 
least 12 days (except as provided in paragraph (c) of this section) 
before such effective date. If the protested

[[Page 165]]

collective ratemaking action is already in effect, or if the protestant 
does not desire action before its effective date, protests and requests 
for suspension can be filed at any time.
    (c) Motor carrier tariff bureau filings. When motor common carrier 
tariff bureaus take collective actions subject to the special procedures 
adopted in Ex Parte No. MC-82, New Procedures in Motor Carrier Rev. 
Proc. 340 I.C.C. 1 (1971), and set forth at 49 CFR part 1139, protests 
must reach the Board at least 22 days before the effective dates of 
those actions if protestants desire action by the Board before such 
effective dates. All statements should be served by express mail or an 
equivalent expedited delivery service upon any party undertaking to bear 
the cost. Written request for this expedited service must be made no 
less than 5 days before the statement is due to be filed with the Board.
    (d) Copies; service. In connection with proceedings involving 
proposals subject to the special procedures in Ex Parte No. MC-82, New 
Procedures in Motor Carrier Rev. Proc. 339 I.C.C. 324, and set forth at 
49 CFR part 1139, an original and 10 copies of every protest or reply 
filed under this section should be furnished for the use of the Board. 
Except as provided for proposals subject to the special procedures in Ex 
Parte No. MC-82, the original and 10 copies of each protest, or of each 
reply filed under this section, must be filed with the Board, and one 
copy simultaneously must be served upon the publishing carrier or 
collective ratemaking organization, and upon other persons known by 
protestant to be interested. These pleadings should be directed to the 
attention of the Chief, Section of Administration, Office of 
Proceedings, Surface Transportation Board.
    (e) Reply to protest. A reply to a protest filed at least 12 days 
before the effective date of proposed collective action provisions must 
reach the Board not later than the fourth working day prior to the 
scheduled effective date of the protested provisions unless otherwise 
provided. Replies to protests against motor carrier rate bureau 
proposals subject to Ex Parte No. MC-82 procedures, to be assured of 
consideration, must reach the Board no later than 14 days before the 
scheduled effective date of the protested provisions.

[62 FR 50885, Sept. 29, 1997, as amended at 74 FR 52908, Oct. 15, 2009]



Sec.  1132.2  Procedures in certain suspension matters.

    (a) A petition for reconsideration may be filed by any interested 
person within 20 days after the date of service of a Board decision 
which results in an order for:
    (1) Investigation and suspension of collective ratemaking actions, 
or
    (2) Investigation (without suspension) of collective ratemaking 
actions.
    (b) Any interested person may file and serve a reply to any petition 
for reconsideration permitted under paragraph (a) of this section within 
20 days after the filing of such petition with the Board, but if the 
facts stated in any such petition disclose a need for accelerated 
action, such action may be taken before expiration of the time allowed 
for reply. In all other respects, such petitions and replies thereto 
will be governed by the rules of general applicability of the Rules of 
Practice.



PART 1133_RECOVERY OF DAMAGES--Table of Contents



Sec.
1133.1 Freight bill filing requirement under modified procedure.
1133.2 Statement of claimed damages based on Board findings.

    Authority: 49 U.S.C. 721.

    Source: 47 FR 49575, Nov. 1, 1982, unless otherwise noted.



Sec.  1133.1  Freight bill filing requirement under modified procedure.

    If, under modified procedure (for general rules governing modified 
procedure, see part 1112), an award of damages is sought, complainant 
should submit the paid freight bills or properly certified copies with 
its statement when there are not more than 10 shipments; if more than 10 
shipments are involved, complainant should retain the documents.

[[Page 166]]



Sec.  1133.2  Statement of claimed damages based on Board findings.

    (a) When the Board finds that damages are due, but that the amount 
cannot be ascertained upon the record before it, the complainant should 
immediately prepare a statement showing details of the shipments on 
which damages are claimed, in accordance with the following form:

    Claim of ---- under decision of the Surface Transportation Board in 
Docket No. ------.
    ---- Date of shipment.
    ---- Date of delivery or tender of delivery.
    ---- Date charges were paid.
    ---- Car (or vessel) initials.
    ---- Car (or voyage) number.
    ---- Origin.
    ---- Destination.
    ---- Route.
    ---- Commodity.
    ---- Weight.
    ---- Rate.
    ---- Amount.
    ---- Rate.
    ---- Amount.
    ---- Reparation on basis of Board's decision.
    ---- Charges paid by. \1\
---------------------------------------------------------------------------

    \1\ Here insert name of person paying charges in the first instance, 
and state whether as consignor, consignee, or in what other capacity.
---------------------------------------------------------------------------

    Claimant hereby certifies that this statement includes claims only 
on shipments covered by the findings in the docket above described and 
contains no claim for reparation previously filed with the Board by or 
on behalf of claimant or, so far as claimant knows, by or on behalf of 
any person, in any other proceedings, except as follows: (Here indicate 
any exceptions, and explanation thereof).
________________________________________________________________________
 (Claimant)
By______________________________________________________________________
 (Practitioner)
________________________________________________________________________
 (Address)
________________________________________________________________________
 (Date)

    Total amount of reparation $------. The undersigned hereby certifies 
that this statement has been checked against the records of this company 
and found correct.
    Date ------ Concurred \2\ in: ------ Company ------ Company, 
Defendant Collecting Carrier, Defendant \3\. ------
---------------------------------------------------------------------------

    \2\ For concurring certificate in case collecting carrier is not a 
defendant.
    \3\ If not a defendant, strike out the word ``defendant.''
---------------------------------------------------------------------------

    By ------, Auditor. By ------, Auditor.

    (b) The statement should not include any shipment not covered by the 
Board's findings, or any shipment on which complaint was not filed with 
the Board within the statutory period. The filing of a statement will 
not stop the running of the statute of limitations as to shipments not 
covered by complaint or supplemental complaint. If the shipments moved 
over more than one route, a separate statement should be prepared for 
each route, and separately numbered, except that shipments as to which 
the collecting carrier is in each instance the same may be listed in a 
single statement if grouped according to routes. The statement, together 
with the paid freight bills on the shipments, or true copies thereof, 
should then be forwarded to the carrier which collected the charges, for 
verification and certification as to its accuracy. If the statement is 
not forwarded immediately to the collecting carrier for certification, a 
letter request from defendants that forwarding be expedited will be 
considered to the end that steps be taken to have the statement 
forwarded immediately. All discrepancies, duplications, or other errors 
in the statements should be adjusted by the parties and corrected agreed 
statements submitted to the Board. The certificate must be signed in ink 
by a general accounting officer of the carrier and should cover all of 
the information shown in the statement. If the carrier which collected 
the charges is not a defendant in the case, its certificate must be 
concurred in by like signature on behalf of a carrier defendant. 
Statements so prepared and certified shall be filed with the Board 
whereupon it will consider entry of a decision awarding damages.

[47 FR 49575, Nov. 1, 1982, as amended at 64 FR 53268, Oct. 1, 1999]



PART 1135_RAILROAD COST RECOVERY PROCEDURES--Table of Contents



Sec.
1135.1 Quarterly adjustment.
1135.2 Revenue Shortfall Allocation Method: Annual State tax 
          information.

    Authority: 5 U.S.C. 553, and 49 U.S.C. 721, 10701, 10704, 10708, and 
11145.

[[Page 167]]



Sec.  1135.1  Quarterly adjustment.

    To enable the Board to publish the rail cost adjustment factor 
(RCAF) as required by 49 U.S.C. 10708, the Association of American 
Railroads (AAR) shall calculate and file with the Board by the fifth day 
of December, March, June and September of each year its forecast for the 
next calendar quarter of the all-inclusive index of railroad costs and 
calculate and file the RCAF unadjusted for changes in railroad 
productivity as prescribed in Railroad Cost Recovery Procedures, 1 
I.C.C.2d 207 (1984), and any subsequent amendments thereto. In addition, 
the AAR shall calculate the productivity-adjusted RCAF as prescribed in 
Railroad Cost Recovery Procedures, 5 I.C.C.2d 434 (1989), and any 
subsequent amendments thereto. The AAR shall submit workpapers detailing 
its calculations. The Board will review and verify the AAR submissions 
and make its RCAF publication by the twentieth day of December, March, 
June and September of each year.

[67 FR 55166, Aug. 28, 2002]



Sec.  1135.2  Revenue Shortfall Allocation Method: Annual State tax
information.

    (a) To enable the Board to calculate the revenue shortfall 
allocation method (RSAM), which is one of the three benchmarks that are 
used to determine the reasonableness of a challenged rate under one 
standard of the Board's Simplified Standards for Rail Rate Cases, STB 
Docket No. 646 (Sub-No. 1) (STB served Sept. 5, 2007), the Association 
of American Railroads (AAR) shall file with the Board, on or before May 
30, the weighted average State tax rates applicable to each Class I 
railroad for the previous year. The AAR shall submit workpapers 
detailing its calculations.
    (b) The Board will serve and publish a notice of the filing in the 
Federal Register within 10 days of the AAR's filing.
    (c) Any interested party may file comments on the AAR's filing 
within 30 days of the notice described in paragraph (b) of this section. 
If no comments are received within 30 days, the Board will automatically 
adopt the AAR's weighted average State tax rates on the 31st day. If 
comments opposing the AAR's calculations are received, the AAR's 
response will be due within 20 days of the comments. The Board will 
review the submission and comments and serve a decision within 60 days 
from the date of the close of the record that either accepts, rejects, 
or modifies the AAR's railroad-specific tax information.

[75 FR 8818, Feb. 26, 2010]



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



    Authority: 49 U.S.C. 721.



Sec.  1141.1  Procedures to calculate interest rates.

    (a) For purposes of complying with a Board decision in an 
investigation or complaint proceeding, interest rates to be computed 
shall be the most recent U.S. Prime Rate as published by The Wall Street 
Journal. The rate levels will be determined as follows:
    (1) For investigation proceedings, the interest rate shall be the 
U.S. Prime Rate as published by The Wall Street Journal in effect on the 
date the statement is filed accounting for all amounts received under 
the new rates.
    (2) For complaint proceedings, the interest rate shall be the U.S. 
Prime Rate as published by The Wall Street Journal in effect on the day 
when the unlawful charge is paid. The interest rate in complaint 
proceedings shall be updated whenever The Wall Street Journal publishes 
a change to its reported U.S. Prime Rate. Updating will continue until 
the required reparation payments are made.
    (b) For investigation proceedings, the reparations period shall 
begin on the date the investigation is started. For complaint 
proceedings, the reparations period shall begin on the date the unlawful 
charge is paid.
    (c) For both investigation and complaint proceedings, the annual 
percentage rate shall be the same as the annual nominal (or stated) 
rate. Thus, the nominal rate must be factored exponentially to the power 
representing the portion of the year covered by the interest rate. A 
simple multiplication of the nominal rate by the portion of

[[Page 168]]

the year covered by the interest rate would not be appropriate because 
it would result in an effective rate in excess of the nominal rate. 
Under this ``exponential'' approach, the total cumulative reparations 
payment (including interest) is calculated by multiplying the interest 
factor for each period by the principal amount for that period plus any 
accumulated interest from previous periods. The ``interest factor'' for 
each period is 1.0 plus the interest rate for that period to the power 
representing the portion of the year covered by the interest rate.

[78 FR 44460, July 24, 2013]



PART 1144_INTRAMODAL RAIL COMPETITION--Table of Contents



Sec.
1144.1 Negotiation.
1144.2 Prescription.
1144.3 General.

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

    Source: 67 FR 61290, Sept. 30, 2002, unless otherwise noted.



Sec.  1144.1  Negotiation.

    (a) Timing. At least 5 days prior to seeking the prescription of a 
through route, joint rate, or reciprocal switching, the party intending 
to initiate such action must first seek to engage in negotiations to 
resolve its dispute with the prospective defendants.
    (b) Participation. Participation or failure to participate in 
negotiations does not waive a party's right to file a timely request for 
prescription.
    (c) Arbitration. The parties may use arbitration as part of the 
negotiation process, or in lieu of litigation before the Board.



Sec.  1144.2  Prescription.

    (a) General. A through route or a through rate shall be prescribed 
under 49 U.S.C. 10705, or a switching arrangement shall be established 
under 49 U.S.C. 11102(c), if the Board determines:
    (1) That the prescription or establishment is necessary to remedy or 
prevent an act that is contrary to the competition policies of 49 U.S.C. 
10101 or is otherwise anticompetitive, and otherwise satisfies the 
criteria of 49 U.S.C. 10705 and 11102(c), as appropriate. In making its 
determination, the Board shall take into account all relevant factors, 
including:
    (i) The revenues of the involved railroads on the affected traffic 
via the rail routes in question.
    (ii) The efficiency of the rail routes in question, including the 
costs of operating via those routes.
    (iii) The rates or compensation charged or sought to be charged by 
the railroad or railroads from which prescription or establishment is 
sought.
    (iv) The revenues, following the prescription, of the involved 
railroads for the traffic in question via the affected route; the costs 
of the involved railroads for that traffic via that route; the ratios of 
those revenues to those costs; and all circumstances relevant to any 
difference in those ratios; provided that the mere loss of revenue to an 
affected carrier shall not be a basis for finding that a prescription or 
establishment is necessary to remedy or prevent an act contrary to the 
competitive standards of this section; and
    (2) That either:
    (i) The complaining shipper has used or would use the through route, 
through rate, or reciprocal switching to meet a significant portion of 
its current or future railroad transportation needs between the origin 
and destination; or
    (ii) The complaining carrier has used or would use the affected 
through route, through rate, or reciprocal switching for a significant 
amount of traffic.
    (b) Other considerations. (1) The Board will not consider product 
competition.
    (2) If a railroad wishes to rely in any way on geographic 
competition, it will have the burden of proving the existence of 
effective geographic competition by clear and convincing evidence.
    (3) When prescription of a through route, a through rate, or 
reciprocal switching is necessary to remedy or prevent an act contrary 
to the competitive standards of this section, the overall revenue 
inadequacy of the defendant railroad(s) will not be a basis for denying 
the prescription.

[[Page 169]]

    (4) Any proceeding under the terms of this section will be conducted 
and concluded by the Board on an expedited basis.

[67 FR 61290, Sept. 30, 2002, as amended at 81 FR 8855, Feb. 23, 2016]



Sec.  1144.3  General.

    (a) These rules will govern the Board's adjudication of individual 
cases pending on or after the effective date of these rules (October 31, 
1985).
    (b) Discovery under these rules is governed by the Board's general 
rules of discovery at 49 CFR part 1114.
    (c) Any Board determinations or findings under this part with 
respect to compliance or non-compliance with the standards of Sec.  
1144.2 shall not be given any res judicata or collateral estoppel effect 
in any litigation involving the same facts or controversy arising under 
the antitrust laws of the United States.



PART 1146_EXPEDITED RELIEF FOR SERVICE EMERGENCIES--Table of Contents



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



Sec.  1146.1  Prescription of alternative rail service.

    (a) General. Alternative rail service will be prescribed under 49 
U.S.C. 11123(a) if the Board determines that, over an identified period 
of time, there has been a substantial, measurable deterioration or other 
demonstrated inadequacy in rail service provided by the incumbent 
carrier.
    (b)(1) Petition for Relief. Affected shippers or railroads may seek 
the relief described in paragraph (a) of this section by filing an 
appropriate petition containing:
    (i) A full explanation, together with all supporting evidence, to 
demonstrate that the standard for relief contained in paragraph (a) of 
this section is met;
    (ii) A summary of the petitioner's discussions with the incumbent 
carrier of the service problems and the reasons why the incumbent 
carrier is unlikely to restore adequate rail service consistent with 
current transportation needs within a reasonable period of time;
    (iii) A commitment from another available railroad to provide 
alternative service that would meet current transportation needs (or, if 
the petitioner is a railroad and does not have an agreement from the 
alternative carrier, an explanation as to why it does not), and an 
explanation of how the alternative service would be provided safely 
without degrading service to the existing customers of the alternative 
carrier and without unreasonably interfering with the incumbent's 
overall ability to provide service; and
    (iv) A certification of service of the petition, by hand or by 
overnight delivery, on the incumbent carrier, the proposed alternative 
carrier, and the Federal Railroad Administration.
    (2) Reply. The incumbent carrier must file a reply to a petition 
under this paragraph within five (5) business days.
    (3) Rebuttal. The party requesting relief may file rebuttal no more 
than three (3) business days later.
    (c) Presumption of continuing need. Unless otherwise indicated in 
the Board's order, a Board order issued under paragraph (a) of this 
section shall establish a rebuttable presumption that the transportation 
emergency will continue for more than 30 days from the date of that 
order.
    (d)(1) Petition to terminate relief. Should the Board prescribe 
alternative rail service under paragraph (a), of this section the 
incumbent carrier may subsequently file a petition to terminate that 
relief. Such a petition shall contain a full explanation, together with 
all supporting evidence, to demonstrate that the carrier is providing, 
or is prepared to provide, adequate service. Carriers are admonished not 
to file such a petition prematurely.
    (2) Reply. Parties must file replies to petitions to terminate filed 
under this subsection within five (5) business days.
    (3) Rebuttal. The incumbent carrier may file any rebuttal no more 
than three (3) business days later.
    (e) Service. All pleadings under this part shall be served by hand 
or overnight delivery on the Board, the other

[[Page 170]]

parties, and the Federal Railroad Administration.

[63 FR 71401, Dec. 28, 1998, as amended at 81 FR 8855, Feb. 23, 2016]



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



    Authority: 49 U.S.C. 721, 10705, 11101, and 11102.



Sec.  1147.1  Prescription of alternative rail service.

    (a) General. Alternative rail service will be prescribed under 49 
U.S.C. 11102(a), 11102(c) or 10705(a) if the Board determines that, over 
an identified period of time, there has been a substantial, measurable 
deterioration or other demonstrated inadequacy in rail service provided 
by the incumbent carrier.
    (b)(1) Petition for Relief. Affected shippers or railroads may seek 
relief described in paragraph (a) of this section by filing an 
appropriate petition containing:
    (i) A full explanation, together with all supporting evidence, to 
demonstrate that the standard for relief contained in paragraph (a) of 
this section is met;
    (ii) A summary of the petitioner's discussions with the incumbent 
carrier of the service problems and the reasons why the incumbent 
carrier is unlikely to restore adequate rail service consistent with 
current transportation needs within a reasonable period of time;
    (iii) A commitment from another available railroad to provide 
alternative service that would meet current transportation needs (or, if 
the petitioner is a railroad and does not have an agreement from the 
alternative carrier, an explanation as to why it does not), and an 
explanation of how the alternative service would be provided safely 
without degrading service to the existing customers of the alternative 
carrier and without unreasonably interfering with the incumbent's 
overall ability to provide service; and
    (iv) A certification of service of the petition, by hand or by 
overnight delivery, on the incumbent carrier, the proposed alternative 
carrier, and the Federal Railroad Administration.
    (2) Reply. The incumbent carrier must file a reply to a petition 
under this paragraph within thirty (30) days.
    (3) Rebuttal. The party requesting relief may file rebuttal no more 
than fifteen (15) days later.
    (c)(1) Petition to terminate relief. Should the Board prescribe 
alternative rail service under paragraph (a) of this section, the 
incumbent carrier may subsequently file a petition to terminate that 
relief. Such a petition shall contain a full explanation, together with 
all supporting evidence, to demonstrate that the carrier is providing, 
or is prepared to provide, adequate service to affected shippers. 
Carriers are admonished not to file such a petition prematurely.
    (2) Reply. Parties must file replies to petitions to terminate filed 
under this subsection within five (5) business days.
    (3) Rebuttal. The incumbent carrier may file any rebuttal no more 
than three (3) business days later.
    (d) Service. All pleadings under this part shall be served by hand 
or by overnight delivery on the Board, other parties, and the Federal 
Railroad Administration.

[63 FR 71401, Dec. 28, 1998]

                       PARTS 1148	1149 [RESERVED]

                  Parts 1150	1176_Licensing Procedures

                Parts 1150	1159_Rail Licensing Procedures



PART 1150_CERTIFICATE TO CONSTRUCT, ACQUIRE, OR OPERATE RAILROAD LINES
--Table of Contents



              Subpart A_Applications Under 49 U.S.C. 10901

Sec.
1150.1 Introduction.
1150.2 Overview.
1150.3 Information about applicant(s).
1150.4 Information about the proposal.
1150.5 Operational data.
1150.6 Financial information.
1150.7 Environmental and energy data.
1150.8 Additional support.

[[Page 171]]

1150.9 Notice.
1150.10 Procedures.

                     Subpart B_Designated Operators

1150.11 Introduction.
1150.12 Information about the designated operator.
1150.13 Relevant dates.
1150.14 Proposed service.
1150.15 Information about offeror.
1150.16 Procedures.

   Subpart C_Modified Certificate of Public Convenience and Necessity

1150.21 Scope of rules.
1150.22 Exemptions and common carrier status.
1150.23 Modified certificate of public convenience and necessity.
1150.24 Termination of service.

           Subpart D_Exempt Transactions Under 49 U.S.C. 10901

1150.31 Scope of exemption.
1150.32 Procedures and relevant dates--transactions that involve 
          creation of Class III carriers.
1150.33 Information to be contained in notice--transactions that involve 
          creation of Class III carriers.
1150.34 Caption summary--transactions that involve creation of Class III 
          carriers.
1150.35 Procedures and relevant dates--transactions that involve 
          creation of Class I or Class II carriers.
1150.36 Exempt construction of connecting track.

 Subpart E_Exempt Transactions Under 49 U.S.C. 10902 for Class III Rail 
                                Carriers

1150.41 Scope of exemption.
1150.42 Procedures and relevant dates for small line acquisitions.
1150.43 Information to be contained in notice for small line 
          acquisitions.
1150.44 Caption summary.
1150.45 Procedures and relevant dates--transactions under section 10902 
          that involve creation of Class I or Class II rail carriers.

    Authority: 49 U.S.C. 721(a), 10502, 10901, and 10902.

    Source: 47 FR 8199, Feb. 25, 1982, unless otherwise noted. 
Redesignated at 47 FR 49581, Nov. 1, 1982.



              Subpart A_Applications Under 49 U.S.C. 10901



Sec.  1150.1  Introduction.

    (a) When an application is required. This subpart governs 
applications under 49 U.S.C. 10901 for a certificate of public 
convenience and necessity authorizing the construction, acquisition or 
operation of railroad lines. Noncarriers require Board approval under 
section 10901 to construct, acquire or operate a rail line in interstate 
commerce. Existing carriers require approval under section 10901 only to 
construct a new rail line or operate a line owned by a noncarrier, since 
acquisition by a carrier of an active rail line owned by a carrier is 
covered by 49 U.S.C. 11323. We have exempted from these requirements the 
acquisition by a State entity of a rail line that has been approved for 
abandonment, as well as operations over these lines. See subpart C of 
this part. In addition, where appropriate, we have granted individual 
exemptions from these certification requirements. See 49 U.S.C. 10502.
    (b) Content of the application. Applications filed under this 
subpart shall include the information set forth in Sec. Sec.  1150.2 
through 1150.9. The applicant must also comply with the Energy and 
Environmental Regulations at 49 CFR parts 1106 and 1105 (including 
consulting with the Board's Section of Environmental Analysis at least 6 
months prior to filing an application, to begin the scoping process to 
identify environmental issues and outline procedures for analysis of 
this aspect of the proposal).

[47 FR 8199, Feb. 25, 1982, as amended at 64 FR 53268, Oct. 1, 1999; 69 
FR 58366, Sept. 30, 2004]



Sec.  1150.2  Overview.

    (a) A brief narrative description of the proposal.
    (b) The full name and address of applicant(s).



Sec.  1150.3  Information about applicant(s).

    (a) The name, address, and phone number of the representative to 
receive correspondence concerning this application.

[[Page 172]]

    (b) Facts showing that applicant is either a common carrier by 
railroad or has been organized to implement the proposal for which 
approval is being sought.
    (c) A statement indicating whether the rail line will be operated by 
applicant. If not, the operator which has been selected must join in the 
application, and provide all information required for an applicant. If 
the operator has not yet been selected, state who is being considered.
    (d) A statement indicating whether applicant is affiliated by stock 
ownership or otherwise with any industry to be served by the line. If 
so, provide details about the nature and extent of the affiliation.
    (e) Date and place of organization, applicable State statutes, and a 
brief description of the nature and objectives of the organization.
    (f) If a corporation, submit:
    (1) A list of officers, directors, and 10 principal stockholders of 
the corporation and their respective holdings. A statement whether any 
of these officers, directors or major shareholders control other 
regulated carriers. Also a list of entities, corporation(s) 
individual(s), or group(s) who control applicant, the extent of control, 
and whether any of them control other common carriers.
    (2) As exhibit A, any resolution of the stockholders or directors 
authorizing the proposal.
    (g) If a partnership or individual, submit the name and address of 
all general partners and their respective interests, and whether any of 
them control other carriers.
    (h) If applicant is an entity other than as described in paragraphs 
(f) or (g) of this section, submit name, title, and business address of 
principals or trustee, and whether the entity controls any other common 
carriers.
    (i) If applicant is a trustee, receiver, assignee, or a personal 
representative of the real party in interest, details about the 
appointment (including supporting documents, such as the court order 
authorizing the appointment and the filing) and about the real party in 
interest.
    (j) If applicant is an existing carrier, it may satisfy the 
informational requirements of paragraphs (f) through (i) of this section 
by making appropriate reference to the docket number of prior 
applications that have been filed within the previous three years in 
which the information has been submitted.

[47 FR 8199, Feb. 25, 1982, as amended at 81 FR 8855, Feb. 23, 2016]



Sec.  1150.4  Information about the proposal.

    (a) A description of the proposal and the significant terms and 
conditions, including consideration to be paid (monetary or otherwise). 
As exhibit B, copies of all relevant agreements.
    (b) Details about the amount of traffic and a general description of 
commodities.
    (c) The purposes of the proposal and an explanation of why the 
public convenience and necessity require or permit the proposal.
    (d) As exhibit C, a map which clearly delineates the area to be 
served including origins, termini and stations, and cities, counties and 
States. The map should also delineate principal highways, rail routes 
and any possible interchange points with other railroads. If alternative 
routes are proposed for construction, the map should clearly indicate 
each route.
    (e) A list of the counties and cities to be served under the 
proposal, and whether there is other rail service available to them. The 
names of the railroads with which the line would connect, and the 
proposed connecting points; the volume of traffic estimated to be 
interchanged; and a description of the principal terms of agreements 
with carriers covering operation, interchange of traffic, division of 
rates or trackage rights.
    (f) The time schedule for consummation or completion of the 
proposal.
    (g) If a new line is proposed for construction:
    (1) The approximate area to be served by the line.
    (2) The nature or type of existing and prospective industries (e.g., 
agriculture, manufacturing, mining, warehousing, forestry) in the area, 
with general information about the age, size, growth potential and 
projected rail use of these industries.

[[Page 173]]

    (3) Whether the construction will cross another rail line and the 
name of the railroad(s) owning the line(s) to be crossed. If the 
crossing will be accomplished with the permission of the railroad(s), 
include supporting agreements. If a Board determination under 49 U.S.C. 
10901(d)(1) will be sought, include such requests.



Sec.  1150.5  Operational data.

    As exhibit D, an operating plan, including traffic projection 
studies; a schedule of the operations; information about the crews to be 
used and where employees will be obtained; the rolling stock 
requirements and where it will be obtained; information about the 
operating experience and record of the proposed operator unless it is an 
operating railroad; any significant change in patterns of service; any 
associated discontinuance or abandonments; and expected operating 
economies.



Sec.  1150.6  Financial information.

    (a) The manner in which applicant proposes to finance construction 
or acquisition, the kind and amount of securities to be issued, the 
approximate terms of their sale and total fixed charges, the extent to 
which funds for financing are now available, and whether any of the 
securities issued would be underwritten by industries to be served by 
the proposed line. Explain how the fixed charges will be met.
    (b) As exhibit E a recent balance sheet. As exhibit F, an income 
statement for the latest available calendar year prior to filing the 
application.
    (c) A present value determination of the full costs of the proposal. 
If construction is proposed, the costs for each year of such 
construction (in a short narrative or by chart).
    (d) A statement of projected net income for 2 years, based upon 
traffic projections. Where construction is contemplated, the statement 
should represent the 2 years following completion of construction.



Sec.  1150.7  Environmental and energy data.

    As exhibit H, information and data prepared under 49 CFR Part 1105, 
and the ``Revision of the Nat'l. Guidelines Environmental Policy Act of 
1969,'' 363 I.C.C. 653 (1980), and in accordance with ``Implementation 
of the Energy Policy and Conservation Act of 1975,'' 49 CFR Part 1106.



Sec.  1150.8  Additional support.

    Any additional facts or reasons to show that the public convenience 
and necessity require or permit approval of this application. The Board 
may require additional information to be filed where appropriate.



Sec.  1150.9  Notice.

    A summary of the proposal which will be used to provide notice under 
Sec.  1150.10(f).



Sec.  1150.10  Procedures.

    (a) Waivers. Prior to filing an application, prospective applicants 
may seek an advance waiver, either on a permanent or temporary basis, of 
required information which is unavailable or not necessary or useful in 
analysis of the proposal. However, if the information is clearly not 
applicable to the individual proposal, a waiver is not necessary and 
need not be sought. A petition must specify the sections for which 
waiver or clarification is sought and the reasons why it should be 
granted. No replies will be permitted. Parties may, upon an appropriate 
showing, demonstrate their need to examine data which have previously 
been waived. In such circumstances, the Board only requires that it be 
produced under Sec.  1150.8 above.
    (b) Filing procedures. The original and 10 copies of the application 
and all documents shall be filed with the Chief, Section of 
Administration, Office of Proceedings. A filing fee in the amount set 
forth in 49 CFR 1002.2(f) is required to file an application. Copies of 
documents shall be furnished promptly to interested parties upon 
request. The application shall include a stamped self-addressed envelope 
to be used to notify applicant of the docket number. Additionally, if 
possible, telephonic communication of the docket number shall be made.
    (c) Signatures. The original of the application shall be signed by 
applicants (if a partnership, all general partners

[[Page 174]]

must sign; and if a corporation, association, or other similar form of 
organization, the signature should be that of the executive officer 
having knowledge of the matters and designated for that purpose). 
Applications shall be made under oath and shall contain an appropriate 
certification (if a corporation, by its secretary) showing that the 
affiant is duly authorized to verify and file the application. Any 
persons controlling an applicant shall also sign the application.
    (d) Related applications. Applicant shall file concurrently all 
directly related applications (e.g., to issue securities, control motor 
carriers, obtain access to terminal operations, acquire trackage 
rights). All such applications will be considered with the main 
application.
    (e) Service. As soon as the docket number is obtained the applicant 
shall serve a conformed copy of the application by first-class mail upon 
the Governor (or Executive Officer), Public Service Board, and 
Department of Transportation of each State in which any part of the 
properties involved in the proposed transaction is located. Within 2 
weeks of filing, applicant shall submit to the Board a copy of the 
certificate of service indicating that all persons so designated have 
been served a copy of the application.
    (f) Publication. Within 2 weeks of filing, applicant shall have 
published the summary of the application (prepared under Sec.  1150.9) 
in a newspaper of general circulation in each county in which the line 
is located. The notice should inform interested parties of the date by 
which they must advise the Board of their interest in the proceeding. 
This date shall be calculated as the 35th day after the filing of the 
application which is neither a Saturday, Sunday, or legal holiday in the 
District of Columbia. Applicant must file an affidavit of publication 
immediately after the publication has been completed. The Board will, as 
soon as practicable, either publish the notice summary in the Federal 
Register or reject the application if it is incomplete.
    (g) Public participation. Written comments (with 10 copies) must be 
filed within 35 days of the filing of the application. Comments must 
contain the basis for the party's position either in support or 
opposition. Applicant must be served with a copy of each comment. On the 
basis of the comments and the assessment by the Section of Environmental 
Analysis, the Board will decide if a hearing is necessary. A hearing may 
be either oral or through receipt of written statements (modified 
procedure). (See 49 CFR 1112.1 et seq.) If there is no opposition to the 
application, additional evidence normally need not be filed, and a 
decision will be reached using the information in the application.
    (h) Replies to written comments. Applicant's replies will be 
considered by the Board provided they are filed and served within 5 days 
of the due date of the pleadings they address.

[47 FR 8199, Feb. 25, 1982. Redesignated at 47 FR 49581, Nov. 1, 1982, 
and amended at 52 FR 46483, Dec. 8, 1987; 53 FR 19302, May 27, 1988; 64 
FR 53268, Oct. 1, 1999; 74 FR 52908, Oct. 15, 2009]



                     Subpart B_Designated Operators



Sec.  1150.11  Introduction.

    A certificate of designated operator will be issued to an operator 
providing service pursuant to a rail service continuation agreement 
under section 304 of the Regional Rail Reorganization Act of 1973, as 
amended by the Railroad Revitalization and Regulatory Reform Act of 
1976. The designated operator (D-OP) may commence and terminate the 
service in accordance with the terms of the agreement. When service is 
terminated the D-OP must notify all shippers on the line. To obtain a D-
OP certificate, the information in this subpart must be filed with the 
Board. A copy of the certificate of designated operator shall be served 
on the Association of American Railroads.



Sec.  1150.12  Information about the designated operator.

    (a) The name and address of the D-OP.
    (b) If a new corporation or other new business entity, a copy of the 
certificate of incorporation or, if unincorporated, the facts and 
official organizational documents relating to the business entity.

[[Page 175]]

    (c) The names and addresses of all officers and directors, with a 
statement from each which indicates present affiliation, if any, with a 
railroad.
    (d) Sufficient information to establish its financial responsibility 
for the proposed undertaking, unless the D-OP is a common carrier by 
railroad. The nature and extent of all liability insurance coverage, 
including insurance binder or policy number, and name of insurer.



Sec.  1150.13  Relevant dates.

    The exact dates of the period of operation which have been agreed 
upon by the D-OP, the offeror of the rail service continuation payment, 
and the owner of the line to be operated, in their lease and operating 
agreements.



Sec.  1150.14  Proposed service.

    (a) A copy of all agreements between the D-OP, the offeror of the 
rail service continuation payment, and the owner of the line to be 
operated.
    (b) Any additional information which is necessary to provide the 
Board with a description of:
    (1) The line over which service is to be provided (e.g., U.S.R.A. 
Line); and
    (2) All interline connections, including the names of the connecting 
railroads.



Sec.  1150.15  Information about offeror.

    (a) The name and address of the offeror of the rail service 
continuation payment.
    (b) Sufficient information to establish the financial responsibility 
of the offeror for the proposed undertaking, or if the offeror is a 
State or municipal corporation or authority, a statement that it has 
authority to perform the service or enter into the agreement for 
subsidy.



Sec.  1150.16  Procedures.

    Upon receipt of this information, the matter will be docketed by the 
prefix initials ``D-OP.'' Operators may begin operating immediately upon 
the filing of the necessary information (plus three copies). Although 
the designated operator will not be required to seek and obtain 
authority from the Board either to commence or to terminate operations, 
the designated operator is a common carrier by railroad subject to all 
other applicable provisions of 49 U.S.C. Subtitle IV. However, we have 
exempted designated operators from some aspects of regulation. See 
Exemption of Certain Designated Operators from Section 11343, 361 ICC 
379 (1979), as modified by McGinness v. I.C.C., 662 F.2d 853 (D.C. Cir. 
1981).

[47 FR 8199, Feb. 25, 1982. Redesignated at 47 FR 49581, Nov. 1, 1982, 
and amended at 64 FR 53268, Oct. 1, 1999]



   Subpart C_Modified Certificate of Public Convenience and Necessity



Sec.  1150.21  Scope of rules.

    These special rules apply to operations over abandoned rail lines, 
which have been acquired (through purchase or lease) by a State. The 
rail line must have been fully abandoned, or approved for abandonment by 
the Board or a bankruptcy court. As used in these rules, the term 
``State'' includes States, political subdivisions of States, and all 
instrumentalities through which the State can act. An operator has the 
option of applying for a modified certificate of public convenience and 
necessity under this subpart or a common carrier certificate under 
Subpart A of this part. A copy of the modified certificate shall be 
served on the Association of American Railroads.

[47 FR 8199, Feb. 25, 1982, as amended at 81 FR 8855, Feb. 23, 2016]



Sec.  1150.22  Exemptions and common carrier status.

    The acquisition by a State of a fully abandoned line is not subject 
to the jurisdiction of the Surface Transportation Board. The acquisition 
by a State of a line approved for abandonment and not yet fully 
abandoned is exempted from the Board's jurisdiction. If the State 
intends to operate the line itself, it will be considered a common 
carrier. However, when a State acquires a rail line described under 
Sec.  1150.21 and contracts with an operator to provide service over the 
line, only the operator incurs a common carrier obligation. The 
operators of these lines are exempted from 49 U.S.C. 10901 and 10903 
which are the

[[Page 176]]

statutory requirements governing the start up and termination of 
operations. Operators exempted from these requirements must comply with 
the requirements of this part and must apply for a modified certificate 
of public convenience and necessity. The operator is a common carrier 
and incurs all benefits and responsibilities under 49 U.S.C. subtitle 
IV; however, the State through its operational agreement or the operator 
of the line may determine certain preconditions, such as payment of a 
subsidy, which must be met by shippers to obtain service over the line. 
The operator must notify the shippers on the line of any preconditions. 
The modified certificate will authorize service to shippers who meet 
these preconditions and the operator will be required to provide 
complete common carrier service under this certificate only to those 
shippers. (See 363 ICC 132.)



Sec.  1150.23  Modified certificate of public convenience and necessity.

    (a) The operator must file a notice with the Board for a modified 
certificate of public convenience and necessity. Operations may commence 
immediately upon the filing; however, the Board will review the 
information filed, and if complete, will issue a modified certificate 
notice.
    (b) A notice for a modified certificate of public convenience and 
necessity shall include the following information:
    (1) The name and address of the operator and, unless the operator is 
an existing rail carrier:
    (i) Its articles of incorporation or, if it is unincorporated, the 
facts and organizational documents relating to its formation;
    (ii) The names and addresses of all of its officers and directors 
and a statement indicating any present affiliation each may have with a 
rail carrier; and
    (iii) Sufficient information to establish the financial 
responsibility of the operator.
    (2) Information about the prior abandonment, including docket 
number, status and date of the first decision approving the abandonment.
    (3) The exact dates of the period of operation which have been 
agreed upon by the operator and the State which owns the line (if there 
is any agreement, it should be provided);
    (4) A description of the service to be performed including, where 
applicable, a description of:
    (i) The line over which service is to be performed;
    (ii) All interline connections including the names of the connecting 
railroads;
    (iii) The nature and extent of all liability insurance coverage, 
including binder or policy number and name of insurer; and
    (iv) Any preconditions which shippers must meet to receive service.
    (5) The name and address of any subsidizers, and
    (6) Sufficient information to establish the financial responsibility 
of any subsidizers (if the subsidizer is a State, the information should 
show that it has authority to enter into the agreement for subsidized 
operations).
    (c) The service offered and the applicable rates, charges, and 
conditions must be described in tariffs published by the operator to the 
Board's rules.



Sec.  1150.24  Termination of service.

    The duration of the service may be determined in the contract 
between the State and the operator. An operator may not terminate 
service over a line unless it first provides 60 days' notice of its 
intent to terminate the service. The notice of intent must be:
    (a) Filed with the State and the Board, and
    (b) Mailed to all persons that have used the line within the 6 
months preceding the date of the notice.



           Subpart D_Exempt Transactions Under 49 U.S.C. 10901

    Source: 51 FR 2504, Jan. 17, 1986, unless otherwise noted.



Sec.  1150.31  Scope of exemption.

    (a) Except as indicated below, this exemption applies to all 
acquisitions and operations under section 10901 (See 1150.1, supra). 
This exemption also includes:
    (1) Acquisition by a noncarrier of rail property that would be 
operated by a third party;

[[Page 177]]

    (2) Operation by a new carrier of rail property acquired by a third 
party;
    (3) A change in operators on the line; and
    (4) Acquisition of incidental trackage rights. Incidental trackage 
rights include the grant of trackage rights by the seller, or the 
assignment of trackage rights to operate over the line of a third party 
that occur at the time of the exempt acquisition or operation. This 
exemption does not apply when a class I railroad abandons a line and 
another class I railroad then acquires the line in a proposal that would 
result in a major market extension as defined at Sec.  1180.3(c).
    (b) Other exemptions that may be relevant to a proposal under this 
subpart are the exemption for control at Sec.  1180.2(d)(1) and (2), and 
the exemption from securities regulation at 49 CFR part 1177.

[51 FR 2504, Jan. 17, 1986, as amended at 81 FR 8855, Feb. 23, 2016]



Sec.  1150.32  Procedures and relevant dates--transactions that involve
creation of Class III carriers.

    (a) To qualify for this exemption, applicant must file a verified 
notice providing details about the transaction, and a brief caption 
summary, conforming to the format in Sec.  1150.34, for publication in 
the Federal Register.
    (b) The exemption will be effective 30 days after the notice is 
filed. The Board, through the Director of the Office of Proceedings, 
will publish a notice in the Federal Register within 16 days of the 
filing. A change in operators would follow the provisions at Sec.  
1150.34, and notice must be given to shippers.
    (c) If the notice contains false or misleading information, the 
exemption is void ab initio. A petition to revoke under 49 U.S.C. 
10502(d) does not automatically stay the exemption. Stay petitions must 
be filed at least 7 days before the exemption becomes effective.
    (d) Applicant must preserve intact all sites and structures more 
than 50 years old until compliance with the requirements of Section 106 
of the National Historic Preservation Act, 16 U.S.C. 470 is achieved.
    (e) If the projected annual revenue of the carrier to be created by 
a transaction under this exemption exceeds $5 million, applicant must, 
at least 60 days before the exemption becomes effective, post a notice 
of intent to undertake the proposed transaction at the workplace of the 
employees on the affected line(s) and serve a copy of the notice on the 
national offices of the labor unions with employees on the affected 
line(s), setting forth the types and numbers of jobs expected to be 
available, the terms of employment and principles of employee selection, 
and the lines that are to be transferred, and certify to the Board that 
it has done so.

[51 FR 2504, Jan. 17, 1986, as amended at 53 FR 4626, Feb. 17, 1988; 53 
FR 5982, Feb. 29, 1988; 62 FR 47584, Sept. 10, 1997; 69 FR 58366, Sept. 
30, 2004; 71 FR 62212, Oct. 24, 2006]



Sec.  1150.33  Information to be contained in notice--transactions that
involve creation of Class III carriers.

    (a) The full name and address of the applicant;
    (b) The name, address, and telephone number of the representative of 
the applicant who should receive correspondence;
    (c) A statement that an agreement has been reached or details about 
when an agreement will be reached;
    (d) The operator of the property;
    (e) A brief summary of the proposed transaction, including:
    (1) The name and address of the railroad transferring the subject 
property,
    (2) The proposed time schedule for consummation of the transaction,
    (3) The mile-posts of the subject property, including any branch 
lines, and
    (4) The total route miles being acquired;
    (f) A map that clearly indicates the area to be served, including 
origins, termini, stations, cities, counties, and States; and
    (g) A certificate that applicant's projected revenues do not exceed 
those that would qualify it as a Class III carrier.
    (h) Interchange Commitments. (1) The filing party must certify 
whether or not a proposed acquisition or operation of a rail line 
involves a provision or agreement that may limit future interchange with 
a third-party connecting

[[Page 178]]

carrier, whether by outright prohibition, per-car penalty, adjustment in 
the purchase price or rental, positive economic inducement, or other 
means (``interchange commitment''). If such a provision exists, the 
following additional information must be provided (the information in 
paragraphs (h)(1)(ii), (iv), (vii) of this section may be filed with the 
Board under 49 CFR 1104.14(a) and will be kept confidential without need 
for the filing of an accompanying motion for a protective order under 49 
CFR 1104.14(b)):
    (i) The existence of that provision or agreement and identification 
of the affected interchange points; and
    (ii) A confidential, complete version of the document(s) containing 
or addressing that provision or agreement;
    (iii) A list of shippers that currently use or have used the line in 
question within the last two years;
    (iv) The aggregate number of carloads those shippers specified in 
paragraph (h)(1)(iii) of this section originated or terminated 
(confidential);
    (v) A certification that the filing party has provided notice of the 
proposed transaction and interchange commitment to the shippers 
identified in paragraph (h)(1)(iii) of this section;
    (vi) A list of third party railroads that could physically 
interchange with the line sought to be acquired or leased;
    (vii) An estimate of the difference between the sale or lease price 
with and without the interchange commitment (confidential);
    (viii) A change in the case caption so that the existence of an 
interchange commitment is apparent from the case title.
    (2) To obtain information about an interchange commitment for use in 
a proceeding before the Board, a shipper or other affected party may be 
granted access to the confidential documents filed pursuant to paragraph 
(h)(1) of this section by filing, and serving upon the petitioner, a 
``Motion for Access to Confidential Documents,'' containing:
    (i) An explanation of the party's need for the information; and
    (ii) An appropriate draft protective order and confidentiality 
undertaking(s) that will ensure that the documents are kept 
confidential.
    (3) Deadlines. (i) Replies to a Motion for Access are due within 5 
days after the motion is filed.
    (ii) The Board will rule on a Motion for Access within 30 days after 
the motion is filed.
    (iii) Parties must produce the relevant documents within 5 days of 
receipt of a Board approved, signed confidentiality agreement.

[51 FR 2504, Jan. 17, 1986, as amended at 51 FR 25207, July 11, 1986; 53 
FR 4626, Feb. 17, 1988; 53 FR 5982, Feb. 29, 1988; 56 FR 36111, July 31, 
1991; 73 FR 31034, May 30, 2008; 78 FR 54590, Sept. 5, 2013]



Sec.  1150.34  Caption summary--transactions that involve creation of
Class III carriers.

    The caption summary must be in the following form. The information 
symbolized by numbers is identified in the key below:

                      Surface Transportation Board

                           Notice of Exemption

                           Finance Docket No.

                         (1)--Exemption (2)-(3)

    (1) Has filed a notice of exemption to (2) (3)'s line between (4). 
Comments must be filed with the Board and served on (5). (6).

Key to symbols:

    (1) Name of entity acquiring or operating the line, or both.
    (2) The type of transaction, e.g., to acquire, operate, or both.
    (3) The transferor.
    (4) Describe the line.
    (5) Petitioners representative, address, and telephone number.
    (6) Cross reference to other class exemptions being used.
    The notice is filed under Sec.  1150.31. If the notice contains 
false or misleading information, the exemption is void ab initio. 
Petitions to revoke the exemption under 49 U.S.C. 10502(d) may be filed 
at any time. The filing of a petition to revoke will not automatically 
stay the transaction.

[47 FR 8199, Feb. 25, 1982. Redesignated at 47 FR 49581, Nov. 1, 1982, 
as amended at 53 FR 5982, Feb. 29, 1988; 69 FR 58366, Sept. 30, 2004]

[[Page 179]]



Sec.  1150.35  Procedures and relevant dates--transactions that involve
creation of Class I or Class II carriers.

    (a) To qualify for this exemption, applicant must serve a notice of 
intent to file a notice of exemption no later than 14 days before the 
notice of exemption is filed with the Board, and applicant must comply 
with the notice requirement of Sec.  1150.32(e).
    (b) The notice of intent must contain all of the information 
required in Sec.  1150.33, exclusive of Sec.  1150.33(g), plus:
    (1) A general statement of service intentions; and
    (2) A general statement of labor impacts.
    (c) The notice of intent must be served on:
    (1) The Governor of each State in which track is to be sold;
    (2) The State(s) Department of Transportation or equivalent agency;
    (3) The national offices of the labor unions with employees on the 
affected line(s); and
    (4) Shippers representing at least 50 percent of the volume of local 
traffic and traffic originating or terminating on the line(s) in the 
most recent 12 months for which data is available (beginning with the 
largest shipper and working down).
    (d) Applicant must also file a verified notice of exemption 
conforming to the requirements of (b) above and of Sec.  1150.34, and 
certify compliance with Sec.  1150.35 (a), (b), and (c), attaching a 
copy of the notice of intent.
    (e) The exemption will be effective 45 days after the notice is 
filed. The Board, through the Director of the Office of Proceedings, 
will publish a notice in the Federal Register within 16 days of the 
filing.
    (f) If the notice contains false or misleading information, the 
exemption is void ab initio. A petition to revoke under 49 U.S.C. 
10502(d) does not automatically stay the transaction. Stay petitions 
must be filed within 7 days of the filing of the notice of exemption. 
Stay petitions must be filed at least 14 days before the exemption 
becomes effective. To be considered, stay petitions must be timely 
served on the applicant.
    (g) Applicant must comply with Sec.  1150.32(d) regarding section 
106 of the National Historic Preservation Act, 16 U.S.C. 470.

[53 FR 5982, Feb. 29, 1988, as amended at 53 FR 31341, Aug. 18, 1988; 62 
FR 47584, Sept. 10, 1997; 69 FR 58366, Sept. 30, 2004; 71 FR 62213, Oct. 
24, 2006; 81 FR 8855, Feb. 23, 2016]

    Editorial Note: At 81 FR 8855, Feb. 23, 2016, Sec.  1150.35 was 
amended; however, a portion of the amendment could not be incorporated 
due to inaccurate amendatory instruction.



Sec.  1150.36  Exempt construction of connecting track.

    (a) Scope. This class exemption applies to proceedings involving the 
construction and operation of connecting lines of railroad within 
existing rail rights-of-way, or on land owned by connecting railroads, 
under 49 U.S.C. 10901 (a), (b), and (c). (See the reference to 
connecting track in 49 CFR 1105.6(b)(1).) This class exemption is 
designed to expedite and facilitate connecting track construction while 
ensuring full and timely environmental review. The Surface 
Transportation Board (Board) has found that its prior review of 
connecting track construction and operation is not necessary to carry 
out the rail transportation policy of 49 U.S.C. 10101; that continued 
regulation is not necessary to protect shippers from abuse of market 
power; and that the construction of connecting track would be of limited 
scope. See 49 U.S.C. 10502. To use this class exemption, a pre-filing 
notice, environmental report, historic report, and notice of exemption 
must be filed that complies with the procedures in Sec.  1150.36 (b) and 
(c), and the Board's environmental rules, codified at 49 CFR part 1105.
    (b) Environmental requirements. The environmental regulations at 49 
CFR part 1105 must be complied with fully. An environmental report 
containing the information specified at 49 CFR 1105.7(e), as well as an 
historic report containing the information specified at 49 CFR 
1105.8(d), must be filed either before or at the same time as the notice 
of exemption is filed. See 49 CFR 1105.7(a). The entity seeking the 
exemption authority must also serve copies of the environmental report 
on the

[[Page 180]]

agencies listed at 49 CFR 1105.7(b). Because the environmental report 
must include a certification that appropriate agencies have been 
consulted in its preparation (see 49 CFR 1105.7(c)), parties should 
begin environmental and historic consultations well before the notice of 
exemption is filed. Environmental requirements may be waived or modified 
where a petitioner demonstrates in writing that such action is 
appropriate. See 49 CFR 1105.10(c). It is to the advantage of parties to 
consult with the Board's Section of Environmental Analysis (SEA) at the 
earliest possible date to begin environmental review.
    (c) Procedures and dates. (1) At least 20 days prior to the filing 
of a notice of exemption with the Board, the party seeking the exemption 
authority must notify in writing: the State Public Service Commission, 
the State Department of Transportation (or equivalent agency), and the 
State Clearinghouse (if there is no clearinghouse, the State 
Environmental Protection Agency), of each State involved. The pre-filing 
notice shall include: the name and address of the railroad (or other 
entity proposing to construct the line) and the proposed operator; a 
complete description of the proposed construction and operation, 
including a map; an indication that the class exemption procedure is 
being used; and the approximate date that construction is proposed to 
begin. This pre-filing notice shall include a certification that the 
petitioner will comply with the Board's environmental regulations, 
codified at 49 CFR part 1105, and a statement that those regulations 
generally require the Board to:
    (i) Prepare an environmental assessment (EA) (or environmental 
impact statement (EIS) if necessary),
    (ii) Make the document (EA or EIS, as appropriate) available to the 
parties (and to the public, upon request to SEA); and
    (iii) Accept for filing and consideration comments on the 
environmental document as well as petitions for stay and 
reconsideration.
    (2) Petitioner must file a verified notice of exemption with the 
Board at least 90 days before the construction is proposed to begin. In 
addition to the information contained in Sec.  1150.36(c)(1), the notice 
shall include a statement certifying compliance with the environmental 
rules at 49 CFR part 1105 and the pre-filing notice requirements of 49 
CFR 1150.36(c)(1).
    (3) The Board, through the Director of the Office of Proceedings, 
shall publish a notice in the Federal Register within 20 days after the 
notice of exemption is received that describes the construction project 
and invites comments. SEA will then prepare an EA (or, if necessary, an 
EIS). The EA generally will be made available 15 days after the Federal 
Register notice. It will be served on all parties and appropriate 
agencies. Others may request a copy from SEA. The deadline for 
submission of comments on the EA will generally be within 30 days of its 
availability (see 49 CFR 1105.10(b)). If an EIS is prepared, the time 
frames and procedures set forth in 49 CFR 1105.10(a) generally will 
apply.
    (4) The Board's environmental document (together with any comments 
and SEA's recommendations) shall be used in deciding whether to allow 
the particular construction project to proceed under the class exemption 
and whether to impose appropriate mitigating conditions upon its use 
(including use of an environmentally preferable route). If the Board 
concludes that a particular project will result in serious adverse 
environmental consequences that cannot be adequately mitigated, it may 
deny authority to proceed with the construction under the class 
exemption (the ``no-build'' alternative). Persons believing that they 
can show that the need for a particular line outweighs the adverse 
environmental consequences can file an application for approval of the 
proposed construction under 49 U.S.C. 10901.
    (5) No construction may begin until the Board has completed its 
environmental review and issued a final decision.
    (6) Petitions to stay the effective date of the notice of exemption 
on other than environmental and/or historic preservation grounds must be 
filed within 10 days of the Federal Register publication. Petitions to 
stay the effective date of the notice on environmental and/or historic 
preservation

[[Page 181]]

grounds may be filed at any time but must be filed sufficiently in 
advance of the effective date to allow the Board to consider and act on 
the petition before the notice becomes effective. Petitions for 
reconsideration must be filed within 20 days of the Federal Register 
publication.
    (7) The exemption generally will be effective 70 days after 
publication in the Federal Register, unless stayed. If the notice of 
exemption contains false or misleading information, the exemption is 
void ab initio and the Board shall summarily reject the exemption 
notice.
    (8) Where significant environmental issues have been raised or 
discovered during the environmental review process, the Board shall 
issue, on or before the effective date of the exemption, a final 
decision allowing the exemption to become effective and imposing 
appropriate mitigating conditions or taking other appropriate action 
such as selecting the ``no build'' alternative.
    (9) Where there has been full environmental review and no 
significant environmental issues have been raised or discovered, the 
Board, through the Director of the Office of Proceedings, shall issue, 
on or before the effective date of the exemption, a final decision 
consisting of a Finding of No Significant Impact (FONSI) to show that 
the environmental record has been considered (see 49 CFR 1105.10(g)).
    (10) The Board, on its own motion or at the request of a party to 
the case, will stay the effective date of individual notices of 
exemption when an informed decision on environmental issues cannot be 
made prior to the date that the exemption authority would otherwise 
become effective. Stays will be granted initially for a period of 60 
days to permit resolution of environmental issues and issuance of a 
final decision. The Board expects that this 60-day period will usually 
be sufficient for these purposes unless preparation of an EIS is 
required. If, however, environmental issues remain unresolved upon 
expiration of this 60-day period, the Board, upon its own motion, or at 
the request of a party to the case, will extend the stay, as necessary 
to permit completion of environmental review and issuance of a final 
decision. The Board's order will specify the duration of each extension 
of the initial stay period. In cases requiring the preparation of an 
EIS, the Board will extend the stay for a period sufficient to permit 
compliance with the procedural guidelines established by the Board's 
environmental regulations.
    (d) Third-Party Consultants. An environmental and historic report 
required under 49 CFR 1105.7 and 1105.8 will not be required where a 
petitioner engages a third-party consultant who is approved by SEA and 
acts under SEA's direction and supervision in preparing the EA or EIS. 
In such a case, the third-party consultant must act on behalf of the 
Board, working under SEA's direction to collect the environmental 
information that is needed and to compile it into a draft EA or EIS, 
which is prepared under SEA's direction and then submitted to SEA for 
its final review and approval. See 49 CFR 1105.10(d).

[61 FR 29974, June 13, 1996, as amended at 64 FR 53268, Oct. 1, 1999]



 Subpart E_Exempt Transactions Under 49 U.S.C. 10902 for Class III Rail 
                                Carriers

    Source: 61 FR 32355, June 24, 1996, unless otherwise noted.



Sec.  1150.41  Scope of exemption.

    Except as indicated in paragraphs (a) through (d) of this section, 
this exemption applies to acquisitions or operations by Class III rail 
carriers under section 10902. This exemption also includes:
    (a) Acquisition by a Class III rail carrier of rail property that 
would be operated by a third party;
    (b) Operation by a Class III carrier of rail property acquired by a 
third party;
    (c) A change in operators on such a line; and
    (d) Acquisition of incidental trackage rights. Incidental trackage 
rights include the grant of trackage rights by the seller, or the 
acquisition of trackage rights to operate over the line of a third 
party, that occurs at the time of the purchase.

[[Page 182]]



Sec.  1150.42  Procedures and relevant dates for small line acquisitions.

    (a) This exemption applies to the acquisition of rail lines with 
projected annual revenues which, together with the acquiring carrier's 
projected annual revenue, do not exceed the annual revenue of a Class 
III railroad. To qualify for this exemption, the Class III rail carrier 
applicant must file a verified notice providing details about the 
transaction, and a brief caption summary, conforming to the format in 
Sec.  1150.44, for publication in the Federal Register.
    (b) The exemption will be effective 30 days after the notice is 
filed. The Board, through the Director of the Office of Proceedings, 
will publish a notice in the Federal Register within 16 days of the 
filing. A change in operators must follow the provisions at Sec.  
1150.44, and notice must be given to shippers.
    (c) If the notice contains false or misleading information, the 
exemption is void ab initio. A petition to revoke under 49 U.S.C. 
10502(d) does not automatically stay the exemption. Stay petitions must 
be filed at least 7 days before the exemption becomes effective.
    (d) Applicant must preserve intact all sites and structures more 
than 50 years old until compliance with the requirements of section 106 
of the National Historic Preservation Act, 16 U.S.C. 470f, is achieved.
    (e) If the projected annual revenue of the rail lines to be acquired 
or operated, together with the acquiring carrier's projected annual 
revenue, exceeds $5 million, the applicant must, at least 60 days before 
the exemption becomes effective, post a notice of applicant's intent to 
undertake the proposed transaction at the workplace of the employees on 
the affected line(s) and serve a copy of the notice on the national 
offices of the labor unions with employees on the affected line(s), 
setting forth the types and numbers of jobs expected to be available, 
the terms of employment and principles of employee selection, and the 
lines that are to be transferred, and certify to the Board that it has 
done so.

[61 FR 32355, June 24, 1996, as amended at 62 FR 47584, Sept. 10, 1997; 
71 FR 62213, Oct. 24, 2006; 81 FR 8855, Feb. 23, 2016]



Sec.  1150.43  Information to be contained in notice for small line
acquisitions.

    (a) The full name and address of the Class III rail carrier 
applicant;
    (b) The name, address, and telephone number of the representative of 
the applicant who should receive correspondence;
    (c) A statement that an agreement has been reached or details about 
when an agreement will be reached;
    (d) The operator of the property;
    (e) A brief summary of the proposed transaction, including:
    (1) The name and address of the railroad transferring the subject 
property to the Class III rail carrier applicant;
    (2) The proposed time schedule for consummation of the transaction;
    (3) The mileposts of the subject property, including any branch 
lines; and
    (4) The total route miles being acquired;
    (f) A map that clearly indicates the area to be served, including 
origins, termini, stations, cities, counties, and states; and
    (g) A certificate that applicant's projected revenues as a result of 
the transaction will not result in the creation of a Class II or Class I 
rail carrier so as to require processing under Sec.  1150.45.
    (h) Interchange Commitments. (1) The filing party must certify 
whether or not a proposed acquisition or operation of a rail line 
involves a provision or agreement that may limit future interchange with 
a third-party connecting carrier, whether by outright prohibition, per-
car penalty, adjustment in the purchase price or rental, positive 
economic inducement, or other means (``interchange commitment''). If 
such a provision exists, the following additional information must be 
provided (the information in paragraphs (h)(1)(ii), (iv), (vii) of this 
section may be filed with the Board under 49 CFR 1104.14(a) and will be 
kept confidential without need for the filing of an accompanying motion 
for a protective order under 49 CFR 1104.14(b)):
    (i) The existence of that provision or agreement and identification 
of the affected interchange points; and
    (ii) A confidential, complete version of the document(s) containing 
or addressing that provision or agreement;

[[Page 183]]

    (iii) A list of shippers that currently use or have used the line in 
question within the last two years;
    (iv) The aggregate number of carloads those shippers specified in 
paragraph (h)(1)(iii) of this section originated or terminated 
(confidential);
    (v) A certification that the filing party has provided notice of the 
proposed transaction and interchange commitment to the shippers 
identified in paragraph (h)(1)(iii) of this section;
    (vi) A list of third party railroads that could physically 
interchange with the line sought to be acquired or leased;
    (vii) An estimate of the difference between the sale or lease price 
with and without the interchange commitment (confidential);
    (viii) A change in the case caption so that the existence of an 
interchange commitment is apparent from the case title.
    (2) To obtain information about an interchange commitment for use in 
a proceeding before the Board, a shipper or other affected party may be 
granted access to the confidential documents filed pursuant to paragraph 
(h)(1) of this section by filing, and serving upon the petitioner, a 
``Motion for Access to Confidential Documents,'' containing:
    (i) An explanation of the party's need for the information; and
    (ii) An appropriate draft protective order and confidentiality 
undertaking(s) that will ensure that the documents are kept 
confidential.
    (3) Deadlines. (i) Replies to a Motion for Access are due within 5 
days after the motion is filed.
    (ii) The Board will rule on a Motion for Access within 30 days after 
the motion is filed.
    (iii) Parties must produce the relevant documents within 5 days of 
receipt of a Board approved, signed confidentiality agreement.

[61 FR 32355, June 24, 1996, as amended at 73 FR 31035, May 30, 2008; 78 
FR 54591, Sept. 5, 2013]



Sec.  1150.44  Caption summary.

    The caption summary must be in the following form. The information 
symbolized by numbers is identified in the key as follows:

                      Surface Transportation Board

                           Notice of Exemption

                         STB Finance Docket No.

                         (1)--Exemption (2)-(3)

    (1) Has filed a notice of exemption to (2) (3)'s line between (4). 
Comments must be filed with the Board and served on (5). (6). Key to 
symbols:

(1) Name of carrier acquiring or operating the line.

(2) The type of transaction, e.g., to acquire or operate.

(3) The transferor.

(4) Describe the line.

(5) Petitioner's representative, address, and telephone number.

(6) Cross reference to other class exemptions being used.
    The notice is filed under 49 CFR 1150.41. If the notice contains 
false or misleading information, the exemption is void ab initio. The 
filing of a petition to revoke will not automatically stay the 
transaction.

[61 FR 32355, June 24, 1996; 61 FR 36965, July 15, 1996]



Sec.  1150.45  Procedures and relevant dates--transactions under
section 10902 that involve creation of Class I or Class II rail
carriers.

    (a) To qualify for this exemption, applicant must serve a notice of 
intent to file a notice of exemption no later than 14 days before the 
notice of exemption is filed with the Board, and applicant must comply 
with the notice requirement of Sec.  1150.42(e).
    (b) The notice of intent must contain all the information required 
in Sec.  1150.43 plus:
    (1) A general statement of service intentions; and
    (2) A general statement of labor impacts.
    (c) The notice of intent must be served on:
    (1) The Governor of each state in which track is to be sold;
    (2) The state(s) Department of Transportation or equivalent agency;
    (3) The national offices of the labor unions with employees on the 
affected line(s); and

[[Page 184]]

    (4) Shippers representing at least 50 percent of the volume of local 
traffic and traffic originating or terminating on the line(s) in the 
most recent 12 months for which data are available (beginning with the 
largest shipper and working down).
    (d) Applicant must also file a verified notice of exemption 
conforming to the requirements of paragraph (b) of this section and of 
Sec.  1150.44, and certify compliance with paragraphs (a), (b), and (c) 
of this section, attaching a copy of the notice of intent. In addition 
to the written submission, the notice must be submitted on a 3.5-inch 
diskette formatted for WordPerfect 5.1.
    (e) The exemption will be effective 45 days after the notice is 
filed. The Board, through the Director of the Office of Proceedings, 
will publish a notice in the Federal Register within 16 days of the 
filing.
    (f) If the notice contains false or misleading information, the 
exemption is void ab initio. A petition to revoke under 49 U.S.C. 
10502(d) does not automatically stay the transaction. Stay petitions 
must be filed at least 14 days before the exemption becomes effective. 
Replies will be due 7 days thereafter. To be considered, stay petitions 
must be timely served on the applicant.
    (g) Applicant must preserve intact all sites and structures more 
than 50 years old until compliance with the requirements of section 106 
of the National Historic Preservation Act, 16 U.S.C. 470f, is achieved.

[61 FR 32355, June 24, 1996, as amended at 62 FR 47584, Sept. 10, 1997; 
71 FR 62213, Oct. 24, 2006]



PART 1151_FEEDER RAILROAD DEVELOPMENT PROGRAM--Table of Contents



Sec.
1151.1 Scope.
1151.2 Procedures.
1151.3 Contents of application.
1151.4 Board determination.

    Authority: 49 U.S.C. 10907.

    Source: 48 FR 9654, Mar. 8, 1983, unless otherwise noted.



Sec.  1151.1  Scope.

    This part governs applications filed under 49 U.S.C. 10907. The 
Board can require the sale of a rail line to a financially responsible 
person. A rail line is eligible for a forced sale if it appears in 
category 1 or 2 of the owning railroad's system diagram map (but the 
railroad has not filed an application to abandon the line), or the 
public convenience and necessity, as defined in 49 U.S.C. 10907(c)(1), 
permit or require the sale of the line.

[48 FR 9654, Mar. 8, 1983, as amended at 56 FR 37861, Aug. 9, 1991; 64 
FR 53268, Oct. 1, 1999]



Sec.  1151.2  Procedures.

    (a) Service. When an application is filed, applicant must 
concurrently serve a copy of the application by first class mail on:
    (1) The owning railroad;
    (2) All rail patrons who originated and/or received traffic on the 
line during the 12-month period preceding the month in which the 
application is filed;
    (3) The designated State agency in the State(s) where the property 
is located;
    (4) County governments where the line is located;
    (5) The National Railroad Passenger Corporation (Amtrak) (if Amtrak 
operates on the line);
    (6) And the national offices of rail unions with employees on the 
line.
    (b) Acceptance or rejection of an application.
    (1) The Board, through the Director of the Office of Proceedings, 
will accept a complete application no later than 30 days after the 
application is filed by publishing a notice in the Federal Register. An 
application is complete if it has been properly served and contains 
substantially all information required by Sec.  1151.3, except as 
modified by advance waiver. The notice will also announce the schedule 
for filing of competing applications and responses.
    (2) The Board, through the Director of the Office of Proceedings, 
will reject an incomplete application by serving a decision no later 
than 30 days after the application is filed. The decision will explain 
specifically why the application was incomplete. A revised application 
may be submitted, incorporating portions of the prior application by 
reference.
    (c) Competing applications.

[[Page 185]]

    (1) Unless otherwise scheduled in the notice, competing applications 
by other parties seeking to acquire all or any portion of the line 
sought in the initial application are due within 30 days after the 
initial application is accepted.
    (2) The Board, through the Director of the Office of Proceedings, 
will issue a decision accepting or rejecting a competing application no 
later than 15 days after it is filed. A competing application will be 
rejected if it does not substantially contain the information required 
by Sec.  1151.3, except as modified by advance waiver.
    (d) Incomplete applications.
    (1) If an applicant seeking to file an initial or competing 
application is unable to obtain required information that is primarily 
or exclusively within the personal knowledge of the owning carrier, the 
applicant may file an incomplete application if it files at the same 
time a request for discovery under 49 CFR part 1114 to obtain the needed 
information from the owning carrier.
    (2) The Board, through the Director of the Office of Proceedings, 
will by decision conditionally accept incomplete initial or competing 
applications, if the Director determines that the discovery sought is 
necessary for the application and primarily or exclusively within the 
knowledge of the owning carrier.
    (3) When the information sought through discovery has been filed for 
an initial application, Federal Register notice under paragraph (b) of 
this section will be published.
    (4) When the information sought through discovery has been filed for 
a competing application, a decision will be issued under paragraph (c) 
of this section.
    (e) Comments. Unless otherwise scheduled in the notice, verified 
statements and comments addressing both the initial and competing 
applications must be filed within 60 days after the initial application 
is accepted.
    (f) Replies. Unless otherwise scheduled in the notice, verified 
replies by applicants and other interested parties must be filed within 
80 days after the initial application is accepted.
    (g) Publication. If the Board finds that the public convenience and 
necessity require or permit sale of the line, the Board shall 
concurrently publish this finding in the Federal Register.
    (h) Acceptance or rejection. If the Board concludes that sale of the 
line should be required, the applicant(s) must file a notice with the 
Board and the owning railroad accepting or rejecting the Board's 
determination. The notice must be filed within 10 days of the service 
date of the decision.
    (i) Selection. If two or more applicants timely file notices 
accepting the Board's determination, the owning railroad must select the 
applicant to which it will sell the line and file notice of its 
selection with the Board and serve a copy on the applicants within 15 
days of the service date of the Board decision.
    (j) Waiver. Prior to filing an initial or competing application, an 
applicant may file a petition to waive or clarify specific portions of 
part 1151. A decision by the Director of the Office of Proceedings 
granting or denying a petition for waiver or clarification will be 
issued within 30 days of the date the petition is filed. Appeals from 
the Director's decision will be decided by the entire Board.
    (k) Extension. Extensions of filing dates may be granted for good 
cause.

[56 FR 37861, Aug. 9, 1991]



Sec.  1151.3  Contents of application.

    (a) The initial application and all competing applications must 
include the following information in the form of verified statements:
    (1) Identification of the line to be purchased including:
    (i) The name of the owning carrier; and
    (ii) The exact location of the line to be purchased including 
milepost designations, origin and termination points, stations located 
on the line, and cities, counties and States traversed by the line.
    (2) Identification of applicant including:
    (i) The applicant's name and address;
    (ii) The name, address, and phone number of the representative to 
receive correspondence concerning this application;

[[Page 186]]

    (iii) A description of applicant's affiliation with any railroad; 
and
    (iv) If the applicant is a corporation, the names and addresses of 
its officers and directors.
    (3) Information sufficient to demonstrate that the applicant is a 
financially responsible person. In this regard, the applicant must 
demonstrate its ability:
    (i) To pay the higher of the net liquidation value (NLV) or going 
concern value (GCV) of the line; and
    (ii) To cover expenses associated with providing services over the 
line (including, but not limited to, operating costs, rents, and taxes) 
for at least the first 3 years after acquisition of the line.
    (4) An estimate of the NLV and the GCV of the line and evidence in 
support of these estimates.
    (5) An offer to purchase the line at the higher of the two estimates 
submitted pursuant to paragraph (a)(4) of this section.
    (6) The dates for the proposed period of operation of the line 
covered by the application.
    (7) An operating plan that identifies the proposed operator; 
attaches any contract that the applicant may have with the proposed 
operator; describes in detail the service that is to be provided over 
the line, including all interline connections; and demonstrates that 
adequate transportation will be provided over the line for at least 3 
years from the date of acquisition.
    (8) A description of the liability insurance coverage carried by 
applicant or any proposed operator. If trackage rights are requested, 
the insurance must be at a level sufficient to indemnify the owning 
railroad against all personal and property damage that may result from 
negligence on the part of the operator in exercising the trackage 
rights.
    (9) Any preconditions (such as assuming a share of any subsidy 
payments) that will be placed on shippers in order for them to receive 
service, and a statement that if the application is approved, no further 
preconditions will be placed on shippers without Board approval. (This 
statement will be binding upon applicant if the application is 
approved.)
    (10) The name and address of any person(s) who will subsidize the 
operation of the line.
    (11) A statement that the applicant will seek a finding by the Board 
that the public convenience and necessity permit or require acquisition, 
or a statement that the line is currently in category 1 or 2 of the 
owning railroad's system diagram map.
    (i) If the applicant seeks a finding of public convenience and 
necessity, the application must contain detailed evidence that permits 
the Board to find that:
    (A) The rail carrier operating the line refused within a reasonable 
time to make the necessary efforts to provide adequate service to 
shippers who transport traffic over the line;
    (B) The transportation over the line is inadequate for the majority 
of shippers who transport traffic over the line;
    (C) The sale of the line will not have a significantly adverse 
financial effect on the rail carrier operating the line;
    (D) The sale of the line will not have an adverse effect on the 
overall operational performance of the rail carrier operating the line; 
and
    (E) The sale of the line will be likely to result in improved 
railroad transportation for shippers who transport traffic over the 
line.
    (ii) If the applicant seeks a finding that the line is currently in 
category 1 or 2 of the owning carrier's system diagram map, the relevant 
portion of the current map must be attached to the application.
    (12) A statement detailing applicant's election of exemption from 
the provisions of Title 49, United States Code, and a statement that if 
the application is approved, no further exemptions will be elected. 
(This statement will be binding upon applicant if the application is 
approved.)
    (13) A description of any trackage rights sought over the owning 
railroad that are required to allow reasonable interchange or to move 
power equipment or empty rolling stock between noncontiguous feeder 
lines operated by the applicant, and an estimate of the reasonable 
compensation for such rights, including full explanation of

[[Page 187]]

how the estimate was reached. The description of the trackage rights 
shall include the following information: Milepost or other 
identification for each segment of track; the need for the trackage 
rights (interchange of traffic, movement of equipment, etc.); frequency 
of operations; times of operation; any alternative to the use of 
trackage rights; and any other pertinent data. Trackage rights that are 
necessary for the interchange of traffic shall be limited to the closest 
point to the junction with the owning railroad's line that allows the 
efficient interchange of traffic. A statement shall be included that the 
applicant agrees to have its train and crew personnel take the operating 
rules examination of the railroad over which the operating rights are 
exercised.
    (14) If applicant requests Board-prescribed joint rates and 
divisions in the feeder line proceeding, a description of any joint rate 
and division agreement must be included in the application. The 
description must contain the following information:
    (i) The railroad(s) involved;
    (ii) The estimated revenues that will result from the division(s);
    (iii) The total costs of operating the line segment purchased 
(including any trackage rights fees).
    (iv) Information sufficient to allow the Board to determine that the 
line sought to be acquired carried less than 3 million gross ton-miles 
of traffic per mile in the preceding calendar year \1\; and
---------------------------------------------------------------------------

    \1\ Gross ton-miles are calculated by adding the ton-miles of the 
cargo and the ton-miles related to the tare (empty) weight of the 
freight cars used to transport the cargo in the loaded movement. In 
calculating the gross ton-miles, only those related to the portion of 
the segment purchased shall be included.
---------------------------------------------------------------------------

    (v) Any other pertinent information.
    (15) The extent to which the owning railroad's employees who 
normally service the line will be used.
    (16) A certificate stating that the service requirements of Sec.  
1151.2(a) have been met.
    (b) Applicant must make copies of the application available to 
interested parties upon request.

[48 FR 9654, Mar. 8, 1983, as amended at 56 FR 37862, Aug. 9, 1991; 64 
FR 53268, Oct. 1, 1999; 81 FR 8855, Feb. 23, 2016]



Sec.  1151.4  Board determination.

    (a) The Board shall determine whether each applicant is a 
financially responsible person. To be a financially responsible person, 
the Board must find that:
    (1) The applicant is capable of paying the constitutional minimum 
value of the line and able to assure that adequate transportation will 
be provided over the line for at least 3 years;
    (2) The applicant is not a class I or class II railroad or an entity 
affiliated with a class I or class II railroad.
    (b) If the Board finds that one or more applicants are financially 
responsible parties, it shall determine whether the involved line or 
line segment is a qualified line. A line is a qualified line if:
    (1) Either
    (i) The public convenience and necessity require or permit the sale 
of line or line segment; or
    (ii) The line or line segment is classified in category 1 or 2 of 
the owning carrier's system diagram map; and
    (2) The traffic level on the line or line segment sought to be 
acquired was less than 3 million gross ton-miles of traffic per mile in 
the preceding calendar year (Note: This finding will not be required for 
applications filed after October 1, 1983).
    (c) If the Board finds that one or more financially responsible 
parties have offered to buy a qualifying line of railroad, the Board 
shall set the acquisition cost of the line at the higher of NLV or GCV, 
order the owning carrier to sell the rail line to one of the financially 
responsible applicants, and resolve any related issues raised in the 
application. If an applicant and the owning railroad agree on an 
acquisition price, that price shall be the final price.
    (d) If trackage rights are sought in the application, the Board 
shall, based on the evidence of record, set the adequate compensation 
for such rights, if the parties have not agreed.

[[Page 188]]

    (e) If the applicant requests the Board to set joint rates or 
divisions and the line carried less than 3 million gross ton-miles of 
traffic per mile during the preceding calendar year, the Board shall, 
pursuant to 49 U.S.C. 10705(a), establish joint rates and divisions 
based on the evidence of record in the proceeding. Unless specifically 
requested to do so by the selling carrier, the Board will not set the 
rate for the selling railroad's share of the joint rate at less than the 
applicable level (for the year in which the acquisition is made) set by 
49 U.S.C. 10707, which limits Board maximum ratemaking jurisdiction to 
rates above certain cost/price ratios.

[48 FR 9654, Mar. 8, 1983, as amended at 81 FR 8855, Feb. 23, 2016]



PART 1152_ABANDONMENT AND DISCONTINUANCE OF RAIL LINES AND RAIL
TRANSPORTATION UNDER 49 U.S.C. 10903--Table of Contents



                            Subpart A_General

Sec.
1152.1 Purpose and scope.
1152.2 Definitions.

                        Subpart B_System Diagram

1152.10 System diagram map.
1152.11 Description of lines to accompany the system diagram map or 
          information to be contained in the narrative.
1152.12 Filing and publication.
1152.13 Amendment of the system diagram map or narrative.
1152.14 Availability of data.
1152.15 Reservation of jurisdiction.

     Subpart C_Procedures Governing Notice, Applications, Financial 
          Assistance, Acquisition for Public Use, and Trail Use

1152.20 Notice of intent to abandon or discontinue service.
1152.21 Form of notice.
1152.22 Contents of application.
1152.23 [Reserved]
1152.24 Filing and service of application.
1152.25 Participation in abandonment or discontinuance proceedings.
1152.26 Board determination under 49 U.S.C. 10903.
1152.27 Financial assistance procedures.
1152.28 Public use procedures.
1152.29 Prospective use of rights-of-way for interim trail use and rail 
          banking.

Subpart D_Standards for Determining Costs, Revenues, and Return on Value

1152.30 General.
1152.31 Revenue and income attributable to branch lines.
1152.32 Calculation of avoidable costs.
1152.33 Apportionment rules for the assignment of expenses to on-branch 
          costs.
1152.34 Return on investment.
1152.35 [Reserved]
1152.36 Submission of revenue and cost data.
1152.37 Financial status reports.

Subpart E [Reserved]

    Subpart F_Exempt Abandonments and Discontinuances of Service and 
                             Trackage Rights

1152.50 Exempt abandonments and discontinuances of service and trackage 
          rights.

  Subpart G_Special Rules Applicable to Petitions for Abandonments or 
Discontinuances of Service or Trackage Rights Filed Under the 49 U.S.C. 
                        10502 Exemption Procedure

1152.60 Special rules.

    Authority: 11 U.S.C. 1170; 16 U.S.C. 1247(d) and 1248; 45 U.S.C. 
744; and 49 U.S.C. 1301, 1321(a), 10502, 10903-10905, and 11161.

    Source: 61 FR 67883, Dec. 24, 1996, unless otherwise noted.



                            Subpart A_General



Sec.  1152.1  Purpose and scope.

    (a) 49 U.S.C. 10903 et seq. governs abandonment of rail lines and 
discontinuance of rail service by common carriers. Section 10903(d) 
provides that no line of railroad may be abandoned and no rail service 
discontinued unless the Board finds that the present or future public 
convenience and necessity require or permit the abandonment or 
discontinuance.
    (b) Part 1152 contains regulations governing abandonment of, and 
discontinuance of service over, rail lines. This part also sets forth 
procedures for providing financial assistance to assure continued rail 
freight service under 49 U.S.C. 10904, for acquiring rail lines for 
alternate public use under 49 U.S.C. 10905, and for acquiring or using a 
rail right-of-way for interim trail use and rail banking.

[[Page 189]]



Sec.  1152.2  Definitions.

    Unless otherwise provided in the text of the regulations, the 
following definitions apply in this part:
    (a) Account means an account in the Board's Uniform System of 
Accounts for Railroad Companies (49 CFR part 1201).
    (b) Act means the ICC Termination Act of 1995 (Pub. L. 104-88, 109 
Stat. 803), as amended.
    (c) Base year means the latest 12-month period, ending no earlier 
than 6 months prior to the filing of the abandonment or discontinuance 
application, for which data have been collected at the branch level as 
prescribed in Sec.  1152.30(b).
    (d) Board means the Surface Transportation Board.
    (e) Branch means a segment of line for which an application for 
abandonment or discontinuance, pursuant to 49 U.S.C. 10903, has been 
filed.
    (f) Carrier means a railroad company or the trustee or trustees of a 
railroad company subject to regulation under 49 U.S.C., Subtitle IV, 
chapter 105.
    (g) Designated state agency means the instrumentality created by a 
state or designated by appropriate authority to administer or coordinate 
its state rail plan.
    (h) Forecast Year means the 12-month period, beginning with the 
first day of the month in which the application is filed with the Board, 
for which future revenues and costs are estimated.
    (i) Form R-1 means the railroad's annual report filed with the Board 
in accordance with the requirements of 49 U.S.C. 11145.
    (j) Offeror means a shipper, a state, the United States, a local or 
regional transportation authority, or any financially responsible person 
offering rail service continuation assistance under 49 U.S.C. 10904.
    (k) URCS means the Uniform Railroad Costing System.
    (l) Significant user means:
    (1) Each of the 10 rail patrons which originated and/or received the 
largest number of carloads (or each patron if there are less than 10); 
and
    (2) Any other rail patron which originated and/or received 50 or 
more carloads, on the line proposed for abandonment or discontinuance, 
during the 12-month period preceding the month in which notice is given 
of the abandonment or discontinuance application.
    (m) Subsidy year means any 12-month period for which a subsidy 
agreement has been negotiated and is in operation.



                        Subpart B_System Diagram



Sec.  1152.10  System diagram map.

    (a) Each carrier shall prepare a diagram of its rail system on a 
map, designating all lines in its system by the categories established 
in paragraph (b) of this section. A Class III carrier shall either 
prepare the aforementioned map of its rail system or file only a 
narrative description of its lines that provides all of the information 
required in this subpart.
    (b) All lines in each carrier's rail system shall be separated into 
the following categories:
    (1) All lines or portions of lines which the carrier anticipates 
will be the subject of an abandonment or discontinuance application to 
be filed within the 3-year period following the date upon which the 
diagram or narrative, or any amended diagram or narrative, is filed with 
the Board;
    (2) All lines or portions of lines which are potentially subject to 
abandonment, defined as those which the carrier has under study and 
believes may be the subject of a future abandonment application because 
of either anticipated operating losses or excessive rehabilitation 
costs, as compared to potential revenues;
    (3) All lines or portions of lines for which an abandonment or 
discontinuance application is pending before the Board on the date upon 
which the diagram or narrative, or any amended diagram or narrative, is 
filed with the Board;
    (4) All lines or portions of lines which are being operated under 
the rail service continuation provisions of 49 U.S.C. 10904 (and former 
49 U.S.C. 10905) on the date upon which the diagram or narrative, or any 
amended diagram or narrative, is filed with the Board; and
    (5) All other lines or portions of lines which the carrier owns and 
operates, directly or indirectly.

[[Page 190]]

    (c) The system diagram map shall be color-coded to show the 5 
categories of lines as follows:
    (1) Red shall designate those lines described in Sec.  
1152.10(b)(1);
    (2) Green shall designate those lines described in Sec.  
1152.10(b)(2);
    (3) Yellow shall designate those lines described in Sec.  
1152.10(b)(3);
    (4) Brown shall designate those lines described in Sec.  
1152.10(b)(4); and
    (5) Black or dark blue shall designate those lines described in 
Sec.  1152.10(b)(5).
    (d) The system diagram map shall also identify, and shall be drawn 
to a scale sufficient to depict clearly, the location of:
    (1) All state boundary lines;
    (2) Boundaries of every county in which is situated a rail line 
owned or operated by the carrier which is listed in categories 1 thru 4 
(Sec.  1152.10(b)(1) thru (4));
    (3) Every Standard Metropolitan Statistical Area (SMSA) any portion 
of which is located within 5 air miles of a rail line owned or operated 
by the carrier; and
    (4) Every city outside an SMSA which has a population of 5,000 or 
more persons (according to the latest published United States census 
reports) and which has any portion located within 5 air miles of a rail 
line owned or operated by the carrier. A series of interrelated maps may 
be used where the system serves a very large or congested area. An 
explanation of the interrelationship must be furnished.



Sec.  1152.11  Description of lines to accompany the system diagram map
or information to be contained in the narrative.

    Each carrier required to file a system diagram map or narrative 
shall list and describe, separately by category and within each category 
by state, all lines or portions of lines identified on its system 
diagram map or to be included in its narrative as falling within 
categories 1 thru 3 (Sec.  1152.10(b)(1) thru (3)) as follows:
    (a) Carrier's designation for each line (for example, the Zanesville 
Secondary Track);
    (b) State or states in which each line is located;
    (c) County or counties in which each line is located;
    (d) Mileposts delineating each line or portion of line; and
    (e) Agency or terminal stations located on each line or portion of 
line with milepost designations.



Sec.  1152.12  Filing and publication.

    (a) Each carrier required to file a system diagram map or a 
narrative shall file with the Board three copies of a complete and up-
dated color-coded system diagram map or narrative (identified by its 
``AB number'') and the accompanying line descriptions in conformance 
with the filing and publication requirements of this section. If a 
revised map or narrative is filed, the line descriptions for the lines 
which were revised must be filed.
    (b) The color-coded system diagram map or narrative, any amendments, 
and accompanying line descriptions shall be served upon the Governor, 
the Public Service Commission (or equivalent agency) and the designated 
state agency of each state within which the carrier operates or owns a 
line of railroad.
    (c) The carrier shall: (1) Publish in a newspaper of general 
circulation in each county containing category 1 through 3 lines or 
lines being revised, a notice containing:
    (i) A black-and-white copy of the system diagram map (or a portion 
of the map clearly depicting its lines in that county); and
    (ii) A description of each line (in the case of Class III carriers 
only the line description is required);
    (2) Post a copy of the newspaper notice:
    (i) In each agency station or terminal on each line in categories 1 
through 3 and on each line which has been revised; or
    (ii) If there is no agency station on the line, at any station 
through which business for the line is received or forwarded;
    (3) Furnish, at reasonable cost, upon request of any interested 
person, a copy of its system diagram map (either color-coded or black-
and-white) or narrative; and
    (4) Notify interested persons of this availability through its 
publication in the appropriate county newspaper.

[[Page 191]]

    (d) Each carrier required to file a system diagram map or narrative 
shall file with the Board an affidavit of service and publication 
stating the date each was accomplished. A copy of each newspaper notice 
published shall be attached to the affidavit. The effective date of the 
filing of the initial system diagram map or narrative and each amended 
system diagram map or narrative as required in paragraph (a) of this 
section shall be deemed to be the date upon which the Board receives the 
affidavit required in this paragraph.
    (e) The Board shall require republication of the notice if it is 
found to be inadequate.

[61 FR 67883, Dec. 24, 1996, as amended at 64 FR 53268, Oct. 1, 1999]



Sec.  1152.13  Amendment of the system diagram map or narrative.

    (a) Each carrier shall be responsible for maintaining the continuing 
accuracy of its system diagram map and the accompanying line 
descriptions or narrative. Amendments may be filed at any time and will 
be subject to all carrier filing and publication requirements of Sec.  
1152.12.
    (b) By March 24, 1997, each carrier shall file with the Board a 
revised and updated color-coded system diagram map and line descriptions 
or narrative which shall be subject to the filing and publication 
requirements of Sec.  1152.12. Thereafter, each carrier shall file 
amendments as line designations change and update its map or narrative, 
as appropriate. Also, each carrier shall file an updated or amended map 
or narrative upon order of the Board. Each new rail carrier shall comply 
with the requirements of this subsection within 60 days after it becomes 
a carrier.
    (c) The Board will reject an abandonment or discontinuance 
application filed by a rail carrier if any part of the application 
includes a line that has not been identified and described, by amendment 
or otherwise, on the carrier's system diagram map or narrative, as 
appropriate, as a line in category 1 (Sec.  1152.10(b)(1)) for at least 
60 days.



Sec.  1152.14  Availability of data.

    Each carrier shall provide to the designated state agency, upon 
request, information concerning the net liquidation value (as defined in 
Sec.  1152.34(c)) of any line placed in category 1 (Sec.  1152.10(b)(1)) 
on its system diagram map or narrative together with a description of 
such a line and any appurtenant facilities and of their condition.



Sec.  1152.15  Reservation of jurisdiction.

    49 U.S.C. 10903(c)(1) authorizes the Board, at its discretion, to 
provide for designation of lines as ``potentially subject to 
abandonment'' under standards which vary by region of the United States, 
by railroad, or by group of railroads. The Board expressly reserves the 
right to adopt such varying standards in the future.



     Subpart C_Procedures Governing Notice, Applications, Financial 
          Assistance, Acquisition for Public Use, and Trail Use



Sec.  1152.20  Notice of intent to abandon or discontinue service.

    (a) Filing and publication requirements. An applicant shall give 
Notice of Intent to file an abandonment or discontinuance application by 
complying with the following procedures:
    (1) Filing. Applicant must serve its Notice of Intent on the Board, 
by certified letter, in the format prescribed in Sec.  1152.21. The 
Notice shall be filed in accordance with the time requirements of 
paragraph (b) of this section.
    (2) Service. Applicant must serve, by first-class mail (unless 
otherwise specified), its Notice of Intent upon:
    (i) Significant users of the line;
    (ii) The Governor (by certified mail) of each state directly 
affected by the abandonment or discontinuance. (For the purposes of this 
section ``states directly affected'' are those in which any part of the 
line sought to be abandoned is located).
    (iii) The Public Service Commission (or equivalent agency) in these 
states;
    (iv) The designated state agency in these states;
    (v) The State Cooperative Extension Service in these states;

[[Page 192]]

    (vi) The U.S. Department of Transportation (Federal Railroad 
Administration);
    (vii) Department of Defense (Military Traffic Management Command, 
Transportation Engineering Agency, Railroads for National Defense 
Program);
    (viii) The U.S. Department of Interior (Recreation Resources 
Assistance Division, National Park Service);
    (ix) The U.S. Railroad Retirement Board;
    (x) The National Railroad Passenger Corporation (``Amtrak'') (if 
Amtrak operates over the involved line);
    (xi) The U.S. Department of Agriculture, Chief of the Forest 
Service; and
    (xii) The headquarters of all duly certified labor organizations 
that represent employees on the affected rail line.
    (3) Posting. Applicant must post a copy of its Notice of Intent at 
each agency station and terminal on the line to be abandoned. (If there 
are no agency stations on the line, the Notice of Intent should be 
posted at any agency station through which business for the involved 
line is received or forwarded.)
    (4) Newspaper publication. Applicant must publish its Notice of 
Intent at least once during each of 3 consecutive weeks in a newspaper 
of general circulation in each county in which any part of the involved 
line is located.
    (b) Time limits. (1) The Notice of Intent must be served at least 15 
days, but not more than 30 days, prior to the filing of the abandonment 
application;
    (2) The Notice must be posted and fully published within the 30-day 
period prior to the filing of the application; and
    (3) The Notice must be filed with the Board either concurrently with 
service or when the Notice is first published (whichever occurs first).
    (c) Environmental and Historic Reports. Applicant must also submit 
the Environmental and Historic Reports described at Sec. Sec.  1105.7 
and 1105.8 at least 20 days prior to filing an application.

[61 FR 67883, Dec. 24, 1996, as amended at 68 FR 67810, Dec. 4, 2003]



Sec.  1152.21  Form of notice.

    The Notice of Intent to abandon or to discontinue service shall be 
in the following form:

STB No. AB ------(Sub-No. ------)

          Notice of Intent To Abandon or To Discontinue Service

    (Name of Applicant) gives notice that on or about (insert date 
application will be filed with the Board) it intends to file with the 
Surface Transportation Board, Washington, DC 20423, an application for 
permission for the abandonment of (the discontinuance of service on), a 
line of railroad known as ------ extending from railroad milepost near 
(station name) to (the end of line or rail milepost) near (station 
name), which traverses through United States Postal Service ZIP Codes 
(ZIP Codes), a distance of ------ miles, in [County(ies), State(s)]. The 
line includes the stations of (list all stations on the line in order of 
milepost number, indicating milepost location). The reason(s) for the 
proposed abandonment (or discontinuance) is (are) ------ (explain 
briefly and clearly why the proposed action is being undertaken by the 
applicant). Based on information in our possession, the line (does) 
(does not) contain federally granted rights-of-way. Any documentation in 
the railroad's possession will be made available promptly to those 
requesting it. This line of railroad has appeared on the system diagram 
map or included in the narrative in category 1 since (insert date).
    The interest of railroad employees will be protected by (specify the 
appropriate conditions). The application will include the applicant's 
entire case for abandonment (or discontinuance) (case in chief). Any 
interested person, after the application is filed on (insert date), may 
file with the Surface Transportation Board written comments concerning 
the proposed abandonment (or discontinuance) or protests to it. These 
filings are due 45 days from the date of filing of the application. All 
interested persons should be aware that following any abandonment of 
rail service and salvage of the line, the line may be suitable for other 
public use, including interim trail use. Any request for a public use 
condition under 49 U.S.C. 10905 (Sec.  1152.28 of the Board's rules) and 
any request for a trail use condition under 16 U.S.C. 1247(d) (Sec.  
1152.29 of the Board's rules) must also be filed within 45 days from the 
date of filing of the application. Persons who may oppose the 
abandonment or discontinuance but who do not wish to participate fully 
in the process by appearing at any oral hearings or by submitting 
verified statements of witnesses, containing detailed evidence, should 
file comments. Persons interested

[[Page 193]]

only in seeking public use or trail use conditions should also file 
comments. Persons opposing the proposed abandonment or discontinuance 
that do wish to participate actively and fully in the process should 
file a protest. Protests must contain that party's entire case in 
opposition (case in chief) including the following:
    (1) Protestant's name, address and business.
    (2) A statement describing protestant's interest in the proceeding 
including:
    (i) A description of protestant's use of the line;
    (ii) If protestant does not use the line, information concerning the 
group or public interest it represents; and
    (iii) If protestant's interest is limited to the retention of 
service over a portion of the line, a description of the portion of the 
line subject to protestant's interest (with milepost designations if 
available) and evidence showing that the applicant can operate the 
portion of the line profitably, including an appropriate return on its 
investment for those operations.
    (3) Specific reasons why protestant opposes the application 
including information regarding protestant's reliance on the involved 
service [this information must be supported by affidavits of persons 
with personal knowledge of the fact(s)].
    (4) Any rebuttal of material submitted by applicant.
    In addition, a commenting party or protestant may provide a 
statement of position and evidence regarding:
    (i) Intent to offer financial assistance pursuant to 49 U.S.C. 
10904;
    (ii) Environmental impact;
    (iii) Impact on rural and community development;
    (iv) Recommended provisions for protection of the interests of 
employees;
    (v) Suitability of the properties for other public purposes pursuant 
to 49 U.S.C. 10905; and
    (vi) Prospective use of the right-of-way for interim trail use and 
rail banking under 16 U.S.C. 1247(d) and Sec.  1152.29.
    A protest may demonstrate that: (1) the protestant filed a feeder 
line application under 49 U.S.C. 10907; (2) the feeder line application 
involves any portion of the rail line involved in the abandonment or 
discontinuance application; (3) the feeder line application was filed 
prior to the date the abandonment or discontinuance application was 
filed; and (4) the feeder line application is pending before the Board.
    Written comments and protests will be considered by the Board in 
determining what disposition to make of the application. The commenting 
party or protestant may participate in the proceeding as its interests 
may appear.
    If an oral hearing is desired, the requester must make a request for 
an oral hearing and provide reasons why an oral hearing is necessary. 
Oral hearing requests must be filed with the Board no later than 10 days 
after the application is filed.
    Those parties filing protests to the proposed abandonment (or 
discontinuance) should be prepared to participate actively either in an 
oral hearing or through the submission of their entire opposition case 
in the form of verified statements and arguments at the time they file a 
protest. Parties seeking information concerning the filing of protests 
should refer to Sec.  1152.25.
    Written comments and protests, including all requests for public use 
and trail use conditions, should indicate the proceeding designation STB 
No. AB ------ (Sub-No. ------) and must be filed with the Chief, Section 
of Administration, Office of Proceedings, Surface Transportation Board, 
Washington, DC 20423-0001, no later than (insert the date 45 days after 
the date applicant intends to file its application). Interested persons 
may file a written comment or protest with the Board to become a party 
to this abandonment (or discontinuance) proceeding. A copy of each 
written comment or protest shall be served upon the representative of 
the applicant (insert name, address, and phone number). The original and 
10 copies of all comments or protests shall be filed with the Board with 
a certificate of service. Except as otherwise set forth in part 1152, 
each document filed with the Board must be served on all parties to the 
abandonment proceeding. 49 CFR 1104.12(a).
    The line sought to be abandoned (or discontinued) will be available 
for subsidy or sale for continued rail use, if the Board decides to 
permit the abandonment (or discontinuance), in accordance with 
applicable laws and regulations (49 U.S.C. 10904 and 49 CFR 1152.27). No 
subsidy arrangement approved under 49 U.S.C. 10904 shall remain in 
effect for more than 1 year unless otherwise mutually agreed by the 
parties (49 U.S.C. 10904(f)(4)(B)). Applicant will promptly provide upon 
request to each interested party an estimate of the subsidy and minimum 
purchase price required to keep the line in operation. The carrier's 
representative to whom inquiries may be made concerning sale or subsidy 
terms is (insert name and business address). Persons seeking further 
information concerning abandonment procedures may contact the Surface 
Transportation Board or refer to the full abandonment or discontinuance 
regulations at 49 CFR part 1152. Questions concerning environmental 
issues may be directed to the Board's Section of Environmental Analysis.
    A copy of the application will be available for public inspection on 
or after (insert date abandonment application is to be filed with Board) 
at each agency station or terminal on

[[Page 194]]

the line proposed to be abandoned or discontinued [if there is no agency 
station on the line, the application shall be deposited at any agency 
station through which business for the line is received or forwarded 
(insert name, address, location, and business hours)]. The carrier shall 
furnish a copy of the application to any interested person proposing to 
file a protest or comment, upon request.
    An environmental assessment (EA) (or environmental impact statement 
(EIS), if necessary) prepared by the Section of Environmental Analysis 
will be served upon all parties of record and upon any agencies or other 
persons who commented during its preparation. Any other persons who 
would like to obtain a copy of the EA (or EIS) may contact the Section 
of Environmental Analysis. EAs in these abandonment proceedings normally 
will be made available within 33 days of the filing of the application. 
The deadline for submission of comments on the EA will generally be 
within 30 days of its service. The comments received will be addressed 
in the Board's decision. A supplemental EA or EIS may be issued where 
appropriate.

[75 FR 30712, June 2, 2010]



Sec.  1152.22  Contents of application.

    Applications for the abandonment of railroad lines or the 
discontinuance of rail service shall contain the following information, 
including workpapers and supporting documents, and each paragraph (a) 
through (j) of this section shall be attested to by a person having 
personal knowledge of the matters contained therein:
    (a) General. (1) Exact name of applicant.
    (2) Whether applicant is a common carrier by railroad subject to 49 
U.S.C. Subtitle IV, chapter 105.
    (3) Relief sought (abandonment of line or discontinuance of 
service).
    (4) Detailed map of the subject line on a sheet not larger than 8 x 
10\1/2\ inches, drawn to scale, and with the scale shown thereon. The 
map must show, in clear relief, the exact location of the rail line to 
be abandoned or over which service is to be discontinued and its 
relation to other rail lines in the area, highways, water routes, and 
population centers.
    (5) Reference to inclusion of the rail line to be abandoned or over 
which service is to be discontinued on the carrier's system diagram map 
or narrative, in compliance with Sec. Sec.  1152.10 through 1152.13, and 
the date upon which such line was first listed on the system diagram map 
or included in the narrative in category 1 in accordance with Sec.  
1152.10(b)(1). A copy of the line description which accompanies the 
system diagram map shall also be submitted.
    (6) Detailed statement of reasons for filing application.
    (7) Name, title, and address of representative of applicant to whom 
correspondence should be sent.
    (8) List of all United States Postal Service ZIP Codes that the line 
proposed for abandonment traverses.
    (b) Condition of properties. The present physical condition of the 
line including any operating restrictions and estimate of deferred 
maintenance and rehabilitation costs (e.g., number of ties that need 
replacing, miles of rail that need replacing and/or new ballast, bridge 
repairs or replacement needed, and estimated labor expenses necessary to 
upgrade the line to minimum Federal Railroad Administration class 1 
safety standards). The bases for the estimates shall be stated with 
particularity, and workpapers shall be filed with the application.
    (c) Service provided. Description of the service performed on the 
line during the Base Year (as defined by Sec.  1152.2(c)), including the 
actual:
    (1) Number of trains operated and their frequency.
    (2) Miles of track operated (include main line and all railroad-
owned sidings).
    (3) Average number of locomotive units operated.
    (4) Total tonnage and carloads by each commodity group on the line.
    (5) Overhead or bridge traffic by carload commodity group that will 
not be retained by the carrier.
    (6) Average crew size.
    (7) Level of maintenance.
    (8) Any important changes in train service undertaken in the 2 
calendar years immediately preceding the filing of the application.
    (9) Reasons for decline in traffic, if any, in the best judgment of 
applicant.
    (d) Revenue and cost data. (1) Computation of the revenues 
attributable and avoidable costs for the line to be abandoned for the 
Base Year (as defined by Sec.  1152.2(c) and to the extent

[[Page 195]]

such branch level data are available), in accordance with the 
methodology prescribed in Sec. Sec.  1152.31 through 1152.33, as 
applicable, and submitted in the form called for in Sec.  1152.36, as 
Exhibit 1.
    (2) The carrier shall compute an estimate of the future revenues 
attributable, avoidable costs and reasonable return on the value for the 
line to be abandoned, for the Forecast Year (as defined in Sec.  
1152.2(h)) in the form called for in Exhibit 1. The carrier shall fully 
support and document all dollar amounts shown in the Forecast Year 
column including an explanation of the rationale and key assumptions 
used to determine the Forecast Year amounts.
    (3) The carrier shall also compute an ``Estimated Subsidy Payment'' 
for the Base Year in the form called for in Exhibit 1 and an alternate 
payment to reflect:
    (i) Increases or decreases in attributable revenues and avoidable 
costs projected for the subsidy year; and
    (ii) An estimate, in reasonable detail, of the cash income tax 
reductions, Federal and state, to be realized in the subsidy year. The 
bases for the adjustment, e.g., rate increase, changes in traffic level, 
necessary maintenance to comply with minimum Federal Railroad 
Administration class 1 safety standards, shall be stated with 
particularity.
    (e) Rural and community impact. (1) The name and population 
(identify source and date of figures) of each community in which a 
station on the line is located.
    (2) Identification of significant users, as defined in Sec.  
1152.2(l), by name, address, principal commodity, and by tonnage and 
carloads for each of the 2 calendar years immediately preceding the 
filing of the abandonment or discontinuance application, for that part 
of the current year for which information is available, and for the Base 
Year. In addition, the total tonnage and carloads for each commodity 
group originating and/or terminating on the line segment shall also be 
shown for the same time periods as those of the significant users.
    (3) General description of the alternate sources of transportation 
service (rail, motor, water, air) available, and the highway network in 
the proximate area.
    (4) Statement of whether the properties proposed to be abandoned are 
appropriate for use for other public purposes, including roads or 
highways, other forms of mass transportation, conservation, energy 
production or transmission, or recreation. If the applicant is aware of 
any restriction on the title to the property, including any reversionary 
interest, which would affect the transfer of title or the use of 
property for other than rail purposes, this shall be disclosed.
    (f) Environmental impact. The applicant shall submit information 
regarding the environmental impact of the proposed abandonment or 
discontinuance in compliance with Sec. Sec.  1105.7 and 1105.8. If 
certain information required by the environmental regulations duplicates 
information required elsewhere in the application, the environmental 
information requirements may be met by a specific reference to the 
location of the information elsewhere in the application.
    (g) Passenger service. If passenger service is provided on the line, 
the applicant shall state whether appropriate steps have been taken for 
discontinuance pursuant to the Rail Passenger Service Act. (45 U.S.C. 
501 et seq.)
    (h) Additional information. The applicant shall submit such 
additional information to support its application as the Board may 
require.
    (i) Draft Federal Register notice. The applicant shall submit a 
draft notice of its application to be published by the Board. In 
addition to the regular number of copies that must be filed with the 
Board, the applicant must submit a copy of the draft notice as data 
contained on a computer diskette compatible with the Board's current 
word processing capabilities. The Board will publish the notice in the 
Federal Register within 20 days of the application's filing with the 
Board. The draft notice shall be in the form set forth below:

STB No. AB--------- (Sub-No. --------)
Notice of Application to Abandon or to Discontinue Service

    On (insert date application was filed with the Board) (name of 
applicant) filed with the Surface Transportation Board, Washington,

[[Page 196]]

D.C. 20423, an application for permission for the abandonment of (the 
discontinuance of service on) a line of railroad known as ------------ 
extending from railroad milepost near (station name) to (the end of line 
or rail milepost) near (station name), a distance of ------------ miles, 
in [County(ies), State(s)]. The line includes the stations of (list all 
stations on the line in order of milepost number, indicating milepost 
location) and traverses through ------------ (ZIP Codes) United States 
Postal Service ZIP Codes.

    The line (does) (does not) contain federally granted rights-of-way. 
Any documentation in the railroad's possession will be made available 
promptly to those requesting it. The applicant's entire case for 
abandonment (or discontinuance) (case in chief) was filed with the 
application.
    This line of railroad has appeared on the applicant's system diagram 
map or has been included in its narrative in category 1 since (insert 
date).
    The interest of railroad employees will be protected by (specify the 
appropriate conditions).
    Any interested person may file with the Surface Transportation Board 
written comments concerning the proposed abandonment (or discontinuance) 
or protests (including the protestant's entire opposition case), within 
45 days after the application is filed. All interested persons should be 
aware that following any abandonment of rail service and salvage of the 
line, the line may be suitable for other public use, including interim 
trail use. Any request for a public use condition under 49 U.S.C. 10905 
(Sec.  1152.28 of the Board's rules) and any request for a trail use 
condition under 16 U.S.C. 1247(d) (Sec.  1152.29 of the Board's rules) 
must be filed within 45 days after the application is filed. Persons who 
may oppose the abandonment or discontinuance but who do not wish to 
participate fully in the process by appearing at any oral hearings or by 
submitting verified statements of witnesses, containing detailed 
evidence should file comments. Persons interested only in seeking public 
use or trail use conditions should also file comments. Persons opposing 
the proposed abandonment or discontinuance that do wish to participate 
actively and fully in the process should file a protest.
    In addition, a commenting party or protestant may provide:
    (i) An offer of financial assistance, pursuant to 49 U.S.C. 10904 
(due 120 days after the application is filed or 10 days after the 
application is granted by the Board, whichever occurs sooner);
    (ii) Recommended provisions for protection of the interests of 
employees;
    (iii) A request for a public use condition under 49 U.S.C. 10905; 
and
    (iv) A statement pertaining to prospective use of the right-of-way 
for interim trail use and rail banking under 16 U.S.C. 1247(d) and Sec.  
1152.29.
    Parties seeking information concerning the filing of protests should 
refer to Sec.  1152.25.
    Written comments and protests, including all requests for public use 
and trail use conditions, must indicate the proceeding designation STB 
No. AB ---- (Sub-No. ----) and should be filed with the Chief, Section 
of Administration, Office of Proceedings, Surface Transportation Board 
(Board), Washington, DC 20423-0001, no later than (insert the date 45 
days after the date applicant intends to file its application). 
Interested persons may file a written comment or protest with the Board 
to become a party to this abandonment (or discontinuance) proceeding. A 
copy of each written comment or protest shall be served upon the 
representative of the applicant (insert name, address, and phone 
number). The original and 10 copies of all comments or protests shall be 
filed with the Board with a certificate of service. Except as otherwise 
set forth in part 1152, every document filed with the Board must be 
served on all parties to the abandonment proceeding. 49 CFR 1104.12(a).
    The line sought to be abandoned (or discontinued) will be available 
for subsidy or sale for continued rail use, if the Board decides to 
permit the abandonment (or discontinuance), in accordance with 
applicable laws and regulations (49 U.S.C. 10904 and 49 CFR 1152.27). No 
subsidy arrangement approved under 49 U.S.C. 10904 shall remain in 
effect for more than 1 year unless otherwise mutually agreed by the 
parties (49 U.S.C. 10904(f)(4)(B)). Applicant will promptly provide upon 
request to each interested party an estimate of the subsidy and minimum 
purchase price required to keep the line in operation. The carrier's 
representative to whom inquiries may be made concerning sale or subsidy 
terms is (insert name and business address).
    Persons seeking further information concerning abandonment 
procedures may contact the Surface Transportation Board or refer to the 
full abandonment or discontinuance regulations at 49 CFR part 1152. 
Questions concerning environmental issues may be directed to the Board's 
Section of Environmental Analysis.
    An environmental assessment (EA) (or environmental impact statement 
(EIS), if necessary) prepared by the Section of Environmental Analysis 
will be served upon all parties of record and upon any agencies or other 
persons who commented during its preparation. Any other persons who 
would like to obtain a copy of the EA (or EIS) may contact the Section 
of Environmental Analysis. EAs in these abandonment proceedings normally 
will be made available within 33 days of the filing of the application. 
The deadline for submission of comments on the EA will generally be 
within 30 days of its service. The

[[Page 197]]

comments received will be addressed in the Board's decision. A 
supplemental EA or EIS may be issued where appropriate.

    (j) Verification. The original application shall be executed and 
verified in the form set forth below by an officer of the carrier having 
knowledge of the facts and matters relied upon.

                              Verification

State of ------------ ss.
County of ----------------------------
    ---------------------------------- (Name of affiant) makes oath and 
says that (s)he is the ------------ (title of affiant) of the ----------
-- (name of applicant) applicant herein; that (s)he has been authorized 
by the applicant (or as appropriate, a court) to verify and file with 
the Surface Transportation Board the foregoing application in STB AB---
-- (Sub-No. ----); that (s)he has carefully examined all of the 
statements in the application as well as the exhibits attached thereto 
and made a part thereof; that (s)he has knowledge of the facts and 
matters relied upon in the application; and that all representations set 
forth therein are true and correct to the best of his(her) knowledge, 
information, and belief.
 (Signature)

    Subscribed and sworn to before me ------------ in and for the State 
and County above named, this ------------ day of --------------------, 
19----.

My Commission expires

[61 FR 67883, Dec. 24, 1996, as amended at 74 FR 52909, Oct. 15, 2009]



Sec.  1152.23  [Reserved]



Sec.  1152.24  Filing and service of application.

    (a) An original and 10 copies of applications, typewritten or 
printed on paper approximately 8\1/2\ inches by 11 inches with 1\1/2\ 
inch left margin, shall be filed with the Chief, Section of 
Administration, Office of Proceedings, Washington, DC 20423-0001. The 
original shall bear the date and signature and shall be complete in 
itself; the signature may be stamped or typed and the notarial seal may 
be omitted on the copies. A check, money order or payment by credit card 
payable to the Surface Transportation Board must also be submitted to 
cover the applicable filing fee. If the applicant carrier is in 
bankruptcy, the application shall also be filed on the bankruptcy court.
    (b) The applicant shall tender with its application an affidavit 
attesting to its compliance with the notice requirement of Sec.  
1152.20. The affidavit shall include the dates of service, posting, and 
publication of the notice.
    (c) When the application is filed with the Board, the applicant 
shall serve, by first class mail, a copy on the Governor, the Public 
Service Commission (or equivalent agency), and the designated state 
agency of each state in which any part of the line of railroad sought to 
be abandoned or discontinued is situated. A copy of the application will 
be available for public inspection, on or after the date the abandonment 
application is filed with the Board, at each agency station or terminal 
on the line proposed to be abandoned or discontinued (if there is no 
agency station on the line, the application shall be deposited at any 
agency station through which business for the line is received or 
forwarded). A certificate of service shall be promptly filed with the 
Board.
    (d) The applicant shall promptly furnish by first class mail a copy 
of the application to any interested person proposing to file a written 
comment or protest upon request. A certificate of service shall promptly 
be filed with the Board.
    (e)(1) The Board shall reject any abandonment or discontinuance 
application which does not substantially conform to the regulations in 
this subpart C regarding notice, form, and content, or which applies to 
a line which has not properly been published on the carrier's system 
diagram map (or included in a narrative in the case of a Class III 
carrier), in conformance with the regulations of subpart B of this part.
    (2) Upon the filing of an abandonment or discontinuance application, 
the Board will review the application and determine whether it conforms 
with all applicable regulations. If the application is substantially 
incomplete or its filing otherwise defective, the Board shall reject the 
application for stated reasons by order (which order will be 
administratively final) within 20 days from the date of filing of the 
application. If the Board does not reject the application, notice of the 
filing of the application shall be published in the Federal Register by 
the Board, through the Director of the Office of

[[Page 198]]

Proceedings, within 20 days of the filing of the application.
    (3) If the application is rejected, a revised application may be 
submitted, and the Board will determine whether the resubmitted 
application conforms with all prescribed regulations. A properly revised 
application submitted within 60 days of the order rejecting the 
incomplete or improper application need not be subjected to new notice 
and publication under Sec.  1152.20, unless the defect causing the 
rejection was in the notice and/or publication. A revised application 
submitted after such 60-day period must be newly published and noticed.
    (4) The resubmission of an abandonment or discontinuance application 
shall be considered a de novo filing for the purposes of computation of 
the time period for filing an offer of financial assistance under 49 
U.S.C. 10904, and for other time periods prescribed in the regulations 
contained in this part (49 CFR part 1152), provided, that a resubmitted 
application is deemed complete and proper.
    (5) An applicant may seek waiver of specific regulations listed in 
subpart C of this part by filing a petition for waiver with the Board. A 
decision by the Director of the Office of Proceedings granting or 
denying a waiver petition will be issued within 30 days of the date the 
petition is filed. Appeals from the Director's decision will be decided 
by the entire Board. If waiver is not obtained prior to the filing of 
the application, the application may be subject to rejection under 
paragraphs (e) (1) and (2) of this section.
    (f) As provided in Sec.  1152.29(e)(2), rail carriers authorized to 
abandon a line under 49 U.S.C. 10903 must file with the Board a notice 
that abandonment has been consummated.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34669, June 27, 1997; 
64 FR 53268, Oct. 1, 1999; 74 FR 52909, Oct. 15, 2009]



Sec.  1152.25  Participation in abandonment or discontinuance proceedings.

    (a) Public participation--(1) Protests and comments. Interested 
persons may become parties to an abandonment or discontinuance 
proceeding by filing written comments or protests with the Board. Any 
request for a public use condition under 49 U.S.C. 10905 (Sec.  1152.28 
of the Board's rules) and any request for a trail use condition under 16 
U.S.C. 1247(d) (Sec.  1152.29 of the Board's rules) must be included in 
these filings. Persons who may oppose the abandonment or discontinuance, 
but who do not wish to participate fully in the process by appearing at 
any oral hearings or by submitting verified statements of witnesses 
containing detailed evidence, should file comments. Persons interested 
only in seeking public use or trail use conditions should also file 
comments. Persons opposing the proposed abandonment or discontinuance 
that do wish to participate actively and fully in the process should 
file a protest. Protests shall include all evidence and argument in 
support of protestant's position (protestant's case in chief). Protests 
must contain the following information:
    (i) Protestant's name, address and business.
    (ii) A statement describing protestant's interest in the proceeding 
including:
    (A) A description of protestant's use of the line;
    (B) If protestant does not use the line, information concerning the 
group or public interest it represents; and
    (C) If protestant's interest is limited to the retention of service 
over a portion of the line, a description of the portion of the line 
subject to protestant's interest (with milepost designations if 
available) and evidence showing that the applicant can operate the 
portion of the line profitably, including an appropriate return on its 
investment for those operations.
    (iii) Specific reasons why protestant opposes the application 
including information regarding protestant's reliance on the involved 
service (this information must be supported by affidavits of persons 
with personal knowledge of the fact(s)).
    (iv) Any rebuttal of material submitted by applicant.
    (v) Any request for a public use condition under 49 U.S.C. 10905 
(Sec.  1152.28 of the Board's rules) and any request for a trail use 
condition under 16 U.S.C. 1247(d) (Sec.  1152.29 of the Board's rules).

[[Page 199]]

    (2) Additional information. In addition to the information required 
in paragraph (a)(1) of this section, a commenting party or protestant 
may provide a statement of position and a summary of evidence regarding:
    (i) Intent to offer financial assistance under 49 U.S.C. 10904;
    (ii) Environmental impact;
    (iii) Impact on rural and community development;
    (iv) Recommended provisions for protection of the interests of 
employees;
    (v) A request for a public use condition under 49 U.S.C. 10905; and
    (vi) Prospective use of the right-of-way for interim trail use and 
rail banking under 16 U.S.C. 1247(d) and 49 CFR 1152.29.
    (3) Feeder line application for all or part of the line subject to 
the abandonment application. In addition to the information required in 
paragraphs (a)(1) and (2) of this section, a commenting party or 
protestant must provide information that:
    (i) The protestant filed a feeder line application under 49 U.S.C. 
10907 (or former 49 U.S.C. 10910);
    (ii) The feeder line application involves any portion of the rail 
line involved in the abandonment or discontinuance application;
    (iii) The feeder line application was filed prior to the date the 
abandonment or discontinuance application was filed; and
    (iv) The feeder line application is pending before the Board.
    (b) Employee or employee representative participation. Employees or 
their representatives may file protests or comments to an application. 
However, because the Board will impose employee protective conditions 
under 49 U.S.C. 10903(b)(2) if an application is granted, employees and 
their representatives need not file comments or protests seeking this 
protection.
    (c) Filing and service of written comments, protests, along with 
evidence and argument, and replies. (1) Written comments and protests, 
as well as public use and trail use requests, shall be filed with the 
Board (the Chief, Section of Administration, Office of Proceedings, 
Surface Transportation Board, Washington, DC 20423-0001) within 45 days 
of the filing with the Board of an abandonment or discontinuance 
application.
    (2) An original and 10 copies of each written comment or protest 
shall be filed with the Board.
    (3) A copy of each written comment or protest shall be served on 
applicant or its representative at the time of filing with the Board. If 
the applicant carrier is in bankruptcy, each comment or protest shall 
also be filed on the Bankruptcy Court. Each filing shall contain a 
certificate of service.
    (4) Replies or rebuttal to written comments and protests shall be 
filed and served by applicants no later than 60 days after the filing of 
the application. An original and 10 copies of such replies shall be 
filed with the Board.
    (d) Time limits. (1) Pleadings, requests or other papers or 
documents (including any comments or protests and any appeal from a 
Board decision) required or permitted to be filed under this part must 
be received for filing at the Board's Offices at Washington, DC within 
the time limits, if any, for such filing. The date of receipt at the 
Board and not the date of deposit in the mail is determinative, 
provided, however, that if such document is mailed by certified, 
registered, or express mail, postmarked at least 3 days prior to the due 
date, it will be accepted as timely filed.
    (2) In computing any time period prescribed or allowed by this part, 
the day of the act, event, or default after which the designated period 
of time begins to run is not to be included.
    (3) Any filing under this part which falls due on a Saturday, 
Sunday, or a legal holiday in the District of Columbia, may be filed at 
the Board by the end of the next day which is neither a Saturday, 
Sunday, nor a holiday, except as indicated in paragraph (d)(4) of this 
section. A half holiday shall not be considered as a holiday.
    (4) Offers of financial assistance made pursuant to Sec.  1152.27(c) 
must be filed on or before their statutory or regulatory due date as 
computed in paragraph (d)(2) of this section, regardless of whether that 
date is a Saturday, Sunday, or a legal holiday in the District of 
Columbia.
    (5) The Board will reject any pleading filed after its due date 
unless good

[[Page 200]]

cause is shown why the pleading is filed late.
    (6) Oral hearings. (i) Any oral hearing request is due 10 days after 
the filing of the application. The Board, through the Director of the 
Office of Proceedings, will issue a decision on any oral hearing request 
within 15 days after the filing of the application. If the Board decides 
to hold an oral hearing, the oral hearing shall be for the primary 
purpose of cross examination of witnesses filing verified statements in 
the proceeding. Any direct testimony, other than applicant's rebuttal 
evidence, shall be received at the discretion of the hearing officer.
    (ii) In addition to that contained in the application, the 
submission of written evidence prior to the commencement of the hearing 
shall be established by the Board.
    (iii) Post hearing legal briefs shall be due 10 days after the close 
of the oral hearing, or at an earlier date if established at the hearing 
by the hearing officer.
    (e) Appellate procedures--(1) Scope of rule. Except as specifically 
indicated below, these appellate procedures are to be followed in 
abandonment and discontinuance proceedings in lieu of the general 
procedures at 49 CFR 1115. Appeals of initial decisions of the Director 
of the Office of Proceedings determining:
    (i) Whether offers of financial assistance satisfy the standard of 
49 U.S.C. 10904(d) for purposes of instituting negotiations or, in 
exemption proceedings, for purposes of partial revocation and 
instituting negotiations;
    (ii) Whether partially to revoke or to reopen abandonment exemptions 
authorized, respectively, under 49 U.S.C. 10502 and 49 CFR part 1152 
subpart F for the purpose of imposing public use conditions under the 
criteria in 49 CFR 1152.28 and/or conditions limiting salvage of the 
rail properties for environmental and historic preservation purposes; 
and
    (iii) The applicability and administration of the Trails Act [16 
U.S.C. 1247(d)] in abandonment proceedings under 49 U.S.C. 10903 (and 
abandonment exemption proceedings), issued pursuant to delegations of 
authority at 49 CFR 1011.7(a)(2)(iv) and (v), will be acted on by the 
entire Board as set forth at 49 CFR 1011.2(a)(7). An original and 10 
copies of all appeals, and replies to appeals, under this section must 
be filed with the Board.
    (2) Appeals criteria. Appeals to the Board's decision in abandonment 
or discontinuance proceedings will not be entertained. Those decisions 
are administratively final upon the date they are served.
    (i) Parties seeking further administrative action may file a 
petition to reopen the proceeding under paragraph (e)(4) of this 
section. If an abandonment or discontinuance is granted and a party 
wishes the Board to have the opportunity to consider a petition to 
reopen before the abandonment or discontinuance authorization becomes 
effective, it must file its petition within 15 days after the 
administratively final decision is served together with a request for a 
stay of effectiveness under paragraph (e)(7) of this section. If such a 
petition to reopen and stay request is received within that 15-day 
period, any replies to the petition to reopen must be filed no later 
than 25 days after the date the decision is served, and any reply to the 
stay request must reach the Board no later than 5 days after the stay 
request is filed.
    (ii) The Board will grant a petition to reopen only upon a showing 
that the action would be affected materially because of new evidence, 
changed circumstances, or material error.
    (3) Form. A petition to reopen and any reply shall not exceed 30 
pages in length, including the index of subject matter, argument, and 
appendices or other attachments.
    (4) Petitions to reopen administratively final actions. A person may 
file a petition to reopen any administratively final action of the 
Board. A petition to reopen shall state in detail the respects in which 
the proceeding involves material error, new evidence, or substantially 
changed circumstances. An original and 10 copies of such petitions must 
be filed with the Board.
    (5) Judicial review. (i) Parties may seek judicial review of a Board 
action in an abandonment or discontinuance proceeding on the day the 
action of the Board becomes final.

[[Page 201]]

    (ii) If a petition seeking reopening is filed under this section, 
before or after a petition seeking judicial review is filed with the 
courts, the Board will act upon the petition after advising the court of 
its pendency unless action might interfere with the court's 
jurisdiction.
    (6) Petitions to vacate. In the event of procedural defects (such as 
the loss of a properly filed protest, the failure of the applicant to 
afford the public the requisite notice of its proposed abandonment, 
etc.), the Board will entertain petitions to vacate the abandonment or 
discontinuance authorization. An original and 10 copies of these 
petitions to vacate must be filed with the Board.
    (7) Petitions to stay. (i) The filing of a petition to reopen shall 
not stay the effect of a prior action. An original and 10 copies of any 
petitions to stay must be filed with the Board.
    (ii) A petition to reopen an administratively final action may be 
accompanied by a petition for a stay of the effectiveness of the 
abandonment or discontinuance. As provided in paragraph (e)(2) of this 
section, a petition to reopen must be accompanied by a stay request if 
the party wishes the Board to have the opportunity to consider the 
petition to reopen before the abandonment or discontinuance 
authorization becomes final.
    (iii) A party may petition for a stay of the effectiveness of 
abandonment or discontinuance authorization pending a request for 
judicial review. The reasons for the desired relief shall be stated in 
the petition, and the petition shall be filed not less than 15 days 
prior to the effective date of the abandonment authorization. No reply 
need be filed. If a party elects to file a reply, the reply must reach 
the Board no later than 5 days after the petition is filed.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34669, June 27, 1997; 
74 FR 52909, Oct. 15, 2009]



Sec.  1152.26  Board determination under 49 U.S.C. 10903.

    (a) The following schedule shall govern the process for Board 
consideration and decisions in abandonment and discontinuance 
application proceedings from the time the application is filed until the 
time of the Board's decision on the merits:

Day 0--Application filed, including applicant's case in chief.
Day 10--Due date for oral hearing requests.
Day 15--Due date for Board decision on oral hearing requests.
Day 20--Due date for Notice of Application to be published in the 
Federal Register.
Day 45--Due date for protests and comments, including opposition case in 
chief, and for public use and trail use requests.
Day 60--Due date for applicant's reply to opposition case and for 
applicant's response to trail use requests.
Day 110--Due date for service of decision on the merits.
Day 120--Due date for offers of financial assistance, except that if an 
application has been granted by decision issued sooner than Day 110, the 
offer of financial assistance shall be due 10 days after service of the 
decision granting the application.

    (b) If an application for abandonment or discontinuance is filed by 
a bankrupt railroad, the Board shall base its decision (Report to the 
Bankruptcy Court) on the application and any responses to the 
application that are filed. In each such instance, the Board shall 
establish a reasonable period of time for filing responses to the 
application so that public input can be included in the Board's decision 
(Report) and so that the Board will be able to meet a deadline imposed 
or requested by the Bankruptcy Court. Because Board action on 
abandonment applications by bankrupt railroads is advisory only, no 
environmental filings or analysis is necessary. See 49 CFR 1105.5(c).

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997]



Sec.  1152.27  Financial assistance procedures.

    (a) Provision of information. An applicant must provide promptly 
upon request to a party considering an offer of financial assistance to 
continue existing rail service that has proven itself preliminarily 
financially responsible under paragraph (c)(1)(ii) of this section, and 
concurrently to the Board, the following:
    (1)(i) In an application or petition for exemption proceeding, an 
estimate of the annual subsidy and minimum purchase price required to 
keep the line or a portion of the line in operation;

[[Page 202]]

    (ii) In a class exemption proceeding, either an estimate of the 
annual subsidy or the minimum purchase price, depending upon the type of 
financial assistance indicated in the potential offeror's formal 
expression of intent submitted under paragraph (c)(2)(i) of this 
section;
    (2) Its most recent reports on the physical condition of the 
involved line; and
    (3) Traffic, revenue, and other data necessary to determine the 
amount of annual financial assistance that would be required to continue 
rail transportation over that part of the railroad line. In an exemption 
proceeding, the data to be provided must at a minimum include the 
carrier's estimate of the net liquidation value of the line, with 
supporting data reflecting available real estate appraisals, assessments 
of the quality and quantity of track materials in a line, and removal 
cost estimates (including the cost of transporting removed materials to 
point of sale or point of storage for relay use), and, if an offer of 
subsidy is contemplated, an estimate of the cost of rehabilitating the 
line to Federal Railroad Administration class 1 Safety Standards (49 CFR 
part 213).
    (b) Federal Register notice--(1) Abandonment and discontinuance 
applications. The Federal Register publication, which gives notice of 
the filing of the application 20 days after the application is filed, 
will serve as notice to persons intending to offer financial assistance 
to assure continued rail service under 49 U.S.C. 10904 and these 
regulations as they relate to abandonment and discontinuance 
applications. Offers of financial assistance will be due 120 days after 
the application is filed or 10 days after a decision granting the 
application is served, whichever occurs sooner.
    (2) Exemption proceedings. (i) If a petition for individual 
exemption from the prior approval requirements of 49 U.S.C. 10903 is 
filed with the Board for abandonment or discontinuance of a line of 
railroad, the Board will publish notice of the petition in the Federal 
Register within 20 days of the filing of the petition. The Federal 
Register publication will serve as notice to persons with a potential 
interest in providing financial assistance to assure continued rail 
service on the line under 49 U.S.C. 10904 and these regulations as they 
relate to exempt abandonments and discontinuances. Offers of financial 
assistance will be due 120 days after the filing of the petition for 
exemption or 10 days after service of a Board decision granting the 
exemption, whichever occurs sooner.
    (ii) If a notice of exemption is filed under the class exemption, 
the Board will publish notice of the exemption in the Federal Register 
within 20 days of filing. The Federal Register publication will serve as 
notice to persons with a potential interest in providing financial 
assistance to assure continued rail service on the line under 49 U.S.C. 
10904 and these regulations as they relate to exempt abandonments and 
discontinuances. Offers of financial assistance will be due no later 
than 30 days after the date of the Federal Register publication giving 
notice of the exemption.
    (c) Submission of financial assistance offer--(1) Abandonment and 
discontinuance applications and petitions for exemption--(i) Expression 
of intent to file offer. Persons with a potential interest in providing 
financial assistance must, no later than 45 days after the Federal 
Register publication described in paragraph (b)(1) of this section or no 
later than 10 days after the Federal Register publication described in 
paragraph (b)(2)(i) of this section, submit to the carrier and the Board 
a formal expression of their intent to file an offer of financial 
assistance, indicating the type of financial assistance they wish to 
provide (i.e., subsidy or purchase) and demonstrating that they are 
preliminarily financially responsible as described in paragraph 
(c)(1)(ii) of this section. Such submissions are subject to the filing 
requirements of Sec.  1152.25(d)(1) through (d)(3).
    (ii) Preliminary financial responsibility. Persons submitting an 
expression of intent to file an offer of financial assistance as 
described in paragraph (c)(1)(i) or paragraph (c)(2)(i) of this section 
must demonstrate that they are financially responsible, under the 
definition set forth in paragraph (c)(1)(iv)(B) of this section, for the 
calculated preliminary financial responsibility amount of

[[Page 203]]

the rail line they seek to subsidize or purchase. If they seek to 
subsidize, the preliminary financial responsibility amount shall be 
$4,000 (representing a standard annual per-mile maintenance cost) times 
the number of miles of track. If they seek to purchase, the preliminary 
financial responsibility amount shall be the sum of the rail steel scrap 
price per ton (dated within 30 days of the submission of the expression 
of intent), times 132 short tons per track mile or 117.857 long tons per 
track mile, times the length of the line in miles, plus $4,000 times the 
number of miles of track times two. Persons submitting an expression of 
intent must provide evidentiary support for their calculations. If the 
Board does not issue a decision regarding the preliminary financial 
responsibility demonstration within 10 days of receipt of the expression 
of intent, the party submitting the expression of intent will be 
presumed to be preliminarily financially responsible and, upon request, 
the applicant must provide the information required under paragraph (a) 
of this section. This presumption does not create a presumption that the 
party will be financially responsible for an offer submitted under 
paragraph (c)(1)(iv) of this section.
    (iii) Service and filing. An offeror must serve its offer of 
assistance on the carrier owning and operating the line and all parties 
to the abandonment or discontinuance application or exemption 
proceeding. The offer must be filed concurrently with the Chief, Section 
of Administration, Office of Proceedings, Surface Transportation Board, 
Washington, DC 20423-0001.
    (A) An offer may be filed and served at any time after the filing of 
the abandonment or discontinuance application or petition for exemption. 
Once a decision is served granting an application or petition for 
exemption, however, the Board must be notified that an offer has 
previously been submitted.
    (B) An offer, or notification of a previously filed offer, must be 
filed and served no later than 10 days after service of the Board 
decision granting the application or petition for exemption. This filing 
and service is subject to the requirements of 49 CFR 1152.25 (d)(1), 
(d)(2), and (d)(4).
    (C) If, after a bona fide request, applicant or petitioner has 
failed to provide a potential offeror promptly with the information 
required under paragraph (a) of this section and if that information is 
not contained in the application or petition, the Board will entertain 
petitions to toll the 10-day period for submitting offers of financial 
assistance under paragraph (c)(1) of this section. Petitions must be 
filed with the Board within 5 days after service of the decision 
granting the application or petition for exemption. Petitions should 
include copies of the prior written request for information or an 
accurate outline of the specific information that was orally requested. 
Replies to these petitions must be filed within 10 days after service of 
the decision granting the application or petition for exemption. These 
petitions and replies must be filed on or before their actual due date 
under 49 CFR 1152.25(d)(4). The Board will issue a decision on petitions 
within 15 days after service of the decision granting the application or 
petition for exemption.
    (iv) Contents of offer. The offeror shall set forth its offer in 
detail. The offer must:
    (A) Identify the line, or the portion of the line, in question;
    (B) Demonstrate that the offeror is financially responsible; that 
is, that it has or within a reasonable time will have the financial 
resources to fulfill proposed contractual obligations. Examples of 
documentation the Board will accept as evidence of financial 
responsibility include income statements, balance sheets, letters of 
credit, profit and loss statements, account statements, financing 
commitments, and evidence of adequate insurance or ability to obtain 
adequate insurance. Examples of documentation the Board will not accept 
as evidence of financial responsibility include the ability to borrow 
money on credit cards and evidence of non-liquid assets an offeror 
intends to use as collateral. Governmental entities will be presumed to 
be financially responsible;
    (C) Explain the disparity between the offeror's purchase price or 
subsidy if it is less than the carrier's estimate under paragraph (a)(1) 
of this section,

[[Page 204]]

and explain how the offer of subsidy or purchase is calculated.
    (D) Demonstrate that the offeror has placed in escrow with a 
reputable financial institution funds equaling 10% of the preliminary 
financial responsibility amount calculated pursuant to paragraph 
(c)(1)(ii) of this section. Governmental entities are exempt from this 
requirement;
    (E) Demonstrate that there is a continued need for rail service on 
the line, or portion of the line, in question. Examples of evidence to 
be provided include: Evidence of a demonstrable commercial need for 
service (as reflected by support from shippers or receivers on the line 
or other evidence of an immediate and significant commercial need); 
evidence of community support for continued rail service; evidence that 
acquisition of freight operating rights would not interfere with current 
and planned transit services; and evidence that continued service is 
operationally feasible;
    (F) Identify the offeror and provide a mailing address, either 
business or personal, and other contact information including phone 
number and email address as available, for the offeror or a 
representative;
    (G) If the offeror is a legal entity, include the entity's full 
name, state of organization or incorporation, and a description of the 
ownership of the entity; and
    (H) If multiple parties seek to make a single offer of financial 
assistance, clearly identify which entity or individual will assume the 
common carrier obligation if the offer is successful, and clearly 
describe how the parties will allocate responsibility for financing the 
subsidy or purchase of the line and, if purchased, the operation of the 
line.
    (2) Class exemption proceedings--(i) Expression of intent to file 
offer. Persons with a potential interest in providing financial 
assistance must, no later than 10 days after the Federal Register 
publication described in paragraph (b)(2)(ii) of this section, submit to 
the carrier and the Board a formal expression of their intent to file an 
offer of financial assistance, indicating the type of financial 
assistance they wish to provide (i.e., subsidy or purchase) and 
demonstrating that they are preliminarily financially responsible as 
described in paragraph (c)(1)(ii) of this section. Such submissions are 
subject to the filing requirements of Sec.  1152.25(d)(1) through 
(d)(3). Submission of a formal expression of intent under this 
subsection will automatically stay the effective date of the notice of 
exemption under the class exemption for 40 days (normally, this will be 
10 days beyond the date stated in the Federal Register publication).
    (ii) Service and filing. An offeror must serve its offer of 
assistance on the carrier that instituted the exempt filing as well as 
all other parties to the proceeding. The offer must be filed 
concurrently with the Chief, Section of Administration, Office of 
Proceedings, Surface Transportation Board, Washington, DC 20423-0001.
    (A) An offer may be filed and served at any time after the filing of 
the notice of exemption. Once a notice of exemption is published in the 
Federal Register, however, the Board must be notified that an offer has 
previously been submitted.
    (B) An offer, or notification of a previously filed offer, must be 
filed and served no later than 30 days after the Federal Register 
publication described in paragraph (b)(2)(ii) of this section. This 
filing and service is subject to the requirements of 49 CFR 
1152.25(d)(1), (d)(2), and (d)(4).
    (C) If, after a bona fide request, applicant has failed to provide a 
potential offeror promptly with the information required under paragraph 
(a) of this section and if that information is not contained in the 
notice of exemption, the Board will entertain petitions to toll the 30-
day period for submitting offers of financial assistance under paragraph 
(c)(2) of this section. Petitions must be filed with the Board within 25 
days after publication in the Federal Register (as described in 
paragraph (b)(2)(ii) of this section). Petitions should include copies 
of the prior written request for information or an accurate outline of 
the specific information that was orally requested. Replies to these 
petitions must be filed within 30 days after publication. These 
petitions and replies must be filed on or before their actual due date 
under 49 CFR

[[Page 205]]

1152.25(d)(4). The Board will issue a decision on petitions to toll the 
offer period within 35 days after publication.
    (D) Upon receipt of a formal expression of intent to file an offer 
under paragraph (c)(2)(i) of this section, the rail carrier applicant 
may advise the Board and the potential offeror that additional time is 
needed to develop the information required under paragraph (a) of this 
section. Applicant shall expressly indicate the amount of time it 
considers necessary (not to exceed 60 days) to develop and submit the 
required information to the potential offeror. For the duration of the 
time period so indicated by the applicant, the 30-day period for 
submitting offers of financial assistance under paragraph (c)(2) of this 
section shall be tolled without formal Board action.
    (iii) Contents of offer. The offeror shall set forth its offer in 
detail. The offer must meet the requirements of paragraph (c)(1)(iv) of 
this section.
    (d) Access to documents. Upon receipt by the carrier of a written 
comment under Sec.  1152.25, or satisfaction of the preliminary 
financial responsibility requirement under paragraph (c)(1)(ii) of this 
section or upon receipt by the carrier of an offer of financial 
assistance, whichever occurs earlier, the carrier must make available to 
that party or offeror the records, accounts, appraisals, working papers, 
and other documents used in preparing Exhibit 1 (Sec.  1152.36) or, if 
an exemption proceeding, those documents that would have been used in 
preparing Exhibit 1 had an abandonment or discontinuance application 
been filed, or other records, reports, and data in the possession of the 
carrier seeking the exemption that provide comparable data. These 
documents shall be made available during regular business hours at a 
time and place mutually agreeable to the parties.
    (e) Review of offers--(1) Abandonment and discontinuance 
applications. The Board will review each offer submitted to determine if 
a financially responsible person has offered assistance. If that 
criterion is met, the Board will issue a decision postponing the 
effective date of the authorization for abandonment or discontinuance. 
This decision will be issued within 15 days of the service of the 
decision granting the application (or within 5 days after the offer is 
filed if the time for filing has been tolled under paragraph 
(c)(1)(iii)(C) of this section, or within 5 days after expiration of the 
120 day (4 month) period described in 49 U.S.C. 10904, if that occurs 
first). Under the delegation of authority at Sec.  1011.7(a), the 
Director of the Office of Proceedings will make the initial 
determination whether offers of financial assistance satisfy the 
standards of 49 U.S.C. 10904(d) for purposes of instituting 
negotiations. Appeals of initial decisions determining whether offers of 
financial assistance satisfy the standards of 49 U.S.C. 10904(d) for 
purposes of instituting negotiations will be acted upon by the entire 
Board pursuant to 49 CFR 1011.2(a)(7).
    (2) Exemption proceedings. The Board will review each offer 
submitted to determine if a financially responsible person has offered 
assistance. If that criterion is met, the Board will postpone the 
effective date either of the decision granting a petition for individual 
exemption or the notice of exemption under the class exemption and 
partially revoke the exemption or (in the case of a class exemption) the 
notice of exemption to the extent it applies to 49 U.S.C. 10904. The 
decision to postpone and partially revoke will be issued within 15 days 
of the service date of a decision granting a petition for exemption, or 
within 35 days of the Federal Register publication described in 
paragraph (b)(2)(ii) of this section (or within 5 days after the offer 
is filed if the time for filing has been tolled under paragraph 
(c)(1)(iii)(C) or (c)(2)(ii) (C) or (D) of this section). Under the 
delegation of authority at section 1011.7(a), the Director of the Office 
of Proceedings will make the initial determination whether offers of 
financial assistance satisfy the standards of 49 U.S.C. 10904(d) for 
purposes of partial revocation and institution of negotiations. Appeals 
of initial decisions determining whether offers of financial assistance 
satisfy the standards of 49 U.S.C. 10904(d) for purposes of partial 
revocation and institution of negotiations will be acted upon by the 
entire Board pursuant to 49 CFR 1011.2(a)(7).

[[Page 206]]

    (f) Agreement on financial assistance. (1) If the carrier and a 
person offering financial assistance enter into a subsidy agreement 
designed to provide for continued rail service, the Board will postpone 
the effective date of the abandonment or discontinuance. If a decision 
granting a petition for individual exemption, or a notice of exemption, 
has been issued, the Board will postpone the effective date of the 
decision or notice of exemption. The postponement will be for as long as 
the subsidy agreement is in effect.
    (2) If the carrier and a person offering to purchase a line enter 
into a purchase agreement which will result in continued rail service, 
the Board will approve the transaction and dismiss the application for 
abandonment or discontinuance, or the petition for exemption or notice 
of exemption. Board approval is not required under 49 U.S.C. 10901, 
10902, or 11323 for the parties to consummate the transaction or for the 
purchaser to institute service and operate as a railroad subject to 49 
U.S.C. 10501(a).
    (g) Failure to reach agreement on financial assistance. (1) If the 
carrier and a financially responsible person fail to agree on the amount 
or terms of subsidy or purchase, either party may request the Board to 
establish the conditions and amount of compensation. This request must 
be filed with the Board within 30 days after the offer is made and 
served concurrently by overnight mail on all parties to the proceeding. 
The request must be accompanied by the appropriate fee, codified at 49 
CFR 1002.2(f)(26). Replies will be due 5 days later.
    (2) If no agreement is reached within 30 days after the offer of 
purchase or subsidy is made, and no request is made to the Board to set 
the conditions and amount of compensation under paragraph (g)(1) of this 
section, the Board will serve a decision vacating the prior decision, 
which postponed the effective date of the decision granting the 
application, the decision granting the exemption, or the notice of 
exemption and, which, if applicable, partially revoked either the 
decision granting the exemption or (in the case of a class exemption) 
the notice of exemption. The Board will issue the decision to vacate 
within 10 days of the due date for requesting the Board to set the 
conditions and amount of compensation, and the Board will make the 
decision to vacate effective on its date of service.
    (h) Request to establish conditions and compensation for financial 
assistance. (1) If the Board is requested to establish conditions and 
compensation for financial assistance under paragraph (g)(1) of this 
section, the Board will issue a decision within 30 days after the 
request is due.
    (2) If the applicant receives multiple offers of financial 
assistance, requests to establish conditions and compensation will not 
be permitted before the applicant selects the offeror with whom it 
wishes to transact business. (See paragraph (l)(1) of this section.)
    (3) A party requesting the Board to establish conditions and 
compensation for financial assistance must, within the time period set 
forth in paragraph (h)(4) of this section, provide its case in chief, 
including reasons why its estimates are correct and the other 
negotiating party's estimates are incorrect, points of agreement and 
points of disagreement between the negotiating parties, and evidence 
substantiating these allegations. The offeror has the burden of proof as 
to all issues in dispute.
    (4) The offeror must submit all evidence and information supporting 
the terms it seeks within 30 days after the offer is made. The carrier's 
reply to this evidence and support for the terms it seeks are due within 
35 days after the offer is made. No rebuttal evidence will be permitted 
and evidence and information submitted after these dates will be 
rejected.
    (5) If requested, the Board will determine the amount and terms of 
subsidy based on the avoidable cost of providing continued rail 
transportation, plus a reasonable return on the value of the line. Under 
49 U.S.C. 10904(f)(4)(B), no subsidy arrangement approved under section 
10904 shall remain in effect for more than one year unless mutually 
agreed by the parties.
    (6) If requested, the Board will determine the price and other terms 
of sale. The Board will not set a price below

[[Page 207]]

the fair market value of the line (including, unless otherwise agreed 
upon by the parties, all facilities on the line or portion necessary to 
provide effective transportation services). Fair market value equals 
constitutional minimum value which is the greater of the net liquidation 
value of the line or the going concern value of the line. The 
constitutional minimum value is computed without regard to labor 
protection costs.
    (7) Within 10 days of the service date of the Board's decision, the 
offeror must accept or reject the Board's terms and conditions with a 
written notification to the Board and all parties to the proceeding. If 
the offeror accepts the terms and conditions set by the Board, the 
Board's decision is binding on both parties. If the offeror withdraws 
its offer or does not accept the terms and conditions set by the Board 
with a timely written notification, the Board will serve, within 20 days 
after the service date of the Board decision setting the terms and 
conditions, a decision vacating the prior decision, which postponed the 
effective date of either the decision granting the application or 
exemption or the notice of exemption, and which, if applicable, 
partially revoked the exemption or (in the case of a class exemption) 
the notice of exemption (unless other offers are being considered under 
paragraph (l) of this section). The decision to vacate will be effective 
on its date of service.
    (i) Substitution of purchasers and disposition after sale. (1) Prior 
to the consummation of a purchase under this section, an offeror may 
substitute its corporate affiliate as the purchaser under an agreement, 
provided the Board has determined either:
    (i) The original offeror has guaranteed the financial responsibility 
of its affiliate; or
    (ii) The affiliate has demonstrated financial responsibility in its 
own right.
    (2) Except as provided in paragraph (i)(3) of this section, a 
purchaser under this section may not:
    (i) Transfer the line or discontinue service over the line prior to 
the end of the second year after consummation of the original sale under 
these provisions; or
    (ii) Transfer the line, except to the carrier from whom the line was 
purchased, prior to the end of the fifth year after consummation.
    (3) Paragraph (i)(2) of this section does not preclude a purchaser 
under this section from transferring the line to a corporate affiliate 
following the consummation of the original sale. Prior Board approval of 
the affiliate's acquisition and operation, however, is required under 49 
U.S.C. 10901, 10902, or 11323. A corporate affiliate acquiring a line 
under this section is prohibited from discontinuing service over the 
line or transferring the line to a party that is not a corporate 
affiliate during the time periods prescribed in paragraph (i)(2) of this 
section.
    (j) Discontinuance of subsidy. A subsidizer may discontinue a 
subsidy under this section by giving 60 days notice of the 
discontinuance to the applicant and all other parties to the proceeding. 
Unless another financially responsible party enters into a subsidy 
agreement as beneficial to the carrier as the discontinued subsidy 
agreement in a situation where the 1-year time limit of 49 U.S.C. 
10904(f)(4)(B) has not yet run, the carrier may by filing a request with 
the Board and serving the request on all parties to the abandonment or 
exemption proceeding obtain a decision vacating the decision postponing 
the effective date of either the decision granting the application, or 
petition for individual exemption, or the notice of exemption. The Board 
will issue a decision to vacate within 10 days after the filing and 
service of the request. This decision to vacate will be effective on its 
service date.
    (k) Default on agreement. If any party defaults on its obligations 
under a financial assistance agreement, any other party to the agreement 
may promptly inform the Board of that default. Upon notification, the 
Board will take appropriate action.
    (l) Multiple offers of financial assistance. (1) If an applicant 
receives more than one offer to purchase or subsidize the line from 
offerors found to be financially responsible, the applicant must select 
the offeror from those with whom it wishes to transact business. In 
abandonment and discontinuance application and petition for exemption

[[Page 208]]

proceedings within 25 days after service of the decision granting the 
application or petition for exemption, and in class exemption 
proceedings within 45 days after the Federal Register publication 
described in paragraph (b)(2)(ii) of this section, the railroad must:
    (i) File a written notification of its selection with the Board; and
    (ii) Serve a copy of the notification on all parties to the 
proceeding.
    (2)(i) Abandonment and discontinuance applications and petitions for 
exemption. If the applicant has received multiple offers of financial 
assistance from persons found to be financially responsible and has 
selected the offeror with whom it wishes to transact business, the 
negotiating parties shall complete the sale or subsidy agreement or 
request the Board to establish the conditions and amount of compensation 
within 40 days after the service date of the decision granting the 
application or petition for exemption. A request to the Board to set 
terms and conditions must be served concurrently on all parties to the 
proceeding. If no agreement on subsidy or sale is reached within the 40-
day period and the Board has not been requested to establish the 
conditions and amount of compensation, any other financially responsible 
offeror may request the Board to establish the conditions and amount of 
compensation. This request must be filed at the Board within 50 days of 
the service date of the decision granting the application or petition 
for exemption and served concurrently on all parties to the proceeding. 
If no other request is filed, the Board will issue a decision 
authorizing abandonment or discontinuance within 60 days of the service 
date of the decision granting the application or petition for exemption. 
This decision will be effective on the date of service.
    (ii) Class exemption proceedings. If the carrier seeking the 
exemption has received multiple offers of financial assistance from 
persons found to be financially responsible and has selected the offeror 
with whom it wishes to transact business, the negotiating parties shall 
complete the sale or subsidy agreement or request the Board to establish 
the conditions and amount of compensation within 60 days after the 
Federal Register publication described in paragraph (b)(2)(ii) of this 
section. A request to the Board to set terms and conditions must be 
served concurrently on all parties to the proceeding. If no agreement on 
subsidy or sale is reached within the 60-day period and the Board has 
not been requested to establish the conditions and amount of 
compensation, any other financially responsible offeror may request the 
Board to establish the conditions and amount of compensation. This 
request must be filed at the Board within 70 days of the Federal 
Register publication described in paragraph (b)(2)(ii) of this section 
and served concurrently on all parties to the proceeding. If no other 
request is filed, the Board will issue a decision vacating the decision 
postponing the effective date of the notice of exemption within 80 days 
of the Federal Register publication described in paragraph (b)(2)(ii) of 
this section. The decision to vacate will be effective on the date of 
service.
    (3) If the Board has established the conditions and amount of 
compensation, and the original offer is withdrawn under paragraph (h)(7) 
of this section, any other offeror found to be financially responsible 
may accept the Board's decision within 20 days after the service date of 
the Board's decision setting terms and conditions. If the decision is 
accepted by another such offeror, the Board will require the applicant 
to accept the terms incorporated in the Board's decision.
    (m) Additional time for filing. Notwithstanding the deadlines 
previously set forth in part 1152 for filing an offer of financial 
assistance, parties that can show that they would be materially 
prejudiced by having less than the full 4 months for filing an offer of 
financial assistance provided in 49 U.S.C. 10904(c) for application 
proceedings may seek relief under 49 CFR part 1117.
    (n) Special provisions for summary discontinuance and abandonment of 
lines not part of the Final System Plan. (1) Board authorization is not 
needed for the cessation of service on a line of railroad formerly in 
reorganization that was not included in the Final System Plan (Plan) 
under the Regional Rail Reorganization Act of 1973, 45

[[Page 209]]

U.S.C. 701 et seq., as amended by the Railroad Revitalization and 
Regulatory Reform Act of 1976, if the line has been continuously 
subsidized since the inception of the Plan. To provide an opportunity 
for rail service continuation through offers of financial assistance, 
however, the owner of the line must give not less than 60 days' notice 
of a discontinuance, and beginning 120 days after discontinuance, not 
less than 30 days' notice of abandonment. Designated operators need only 
comply with the notice requirements of Sec.  1150.11 of this title. In 
instances of discontinuance by a designated operator, the line owner is 
not obligated to operate the line. Notice is to be sent by the line 
owner to the Board, the governor and transportation agencies and the 
government of each political subdivision of each state in which such 
rail properties are located and to each shipper who has used the rail 
service during the previous 12 months. The Board will generally apply 
the OFA procedures in this section (49 CFR 1152.27) for class exemptions 
to summary abandonment and discontinuance notices (except that the Board 
will not postpone the effective date of a summary discontinuance). For 
example, notice of summary abandonment or discontinuance will be 
published by the Board in the Federal Register within 20 days of filing. 
Paragraph (b)(2)(ii) of this section. Expressions of intent to file an 
offer must be filed no later than 10 days after the Federal Register 
publication. Paragraph (c)(2)(i) of this section. An offer must be filed 
within 30 days of the Federal Register publication. Paragraphs 
(b)(2)(ii) and (c)(2)(ii)(B) of this section. The Board will review 
offers to determine if a financially responsible person has offered 
assistance. If this criterion is met, the Board will postpone the 
effective date of the summary abandonment (but not the discontinuance) 
within 35 days of the Federal Register publication. Paragraph (e)(2) of 
this section. If the carrier and financially responsible person fail to 
agree on the amount or terms of subsidy or purchase, either party may 
request the Board to establish the conditions and amount of the 
compensation. This request must be filed within 30 days after the offer 
of purchase or subsidy is made, and the Board will issue a decision 
within 30 days after the request is due. Paragraphs (g)(1) and (h)(1) of 
this section.
    (2) Where a designated operator is being used, it shall be paid a 
reasonable management fee. If the parties cannot agree on this fee, it 
shall be four and one-half percent of the total annual revenues 
attributable to the branch.

[61 FR 67883, Dec. 24, 1996, as amended at 63 FR 28290, May 22, 1998; 74 
FR 52909, Oct. 15, 2009; 75 FR 30713, June 2, 2010; 82 FR 31007, July 5, 
2017]



Sec.  1152.28  Public use procedures.

    (a)(1) If the Board finds that the present or future public 
convenience and necessity require or permit abandonment or 
discontinuance, the Board will determine if the involved rail properties 
are appropriate for use for other public purposes.
    (2) A request for a public use condition under 49 U.S.C. 10905 must 
be in writing and set forth:
    (i) The condition sought;
    (ii) The public importance of the condition;
    (iii) The period of time for which the condition would be effective 
(up to the statutory maximum of 180 days); and
    (iv) Justification for the imposition of the time period. A copy of 
the request shall be mailed to the applicant.
    (3) For applications filed under part 1152, subpart C, a request for 
a public use condition must be filed not more than 45 days after the 
application is filed. A decision on the public use request will be 
issued by the Board or the Director of the Office of Proceedings prior 
to the effective date of the abandonment. For abandonment exemptions 
under part 1152, subpart F or exemptions granted on the basis of an 
individual petition for exemption filed under 49 U.S.C. 10502, a request 
for a public use condition must be filed not more than 20 days from the 
date of publication of the notice of exemption in the Federal Register 
in the case of class exemptions under subpart F of this part, or not 
more than 20 days from the date of publication of notice of the filing 
of the petition for individual exemption in the Federal Register.

[[Page 210]]

    (b) If the Board finds that the rail properties are appropriate for 
use for other public purposes, the railroad may dispose of the rail 
properties only under the conditions described in the Board's decision. 
The conditions imposed by the Board may include a prohibition against 
the disposal of the rail assets for a period of not more than 180 days 
from the effective date of the decision authorizing the abandonment or 
discontinuance, unless the properties have first been offered, on 
reasonable terms, for sale for public purposes. This period will run 
concurrently with any other postponements. Jurisdiction to impose such 
conditions expires after 180 days from the effective date of the 
decision authorizing the abandonment or discontinuance.



Sec.  1152.29  Prospective use of rights-of-way for interim trail use
and rail banking.

    (a) If any state, political subdivision, or qualified private 
organization is interested in acquiring or using a right-of-way of a 
rail line proposed to be abandoned for interim trail use and rail 
banking pursuant to 16 U.S.C. 1247(d), it must file a comment or 
otherwise include a request in its filing (in a regulated abandonment 
proceeding) or a petition (in an exemption proceeding) indicating that 
it would like to do so. The comment/request or petition must include:
    (1) A map depicting, and an accurate description of, the right-of-
way, or portion thereof (including mileposts), proposed to be acquired 
or used;
    (2) A statement indicating the trail sponsor's willingness to assume 
full responsibility for:
    (i) Managing the right-of-way;
    (ii) Any legal liability arising out of the transfer or use of the 
right-of-way (unless the user is immune from liability, in which case it 
need only indemnify the railroad against any potential liability); and
    (iii) The payment of any and all taxes that may be levied or 
assessed against the right-of-way; and
    (3) An acknowledgment that interim trail use is subject to the 
sponsor's continuing to meet its responsibilities described in paragraph 
(a)(2) of this section, and subject to possible future reconstruction 
and reactivation of the right-of-way for rail service. The statement 
must be in the following form:

       Statement of Willingness To Assume Financial Responsibility

    In order to establish interim trail use and rail banking under 16 
U.S.C. 1247(d) and 49 CFR 1152.29 with respect to the right-of-way owned 
by ---------------- (Railroad) and operated by ---------------- 
(Railroad), ---------------- (Interim Trail Sponsor) is willing to 
assume full responsibility for: (1) Managing the right-of-way, (2) any 
legal liability arising out of the transfer or use of the right-of-way 
(unless the sponsor is immune from liability, in which case it need only 
indemnify the railroad against any potential liability), and (3) the 
payment of any and all taxes that may be levied or assessed against the 
right of way. The property, known as ---------------- (Name of Branch 
Line), extends from railroad milepost ---------------- near ------------
---- (Station Name), to railroad milepost ------------, near ----------
------ (Station name), a distance of ------------ miles in [County(ies), 
(State(s)]. The right-of-way is part of a line of railroad proposed for 
abandonment in Docket No. STB AB ---------------- (Sub-No. ------------
----). A map of the property depicting the right-of-way is attached.
    ---------------- (Interim Trail Sponsor) acknowledges that use of 
the right-of-way is subject to the sponsor's continuing to meet its 
responsibilities described above and subject to possible future 
reconstruction and reactivation of the right-of-way for rail service. A 
copy of this statement is being served on the railroad(s) on the same 
date it is being served on the Board.

    (b)(1) In abandonment application proceedings under 49 U.S.C. 10903, 
interim trail use statements are due within the 45-day protest and 
comment period following the date the abandonment application is filed. 
See Sec.  1152.25(c). The applicant carrier's response notifying the 
Board whether and with whom it intends to negotiate a trail use 
agreement is due within 15 days after the close of the protest and 
comment period (i.e., 60 days after the abandonment application is 
filed).
    (i) In every proceeding where a Trails Act request is made, the 
Board will determine whether the Trails Act is applicable.
    (ii) If the Trails Act is not applicable because of failure to 
comply with Sec.  1152.29(a), or is applicable but the carrier either 
does not intend to negotiate

[[Page 211]]

an agreement, or does not timely notify the Board of its intention to 
negotiate, a decision on the merits will be issued and no Certificate of 
Interim Trail Use or Abandonment (CITU) will be issued. If the carrier 
is willing to negotiate an agreement, and the public convenience and 
necessity permit abandonment, the Board will issue a CITU.
    (2) In exemption proceedings, a petition containing an interim trail 
use statement is due within 10 days after the date the notice of 
exemption is published in the Federal Register in the case of a class 
exemption and within 20 days after publication in the Federal Register 
of the notice of filing of a petition for exemption in the case of a 
petition for exemption. When an interim trail use comment(s) or 
petition(s) is filed in an exemption proceeding, the railroad's reply to 
the Board (indicating whether and with whom it intends to negotiate an 
agreement) is due within 10 days after the date a petition requesting 
interim trail use is filed.
    (3) Late-filed trail use statements must be supported by a statement 
showing good cause for late filing.
    (c) Regular abandonment proceedings. (1) If continued rail service 
does not occur pursuant to 49 U.S.C. 10904 and Sec.  1152.27, and a 
railroad agrees to negotiate an interim trail use/rail banking 
agreement, then the Board will issue a CITU to the railroad and to the 
interim trail sponsor for that portion of the right-of-way as to which 
both parties are willing to negotiate. The CITU will: Permit the 
railroad to discontinue service, cancel any applicable tariffs, and 
salvage track and material consistent with interim trail use and rail 
banking, as long as it is consistent with any other Board order, 30 days 
after the date the CITU is issued; and permit the railroad to fully 
abandon the line if no trail use agreement is reached 180 days after the 
CITU is issued, subject to appropriate conditions, including labor 
protection and environmental matters.
    (2) The CITU will indicate that any interim trail use is subject to 
future restoration of rail service and to the sponsor's continuing to 
meet its responsibilities described in paragraph (a)(2) of this section. 
The CITU will also provide that, if an interim trail use agreement is 
reached (and thus interim trail use established), the parties shall file 
the notice described in paragraph (h) of this section. Additionally, the 
CITU will provide that if the sponsor intends to terminate interim trail 
use on all or any portion of the right-of-way covered by the interim 
trail use agreement, it must send the Board a copy of the CITU and 
request that it be vacated on a specified date. If a party requests that 
the CITU be vacated for only a portion of the right-of-way, the Board 
will issue an appropriate replacement CITU covering the remaining 
portion of the right-of-way subject to the interim trail use agreement. 
The Board will reopen the abandonment proceeding, vacate the CITU, and 
issue a decision permitting immediate abandonment for the involved 
portion of the right-of-way. Copies of the decision will be sent to:
    (i) The abandonment applicant;
    (ii) The owner of the right-of-way; and
    (iii) The current trail sponsor.
    (3) If an application to construct and operate a rail line over the 
right-of-way is authorized under 49 U.S.C. 10901 and 49 CFR part 1150, 
or exempted under 49 U.S.C. 10502, then the CITU will be vacated 
accordingly.
    (d) Exempt abandonment proceedings. (1) If continued rail service 
does not occur under 49 U.S.C. 10904 and 1152.27 and a railroad agrees 
to negotiate an interim trail use/rail banking agreement, then the Board 
will issue a Notice of Interim Trail Use or Abandonment (NITU) to the 
railroad and to the interim trail sponsor for the portion of the right-
of-way as to which both parties are willing to negotiate. The NITU will: 
Permit the railroad to discontinue service, cancel any applicable 
tariffs, and salvage track and materials, consistent with interim trail 
use and rail banking, as long as it is consistent with any other Board 
order, 30 days after the date the NITU is issued; and permit the 
railroad to fully abandon the line if no agreement is reached 180 days 
after the NITU is issued, subject to appropriate conditions, including 
labor protection and environmental matters.

[[Page 212]]

    (2) The NITU will indicate that interim trail use is subject to 
future restoration of rail service and to the sponsor's continuing to 
meet its responsibilities described in paragraph (a)(2) of this section. 
The NITU will also provide that, if an interim trail use agreement is 
reached (and thus interim trail use established), the parties shall file 
the notice described in paragraph (h) of this section. Additionally, the 
NITU will provide that if the sponsor intends to terminate interim trail 
use on all or any portion of the right-of-way covered by the interim 
trail use agreement, it must send the Board a copy of the NITU and 
request that it be vacated on a specific date. If a party requests that 
the NITU be vacated for only a portion of the right-of-way, the Board 
will issue an appropriate replacement NITU covering the remaining 
portion of the right-of-way subject to the interim trail use agreement. 
The Board will reopen the exemption proceeding, vacate the NITU, and 
issue a decision reinstating the exemption for that portion of the 
right-of-way. Copies of the decision will be sent to:
    (i) The abandonment exemption applicant;
    (ii) The owner of the right-of-way; and
    (iii) The current trail sponsor.
    (3) If an application to construct and operate a rail line over the 
right-of-way is authorized under 49 U.S.C. 10901 and 49 CFR part 1150, 
or exempted under 49 U.S.C. 10502, then the NITU will be vacated 
accordingly.
    (e)(1) Where late-filed trail use statements are accepted, the 
Director (or designee) will telephone the railroad to determine whether 
abandonment has been consummated and, if not, whether the railroad is 
willing to negotiate an interim trail use agreement. The railroad shall 
confirm, in writing, its response, within 5 days. If abandonment has 
been consummated, the trail use request will be dismissed. If 
abandonment has not been consummated but the railroad refuses to 
negotiate, then trail use will be denied. If abandonment has not been 
consummated and the railroad is willing to negotiate, the abandonment 
proceeding will be reopened, the abandonment decision granting an 
application, petition for exemption or notice of exemption will be 
vacated, and an appropriate CITU or NITU will be issued. The effective 
date of the CITU or NITU will be the same date as the vacated decision 
or notice.
    (2) A railroad that receives authority from the Board to abandon a 
line (in a regulated abandonment proceeding under 49 U.S.C. 10903, or by 
individual or class exemption issued under 49 U.S.C. 10502) shall file a 
notice of consummation with the Board to signify that it has exercised 
the authority granted and fully abandoned the line (e.g., discontinued 
operations, salvaged the track, canceled tariffs, and intends that the 
property be removed from the interstate rail network). The notice shall 
provide the name of the STB proceeding and its docket number, a brief 
description of the line, and a statement that the railroad has 
consummated, or fully exercised, the abandonment authority on a certain 
date. The notice shall be filed within 1 year of the service date of the 
decision permitting the abandonment (assuming that the railroad intends 
to consummate the abandonment). Notices will be deemed conclusive on the 
point of consummation if there are no legal or regulatory barriers to 
consummation (such as outstanding conditions, including Trails Act 
conditions). If, after 1 year from the date of service of a decision 
permitting abandonment, consummation has not been effected by the 
railroad's filing of a notice of consummation, and there are no legal or 
regulatory barriers to consummation, the authority to abandon will 
automatically expire. In that event, a new proceeding would have to be 
instituted if the railroad wants to abandon the line. Copies of the 
railroad's notice of consummation shall be filed with the Chief, Section 
of Administration, Office of Proceedings. In addition, the notice of 
consummation shall be sent to the State Public Service Commission (or 
equivalent agency) of every state through which the line passes. If, 
however, any legal or regulatory barrier to consummation exists at the 
end of the 1-year time period, the notice of consummation must be filed 
not later than 60 days after satisfaction, expiration or removal of the 
legal or regulatory barrier. For good

[[Page 213]]

cause shown, a railroad may file a request for an extension of time to 
file a notice so long as it does so sufficiently in advance of the 
expiration of the deadline for notifying the Board of consummation to 
allow for timely processing.
    (f)(1) When a trail user intends to terminate trail use and another 
person intends to become a trail user by assuming financial 
responsibility for the right-of-way, then the existing and future trail 
users shall file, jointly:
    (i) A copy of the extant CITU or NITU; and
    (ii) A Statement of Willingness to Assume Financial Responsibility 
by the new trail user.
    (iii) An acknowledgement that interim trail use is subject to 
possible future reconstruction and reactivation of the right-of-way for 
rail service.
    (2) The parties shall indicate the date on which responsibility for 
the right-of-way is to transfer to the new trail user. The Board will 
reopen the abandonment or exemption proceeding, vacate the existing NITU 
or CITU; and issue an appropriate replacement NITU or CITU to the new 
trail user.
    (g) In proceedings where a timely trail use statement is filed, but 
due to either the railroad's indication of its unwillingness to 
negotiate interim trail use agreement, or its failure to timely notify 
the Board of its willingness to negotiate, a decision authorizing 
abandonment or an exemption notice or decision is issued instead of a 
CITU or NITU, and subsequently the railroad and trail use proponent 
nevertheless determine to negotiate an interim trail use agreement under 
the Trails Act, then the railroad and trail use proponent must file a 
joint pleading requesting that an appropriate CITU or NITU be issued. If 
the abandonment has not been consummated, the Board will reopen the 
proceeding, vacate the outstanding decision or notice (or portion 
thereof), and issue an appropriate CITU or NITU that will permit the 
parties to negotiate for a period agreed to by the parties in their 
joint filing, but not to exceed 180 days, at the end of which, the CITU 
or NITU will convert into a decision or notice permitting abandonment.
    (h) When the parties negotiating for rail banking/interim trail use 
reach an agreement, the trail sponsor and railroad shall jointly notify 
the Board within 10 days that the agreement has been reached. The notice 
shall include a map depicting, and an accurate description of, the 
involved right-of-way or portion thereof (including mileposts) that is 
subject to the parties' interim trail use agreement and a certification 
that the interim trail use agreement includes provisions requiring the 
sponsor to fulfill the responsibilities described in paragraph (a)(2) of 
this section. Additionally, if the interim trail use agreement 
establishes interim trail use over less of the right-of-way than is 
covered by the CITU or NITU, the notice shall also include a request 
that the Board vacate the CITU or NITU and issue a replacement CITU/NITU 
for only the portion of the right-of-way covered by the interim trail 
use agreement. The Board will reopen the abandonment proceeding, vacate 
the CITU or NITU, issue an appropriate replacement CITU or NITU for only 
the portion of the right-of-way covered by the interim trail use 
agreement, and issue a decision permitting immediate abandonment of the 
portion of the right-of-way not subject to the interim trail use 
agreement. Copies of the decision will be sent to:
    (1) The rail carrier that sought abandonment authorization;
    (2) The owner of the right-of-way; and
    (3) The current trail sponsor.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997; 
64 FR 53268, Oct. 1, 1999; 74 FR 52910, Oct. 15, 2009; 77 FR 25914, May 
2, 2012]



Subpart D_Standards for Determining Costs, Revenues, and Return on Value



Sec.  1152.30  General.

    (a) Contents of subpart. (1) 49 U.S.C. 10904 directs the Board to 
determine the extent to which the avoidable costs of providing rail 
service plus a reasonable return on the value of the line exceed the 
revenues attributable to the line. This subpart contains the methodology 
for such determinations and the standards necessary for application of

[[Page 214]]

those terms in the context of a particular proceeding. Such data will be 
used in reaching the Board's findings on the merits of an abandonment or 
discontinuance proceeding and in making the necessary financial 
assistance determinations.
    (2) This subpart also sets forth a method by which the carrier may 
establish its Forecast Year estimates and Estimated Subsidy Payment to 
be included in its application (Sec.  1152.22(d) of this part). 
Furthermore, an offeror of financial assistance may use this method to 
formulate a subsidy offer and/or Proposed Subsidy Payment under 49 
U.S.C. 10904 and Sec.  1152.27 of subpart C of this part.
    (b) Data collection. The owning or operating carrier shall establish 
a system to collect at branch level the data necessary to compute the 
base year data and the final subsidy payment. The collection and 
compilation of such data shall be in accordance with the Branch Line 
Accounting System (49 CFR part 1201, subpart B).
    (c) Final payment of financial assistance. (1) When a financial 
assistance agreement to subsidize is concluded, the final payment will 
be adjusted to reflect the actual revenues derived, avoidable costs 
incurred, and value of the properties used in the subsidy year.
    (2) Where an adjustment results in an increase in the Estimated 
Subsidy Payment upon which the financial assistance agreement is based, 
the amount of such increase is limited to 15 percent of the estimated 
payment. However, if the railroad notifies the subsidizer that the 
estimate will be exceeded by more than 15 percent in one of the 
Financial Status Reports (Sec.  1152.37) issued during the first 10 
months of the subsidy year or the increase results from an expense 
preapproved by the subsidizer, the adjusted amount shall be included in 
the final payment.

[61 FR 67883, Dec. 24, 1996, as amended at 81 FR 8855, Feb. 23, 2016]



Sec.  1152.31  Revenue and income attributable to branch lines.

    The revenue attributable to the rail properties is the total of the 
revenues assigned to the branch in accordance with this section, plus 
any subsidy payments that would cease upon discontinuance of service on 
the branch, for the subsidy year. The revenues assigned shall be derived 
from the following accounts:
    (a) Account 101--Freight. The revenue assigned under this account 
shall be the actual revenues, including transit revenues, accruing to 
the railroad, derived from waybills and other source documents, for all 
traffic that:
    (1) Originates and terminates on the branch;
    (2) Originates or terminates on the branch and is handled off the 
branch on the system but not on another carrier; and
    (3) Originates or terminates on the branch and is handled on another 
carrier. All traffic that is received or forwarded through interchange 
at a point on the branch, including ferry operations, shall be 
considered as originating or terminating on the branch. The revenues of 
all other bridge or overhead traffic that will not be retained by the 
carrier shall be attributed to the branch on the ratio of miles moved on 
the branch to miles moved on the system, provided, however, that the 
parties may agree on a mutually acceptable usage charge for bridge 
traffic in lieu of the mileage apportionment.
    (b) Account 104--Switching; Account 105--Water transfers; Account 
106--Demurrage; Account 110--Incidental; Account 121--Joint Facility-
Credit; Account 122--Joint Facility-Debt; Account 506--Revenues from 
Properties Used in Other Than Carrier Operations; Account 510--
Miscellaneous Rent Income; Account 519--Miscellaneous Income. The 
revenues assigned under these accounts shall be the actual revenues 
accruing to the railroad that are directly attributable to the branch.
    (c) Chart for revenue accounts.

------------------------------------------------------------------------
           Revenue account title                     Account No.
------------------------------------------------------------------------
Freight...................................  101
Switching.................................  104
Water transfers...........................  105
Demurrage.................................  106
Incidental................................  110
Joint facility-credit.....................  121
Joint facility-debt.......................  122
Revenues from property used in other than   506, 534
 carrier operations, less expenses.
Miscellaneous rent income.................  510
Miscellaneous income......................  519
------------------------------------------------------------------------


[[Page 215]]



Sec.  1152.32  Calculation of avoidable costs.

    This section defines: Which cost elements are eligible for inclusion 
in the calculation of avoidable costs; the conditions under which 
certain cost elements become eligible for inclusion; and the basis of 
apportioning those cost elements which are not assigned to the branch on 
an actual expense basis. The avoidable costs of providing freight 
service on a branch shall be the total of the costs assigned to the 
branch in accordance with this section. The avoidable costs of providing 
freight service on a branch shall be just and reasonable, and shall not 
exceed those necessary for an honest and efficient operation. Those 
expenses apportioned under this section shall be derived from the latest 
Form R-1 Annual Report for Class I railroads filed with the Board prior 
to the conclusion of the subsidy year, and company records for all non-
Class I railroads, and assigned to the branch according to the 
procedures set forth in Sec.  1152.33 of these regulations. When the 
term ``Actual'' is specified as the basis for assigning an expense, it 
shall mean that the only costs which can be assigned to the account are 
those costs which are incurred solely as a result of the continuation of 
rail freight service on the branch. The accounts in the following 
charts, which list only the ``freight-only'' account numbers, shall 
include the portion of common expenses that have been apportioned to 
freight service.

------------------------------------------------------------------------
    Operating expense group and                      Basis of assignment
             accounts                 Account No.    to on-branch costs
------------------------------------------------------------------------
(a) Maintenance of way and
 structures:
  (1) Administration: Track:
    Salaries and wages............        11-13-02  Actual.
    Materials.....................        21-13-02   Do.
    Purchased services............        41-13-02   Do.
    Other expenses................        61-13-02   Do.
      Bridges and buildings
    Salaries and wages............        11-13-03   Do.
    Materials.....................        21-13-03   Do.
    Purchased services............        41-13-03   Do.
    Other expenses................        61-13-03   Do.
      Signals
    Salaries and wages............        11-13-04   Do.
    Materials.....................        21-13-04   Do.
    Purchased services............        41-13-04   Do.
    Other expenses................        61-13-04   Do.
      Communications
    Salaries and wages............        11-13-05   Do.
    Materials.....................        21-13-05   Do.
    Purchased services............        41-13-05   Do.
    Other expenses................        61-13-05   Do.
      Other
    Salaries and wages............        11-13-06   Do.
    Materials.....................        21-13-06   Do.
    Purchased services............        41-13-06   Do.
    Other expenses................        61-13-06   Do.
  (2) Repair maintenance and other
   roadway--running:
    Salaries and wages............        11-11-10   Do.
    Materials.....................        21-11-10   Do.
    Repairs by others--DR.........        39-11-10   Do.
    Repairs for others--CR........        40-11-10   Do.
    Purchased services............        41-11-10   Do.
    Other expenses................        61-11-10   Do.
      Roadway--switching
    Salaries and wages............        11-12-10   Do.
    Materials.....................        21-12-10   Do.
    Repairs by others--DR.........        39-12-10   Do.
    Repairs for others--CR........        40-12-10   Do.
    Purchased services............        41-12-10   Do.
    Other expenses................        61-12-10   Do.
      Tunnels and subways--running
    Salaries and wages............        11-11-11   Do.
    Materials.....................        21-11-11   Do.
    Repairs by others--DR.........        39-11-11   Do.
    Repairs for others--CR........        40-11-11   Do.
    Purchased services............        41-11-11   Do.

[[Page 216]]

 
    Other expenses................        61-11-11   Do.
      Tunnels and subways--
       switching
    Salaries and wages............        11-12-11   Do.
    Materials.....................        21-12-11   Do.
    Repairs by others--DR.........        39-12-11   Do.
    Repairs for others--CR........        40-12-11   Do.
    Purchased services............        41-12-11   Do.
    Other expenses................        61-12-11   Do.
      Bridges and culverts--
       running
    Salaries and wages............        11-11-12   Do.
    Materials.....................        21-11-12   Do.
    Repairs by others--DR.........        39-11-12   Do.
    Repairs for others--CR........        40-11-12   Do.
    Purchased services............        41-11-12   Do.
    Other expenses................        61-11-12   Do.
      Bridges and culverts--
       switching
    Salaries and wages............        11-12-12   Do.
    Materials.....................        21-12-12   Do.
    Repairs by others--DR.........        39-12-12   Do.
    Repairs for others--CR........        40-12-12   Do.
    Purchased services............        41-12-12   Do.
    Other expenses................        61-12-12   Do.
Ties--running--material...........        21-11-13   Do.
Ties--switching--material.........        21-12-13   Do.
Rails--running--material..........        21-11-14   Do.
Rails--switching--material........        21-12-14   Do.
Other track material--running--           21-11-15   Do.
 material.
Other track material--switching--         21-12-15   Do.
 material.
Ballast--running--material........        21-11-16   Do.
Ballast--switching--material......        21-12-16   Do.
      Track laying and surfacing--
       running
    Salaries and wages............        11-11-17   Do.
    Materials.....................        21-11-17   Do.
    Repairs by others--DR.........        39-11-17   Do.
    Repairs for others--CR........        40-11-17   Do.
    Purchased services............        41-11-17   Do.
    Other expenses................        61-11-17   Do.
      Track laying and surfacing--
       switching
    Salaries and wages............        11-12-17   Do.
    Materials.....................        21-12-17   Do.
    Repairs by others--DR.........        39-12-17   Do.
    Repairs for others--CR........        40-12-17   Do.
    Purchased services............        41-12-17   Do.
    Other expenses................        61-12-17   Do.
      Road property damaged--
       running
    Salaries and wages............        11-11-48   Do.
    Materials.....................        21-11-48   Do.
    Repairs by others--DR.........        39-11-48   Do.
    Repairs for others--CR........        40-11-48   Do.
    Purchased services............        41-11-48   Do.
    Other expenses................        61-11-48   Do.
      Road property damaged--
       switching
    Salaries and wages............        11-12-48   Do.
    Materials.....................        21-12-48   Do.
    Repairs by others--DR.........        39-12-48   Do.
    Repairs for others--CR........        40-12-48   Do.
    Purchased services............        41-12-48   Do.
    Other Expenses................        61-12-48   Do.
      Road property damaged--other
    Salaries and wages............         1-13-48   Do.
    Materials.....................        21-13-48   Do.
    Repairs by others--DR.........        39-13-48   Do.
    Repairs for others--CR........        40-13-48   Do.
    Purchased services............        41-13-48   Do.
    Other expenses................        61-13-48   Do.
      Signals and interlockers--
       running
    Salaries and wages............        11-11-19   Do.
    Materials.....................        21-11-19   Do.
    Repairs by others--DR.........        39-11-19   Do.
    Repairs for others--CR........        40-11-19   Do.
    Purchased services............        41-11-19   Do.
    Other expenses................        61-11-19   Do.
      Signals and interlockers--
       switching
    Salaries and wages............        11-12-19   Do.

[[Page 217]]

 
    Materials.....................        21-12-19   Do.
    Repairs by others--DR.........        39-12-19   Do.
    Repairs for others--CR........        40-12-19   Do.
    Purchased services............        41-12-19   Do.
    Other expenses................        61-12-19   Do.
      Communications systems
    Salaries and wages............        11-13-20   Do.
    Materials.....................        21-13-20   Do.
    Repairs by others--DR.........        39-13-20   Do.
    Repairs for others--CR........        40-13-20   Do.
    Purchased services............        41-13-20   Do.
    Other expenses................        61-13-20   Do.
      Electric power systems
    Salaries and wages............        11-13-21   Do.
    Materials.....................        21-13-21   Do.
    Repairs by others--DR.........        39-13-21   Do.
    Repairs for others--CR........        40-13-21   Do.
    Purchased services............        41-13-21   Do.
    Other expenses................        61-13-21   Do.
      Highway grade crossings--
       running
    Salaries and wages............        11-11-22   Do.
    Materials.....................        21-11-22   Do.
    Repairs by others--DR.........        39-11-22   Do.
    Repairs for others--CR........        40-11-22   Do.
    Purchased services............        41-11-22   Do.
    Other expenses................        61-11-22   Do.
      Highway grade crossings--
       switching
    Salaries and wages............        11-12-22   Do.
    Materials.....................        21-12-22   Do.
    Repairs by others--DR.........        39-12-22   Do.
    Repairs for others--CR........        40-12-22   Do.
    Purchased services............        41-12-22   Do.
    Other expenses................        61-12-22   Do.
      Station and office buildings
    Salaries and wages............        11-13-23   Do.
    Materials.....................        21-13-23   Do.
    Repairs by others--DR.........        39-13-23   Do.
    Repairs for others--CR........        40-13-23   Do.
    Purchased services............        41-13-23   Do.
    Other expenses................        61-13-23   Do.
      Station buildings--
       locomotives
    Salaries and wages............        11-13-24   Do.
    Materials.....................        21-13-24   Do.
    Repairs by others--DR.........        39-13-24   Do.
    Repairs for others--CR........        40-13-24   Do.
    Purchased services............        41-13-24   Do.
    Other expenses................        61-13-24   Do.
      Shop buildings--freight cars
    Salaries and wages............        11-13-25   Do.
    Materials.....................        21-13-25   Do.
    Repairs by others--DR.........        39-13-25   Do.
    Repairs for others--CR........        40-13-25   Do.
    Purchased services............        41-13-25   Do.
    Other expenses................        61-13-25   Do.
      Shop buildings--other
       equipment
    Salaries and wages............        11-13-26   Do.
    Materials.....................        21-13-26   Do.
    Repairs by others--DR.........        39-13-26   Do.
    Repairs for others--CR........        40-13-26   Do.
    Purchased services............        41-13-26   Do.
    Other expenses................        61-13-26   Do.
      Locomotive servicing
       facilities
    Salaries and wages............        11-13-27   Do.
    Materials.....................        21-13-27   Do.
    Repairs by others--DR.........        39-13-27   Do.
    Repairs for others--CR........        40-13-27   Do.
    Purchased services............        41-13-27   Do.
    Other expenses................        61-13-27   Do.
      Miscellaneous buildings and
       structures
    Salaries and wages............        11-13-28   Do.
    Materials.....................        21-13-28   Do.
    Repairs by others--DR.........        39-13-28   Do.
    Repairs for others--CR........        40-13-28   Do.
    Purchased services............        41-13-28   Do.

[[Page 218]]

 
    Other expenses................        61-13-28   Do.
      Coal terminals
    Salaries and wages............        11-13-29   Do.
    Materials.....................        21-13-29   Do.
    Repairs by others--DR.........        39-13-29   Do.
    Repairs for others--CR........        40-13-29   Do.
    Purchased services............        41-13-29   Do.
    Other expenses................        61-13-29   Do.
      Ore terminals
    Salaries and wages............        11-13-30   Do.
    Materials.....................        21-13-30   Do.
    Repairs by others--DR.........        39-13-30   Do.
    Repairs for others--CR........        40-13-30   Do.
    Purchased services............        41-13-30   Do.
    Other expenses................        61-13-30   Do.
      TOFC/COFC terminals
    Salaries and wages............        11-13-31   Do.
    Materials.....................        21-13-31   Do.
    Repairs by others--DR.........        39-13-31   Do.
    Repairs for others--CR........        40-13-31   Do.
    Purchased services............        41-13-21   Do.
    Other expenses................        61-13-31   Do.
      Other marine terminals
    Salaries and wages............        11-13-32   Do.
    Materials.....................        21-13-32   Do.
    Repairs by others--DR.........        39-13-32   Do.
    Repairs for others--CR........        40-13-32   Do.
    Purchased services............        41-13-32   Do.
    Other expenses................        61-13-32   Do.
      Motor vehicle loading and
       distribution facilities
    Salaries and wages............        11-13-33   Do.
    Materials.....................        21-13-33   Do.
    Repairs by others--DR.........        39-13-33   Do.
    Repairs for others--CR........        40-13-33   Do.
    Purchased services............        41-13-33   Do.
    Other expenses................        61-13-33   Do.
      Facilities for other
       specialized service
       operations
    Salaries and wages............        11-13-35   Do.
    Materials.....................        21-13-35   Do.
    Repairs by others--DR.........        39-13-35   Do.
    Repairs for others--CR........        40-13-35   Do.
    Purchased services............        41-13-35   Do.
    Other expenses................        61-13-35   Do.
      Roadway machines
    Salaries and wages............        11-13-36  Daily repair costs
                                                     per GMA, for each
                                                     type of machine
                                                     used on the branch
                                                     line sec.
                                                     1152.33(a)(1).
    Materials.....................        21-13-36   Do.
    Repairs by others--DR.........        39-13-36   Do.
    Repairs for others--CR........        40-13-36   Do.
    Purchased services............        41-13-36   Do.
    Other expenses................        61-13-36   Do.
      Small tools and supplies
    Other expenses................        11-13-37  Assign supplies on
                                                     the daily costs per
                                                     GMA, for each type
                                                     of machine used on
                                                     the branch; small
                                                     tool assign to
                                                     maintenance of way
                                                     11- 11/12-10
                                                     through 17, and 48,
                                                     sec. 1152.33(a)(2).
    Materials.....................        21-13-37   Do.
    Repairs by others--DR.........        39-13-37   Do.
    Repairs for others--CR........        40-13-37   Do.
    Purchased services............        41-13-37   Do.
    Other expenses................        61-13-37   Do.
      Snow removal
    Salaries and wages............        11-13-38  Actual.
    Materials.....................        21-13-38   Do.
    Repairs by others--DR.........        39-13-38   Do.
    Repairs for others--CR........        40-13-38   Do.
    Purchased Services............        41-13-38   Do.
    Other expenses................        61-13-38   Do.
Fringe benefits--running..........        12-11-00  11-11-XX, sec.
                                                     1152.33(a)(3)(i).
Fringe benefits--switching........        12-12-00  11-12-XX, sec.
                                                     1152.33(a)(3)(ii).
Fringe benefits--other............        12-13-00  11-13-XX, sec.
                                                     1152.33(a)(3)(iii).
      Casualties and insurance--
       running
    Other casualties..............        52-11-00  Actual.

[[Page 219]]

 
    Insurance.....................        53-11-00   Do.
      Casualties and insurance--
       switching
    Other casualties..............        52-12-00   Do.
    Insurance.....................        53-12-00   Do.
Lease rentals--debit--running.....        31-11-00   Do.
Lease rentals--debit--switching...        31-12-00   Do.
Lease rentals--debit--other.......        31-13-00   Do.
Lease rentals--credit--running....        32-11-00   Do.
Lease rentals--credit--switching..        32-12-00   Do.
Lease rentals--credit--other......        32-13-00   Do.
Joint facility rent--debit--              33-11-00   Do.
 running.
Joint facility rent--debit--              33-12-00   Do.
 switching.
      Casualties and insurance--
       other
    Other casualties..............        52-13-00   Do.
    Insurance.....................        53-13-00   Do.
Joint facility--debit--other......        33-13-00   Do.
Joint facility rent--credit--             34-11-00   Do.
 running.
Joint facility rent--credit--             34-12-00   Do.
 switching.
Joint facility rent--credit--other        34-13-00   Do.
Other rents--debit--running.......        35-11-00   Do.
Other rents--debit--switching.....        35-12-00   Do.
Other rents--debit--other.........        35-13-00   Do.
Other rents--credit--running......        36-11-00   Do.
Other rents--credit--switching....        36-12-00   Do.
Other rents--credit--other........        36-13-00   Do.
Depreciation--running.............        62-11-00   Do.
Depreciation--switching...........        62-12-00   Do.
Depreciation--other...............        62-13-00   Do.
Joint facility--debit--running....        37-11-00   Do.
Joint facility--debit--switching..        37-12-00   Do.
Joint facility--debit--other......        37-13-00   Do.
Joint facility--credit--running...        38-11-00   Do.
Joint facility--credit--switching.        38-12-00   Do.
Joint facility--credit--other.....        38-13-00   Do.
      Dismantling retired road
       property--running
    Salaries and wages............        11-11-39   Do.
    Materials.....................        21-11-39   Do.
    Purchased services............        41-11-39   Do.
    Other expenses................        61-11-39   Do.
      Dismantling retired road
       property--switching
    Salaries and wages............        11-12-39   Do.
    Materials.....................        21-12-39   Do.
    Purchased services............        41-12-39   Do.
    Other expenses................        61-12-39   Do.
      Dismantling retired road
       property--other
    Salaries and wages............        11-13-39   Do.
    Materials.....................        21-13-39   Do.
    Purchased services............        41-13-39   Do.
    Other expenses................        61-13-39   Do.
      Other--running
    Salaries and wages............        11-11-99   Do.
    Materials.....................        21-11-99   Do.
    Purchased services............        41-11-99   Do.
    Other expenses................        61-11-99   Do.
      Other--switching
    Salaries and wages............        11-12-99   Do.
    Materials.....................        21-12-99   Do.
    Purchased Services............        41-12-99   Do.
    Other Expenses................        61-12-99   Do.
      Other--other
    Salaries and wages............        11-13-99   Do.
    Materials.....................        21-13-99   Do.
    Purchased services............        41-13-99   Do.
    Other expenses................        61-13-99   Do.
(b) Maintenance of equipment:
  (1) Locomotives: Administration
    Salaries and wages............        11-21-01   Do.
    Materials.....................        21-21-01   Do.
    Purchased services............        41-21-01   Do.
    Other expenses................        61-21-01   Do.

[[Page 220]]

 
      Repairs and maintenance
    Salaries and wages............        11-21-41  Road diesel and road
                                                     electric locomotive
                                                     gross ton miles.
                                                     Yard diesel and
                                                     yard electric
                                                     locomotive unit
                                                     hours, Sec.
                                                     1152.33(b)(1).
    Materials.....................        21-21-41   Do.
    Repairs by others--DR.........        39-21-41   Do.
    Repairs for others--CR........        40-21-41   Do.
    Purchased services............        41-21-41   Do.
    Other expenses................        61-21-41   Do.
      Machinery repair
    Salaries and wages............        11-21-40  Actual.
    Materials.....................        21-21-40   Do.
    Repairs by others--DR.........        39-21-40   Do.
    Repairs for others--CR........        40-21-40   Do.
    Purchased services............        41-21-40   Do.
    Other expenses................        61-21-40   Do.
      Equipment damaged
    Salaries and wages............        11-21-48   Do.
    Materials.....................        21-21-48   Do.
    Repairs by others--DR.........        39-21-48   Do.
    Repairs for others--CR........        40-21-48   Do.
    Purchased services............        41-21-48   Do.
    Other expenses................        61-21-48   Do.
      Equipment damaged
Fringe benefits...................        12-21-00  11-21-XX, sec.
                                                     1152.33(b)(3)(i).
      Other casualties and
       insurance
    Other casualties..............        52-21-00  Actual.
    Insurance.....................        53-21-00   Do.
Lease rentals--debit..............        31-21-00   Do.
Lease rentals--credit.............        32-21-00   Do.
Joint facility rent--debit........        33-21-00   Do.
Joint facility rent--credit.......        34-21-00   Do.
Other rents--debit................        35-21-00   Do.
Other rents--credit...............        36-21-00   Do.
Joint facility--debit.............        37-21-00   Do.
Joint facility--credit............        38-21-00   Do.
Depreciation......................        62-21-00  All locomotives,
                                                     locomotive unit
                                                     hours, sec.
                                                     1152.33(b)(2).
      Dismantling retired property
    Salaries and wages............        11-21-39  Actual.
    Materials.....................        21-21-39   Do.
    Purchased services............        41-21-39   Do.
    Other expenses................        61-21-39   Do.
      Other
    Salaries and wages............        11-21-99   Do.
    Materials.....................        21-21-99   Do.
    Purchased services............        41-21-99   Do.
    Other expenses................        61-21-99   Do.
  (2) Freight cars:
   Administration:
    Salaries and wages............        11-22-01   Do.
    Materials.....................        21-22-01   Do.
    Purchased services............        41-22-01   Do.
    Other expenses................        61-22-01   Do.
      Machinery repair
    Salaries and wages............        11-22-40   Do.
    Materials.....................        21-22-40   Do.
    Repairs by others--DR.........        39-22-40   Do.
    Repairs for others--CR........        40-22-40   Do.
    Purchased services............        41-22-40   Do.
    Other expenses................        61-22-40   Do.
      Equipment damage
    Salaries and wages............        11-22-48   Do.
    Materials.....................        21-22-48   Do.
    Repairs by others--DR.........        39-22-48   Do.
    Repairs for others--CR........        40-22-48   Do.
    Purchased services............        41-22-48   Do.
    Other expenses................        61-22-48   Do.
Fringe benefits...................        12-22-00  11-22-XX, sec.
                                                     1152.33-(b)(3)(iii)
                                                     .
      Other casualties and
       insurance
    Other casualties..............        52-22-00  Actual.
    Insurance.....................        53-22-00   Do.
Joint facility rent--DR...........        33-22-00   Do.
Joint facility rent--CR...........        34-22-00   Do.
Joint facility--DR................        37-22-00   Do.

[[Page 221]]

 
Joint facility--CR................        38-22-00   Do.
      Dismantling retired property
    Salaries and wages............        11-22-39   Do.
    Materials.....................        21-22-39   Do.
    Purchased services............        41-22-39   Do.
    Other expenses................        61-22-39   Do.
      Other
    Salaries and wages............        11-22-99   Do.
    Materials.....................        21-22-99   Do.
    Purchased services............        41-22-99   Do.
    Other expenses................        61-22-99   Do.
Freight car costs per day and per
 mile:
      Repair and maintenance
    Salaries and wages............        11-22-42  These accounts are
                                                     used to develop the
                                                     cost per car day
                                                     and per car mile
                                                     for each type of
                                                     car, sec.
                                                     1152.32(g).
    Materials.....................        21-22-42   Do.
    Repairs by others--DR.........        39-22-42   Do.
    Repairs for others--CR........        40-22-42   Do.
    Purchased services............        41-22-42   Do.
    Other expenses................        61-22-42   Do.
Lease rentals--DR.................        31-22-00  ....................
Lease rentals--CR.................        32-22-00  ....................
Depreciation......................        62-22-00  ....................
Other rents--DR...................        35-22-00  ....................
Other rents--CR...................        36-22-00  ....................
  (3) Other equipment:
   Administration
    Salaries and wages............        11-23-01  Actual.
    Materials.....................        21-23-01   Do.
    Purchased services............        41-23-01   Do.
    Other expenses................        61-23-01   Do.
Repair and maintenance: Trucks,
 trailers and containers--revenue
 service
    Salaries and wages............        11-23-43   Do.
    Materials.....................        21-23-43   Do.
    Repairs by others--DR.........        39-23-43   Do.
    Repairs for others--CR........        40-23-43   Do.
    Purchased services............        41-23-43   Do.
    Other expenses................        61-23-43   Do.
      Floating equipment--revenue
       service
    Salaries and wages............        11-23-44   Do.
    Materials.....................        21-23-44   Do.
    Repairs by others--DR.........        39-23-44   Do.
    Repairs for others--CR........        40-23-44   Do.
    Purchased services............        41-23-44   Do.
    Other expenses................        61-23-44   Do.
      Computer and data processing
    Salaries and wages............        11-23-46   Do.
    Materials.....................        21-23-46   Do.
    Repairs by others--DR.........        39-23-46   Do.
    Repairs for others--CR........        40-23-46   Do.
    Purchased services............        41-23-46   Do.
    Other expenses................        61-23-46   Do.
      Machinery
    Salaries and wages............        11-23-40   Do.
    Materials.....................        21-23-40   Do.
    Repairs by others--DR.........        39-23-40   Do.
    Repairs for others--CR........        40-23-40   Do.
    Purchased services............        41-23-40   Do.
    Other expenses................        61-23-40   Do.
      Work and other non revenue
       equipment
    Salaries and wages............        11-23-47   Do.
    Materials.....................        21-23-47   Do.
    Repairs by others--DR.........        39-23-47   Do.
    Repairs for others--CR........        40-23-47   Do.
    Purchased services............        41-23-47   Do.
    Other expenses................        61-23-47   Do.
      Equipment damaged
    Salaries and wages............        11-23-48   Do.
    Materials.....................        21-23-48   Do.
    Repairs by others--DR.........        39-23-48   Do.
    Repairs for others--CR........        40-23-38   Do.
    Purchased services............        41-23-48   Do.
    Other expenses................        61-23-48   Do.

[[Page 222]]

 
      Equipment damaged
Fringe benefits...................        12-23-00  11-23-XX, sec.
                                                     1152.33(b)(3)(ii).
      Other casualties and
       insurance
    Other casualties..............        52-23-00  Actual.
      Insurance...................        53-23-00   Do.
    Lease rentals--DR.............        31-23-00   Do.
    Lease rentals--CR.............        32-23-00   Do.
    Joint facility rent--DR.......        33-23-00   Do.
    Joint facility rent--CR.......        34-23-00   Do.
    Other rents--DR...............        35-23-00   Do.
    Other rents--CR...............        36-23-00   Do.
    Depreciation..................        62-23-00   Do.
    Joint facility--DR............        37-23-00   Do.
    Joint facility--CR............        38-23-00   Do.
      Dismantling retired property
    Salaries and wages............        11-23-39   Do.
    Materials.....................        21-23-39   Do.
    Purchased services............        41-23-39   Do.
    Other expenses................        61-23-39   Do.
      Other
    Salaries and wages............        11-23-99   Do.
    Materials.....................        21-23-99   Do.
    Purchased services............        41-23-99   Do.
    Other expenses................        61-23-99   Do.
(c) Transportation:
  (1) Train operations:
   Administration:
    Salaries and wages............        11-31-01   Do.
    Materials.....................        21-31-01   Do.
    Purchased services............        41-31-01   Do.
    Other expenses................        61-31-01   Do.
      Engine crews
    Salaries and wages............        11-31-56   Do.
    Materials.....................        21-31-56  Train hours, sec.
                                                     1152.33(c)(1)(i).
    Purchased services............        41-31-56  Actual.
    Other expenses................        61-31-56   Do.
      Train crews
    Salaries and wages............        11-31-57   Do.
    Materials.....................        21-31-57  Train hours, sec.
                                                     1152.33(c)(1)(i).
    Purchased services............        41-31-57  Actual.
    Other expenses................        61-31-57   Do.
      Dispatching trains
    Salaries and wages............        11-31-58   Do.
    Materials.....................        21-31-58   Do.
    Purchased services............        41-31-58   Do.
    Other expenses................        61-31-58   Do.
      Operating signals and
       interlockers
    Salaries and wages............        11-31-59   Do.
    Materials.....................        21-31-59   Do.
    Purchased services............        41-31-59   Do.
    Other expenses................        61-31-59   Do.
      Operating drawbridges
    Salaries and wages............        11-31-60   Do.
    Materials.....................        21-31-60   Do.
    Purchased services............        41-31-60   Do.
    Other expenses................        61-31-60   Do.
      Highway crossing protection
    Salaries and wages............        11-31-61   Do.
    Materials.....................        21-31-61   Do.
    Purchased services............        41-31-61   Do.
    Other expenses................        61-31-61   Do.
      Train and inspection and
       lubrication
    Salaries and wages............        11-31-62  Train hours, Sec.
                                                     1152.33(c)(1)(i).
    Materials.....................        21-31-62   Do.
    Purchased services............        41-31-62  Actual.
    Other expenses................        61-31-62   Do.
      Locomotive fuel
    Salaries and wages............        11-31-67  Diesel locomotive
                                                     unit hours, Sec.
                                                     1152.33(c)(1)(ii).
    Materials.....................        21-31-67   Do.
    Purchased services............        41-31-67   Do.
    Other expenses................        61-31-67   Do.
      Electric power purchased or
       produced for motive power
    Salaries and wages............        11-31-68  Electric locomotive
                                                     unit hours, sec.
                                                     1152.33(c)(1)(iii).
    Materials.....................        21-31-68   Do.

[[Page 223]]

 
    Purchased services............        41-31-68   Do.
    Other expenses................        61-31-68   Do.
      Servicing locomotives
    Salaries and wages............        11-31-69  Locomotive unit
                                                     miles, sec.
                                                     1152.33(c)(1)(iv).
    Materials.....................        21-31-69   Do.
    Purchased services............        41-31-69   Do.
    Other expenses................        61-31-69   Do.
Freight lost or damaged--solely           51-31-00  Actual.
 related.
      Clearing wrecks
    Salaries and wages............        11-31-63   Do.
    Materials.....................        21-31-63   Do.
    Purchased services............        41-31-63   Do.
    Other expenses................        61-31-63   Do.
Fringe benefits...................        12-31-00   11-31-XX, sec.
                                                     1152.33 (c)(4)(i).
      Other casualties and
       insurance
    Other casualties..............        52-31-00  Actual.
    Insurance.....................        53-31-00   Do.
    Joint facility--DR............        37-31-00   Do.
    Joint facility--CR............        38-31-00   Do.
      Other
    Salaries and wages............        11-31-99   Do.
    Materials.....................        21-31-99   Do.
    Purchased services............        41-31-99   Do.
    Other expenses................        61-31-99   Do.
  (2) Yard operations:
   Administration:
    Salaries and wages............        11-32-01   Do.
    Materials.....................        21-32-01   Do.
    Purchased services............        41-32-01   Do.
    Other expenses................        61-32-01   Do.
      Switch crews
    Salaries and wages............        11-32-64   Do.
    Materials.....................        21-32-64  Locomotive unit
                                                     hours, sec.
                                                     1152.33(c)(2)(i)
    Purchased services............        41-32-64  Actual.
    Other expenses................        61-32-64   Do.
      Controlling operations
    Salaries and wages............        11-32-65   Do.
    Materials.....................        21-32-65   Do.
    Purchased services............        41-32-65   Do.
    Other expenses................        61-32-65   Do.
      Yard and terminal clerical
    Salaries and wages............        11-32-66   Do.
    Materials.....................        21-32-66   Do.
    Purchased services............        41-32-66   Do.
    Other expenses................        61-32-66   Do.
      Operating switches, signals,
       retarders and humps
    Salaries and wages............        11-32-59   Do.
    Materials.....................        21-32-59   Do.
    Purchased services............        41-32-59   Do.
    Other expenses................        61-32-59   Do.
      Locomotive fuel
    Salaries and wages............        11-32-67  Dieselloco motive
                                                     unit hours, sec.
                                                     1152.33(c)(2)(ii)
    Materials.....................        21-32-67   Do.
    Purchased services............        41-32-67   Do.
    Other expenses................        61-32-67   Do.
      Electric power purchased or
       produced for motive power
    Salaries and wages............        11-32-68  Electric locomotive
                                                     unit hours, sec.
                                                     1152.33(c)(2)(iii).
    Materials.....................        21-32-68   Do.
    Purchased services............        41-32-68   Do.
    Other expenses................        61-32-68   Do.
      Servicing locomotives
    Salaries and wages............        11-32-69  Locomotive unit
                                                     hours, sec.
                                                     1152.33(c)(2)(i).
    Materials.....................        21-32-69   Do.
    Purchased services............        41-32-69   Do.
    Other expenses................        61-32-69   Do.
Freight lost or damaged--solely           51-32-00  Actual.
 related.
      Clearing wrecks
    Salaries and wages............        11-32-63   Do.
    Materials.....................        21-32-63   Do.
    Purchased services............        41-32-63   Do.
    Other expenses................        61-32-63   Do.
    Fringe benefits...............        12-32-00  11-32-XX, sec.
                                                     1152.33(c)(4)(ii).
      Other casualties and
       insurance
    Other casualties..............        52-32-00  Actual.

[[Page 224]]

 
    Insurance.....................        53-32-00   Do.
    Joint facility--DR............        37-32-00   Do.
    Joint facility--CR............        38-32-00   Do.
      Other
    Salaries and wages............        11-32-99   Do.
    Materials.....................        21-32-99   Do.
    Purchased services............        41-32-99   Do.
    Other expenses................        61-32-99   Do.
  (3) Train and yard operations
   common:
      Cleaning car interiors
    Salaries and wages............        11-33-70   Do.
    Materials.....................        21-33-70   Do.
    Purchased services............        41-33-70   Do.
      Adjusting and transferring
       loads
    Salaries and wages............        11-33-71   Do.
    Materials.....................        21-33-71   Do.
    Purchased services............        41-33-71   Do.
      Carloading devices and grain
       doors
    Salaries and wages............        11-33-72   Do.
    Materials.....................        21-33-72   Do.
    Purchased services............        41-33-72   Do.
Freight lost or damaged--all other        51-33-00   Do.
Fringe benefits...................        12-33-00  11-33-XX, sec.
                                                     1152.33(c)(4)(iii).
  (4) Specialized service
   operations: Administration:
    Salaries and wages............        11-34-01  Actual.
    Materials.....................        21-34-01   Do.
    Purchased services............        41-34-01   Do.
    Other expenses................        61-34-01   Do.
      Pick-up and delivery, marine
       line haul, and rail
       substitute service
    Salaries and wages............        11-34-73   Do.
    Materials.....................        21-34-73   Do.
    Purchased services............        41-34-73   Do.
    Other expenses................        61-34-73   Do.
      Loading and unloading and
       local marine
    Salaries and wages............        11-34-74   Do.
    Materials.....................        21-34-74   Do.
    Purchased services............        41-34-74   Do.
    Other expenses................        61-34-74   Do.
      Protective services
    Salaries and wages............        11-34-75   Do.
    Materials.....................        21-34-75   Do.
    Purchased services............        41-34-75   Do.
    Other expenses................        61-34-75   Do.
Freight lost or damaged--Solely           51-34-00   Do.
 related.
Fringe benefits...................        12-34-00  11-34-XX, sec.
                                                     1152.33(c)(4)(iv).
      Casualties and insurance
    Other casualties..............        52-34-00  Actual.
    Insurance.....................        53-34-00   Do.
    Joint facility--DR............        37-34-00   Do.
    Joint facility--CR............        38-34-00   Do.
      Other
    Salaries and wages............        11-34-99   Do.
    Materials.....................        21-34-99   Do.
    Purchased services............        41-34-99   Do.
    Other expenses................        61-34-99   Do.
  (5) Administrative support
   operations: Administration :
    Salaries and wages............        11-35-01   Do.
    Materials.....................        21-35-01   Do.
    Purchased services............        41-35-01   Do.
    Other expenses................        61-35-01   Do.
      Employees performing
       clerical and accounting
       functions
    Salaries and wages............        11-35-76   Do.
    Materials.....................        21-35-76   Do.
    Purchased services............        41-35-76   Do.
    Other expenses................        61-35-76   Do.
      Communication systems
       operation
    Salaries and wages............        11-35-77   Do.
    Materials.....................        21-35-77   Do.
    Purchased services............        41-35-77   Do.
    Other expenses................        61-35-77   Do.
      Loss and damage claims
       processing
    Salaries and wages............        11-35-78  Number of claims,
                                                     sec.
                                                     1152.33(c)(3)(i).

[[Page 225]]

 
    Materials.....................        21-35-78   Do.
    Purchased services............        41-35-78   Do.
    Other expenses................        61-35-78   Do.
Fringe benefits...................        12-35-00  11-35-XX. sec.
                                                     1152.33(c)(4)(v).
Joint facility--DR................        37-35-00  Actual.
Joint facility--CR................        38-35-00   Do.
    Casualties and insurance......
    Other casualties..............        52-35-00   Do.
    Insurance.....................        53-35-00   Do.
      Other
    Salaries and wages............        11-35-99   Do.
    Materials.....................        21-35-99   Do.
    Purchased services............        41-35-99   Do.
    Other expenses................        61-35-99   Do.
(d) General Administrative
 Officers--general administration:
    Salaries and wages............        11-61-01   Do.
    Materials.....................        21-61-01   Do.
    Purchased services............        41-61-01   Do.
    Other expenses................        61-61-01   Do.
      Accounting, auditing and
       finance
    Salaries and wages............        11-61-86   Do.
    Materials.....................        21-61-86   Do.
    Purchased services............        41-61-86   Do.
    Other expenses................        61-61-86   Do.
      Management services and data
       processing
    Salaries and wages............        11-61-87   Do.
    Materials.....................        21-61-87   Do.
    Purchased services............        41-61-87   Do.
    Other expenses................        61-61-87   Do.
      Marketing:
    Salaries and wages............        11-61-88   Do.
    Materials.....................        21-61-88   Do.
    Purchased services............        41-61-88   Do.
    Other expenses................        61-61-88   Do.
      Sales
    Salaries and wages............        11-61-89   Do.
    Materials.....................        21-61-89   Do.
    Purchased services............        41-61-89   Do.
    Other expenses................        61-61-89   Do.
      Industrial development
    Salaries and wages............        11-61-90   Do.
    Materials.....................        21-61-90   Do.
    Purchased services............        41-61-90   Do.
    Other expenses................        61-61-90   Do.
      Personnel and labor
       relations
    Salaries and wages............        11-61-91   Do.
    Materials.....................        21-61-91   Do.
    Purchased services............        41-61-91   Do.
    Other expenses................        61-61-91   Do.
      Legal and secretarial
    Salaries and wages............        11-61-92   Do.
    Materials.....................        21-61-92   Do.
    Purchased services............        41-61-92   Do.
    Other expenses................        61-61-92   Do.
      Public relations and
       advertising
    Salaries and wages............        11-61-93   Do.
    Materials.....................        21-61-93   Do.
    Purchased services............        41-61-93   Do.
    Other expenses................        61-61-93   Do.
      Research and development
    Salaries and wages............        11-61-94   Do.
    Materials.....................        21-61-94   Do.
    Purchased services............        41-61-94   Do.
    Other expenses................        61-61-94   Do.
Fringe benefits...................        12-61-00  11-61-XX, sec.
                                                     1152.33(d)(1).
      Casualties and insurance
    Other casualties..............        52-61-00  Actual
    Insurance.....................        53-61-00   Do.
Writedown of uncollectible                63-61-00   Do.
 accounts.
Other taxes except on corporate           65-61-00   Do.
 income or payroll.
Joint facility--DR................        37-61-00   Do.
Joint facility--CR................        38-61-00   Do.

[[Page 226]]

 
      Other
    Salaries and wages............        11-61-99   Do.
    Materials.....................        21-61-99   Do.
    Purchased services............        41-61-99   Do.
    Other expenses................        61-61-99   Do.
------------------------------------------------------------------------

    (e) Deadheading, taxi, and hotel costs. The costs assigned under 
this subsection shall be the actual costs incurred as a result of 
providing service to the branch line for deadheading, taxi, and hotel 
costs. The amounts included under this subsection shall not be included 
under other subsections of these regulations.
    (f) Overhead movement costs. The costs assigned under this 
subsection shall be the actual costs incurred in moving over any other 
rail line solely to reach and provide service to the branch. The amounts 
shown under this subsection shall not be included under other 
subsections of these regulations.
    (g) Freight car costs. For Class I railroads, the on-segment costs 
for time-mileage freight cars shall be calculated on the basis of the 
carrier's average cost per day and per mile. Those freight cars that are 
rented on a straight mileage basis are to be costed on the carrier's 
average cost per mile for each type of car rented on this basis. No 
costs are to be included in the calculation for private line (shipper 
owned) or other cars for which the railroad does not make payments. The 
cost per day and per mile shall be calculated separately for each type 
of car specified in Ex Parte No. 334, Car Service Compensation--Basic 
Per Diem Charges, 362 I.C.C. 884 (1980). The freight car costs shall be 
separated between ``return on value-freight cars'' and ``freight car 
costs other than return on freight cars''. The costs assigned to a line 
under this subsection are to be derived from the accounts listed below.

------------------------------------------------------------------------
      Operating expense group--Repair and maintenance        Account No.
------------------------------------------------------------------------
Salaries and wages........................................      11-22-42
Materials.................................................      21-22-42
Repairs by others--DR.....................................      39-22-42
Repairs for others--CR....................................      40-22-42
Purchased services........................................      41-22-42
Other expenses............................................      61-22-42
Lease rentals--DR.........................................      31-22-00
Lease rentals--CR.........................................      32-22-00
Depreciation
  Other rents--DR.........................................      35-22-00
  Other rents--CR.........................................      36-22-00
------------------------------------------------------------------------

    The system total of the repair and maintenance accounts, all 
accounts designated XX-XX-42, and depreciation shall be divided into 
time-related costs and mileage-related costs on the basis of 50 percent 
time and 50 percent mileage for repairs, and 60 percent time and 40 
percent mileage for depreciation. Freight car costs shall not include 
depreciation as determined in Account No. 62-22-00. Freight car 
depreciation shall be calculated in the manner set forth in paragraph 
(g)(3)(i) of this section. The system total receipts and payments for 
the hire of time-mileage cars, and the basic data used in the 
development of the car-day and car-mile factors, shall be taken from the 
carrier's latest Form R-1 and company records. The specific steps to 
complete the calculation are as follows:
    (1) The total system car days by car type shall be calculated by:
    (i) Averaging the carrier's freight car ownership at the beginning 
and end of the year (Form R-1, schedule 710, columns (b) and (k);
    (ii) Multiplying the average by the standard active number of car 
days (346) as developed in ICC Docket No. 31358;
    (iii) Subtracting car days on foreign lines (source: Company 
records); and
    (iv) Adding the foreign car days on home line (source: Company 
records). This procedure shall be followed for each car type specified 
in Ex Parte No. 334, supra.
    (2) The total railroad car miles shall be calculated by adding the 
loaded car miles for the railroad owned and leased cars (R-1, Schedule 
755) to empty car miles for the railroad owned or leased cars (R-1, 
Schedule 755). The total car

[[Page 227]]

miles, loaded and empty, shall be calculated for each car type specified 
in Ex Parte No. 334, supra.
    (3) The cost per car day shall be calculated for each type of time-
mileage car by adding 50 percent of total freight car repair costs for 
each type (Form R-1, schedule 415, column (b)), and 60 percent of the 
depreciation shall be developed as follows:
    (i) The current value for each type of car shall be calculated by 
first arriving at the current cost per car using the most recent 
purchase of this type by the railroad indexed to the midpoint of the 
year or a price quote from the manufacturer. This unit price shall be 
applied to the average number of this type of car owned by the carrier 
during the year. The current value developed for each car type is then 
multiplied by the composite depreciation rate for that type of car as 
shown in the latest annual report filed with the Board or company 
records.
    (ii) Add 100 percent of the return on investment. Return on 
investment shall be determined by multiplying the current value of each 
type of car, developed in paragraph (g)(3)(i) of this section, by 1 
minus the ratio of accumulated depreciation to the total original cost 
investment. This will determine the net current value for each type of 
car. The net current value for each type of car shall then be multiplied 
by the nominal rate of return calculated in Sec.  1152.34(d) to obtain 
nominal return on investment for each type of car. The total return on 
investment shall then be calculated by deducting the projected holding 
gain (loss) for the forecast and/or subsidy year from the nominal return 
on investment for each type of car. In any instance where the holding 
gain is not specifically determined for freight cars, the Gross Domestic 
Product deflator calculated by the U.S. Department of Commerce shall be 
used. The total return on investment for each type of car shall then be 
divided by total car-days for each car-type developed in paragraph 
(g)(1) of this section.
    (iii) To the amounts for repairs and depreciation, add the time 
portion of the railroad's payment for hire of time-mileage freight cars 
(Form R-1, schedule 414, column (g)), and subtract the time portion of 
the railroad's receipts for hire of time mileage freight cars (Form R-1, 
schedule 414, column (d)). The total of these costs is divided by the 
total car days for each type developed in paragraph (g)(1) of this 
section.
    (4) The cost per mile shall be calculated for each type of time-
mileage car as follows. First, add:
    (i) 50 percent of the total freight train car repair cost for each 
car type (Form R-1, schedule 415, column (b));
    (ii) 40 percent of the total depreciation costs for each car type 
developed in paragraph (g)(3)(i) of this section; and
    (iii) The mileage portion of the carrier's payments for the hire of 
time-mileage freight cars (Form R-1, schedule 414, column (f)).


Second, subtract the mileage portion of the carrier's receipts for hire 
of time-mileage freight cars (Form R-1, schedule 414, column (c)). 
Finally, divide the result by the total car-miles for each car-type 
developed in paragraph (g)(2) of this section.
    (5) The costs per car day and per car mile developed in paragraphs 
(g) (3) and (4) of this section shall be applied to the total car days 
and total car miles for each car type accumulated on the line segment 
for all traffic originated and/or terminated on the segment plus those 
freight cars that bridge the line segment which are attributed to time-
mileage freight train cars. The on-segment costs for freight cars rented 
on a straight mileage basis shall be the railroad's total payments for 
mileage cars (Form R-1, schedule 414, column (e)) for each car type 
divided by the total miles on which the charges were based.
    (6) For Class II and III railroads, the on-segment costs for time-
mileage and straight mileage freight cars shall be calculated in the 
same manner prescribed for Class I railroads, using the latest data 
available.
    (h) Return on investment--locomotive (line). The return on 
investment shall be calculated for each type of classification of 
locomotive that is actually used to provide service to the line segment. 
The return for the locomotive(s) used shall be calculated in accordance 
with the following procedure:

[[Page 228]]

    (1) The current replacement cost for each type of locomotive used to 
serve the line segment shall be based on the most recent purchase of 
that particular type and size locomotive by the carrier, indexed to the 
midpoint of the forecast and/or subsidy year, or on an amount quoted by 
the manufacturer. The amount must be substantiated. This unit cost shall 
be multiplied by 1 minus the ratio of total accumulated depreciation to 
original total cost of that type of equipment owned by applicant-
carrier, as shown by company records.
    (2) The current nominal cost of capital shall be used in the 
calculation of return on investment for locomotives and shall be 
calculated as provided in Sec.  1152.34(d).
    (3) The return on investment for each category or type of locomotive 
shall be the nominal return less the holding gain (loss). The nominal 
return is calculated by multiplying the replacement cost determined in 
paragraph (h)(1) of this section by the nominal rate of return 
determined in paragraph (h)(2) of this section. The holding gain (loss) 
shall be the gain (loss) projected to occur during the forecast and/or 
subsidy year. In any instance where the holding gain is not specifically 
determined for locomotives, the Gross Domestic Product deflator 
calculated by the U.S. Department of Commerce shall be used.
    (4) The return on investment for each type of locomotive shall be 
assigned to the line segment on a ratio of the locomotive unit hours on 
the segment to average locomotive unit hours per unit for each type of 
locomotive in the system. This ratio will be developed as follows:
    (i) The carrier shall keep and maintain records of the number of 
hours that each type of locomotive incurred in serving the segment 
during the subsidy period.
    (ii) The railroad shall develop the system average locomotive unit 
hours per unit for each of the following types of locomotives; yard 
diesel; yard-other; road diesel; and road-other.
    (iii) The ratio applied to the return on investment is calculated by 
dividing the hours that each type or class of locomotive is used to 
serve the segment, as developed in paragraph (h)(4)(i) of this section, 
by the system average locomotive unit hours per unit for the applicable 
type developed in paragraph (h)(4)(ii) of this section.
    (5) The cost assigned to the segment for each type of locomotive 
shall be calculated by multiplying the annual return on investment 
developed in paragraph (h)(3) of this section by the ratio(s) developed 
in paragraph (h)(4) of this section.
    (i) Revenue taxes. The amount of revenue taxes shall be computed 
based on the amounts directly paid in those states that subject the 
railroad to a revenue tax.
    (j) Property taxes (Line). (1) The assigned costs under this 
subsection shall be the net systemwide property tax savings resulting 
from the abandonment, calculated as set out below, if the applicant-
carrier intends subsequently to sell or otherwise dispose of the 
abandoned properties. If the applicant-carrier expresses an intent to 
dispose of the properties, it will be presumed that the properties will 
ultimately be sold or otherwise disposed of after abandonment. 
Protestants may rebut this presumption by showing that it would be 
financially beneficial to retain ownership of the property for 
investment purposes.
    (2) In states where a true ad valorem tax is levied on real property 
(such as track, land, buildings, and other facilities), applicant must 
affirm that the ad valorem method applies and must substantiate the 
amount of property taxes levied against the property on the line 
segment.
    (3) In states where the ad valorem method is not employed, applicant 
must describe the applicable property tax methodology if it is claiming 
the local property tax as an avoidable cost of operations. Additionally, 
it must substantiate with evidence and computations the actual statewide 
tax savings attributable to the abandonment.
    (4) Any property tax properly substantiated under paragraphs (j)(2) 
or (3) of this section shall be presumed to represent systemwide savings 
to the carrier. Protestants may rebut this presumption by presenting 
evidence:
    (i) That property taxes in those states where the carrier operates 
that

[[Page 229]]

are not involved in the abandonment will increase significantly because 
of reassessments attributable to the abandonment; or
    (ii) That a significantly higher property tax will be levied against 
a retained portion of the abandoned property. If applicant does not 
refute protestant's evidence, it may claim avoidable property taxes only 
if, and to the extent, it proves systemwide property tax savings.
    (5) In states where real property taxes are assessed and levied 
against the owner of the property but the tax on rolling stock is 
assessed to the railroad operating the service on the basis of a formula 
of a statewide valuation of property, the tax on rolling stock 
attributable to each line segment shall be determined as follows:
    (i) Using ratio of the cost of equipment (as used in the formula) to 
the total of all property costs (as used in formula);
    (ii) Apply that ratio to the total state assessment to determine the 
portion of the assessment attributable to rolling stock;
    (iii) Allocate the rolling stock assessment thus determined to each 
line segment on the basis of car and locomotive unit miles on the 
segment to total car and locomotive unit miles in the state; and
    (iv) Apply the appropriate tax rate or rates to the allocated 
assessment thus determined.
    (k) Administrative costs. The costs assigned under this account 
shall be the actual costs directly attributable to the administration of 
the subsidy program or at the option of the carrier, one percent of the 
total annual revenues attributed to the branch shall be allowable to 
cover all costs of administering the subsidy program. Either method may 
be used, but not both.
    (l) Casualty reserve account. The costs assigned under this account 
shall be any payments mutually agreed to by the person offering the 
subsidy and the railroad for the purpose of holding the subsidizer 
harmless from any liability under those accounts that are used to record 
any costs incurred by the railroad as a result of an accident.
    (m) Rehabilitation. (1) For abandonment purposes the applicant 
carrier shall project the amounts necessary to permit efficient 
operations over the line segment. The carrier shall indicate the level 
of FRA class safety standard to be attained with the amount of 
expenditure. See 49 CFR part 213. Applicant, in making its projection of 
rehabilitation costs, shall give consideration to:
    (i) The cost to attain the lowest operationally feasible track 
level;
    (ii) The cost to attain the rehabilitation level resulting in the 
lowest operating and rehabilitation expenditures; or
    (iii) The cost to attain the rehabilitation level resulting in the 
lowest loss, or highest profit, from operations.
    (2) For subsidy purposes rehabilitation costs shall not be included 
unless:
    (i) The track fails to meet minimum Federal Railroad Administrative 
class 1 safety standards (49 CFR part 213), in which case the railroad 
will furnish, with the abandonment application, a detailed estimate of 
the costs to rehabilitate the track to the minimum level; or
    (ii) The potential subsidizer requests a level of service which 
requires expenditures for rehabilitation.
    (n) Off-branch costs. The off-branch costs developed in this section 
shall be separated between ``off-branch costs other than return on 
freight cars'' and ``return on value-freight cars''. The off-branch 
costs shall be developed in the following manner:
    (1) Terminal costs, line-haul costs, interchange costs, and modified 
terminal costs shall be considered as the off-branch avoidable costs of 
providing service over the remainder of the railroad's system. These 
costs shall be computed by applying the variable unit costs to the 
service units attributed to the branch line's traffic for the time 
periods specified in Sec.  1152.22(d) of this part.
    (2) The procedure for determining the off-branch costs shall be 
based upon the URCS cost formula. This formula shall be applied to the 
latest Annual Report Form R-1 filed by the railroad, with two 
exceptions. First, the amount used in the formula for freight car 
depreciation shall be calculated using the procedure discussed in 
paragraph (g)(3)(iii) of this section applied to the

[[Page 230]]

average total car fleet of the railroad. Second, the return on 
investment in freight cars shall be computed using the procedure set 
forth in paragraph (g)(3)(ii) of this section. In addition, the 
application of URCS shall include the use of the nominal cost of capital 
for all return on investment determinations.
    (3) The Class I Procedure: A Class I railroad shall calculate its 
off-branch costs using the Class I procedure as set forth below in this 
paragraph.
    (i) The unit costs developed by applying URCS in the manner 
specified in paragraph (n)(2) of this section shall be applied to the 
service characteristics of each movement of traffic that is attributed 
to the branch line. This application shall result in the total off-
branch cost associated with this traffic for normal terminal handlings, 
line-haul mileage, and interchange events.
    (ii) The modified terminal cost per carload shall be calculated 
separately for each type of freight car and applied to each car that is 
attributed to the branch line. The modified terminal cost shall consist 
of clerical costs, two days of freight car cost, and an inter-intra 
train switching cost (locomotive engine minute cost only). The clerical 
cost and inter-intra train switching cost shall be calculated from unit 
costs developed within the individual URCS application.
    (A) The unit costs for the clerical cost per carload calculation are 
located in URCS Worktable E1, Part 1: Line 106, columns 1, 2, and 3; 
line 107, column 1; line 108, column 1; line 109, column 1; and line 
110, column 1.
    (B) The inter-intra train switching cost shall be calculated by 
multiplying the total switch engine minute cost from URCS Worktable E1, 
Part 1, line 111, columns 1, 2, and 3 by the total minutes specified in 
the next sentence. The total minutes specified in this sentence shall 
equal the sum of:
    (1) The minutes per switch event from Worktable E2, Part 1, line 
118, column 29; and
    (2) The product of the minutes per switch event from Worktable E2, 
Part 1, line 118, column 29 and the ratio of loaded to total car miles 
for the particular type of freight car being costed.
    (C) The freight car cost shall be the car ownership costs per car 
day for 2 days developed in accordance with the procedures set forth in 
paragraph (g)(3) of this section for the type of freight car being 
costed.
    (iii) For a Class I railroad, the total costs calculated using the 
procedures set forth in paragraphs (n)(3)(i) and (n)(3)(ii) of this 
section shall constitute the off-branch costs attributable to the branch 
line's traffic.
    (4) A Class II or Class III railroad shall calculate its off-branch 
costs using any one of three different procedures. The Class I 
Procedure: A Class II or Class III railroad may calculate its off-branch 
costs using the Class I procedure set forth in paragraph (n)(3) of this 
section, if the necessary data are available from the railroad's own 
records. If the data necessary to complete the Class I procedure set 
forth in paragraph (n)(3) of this section are not available from the 
railroad's own records, the Class II or Class III railroad shall 
calculate its off-branch costs using either one of the following 
procedures based on the latest regional URCS data and the railroad's own 
records. The Class II/III Simplified Costing Procedure: A Class II or 
Class III railroad may calculate its off-branch costs using the Class I 
procedure set forth in paragraph (n)(3) of this section, with regional 
URCS data of the Class I railroads used in lieu of individual URCS data 
of the Class II or Class III railroad. Costs developed through the use 
of the Class II/III simplified costing procedure shall enjoy a 
rebuttable presumption of correctness. The Class II/III Standard Costing 
Procedure: A Class II or Class III railroad may calculate its off-branch 
costs using the Class II/III standard costing procedure set forth in 
paragraphs (n)(4)(i) through (n)(4)(xiv) of this section. Costs 
developed through the use of the Class II/III standard costing procedure 
shall be given preference over costs developed through the use of the 
Class II/III simplified costing procedure. The Class II/III standard 
costing procedure is set forth in paragraphs (n)(4)(i) through 
(n)(4)(xiv) of this section.

[[Page 231]]

    (i) The Class II or Class III railroad shall first determine which 
URCS regional application will be used based on its geographical 
location. The railroad's total estimated system variable expenses are 
calculated by multiplying its total operating expenses by the ratio of 
variable expenses to total expenses; this ratio is located in Worktable 
D8, Part 6, line 615, column 1 of the URCS printout for the appropriate 
region. If a railroad has passenger and freight service, the freight 
portion of the total estimated system variable expenses shall be 
calculated by multiplying the total estimated system variable expenses, 
calculated as above, by the ratio of freight related operating expenses 
to total railway operating expenses.
    (ii) The total number of revenue carload terminal handlings, as 
determined from the railroad's records, shall be calculated as the sum 
of:
    (A) Originated and terminated (local) revenue carloads multiplied by 
2; plus
    (B) Interchanged and either originated or terminated (interline) 
revenue carloads.
    (iii) The total number of revenue carload interchange handlings, as 
determined from the railroad's records, shall be calculated as the sum 
of:
    (A) Bridge (interchange to interchange) revenue carloads multiplied 
by 2; plus
    (B) Revenue carloads that are interchanged and either originated or 
terminated (interline).
    (iv) The system average shipment weight per car, as determined from 
the railroad's records, shall be calculated by dividing:
    (A) Ton-miles-revenue freight by
    (B) Loaded freight car miles.
    (v) The system average loaded car miles per car, as determined from 
the railroad's records, shall be calculated by dividing:
    (A) Revenue ton-miles by
    (B) Revenue tons.
    (vi) The railroad shall complete a URCS Phase III ``Movement Costing 
Program'' based on the application of URCS data for the appropriate 
region. The following data shall be inputs to the Phase III program 
application.
    (A) The carrier code, either ``REG 4'' or ``REG 7'', shall 
correspond to the appropriate region.
    (B) The type of shipment shall be designated as ``OD'' in order for 
the movement to be costed as an interline movement.
    (C) The distance shall be the system average loaded car miles per 
car as developed in paragraph (n)(4)(v) of this section.
    (D) The type of freight car shall be identified as a Box, General 
Service Equipped, which has an input user code of ``3''. If all of the 
traffic on the branch line is transported in a single type of car, and 
it is not a Box, General Service Equipped, the code for that type of car 
may be substituted.
    (E) The number of freight cars shall be ``1''.
    (F) The car ownership factor shall be designated as ``R'' for 
railroad owned cars unless all of the branch line traffic is moved in 
privately owned cars, in which case the code ``P'' for privately owned 
cars would be the input.
    (G) The program requires a loss and damage input. The code ``48'', 
representing the average of all commodities, shall be used.
    (H) The input for shipment weight shall be the system average 
shipment weight per car developed in paragraph (n)(4)(iv) of this 
section.
    (I) The input for type of movement shall be ``1'', representing an 
individual car movement.
    (vii) The ratios employed to separate the total estimated system 
variable expenses, as determined in paragraph (n)(4)(i) of this section, 
among terminal, interchange, and line-haul operations shall be based on 
the procedures outlined in this paragraph (n)(4)(vii). This separation 
shall reflect the variable costs resulting from the application of the 
URCS Phase III program based on the input factors specified in paragraph 
(n)(4)(vi) of this section. The ratios shall be calculated in the 
following manner:
    (A) The terminal expenses calculated by the application of the Phase 
III program shall consist of the following:
    (1) ``Carload and Clerical Costs'' shall be calculated as the sum of 
lines 256, 258, 260, 262, 264, 266, and 268.

[[Page 232]]

    (2) Switching expenses based on ``Total SEM-Industry'' shall be 
calculated by multiplying:
    (i) The sum of lines 315, 317, and 319, by
    (ii) Line 311.
    (3) Car mile yard cost ``CM(Y)-Industry'' shall be calculated by 
multiplying:
    (i) The sum of lines 426, 428, and 430, by
    (ii) Line 422.
    (4) Car day yard cost ``CD(Y)-Industry'' and ``CD(Y)-L&UL'' shall be 
calculated by multiplying:
    (i) The sum of lines 452, 454, and 456, by
    (ii) The sum of lines 446 and 450.
    (5) The expenses for accessorial services for railroad owned cars 
shall be calculated as the sum of:
    (i) The product of line 422 and the sum of lines 464, 466, and 468; 
plus
    (ii) The product of the sum of lines 446 and 450 and the sum of 
lines 476, 478, and 480.
    (B) The interchange expenses calculated by the application of the 
Phase III program shall consist of the following:
    (1) Switching expenses based on ``Total SEM-Interchange'' shall be 
calculated by multiplying
    (i) The sum of lines 315, 317, and 319, by
    (ii) Line 312.
    (2) Car mile cost in interchange ``CM(Y)-Interchange'' shall be 
calculated by multiplying:
    (i) The sum of lines 426, 428, and 430, by
    (ii) Line 423.
    (3) Car day cost in interchange ``CD(Y)-Interchange (L&E)'' shall be 
calculated by multiplying:
    (i) The sum of lines 452, 454, and 456, by
    (ii) Line 447.
    (4) The expenses for accessorial services for railroad owned cars 
shall be calculated as the sum of:
    (i) The product of line 423 and the sum of lines 464, 466, and 468; 
plus.
    (ii) The product of line 447 and the sum of lines 476, 478, and 480.
    (C) The line-haul expenses resulting from the application of the 
Phase III program shall be calculated by subtracting the sum of:
    (1) The terminal expenses as determined in paragraph (n)(4)(vii)(A) 
of this section, and
    (2) The interchange expenses as determined in paragraph 
(n)(4)(vii)(B) of this section, from
    (3) The total variable cost excluding loss and damage as calculated 
in the Phase III program at line 696.
    (D) The ratio for terminal expenses shall be calculated by dividing 
the terminal expenses as determined in paragraph (n)(4)(vii)(A) of this 
section by the total variable cost excluding loss and damage as 
calculated in the Phase III program at line 696.
    (E) The ratio for interchange expenses shall be calculated by 
dividing the interchange expenses as determined in paragraph 
(n)(4)(vii)(B) of this section by the total variable cost excluding loss 
and damage as calculated in the Phase III program at line 696.
    (F) The ratio for line-haul expenses shall be calculated by dividing 
the line-haul expenses as determined in paragraph (n)(4)(vii)(C) of this 
section by the total variable cost excluding loss and damage as 
calculated in the Phase III program at line 696.
    (viii) The railroad's total estimated system variable expenses shall 
be separated as follows:
    (A) The total terminal variable expenses shall be calculated by 
multiplying the total estimated system variable expenses as determined 
in paragraph (n)(4)(i) of this section by the ratio for terminal 
expenses as determined in paragraph (n)(4)(vii)(D) of this section.
    (B) The total interchange variable expenses shall be calculated by 
multiplying the total estimated system variable expenses as determined 
in paragraph (n)(4)(i) of this section by the ratio for interchange 
expenses as determined in paragraph (n)(4)(vii)(E) of this section.
    (C) The total line-haul variable expenses shall be calculated by 
multiplying the total estimated system variable expenses as determined 
in paragraph (n)(4)(i) of this section by the ratio for line-haul 
expenses as determined in paragraph (n)(4)(vii)(F) of this section.

[[Page 233]]

    (ix) The railroad's unit costs shall be determined for terminal, 
interchange, and line-haul operations as follows:
    (A) The terminal cost per carload shall be calculated by dividing 
the total terminal variable expenses as determined in paragraph 
(n)(4)(viii)(A) of this section by the total number of revenue carload 
terminal handlings as determined in paragraph (n)(4)(ii) of this 
section.
    (B) The interchange cost per carload shall be calculated by dividing 
the total interchange variable expenses as determined in paragraph 
(n)(4)(viii)(B) of this section by the total number of revenue carload 
interchange handlings as determined in paragraph (n)(4)(iii) of this 
section.
    (C) The line-haul cost per car mile shall be calculated by dividing 
the total line-haul variable expenses as determined in paragraph 
(n)(4)(viii)(C) of this section by the total system freight car miles, 
loaded and empty, as determined from the railroad's records.
    (x) The modified terminal cost per carload is a composite of costs 
developed in the Phase III program and costs determined in accordance 
with paragraph (g) of this section and this paragraph. The modified 
terminal cost per carload shall be calculated for each type of car as 
follows:
    (A) The station clerical cost per carload shall be developed in the 
following manner:
    (1) The station clerical expense ratio shall be calculated by 
dividing the total clerical cost (the sum of lines 256, 258, 260, 262, 
264, 266, and 268) by the terminal expenses as determined in paragraph 
(n)(4)(vii)(A) of this section.
    (2) The station clerical cost per carload shall be calculated by 
multiplying the terminal cost per carload as determined in paragraph 
(n)(4)(ix)(A) of this section by the station clerical expense ratio.
    (B) The interchange switching cost per carload shall be developed in 
the following manner:
    (1) The total interchange switching expense shall be calculated by 
multiplying the sum of lines 315, 317, and 319 by line 312.
    (2) The interchange switching ratio shall be calculated by dividing 
the total interchange switching expense by the interchange expenses as 
determined in paragraph (n)(4)(vii)(B) of this section.
    (3) The interchange switching cost per carload shall be calculated 
by multiplying the interchange cost per carload as determined in 
paragraph (n)(4)(ix)(B) of this section by the interchange switching 
ratio.
    (C) The freight car cost element shall be the freight car cost per 
car day for 2 days as developed for each car type in paragraph (g)(3) of 
this section.
    (D) The modified terminal cost per carload shall be the total of the 
costs developed in paragraphs (n)(4)(x)(A), (n)(4)(x)(B), and 
(n)(4)(x)(C) of this section.
    (xi) The terminal costs shall be calculated by multiplying the 
terminal cost per carload as determined in paragraph (n)(4)(ix)(A) of 
this section by the number of carloads that both:
    (A) Originated or terminated on the branch, and
    (B) Are local to the railroad serving the branch.
    (xii) The interchange costs shall be calculated by multiplying the 
interchange cost per carload as determined in paragraph (n)(4)(ix)(B) of 
this section by the number of carloads that both:
    (A) Originated or terminated on the branch; and
    (B) Are received in or forwarded through interchange with other 
railroads.
    (xiii) The line-haul costs shall be calculated by multiplying the 
line-haul cost per car mile as determined in paragraph (n)(4)(ix)(C) of 
this section by the total loaded and empty car miles generated on the 
railroad's system off the branch by cars that originated or terminated 
on the branch.
    (xiv) The modified terminal costs shall be calculated by multiplying 
the modified terminal cost per carload as determined in paragraph 
(n)(4)(x)(D) of this section by the number of carloads that originated 
or terminated on the branch.
    (o) Locomotive depreciation. The depreciation expense for 
locomotives used on the line shall be calculated using the following 
procedure:
    (1) The current replacement cost for each type of locomotive used to 
serve

[[Page 234]]

the line will be based on the most recent purchase of that particular 
type and size locomotive by the carrier indexed to the midpoint of the 
year or on an amount quoted by the manufacturer.
    (2) The depreciation rate that will be applied to the replacement 
cost shall be the carrier's component rate for each type of locomotive 
as reported in the latest Annual Report Form R-1 submitted to the Board 
or from the company records. Carriers using depreciation rates based on 
company records must explain why composite rates are inappropriate; 
provide a detailed explanation of the methodology used to compute the 
alternate depreciation rate; and demonstrate that these rates have been 
used consistently.
    (3) The annual depreciation cost for each type of locomotive shall 
be calculated by multiplying the replacement cost(s) developed in 
paragraph (o)(1) of this section by the rate from paragraph (o)(2) of 
this section.
    (4) The depreciation expense for each type of locomotive shall be 
assigned to the line on the ratio of the hours incurred serving the line 
to the average system locomotive unit hours in service by each of the 
following categories of locomotives: yard-diesel; yard-other; road-
diesel; and road-other. The ratio for each type of locomotive used to 
serve the line shall be the same as that developed in paragraph (h)(4) 
of this section.
    (5) The depreciation shall be calculated by multiplying the annual 
depreciation expense for each type of locomotive developed in paragraph 
(o)(3) of this section by the ratio(s) developed in paragraph (o)(4) of 
this section.
    (p) Opportunity costs. Applicant-carrier may, at its discretion, 
present evidence of its opportunity costs, if the assets engaged in the 
line proposed to be abandoned could be used more profitably in some 
other capacity.
    Opportunity costs may be calculated in accordance with the 
methodology established in Sec.  1152.34 of this part, or by using any 
other reasonable, fully explained method. Opportunity costs are not 
included as costs on Exhibit 1 described at Sec.  1152.36. These costs 
should be submitted as a separate exhibit to the application.
    (q) Labor costs. (1) The salaries, wages and fringe benefits of 
personnel exclusively assigned to the line segment shall be deemed 
attributable costs of the segment. The salaries, wages, and fringe 
benefits of personnel not exclusively assigned to the line segment shall 
be deemed attributable costs of the segment to the extent they are shown 
to be apportionable to the segment to be abandoned.
    (2) These costs shall be deemed attributable notwithstanding any 
obligation of applicant to provide employee protection for employees 
after the abandonment.

[61 FR 67883, Dec. 24, 1996, as amended at 81 FR 8855, Feb. 23, 2016]



Sec.  1152.33  Apportionment rules for the assignment of expenses to
on-branch costs.

    The accounts specified under Sec.  1152.32 (a), (b), (c), and (d) as 
having an assignment basis other than ``Actual'' shall be apportioned 
according to the rules contained in this section.
    (a) Maintenance of way and structures--(1) Roadway machines. All 
accounts designated XX-13-36 shall be assigned to the branch on the 
basis of the average repair costs, for each type of machine, included in 
the daily rental fees charged by the operating railroad or as published 
by the General Manager's Association of Chicago (GMA), based on the 
actual number of days each type of machine is used on the branch.
    (2) Small tools and supplies. All accounts designated XX-13-37 shall 
be assigned to the branch as follows:
    (i) The costs of supplies, consumed in the operation of roadway 
machines, shall be assigned to the branch on the basis of the average 
costs of supplies per day, included in the daily rental fees charged by 
the operating railroad or as published by the GMA, multiplied by the 
actual number of days that the machine is used on the branch;
    (ii) The costs of small tools shall be assigned to the branch on the 
basis of the ratio that the branch amounts in Accounts 11-11-10 through 
11-11-17 and 11-11-48, plus 11-12-10 through 11-12-17 and 11-12-48, bear 
to the railroad's system total for the same accounts.

[[Page 235]]

    (3) Fringe benefits. Fringe benefits shall be assigned to the branch 
separated between running, switching and other, on the ratio that the 
total branch salary and wages bear to the total system salaries and 
wages for each activity as follows:
    (i) Fringe benefits--Running, Account 12-11-00, total of all 11-11-
XX accounts branch to system;
    (ii) Fringe benefits--Switching, Account 12-12-00, total of all 11-
12-XX accounts branch to system; and
    (iii) Fringe benefits--Other, Account 12-13-00, total of all 11-13-
XX accounts branch to system.
    (b) Maintenance of equipment--(1) Locomotive repairs and 
maintenance. All accounts designated XX-21-41 shall be separated between 
yard and road with a further separation between diesel and other 
(electric). The costs for these accounts for yard locomotives shall be 
assigned to the branch separately for diesel and electric locomotives on 
the basis of the ratio of branch diesel and electric yard locomotive 
unit-hours to the total system diesel and electric yard locomotive unit-
hours. The costs for these accounts for road locomotives shall be 
assigned to the branch separately for diesel and electric locomotives on 
the basis of the ratio of branch diesel and electric locomotive gross 
ton-miles in road service to the total system diesel and electric 
locomotive gross ton-miles in road service. The costs assigned under 
these accounts for specialized equipment devoted exclusively to branch 
line service shall be the actual costs for the specific equipment used.
    (2) Locomotive depreciation. Locomotive depreciation shall be 
calculated and assigned in accordance with the procedures set forth in 
Sec.  1152.32(o).
    (3) Fringe Benefits. Fringe benefits for locomotives and other 
equipment shall be assigned to the branch on the ratio that the total 
branch salary and wages bear to the system total salaries and wages for 
each type of equipment as follows:
    (i) Locomotives--Account 12-21-00, total of all 11-21-XX accounts 
branch to system.
    (ii) Other Equipment--Account 12-23-00, total of all 11-23-XX 
accounts branch to system.
    (iii) Fringe benefits for freight cars shall be calculated by first 
estimating the total in Account 11-22-42, Freight car repairs--salaries 
and wages, that is included in the total on branch costs for freight 
cars as determined from the car-day and car-mile cost calculations in 
Sec.  1152.32(g) of these regulations. To this amount is added the 
branch totals in the balance of all 11-22-XX accounts. The ratio of this 
total branch account to the system total for all 11-22-XX accounts is 
applied to Account 12-22-00, Fringe Benefits--Freight Cars.
    (c) Transportation--(1) Train operations--(i) Engine Crews-
Materials. Account 21-31-56; Train Crews-Materials, Account 21-31-57; 
Train Inspection and Lubrication-Salaries and Wages, Account 11-31-62; 
and Train Inspection and Lubrication-Materials, Account 21-31-62. If the 
branch is served by a local/way or through train, the costs in these 
accounts shall be assigned to the branch on the weighted ratio of the 
loaded freight train cars on the branch to the total system loaded 
freight train cars, and the loaded and empty car-miles on the branch to 
the total system loaded and empty car-miles. This shall be calculated as 
follows:
    (A) To determine the car-mile portion of these accounts:
    (1) Multiply the total amounts in these accounts (from the R-1 
Annual Report, Schedule 410) by 69 percent, which is the ratio of train-
mile and running expenses;
    (2) Divide the amount in paragraph (c)(1)(i)(A)(1) of this section 
by the total system loaded and empty car-miles; and
    (3) Multiply the car-mile unit cost factor from paragraph 
(c)(1)(i)(A)(2) of this section by the on-branch car-miles (loaded and 
empty).
    (B) To determine the carload portion of these accounts:
    (1) Multiply the total amounts in these accounts by 31 percent, 
which is the ratio of terminal expenses;
    (2) Divide the amount in paragraph (c)(1)(i)(B)(1) of this section 
by the total system carloads; and
    (3) Multiply the carload unit cost factor from paragraph 
(c)(1)(i)(B)(2) of this section by the on-branch carloads.

[[Page 236]]

    (C) To determine the total costs assignable to the branch for these 
accounts, add the amounts developed in paragraphs (c)(1)(i)(A)(3) and 
(c)(1)(i)(B)(3) of this section.
    (ii) All accounts designated xx-31-67 shall be assigned to the 
branch in accordance with the following procedure. The dollar amounts 
used in the determination of locomotive fuel costs shall be based on 
data contained in the most recent publication issued by the General 
Managers Association (GMA) relating to the rental of locomotives. The 
total number of locomotive unit hours incurred by the locomotive(s) 
shall then be categorized according to the applicable GMA horsepower 
classification group. The fuel cost is derived from the Repairs and 
Supplies Expenses element of the locomotive rental rates published by 
the GMA. The fuel cost per locomotive unit hour shall be determined for 
each GMA horsepower classification group by multiplying the latest GMA 
fuel cost percentage by the Repairs and Supplies Expense per hour 
included in each group. The fuel cost update ratio is determined by 
using the indices for fuel from the Association of American Railroad's 
(AAR's) Railroad Cost Recovery Index (RCR). The indices shall be taken 
from the district to which the railroad is assigned by the Board. The 
index for the current period is divided by the index of the period 
representative of the GMA publication to develop the fuel update ratio. 
The fuel cost per locomotive unit hour developed for each GMA horsepower 
group shall be multiplied by the fuel update ratio to determine the fuel 
cost per locomotive hour for each horsepower group. The updated fuel 
cost per locomotive unit hour for each applicable GMA group shall be 
multiplied by the number of locomotive unit hours incurred in serving 
the branch by locomotives of that GMA horsepower classification group. 
The total cost developed under this procedure for each horsepower 
classification shall be the locomotive fuel cost assignable to the 
branch line.
    (iii) Electric power purchased or produced for motive power--All 
accounts designated XX-31-68 shall be assigned to the branch on the 
ratio of road electric locomotive unit hours on the branch to the total 
system road electric locomotive unit hours.
    (iv) Servicing locomotives--All accounts designated XX-31-69 shall 
be assigned to the branch on the ratio of road locomotive unit miles on 
the branch to the total system road locomotive unit miles.
    (2) Yard operations--(i) Switch Crews--Materials, Account 21-32-64, 
and Servicing Locomotives, all accounts designated XX-32-69. The costs 
for these accounts shall be assigned to the branch on the ratio of yard 
locomotive unit hours on the branch to the system total yard locomotive 
unit hours.
    (ii) Locomotive fuel--All accounts designated XX-32-67 shall be 
assigned to the branch on the ratio of yard diesel locomotive unit hours 
on the branch to the total system yard diesel locomotive unit hours.
    (iii) Electric power purchased or produced for motive power--All 
accounts designated XX-32-68 shall be assigned to the branch on the 
ratio of yard electric locomotive unit hours on the branch to the total 
system yard electric locomotive unit hours.
    (3) Administrative support operations--(i) Loss and damage claims 
processing--All accounts designated XX-35-78 shall be assigned to the 
branch on the ratio of the number of claims processed for loss or damage 
occurring on the branch to the total number of claims processed by the 
railroad.
    (ii) [Reserved]
    (4) Transportation fringe benefits. Fringe benefits shall be 
assigned to the branch separated between train operations, yard 
operations, train and yard operations common, specialized service 
operations, and administrative support operations. The costs for each 
activity shall be assigned to the branch on the ratio that the total 
branch salary and wages bear to the total system salary and wages for 
each activity shown below.
    (i) Train Operations, Account 12-31-00, total of all 11-31-XX 
accounts branch to system.
    (ii) Yard Operations, Account 12-32-00, total of all 11-32-XX 
accounts branch to system.
    (iii) Train and Yard Operations Common, Account 12-33-00, total of 
all 11-33-XX accounts branch to system.

[[Page 237]]

    (iv) Specialized Service Operations, Account 12-34-00, total of all 
11-34-XX accounts branch to system.
    (v) Administrative Support, Account 12-35-00, total of all 11-35-XX 
accounts branch to system.
    (d) General administrative. (1) Fringe Benefits, Account 12-61-00, 
shall be assigned to the branch on the ratio that the total branch 
salary and wages in all 11-61-XX accounts bear to the system total 
salary and wages in all 11-61-XX accounts.
    (2) [Reserved]



Sec.  1152.34  Return on investment.

    Return on investment for road property shall be computed according 
to the procedures set forth in this section.
    (a)-(b) [Reserved]
    (c) Return on investment--road properties. Return on investment--
road properties shall be computed according to the following procedures:
    (1) The investment base to which the nominal return element shall 
apply shall be the sum of:
    (i) The allowable working capital computed at 15 days on-branch cash 
avoidable costs (on branch avoidable costs less depreciation).
    (ii) The amount of current income tax benefits resulting from 
abandonment of the line which would have been applicable to the period 
of the subsidy agreement. (Conversely, if the railroad would incur an 
income tax liability from abandonment, the liability should be deducted 
from the investment base.) This information is to be furnished by the 
railroad and subject to audit by the person offering the subsidy.
    (iii) The net liquidation value for the highest and best use for 
non-rail purposes of the rail properties on the line to be subsidized 
which are used and required for performance of the services requested by 
the persons offering the subsidy. This value shall be determined by 
computing the current appraised market value of such properties for 
other than rail transportation purposes, less all costs of dismantling 
and disposition of improvements necessary to make the remaining 
properties available for their highest and best use and complying with 
applicable zoning, land use, and environmental regulations. If 
rehabilitation has been performed along the line during a subsidy year 
and rehabilitation expenses have been paid by the subsidizer under 49 
CFR 1152.32(m)(2), the investment base shall exclude the increment to 
the net liquidation value of the line caused by the rehabilitation 
project. For these purposes:
    (A) In calculating the net liquidation values for the Forecast Year, 
no asset on the line shall be excluded from the determination of net 
liquidation value because it contributes negatively to that value, i.e., 
the removal costs exceed the market value after removal. All such assets 
shall be included in the net liquidation value determination if the 
carrier is required by law to remove them or if the carrier intends to 
remove them, even if it is not required to do so. The parties shall 
fully support and explain the exclusion for net liquidation purposes of 
all assets having a negative salvage value.
    (1) In calculating the net liquidation value of railroad properties 
for the purpose of determining the operating subsidy under an offer of 
financial assistance, any asset with a negative salvage value shall be 
included at a value of zero (0).
    (2) Determination of the net liquidation value of rail properties 
for the purpose of purchasing the rail properties under an offer of 
financial assistance shall include any asset with a negative salvage 
value at a value of zero (0).
    (B) All adjustments to the appraised fair market value of right-of-
way land, including a downward adjustment to reflect an imputed real 
estate Board or selling expense, shall be fully supported and explained.
    (C) Parties shall fully support and explain their use of unadjusted 
across-the-fence (ATF) values as a surrogate for the value of railroad 
right-of-way land, given that the physical and economic characteristics 
(grading and elevation) usually are different from those of surrounding 
parcels. All adjustments to ATF values to arrive at the right-of-way 
values shall also be supported and explained.
    (2) [Reserved]
    (d) Reasonable return. A rail carrier shall furnish to the Board, 
and to any

[[Page 238]]

financially responsible person considering making an offer of a rail 
service continuation payment, a substantiated statement showing its 
current nominal cost of capital. The railroad's nominal cost of capital 
shall be the current before tax cost of capital, weighted to the capital 
structure, and adjusted for the effects of the combined statutory 
Federal and state income tax rates. This rate of return expressed as a 
percent, shall be calculated as follows:
    (1) The railroad shall determine its permanent capital structure 
ratio for debt and equity capital such that the two numbers total 100 
percent. This capital structure will be the actual capital structure of 
the railroad. If this calculation is not possible or also not 
representative because the railroad is part of a conglomerate, the debt-
equity ratio from the Board's latest Determination of Adequate Railroad 
Revenues will be used. However, if the debt-equity ratio for the 
railroad industry is used then the industry average equity and debt rate 
from the Board's latest revenue adequacy finding must also be used in 
paragraphs (d)(2) and (d)(3) of this section.
    (2) The current nominal cost of debt shall be determined by taking 
the average of all debt instruments (including bonds, equipment trust 
certificates, financial lease arrangements, et cetera) issued by the 
carrier in the most recent 12-month period. The debt cost calculated by 
this procedure is a before-tax rate and is not adjusted for inflation or 
income taxes.
    (3) The current nominal after tax cost of equity shall be an amount 
equal to that which a prudent investor would expect to earn through 
investment in the market place. The current after tax nominal cost of 
equity is divided by 1 minus the combined statutory Federal and state 
income tax rates. This will develop the nominal cost of equity on a 
before tax basis.
    (4) The current nominal before-tax cost of debt is multiplied by the 
current percentage of debt to total capital to obtain a weighted before-
tax nominal cost of current debt.
    (5) The current nominal before-tax cost of equity is multiplied by 
the current percentage of equity to total capital to obtain a weighted 
nominal before-tax cost of current equity.
    (6) The results of paragraphs (d)(4) and (d)(5) of this section are 
added together to determine the current nominal cost of capital.
    (e) Holding gain (loss)-road properties. The railroad shall 
determine the holding gain (loss) that is projected to occur during the 
forecast and/or subsidy year. In any instance where the holding gain is 
not specifically determined for road properties, the Gross Domestic 
Product deflator calculated by the U.S. Department of Commerce shall be 
used.



Sec.  1152.35  [Reserved]



Sec.  1152.36  Submission of revenue and cost data.

    The following information shall be submitted by applicant as Exhibit 
1 to an abandonment or discontinuance application (Sec.  1152.22(d)) and 
shall be developed in accordance with the methodology established in 
Sec. Sec.  1152.31 through 1152.35, as applicable. Such information, 
form and methodology shall also be used by an offeror of financial 
assistance to formulate a Proposed Subsidy Payment (Sec.  1152.27).

[[Page 239]]



------------------------------------------------------------------------
                                                Forecast      Projected
                                  Base year       year      subsidy year
                                 operations    operations    operations
------------------------------------------------------------------------
Revenues attributable for:
    1. Freight originated and/
     or terminated on branch
    2. Bridge traffic
    3. All other revenue and
     income
    4. Total revenues
     attributable (lines 1
     through 3)
Avoidable costs for:
    5. On-branch costs (lines
     5a through 5k)
        a. Maintenance of way
         and structures
        b. Maintenance of
         equipment
        c. Transportation
        d. General
         administrative
        e. Deadheading, taxi,
         and hotel
        f. Overhead movement
        g. Freight car costs
         (other than return on
         freight cars)
        h. Return on value-
         locomotives
        i. Return on value-
         freight cars
        j. Revenue taxes
        k. Property taxes
    6. Off-branch costs
        a. Off-branch costs
         (other than return on
         freight cars)
        b. Return on value-
         freight cars
    7. Total avoidable costs
     (line 5 plus line 6)
Subsidization costs for:
    8. Rehabilitation \1\
    9. Administration costs
     (subsidy year only) \2\
    10. Casualty reserve
     account \2\
    11. Total subsidization
     costs (lines 8 through
     10)
Return on value:
    12. Valuation of property
     (lines 12a through 12c)
        a. Working capital....  XXXX........
        b. Income tax           XXXX........
         consequences.
        c. Net liquidation      XXXX........
         value.
    13. Nominal rate of return  XXXX........
    14. Nominal return on       XXXX........
     value (line 12 times line
     13) \3\.
    15. Holding gain (loss)...  XXXX........
    16. Total return on value   XXXX........
     (line 14 minus 15) \3\.
    17. Avoidable loss from
     operations (line 4 minus
     line 7)
    18. Estimated forecast
     year loss from operations
     (line 4 minus lines 7 and
     16)
    19. Estimated subsidy
     (line 4 minus lines 7, 11
     and 16)
------------------------------------------------------------------------
\1\ This projection shall be computed in accordance with Sec.
  1152.32(m).
\2\ Omit in applications pursuant to Sec.  Sec.   1152.22 and 1152.23.
\3\ If the amount in line 12c is a negative for the ``Forecast Year
  operations'' insert ``0'' in this line.



Sec.  1152.37  Financial status reports.

    Within 30 days after the end of each quarter of the subsidy year, 
each carrier which is party to the financial assistance agreement shall 
submit to the subsidizer a Financial Status Report for each line 
operated under subsidy. Such Financial Status Report shall be in the 
form prescribed below. Significant deviations from the negotiated 
estimates must be explained. All data shall be developed in accordance 
with the methodology set forth in Sec. Sec.  1152.31 through 1152.35. In 
the quarterly reports, the actual data for the year to date and a 
projection to the end of the subsidy year shall be shown for each item.

----------------------------------------------------------------------------------------------------------------
                                                       Actual                            Projected
----------------------------------------------------------------------------------------------------------------
Revenues for:
    1. Freight originated and/or
     terminated on branch
    2. Bridge traffic
    3. All other revenue and income
    4. Total revenues (lines 1 through 3)
Avoidable costs for:
    5. On-branch costs (lines 5a through
     5j)
        a. Maintenance of way and
         structures
        b. Maintenance of equipment
        c. Transportation
        d. General administrative
        e. Deadheading, taxi, and hotel

[[Page 240]]

 
        f. Overhead movement
        g. Freight car costs
        h. Return on investment--
         locomotives
        i. Revenue taxes
        j. Property taxes
    6. Off-branch costs
    7. Total avoidable costs (line 5 plus
     line 6)
Subsidization costs for:
    8. Rehabilitation
    9. Administrative costs
    10. Casualty
    11. Total subsidization costs (lines
     8 through 10)
Return on value:
    12. Valuation of property (lines 12a
     through 12c)
        a. Working capital
        b. Income tax consequences
        c. Net liquidation value
    13. Rate of return
    14. Total return on value (line 12
     times line 13)
Subsidy payment:
    15. Subsidy payment (line 4 minus
     lines 7, 11, and 14)
----------------------------------------------------------------------------------------------------------------

Subpart E [Reserved]



    Subpart F_Exempt Abandonments and Discontinuances of Service and 
                             Trackage Rights



Sec.  1152.50  Exempt abandonments and discontinuances of service and trackage rights.

    (a)(1) A proposed abandonment or discontinuance of service or 
trackage rights over a railroad line is exempt from the provisions of 49 
U.S.C. 10903 if the criteria in this section are satisfied.
    (2) Whenever the Board determines a proposed abandonment to be 
exempt from the requirements of 49 U.S.C. 10903, whether under this 
section or on the basis of the merits of an individual petition, the 
provisions of Sec. Sec.  1152.27, 1152.28, and 1152.29 as they relate to 
exemption proceedings shall be applicable.
    (b) An abandonment or discontinuance of service or trackage rights 
is exempt if the carrier certifies that no local traffic has moved over 
the line for at least 2 years and any overhead traffic on the line can 
be rerouted over other lines and that no formal complaint filed by a 
user of rail service on the line (or a state or local government entity 
acting on behalf of such user) regarding cessation of service over the 
line either is pending with the Board or any U.S. District Court or has 
been decided in favor of the complainant within the 2-year period. The 
complaint must allege (if pending), or prove (if decided) that the 
carrier has imposed an illegal embargo or other unlawful impediment to 
service.
    (c) The Board has found:
    (1) That its prior review and approval of these abandonments and 
discontinuances is not necessary to carry out the rail transportation 
policy of 49 U.S.C. 10101; and
    (2) That these transactions are of limited scope and continued 
regulation is unnecessary to protect shippers from abuse of market 
power. 49 U.S.C. 10502. A notice must be filed to use this class 
exemption. The procedures are set out in Sec.  1152.50(d). This class 
exemption does not relieve a carrier of its statutory obligation to 
protect the interests of employees. 49 U.S.C. 10502(g) and 10903(b)(2). 
This also does not preclude a carrier from seeking an exemption of a 
specific abandonment or discontinuance that does not fall within this 
class.
    (d) Notice of exemption. (1) At least 10 days prior to filing a 
notice of exemption with the Board, the railroad seeking the exemption 
must notify in writing:
    (i) The Public Service Commission (or equivalent agency) in the 
state(s) where the line will be abandoned or the service or trackage 
rights discontinued;

[[Page 241]]

    (ii) Department of Defense (Military Traffic Management Command, 
Transportation Engineering Agency, Railroads for National Defense 
Program);
    (iii) The National Park Service, Recreation Resources Assistance 
Division; and
    (iv) The U.S. Department of Agriculture, Chief of the Forest 
Service.
    The notice shall name the railroad, describe the line involved, 
including United States Postal Service ZIP Codes, indicate that the 
exemption procedure is being used, and include the approximate date that 
the notice of exemption will be filed with the Board. The notice shall 
include the following statement ``Based on information in our 
possession, the line (does) (does not) contain federally granted rights-
of-way. Any documentation in the railroad's possession will be made 
available promptly to those requesting it.''
    (2) The railroad must file a verified notice using its appropriate 
abandonment docket number and subnumber (followed by the letter ``X'') 
with the Board at least 50 days before the abandonment or discontinuance 
is to be consummated. The notice shall include the proposed consummation 
date, the certification required in Sec.  1152.50(b), the information 
required in Sec. Sec.  1152.22(a) (1) through (4), (7) and (8), and 
(e)(4), the level of labor protection, and a certificate that the notice 
requirements of Sec. Sec.  1152.50(d)(1) and 1105.11 have been complied 
with.
    (3) The Board, through the Director of the Office of Proceedings, 
shall publish a notice in the Federal Register within 20 days after the 
filing of the notice of exemption. The notice shall include a statement 
to alert the public that following any abandonment of rail service and 
salvage of the line, the line may be suitable for other public use, 
including interim trail use. Petitions to stay the effective date of the 
notice on other than environmental or historic preservation grounds must 
be filed within 10 days of the publication. Petitions to stay the 
effective date of the notice on environmental or historic preservation 
grounds may be filed at any time but must be filed sufficiently in 
advance of the effective date in order to allow the Board to consider 
and act on the petition before the notice becomes effective. Petitions 
for reconsideration, comments regarding environmental, energy and 
historic preservation matters, and requests for public use conditions 
under 49 U.S.C. 10905 and 49 CFR 1152.28(a)(2) must be filed within 20 
days after publication. Requests for a trail use condition under 16 
U.S.C. 1247(d) and 49 CFR 1152.29 must be filed within 10 days after 
publication. The exemption will be effective 30 days after publication, 
unless stayed. If the notice of exemption contains false or misleading 
information, the use of the exemption is void ab initio and the Board 
shall summarily reject the exemption notice.
    (4) In out-of-service rail line exemption proceedings under 49 CFR 
1152.50, the Board, on its own motion, will stay the effective date of 
individual notices of exemption when an informed decision on pending 
environmental and historic preservation issues cannot be made prior to 
the date that the exemption authority would otherwise become effective.
    (5) A notice or decision to all parties will be issued if use of the 
exemption is made subject to environmental, energy, historic 
preservation, public use and/or interim trail use and rail banking 
conditions.
    (6) To address whether the standard labor protective conditions set 
forth in Oregon Short Line R. Co.--Abandonment--Goshen, 360 I.C.C. 91 
(1979), adequately protect affected employees, a petition for partial 
revocation of the exemption under 49 U.S.C. 10502(d) must be filed.
    (e) Consummation notice. As provided in Sec.  1152.29(e)(2), rail 
carriers that receive authority to abandon a line under Sec.  1152.50 
must file with the Board a notice that abandonment has been consummated.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997]

[[Page 242]]



  Subpart G_Special Rules Applicable to Petitions for Abandonments or 
Discontinuances of Service or Trackage Rights Filed Under the 49 U.S.C. 
                        10502 Exemption Procedure



Sec.  1152.60  Special rules.

    (a) This section contains special rules applicable to any proceeding 
instituted under the 49 U.S.C. 10502 exemption procedure for either the 
abandonment of a rail line or the discontinuance of service or trackage 
rights over a rail line. General rules applicable to any proceeding 
filed under the 49 U.S.C. 10502 exemption procedure may be found at 49 
CFR part 1121, but the rules in part 1152 control in case of any 
conflict with the general exemption rules. In the case of petitions for 
exemption for abandonment, notice of the filing of the petition will be 
published by the Board, through the Director of the Office of 
Proceedings, in the Federal Register 20 days after the petition is 
filed. There will be no further Federal Register publication later if 
and when a petition is granted.
    (b) Any petition filed under the 49 U.S.C. 10502 exemption procedure 
for either the abandonment of a rail line or the discontinuance of 
service or trackage rights over a rail line must be accompanied by a map 
that meets the requirements of Sec.  1152.22(a)(4) of this part.
    (c) A petitioner for an abandonment exemption shall submit, with its 
petition, a draft Federal Register notice of its petition according to 
the form prescribed below:

    Draft Federal Register Notice. The petitioner shall submit a draft 
notice of its petition to be published by the Board within 20 days of 
the petition's filing with the Board. The petitioner must submit a copy 
of the draft notice as data contained on a computer diskette compatible 
with the Board's current word processing capabilities. The draft notice 
shall be in the form set forth below:

                    STB No. AB------- (Sub-No.------)

  Notice of Petition for Exemption To Abandon or To Discontinue Service

    On (insert date petition was filed with the Board) (name of 
petitioner) filed with the Surface Transportation Board, Washington, 
D.C. 20423, a petition for exemption for the abandonment of (the 
discontinuance of service on) a line of railroad known as------, 
extending from railroad milepost near (station name) to (the end of line 
or rail milepost) near (station name), which traverses through ------ 
(ZIP Codes) United States Postal Service ZIP Codes, a distance of ------ 
miles, in [County(ies), State(s)]. The line for which the abandonment 
(or discontinuance) exemption request was filed includes the stations of 
(list all stations on the line in order of milepost number, indicating 
milepost location).
    The line (does) (does not) contain federally granted rights-of-way. 
Any documentation in the railroad's possession will be made available 
promptly to those requesting it.
    The interest of railroad employees will be protected by (specify the 
appropriate conditions).
    Any offer of financial assistance will be due no later than 10 days 
after service of a decision granting the petition for exemption.
    All interested persons should be aware that following abandonment of 
rail service and salvage of the line, the line may be suitable for other 
public use, including interim trail use.
    Any request for a public use condition and any request for trail 
use/rail banking will be due no later than 20 days after notice of the 
filing of the petition for exemption is published in the Federal 
Register.
    Persons seeking further information concerning abandonment 
procedures may contact the Surface Transportation Board or refer to the 
full abandonment or discontinuance regulations at 49 CFR part 1152. 
Questions concerning environmental issues may be directed to the Board's 
Section of Environmental Analysis.
    An environmental assessment (EA) (or environmental impact statement 
(EIS), if necessary) prepared by the Section of Environmental Analysis 
will be served upon all parties of record and upon any agencies or other 
persons who commented during its preparation. Any other persons who 
would like to obtain a copy of the EA (or EIS) may contact the Section 
of Environmental Analysis. EAs in these abandonment proceedings normally 
will be made available within 60 days of the filing of the petition. The 
deadline for submission of comments on the EA will generally be within 
30 days of its service.

    (d) A petitioner for an abandonment exemption must serve a copy of 
the petition on the persons receiving notices of exemption under Sec.  
1152.50(d). The petition must include the following statement: ``Based 
on information in our possession, the line (does) (does not) contain 
federally granted right-of-way.

[[Page 243]]

Any documentation in petitioner's possession will be made available 
promptly to those requesting it.''
    (e) As Provided in Sec.  1152.29(e)(2), rail carriers that receive 
authority to abandon a line by individual exemption under 49 U.S.C. 
10502 must file with the Board a notice that abandonment has been 
consummated.

[61 FR 67883, Dec. 24, 1996, as amended at 62 FR 34670, June 27, 1997]



PART 1155_SOLID WASTE RAIL TRANSFER FACILITIES--Table of Contents



                            Subpart A_General

Sec.
1155.1 Purpose and scope.
1155.2 Definitions.

   Subpart B_Procedures Governing Petitions To Require a Facility in 
 Existence on October 16, 2008, To Apply for a Land-Use-Exemption Permit

1155.10 Contents of petition.
1155.11 Filing and service of petition.
1155.12 Participation in petition procedures.
1155.13 Board determination with respect to a Governor's petition.

  Subpart C_Procedures Governing Applications for a Land-Use-Exemption 
                                 Permit

1155.20 Notice of intent to apply for a land-use-exemption permit.
1155.21 Contents of application.
1155.22 Filings and service of application.
1155.23 Participation in application proceedings.
1155.24 Environmental review.
1155.25 Transfer and termination of a land-use-exemption permit.
1155.26 Board determinations under 49 U.S.C. 10909.
1155.27 Petitions to modify, amend, or revoke a land-use-exemption 
          permit.

Appendix A to Part 1155--Form Notice of Intent To Apply
Appendix B to Part 1155--Form Federal Register Notice

    Authority: 49 U.S.C. 721(a), 10908, 10909, 10910.

    Source: 77 FR 69774, Nov. 21, 2012, unless otherwise noted.



                            Subpart A_General



Sec.  1155.1  Purpose and scope.

    49 U.S.C. 10501(c)(2)(B) excludes solid waste rail transfer 
facilities from the Board's jurisdiction except as provided under 49 
U.S.C. 10908 and 10909. Sections 10908 and 10909 provide the Board 
authority to issue land-use-exemption permits for solid waste rail 
transfer facilities when certain conditions are met. The regulations in 
this part concern land-use-exemption permits and the Board's standard 
for review.



Sec.  1155.2  Definitions.

    (a) Unless otherwise provided in the text of these regulations, the 
following definitions apply in this part:
    (1) Commercial and retail waste means material discarded by stores, 
offices, restaurants, warehouses, nonmanufacturing activities at 
industrial facilities, and other similar establishments or facilities.
    (2) Construction and demolition debris means waste building 
materials, packaging, and rubble resulting from construction, 
remodeling, repair, and demolition operations on pavements, houses, 
commercial buildings, and other structures.
    (3) Environmental Impact Statement or ``EIS'' means the detailed 
written statement required by the National Environmental Policy Act, 42 
U.S.C. 4332(2)(c), for a major federal action significantly affecting 
the quality of the human environment.
    (4) Household waste means material discarded by residential 
dwellings, hotels, motels, and other similar permanent or temporary 
housing establishments or facilities.
    (5) Industrial waste means the solid waste generated by 
manufacturing and industrial and research and development processes and 
operations, including contaminated soil, nonhazardous oil spill cleanup 
waste and dry nonhazardous pesticides and chemical waste, but does not 
include hazardous waste regulated under subtitle C of the Solid Waste 
Disposal Act (42 U.S.C. 6921 et seq.), mining or oil and gas waste.
    (6) Institutional waste means material discarded by schools, 
nonmedical waste discarded by hospitals, material discarded by 
nonmanufacturing activities at prisons and government facilities, and 
material discarded by other similar establishments or facilities.

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    (7) Municipal solid waste means household waste, commercial and 
retail waste, and institutional waste.
    (8) Office of Environmental Analysis or ``OEA'' means the Board 
staff that prepares the Board's environmental documents and analyses.
    (9) Solid waste means construction and demolition debris; municipal 
solid waste; household waste; commercial and retail waste; institutional 
waste; sludge; industrial waste; and other solid waste, as determined 
appropriate by the Board, but not waste generated by a rail carrier 
during track, track structure, or right-of-way construction, 
maintenance, or repair (including railroad ties and line-side poles), or 
waste generated as a result of a railroad accident, incident, or 
derailment.
    (10) Solid waste rail transfer facility--
    (i) Means the portion of a facility owned or operated by or on 
behalf of a rail carrier (as defined in 49 U.S.C. 10102) where solid 
waste, as a commodity to be transported for a charge, is collected, 
stored, separated, processed, treated, managed, disposed of, or 
transferred, when the activity takes place outside of original shipping 
containers; but
    (ii) Does not include--
    (A) The portion of a facility to the extent that activities taking 
place at such portion are comprised solely of the railroad 
transportation of solid waste after the solid waste is loaded for 
shipment on or in a rail car, including railroad transportation for the 
purpose of interchanging railroad cars containing solid waste shipments; 
or
    (B) A facility where solid waste is solely transferred or 
transloaded from a tank truck directly to a rail tank car.
    (11) Sludge means any solid, semi-solid, or liquid waste generated 
from a municipal, commercial, or industrial wastewater treatment plant, 
water supply treatment plant, or air pollution control facility 
exclusive of the treated effluent from a wastewater treatment plant.
    (b) Exceptions. Notwithstanding paragraph (a) of this section, the 
terms household waste, commercial and retail waste, and institutional 
waste do not include yard waste and refuse-derived fuel; used oil; wood 
pallets; clean wood; medical or infectious waste; or motor vehicles 
(including motor vehicle parts or vehicle fluff).
    (c) Land-use-exemption permit means the authorization issued by the 
Board pursuant to the authority of 49 U.S.C. 10909(a) and includes the 
term ``siting permit'' in 49 U.S.C. 10909(e).
    (d) State laws, regulations, orders, or other requirements affecting 
the siting of a facility, as used in 49 U.S.C. 10909(f) and 49 CFR 
1155.27(d), include the requirements of a state or a political 
subdivision of a state, including a locality or municipality, affecting 
the siting of a facility.
    (e) State requirement, as used in 49 U.S.C. 10908 does not include 
the laws, regulations, ordinances, orders, or other requirements of a 
political subdivision of a state, including a locality or municipality, 
unless a state expressly delegates such authority to such political 
subdivision.



   Subpart B_Procedures Governing Petitions To Require a Facility in 
 Existence on October 16, 2008, To Apply for a Land-Use-Exemption Permit



Sec.  1155.10  Contents of petition.

    A petition to require a solid waste rail transfer facility in 
existence on October 16, 2008, to apply for a land-use-exemption permit, 
submitted by the Governor of the state or that Governor's designee, 
shall contain the following information:
    (a) The Governor's name.
    (b) The state's name and the name of any agency filing on behalf of 
the Governor.
    (c) The full address of the solid waste rail transfer facility, or, 
if not available, the city, state, and United States Postal Service ZIP 
code.
    (d) The name of the rail carrier that owns or operates the facility 
or the rail carrier on whose behalf the facility is operated.
    (e) A good-faith certification that the facility qualified as a 
solid waste rail transfer facility as defined in 49 U.S.C. 
10908(e)(1)(H) and 49 CFR 1155.2, on October 16, 2008.
    (f) Relief sought (that the rail carrier that owns or operates the 
facility be

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required to apply for a land-use-exemption permit).
    (g) Name, title, and address of representative of petitioner to whom 
correspondence should be sent.



Sec.  1155.11  Filing and service of petition.

    (a) When the petition is filed with the Board, the petitioner shall 
serve concurrently, by first class mail, a copy of the petition on the 
rail carrier that owns or operates the solid waste rail transfer 
facility and on the facility if the address is different than the rail 
carrier's address. A copy of the certificate of service shall be filed 
with the Board at the same time.
    (b) Upon the filing of a petition, the Board will review the 
petition and determine whether it conforms to all applicable 
regulations. If the petition is substantially incomplete or is otherwise 
defective, the Board will reject the petition without prejudice for 
stated reasons by order within 15 days from the date of filing of the 
petition.
    (c) If the petition is rejected, a revised petition may be 
resubmitted, and the Board will determine whether the resubmitted 
application conforms with all prescribed regulations.



Sec.  1155.12  Participation in petition proceedings.

    (a) An interested person may file a reply to the petition 
challenging any of the information contained in the petition that is 
required by 49 CFR 1155.10(c) through (e) and may offer evidence to 
support its contention. The petitioner will have an opportunity to file 
a rebuttal.
    (b) A facility can acknowledge that it was a solid waste rail 
transfer facility on October 16, 2008, but no longer operates as such 
and therefore is not required to seek a land-use-exemption permit. To do 
so, a facility must file with the Board a certification stating that it:
    (1) No longer operates as a solid waste transfer facility;
    (2) Understands that by certifying that it no longer operates as a 
solid waste transfer facility, it no longer qualifies as a facility in 
existence on October 16, 2008 for purposes of the Clean Railroad Act and 
these regulations; and
    (3) Understands that if it seeks a land-use-exemption permit in the 
future, it would be required to do so as a proposed facility.
    (c) Filing and service of replies. (1) Any reply shall be filed with 
the Board (the Chief, Section of Administration, Office of Proceedings, 
Surface Transportation Board, 395 E Street SW., Washington, DC 20423) 
within 20 days of the filing with the Board of the petition.
    (2) A copy of the reply shall be served on petitioner or its 
representative at the time of filing with the Board. Each filing shall 
contain a certificate of service.
    (3) Any rebuttal to a reply shall be filed and served by petitioner 
no later than 30 days after the filing of the petition.



Sec.  1155.13  Board determination with respect to a Governor's petition.

    The Board shall accept the Governor's complete petition on a finding 
that the facility qualified as a solid waste rail transfer facility, as 
defined in 49 U.S.C. 10908(e)(1)(H) and 49 CFR 1155.2, on October 16, 
2008. If the Board finds that the facility currently does not qualify 
for or require a land-use-exemption permit, any future use of the 
facility as a solid waste rail transfer facility would require an 
application for a land-use-exemption permit as a proposed facility and/
or the proper state permits. In a decision granting the Governor's 
petition, the Board shall require that the rail carrier that owns or 
operates the facility, or the operator of the facility, file a land-use-
exemption-permit application within 120 days of the service date of the 
decision.



  Subpart C_Procedures Governing Applications for a Land-Use-Exemption 
                                 Permit



Sec.  1155.20  Notice of intent to apply for a land-use-exemption permit.

    (a) Filing and publication requirements. An applicant (i.e., a solid 
waste rail transfer facility, or the rail carrier that owns or operates 
the facility) shall give its Notice of Intent to file a land-use-
exemption-permit application by complying with the following procedures:

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    (1) Filing. Applicant must serve its Notice of Intent on the Board 
in the format prescribed in Appendix A to this part. The Notice of 
Intent shall be filed in accordance with the time requirements of 
paragraph (b) of this section.
    (2) Service. Applicant must serve, by first-class mail (unless 
otherwise specified), its Notice of Intent upon:
    (i) The Governor of the state where the facility is located;
    (ii) The municipality, the state, and any relevant political 
subdivision of a state or federal or state regional planning entity in 
the jurisdiction of which the solid waste rail transfer facility is 
located or proposed to be located; and
    (iii) The appropriate managing government agencies responsible for 
the groups of land listed in 49 U.S.C. 10909(c)(2).
    (3) Newspaper publication. Applicant must publish its Notice of 
Intent at least once during each of 3 consecutive weeks in a newspaper 
of general circulation in each county in which any part of the proposed 
or existing facility is located.
    (b) Time limits. (1) The Notice of Intent must be served on the 
parties discussed above at least 15 days, but not more than 30 days, 
prior to the filing of the land-use-exemption-permit application;
    (2) The three required newspaper Notices must be published within 
the 30-day period prior to the filing of the application; and
    (3) The Notice of Intent must be filed with the Board either 
concurrently with service on the required parties or when the Notice is 
first published (whichever occurs first).
    (c) Environmental and Historic Reports. Applicant must also submit 
an Environmental and/or Historic Report containing the information 
described at 49 CFR 1155.24(b), 1105.7, and 1105.8, to the extent 
applicable, at least 45 days prior to filing an application. OEA may 
reject any report that it deems inadequate. The environmental and 
historic reporting requirements that would otherwise apply are waived, 
however, if the applicant or the Board hires a third-party consultant, 
OEA approves the scope of the consultant's work, and the consultant 
works under OEA's supervision to prepare an EIS or other environmental 
documentation. In such a case, the consultant acts on behalf of the 
Board, working under OEA's direction to collect the needed environmental 
information and compile it into an EIS or other appropriate 
environmental documentation. See 49 U.S.C. 10909(h); 49 CFR 1155.24(c).



Sec.  1155.21  Contents of application.

    Applications for land-use-exemption permits for the facility, and 
any proposed future expansion within 10 years of the application date, 
shall contain the following information, including supporting 
documentation:
    (a) General. (1) Exact name of applicant.
    (2) Whether applicant is a common carrier by railroad subject to 49 
U.S.C. Subtitle IV, chapter 105.
    (3) Summary of why a land-use-exemption permit is being sought.
    (4) The full address of the solid waste rail transfer facility, or, 
if not available, the city, state, and United States Postal Service ZIP 
code.
    (5) The name of the rail carrier that owns or operates the facility 
or the rail carrier on whose behalf the facility is operated, the line 
of railroad serving the facility, the milepost location of the facility, 
and the milepost and names of the stations that the facility is located 
between.
    (6) Name, title, and address of representative of applicant to whom 
comments should be sent.
    (7) Copies of the specific state, local, or municipal laws, 
regulations, orders, or other requirements affecting the siting of the 
solid waste rail transfer facility from which the applicant requests 
entire or partial exemption, any publicly available material providing 
the criteria for the application of the state, local, or municipal laws, 
regulations, orders, or other requirements affecting the siting, and a 
description of any action that the state, local, or municipal authority 
has taken affecting the siting of the facility. The applicant shall 
state whether each law, regulation, order or other requirement from 
which an exemption is sought is an environmental, public health, or 
public safety standard that falls under the traditional police powers of 
the state.

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If the applicant states that the requirement is not such a standard, it 
shall explain the reasons for its statement.
    (8) Certification that the laws, regulations, orders or other 
requirements from which the applicant requests exemption are not based 
on federal laws, regulations, orders, or other requirements.
    (9) Certification that the facility complies with all state, local, 
or municipal laws, regulations, orders, or other requirements affecting 
the siting of the facility except for those from which it seeks 
exemption.
    (10) Certification that the applicant has applied or will apply for 
the appropriate state permits not affecting siting.
    (11) For facilities not in existence as of October 16, 2008, 
certification that the facility is not proposed to be located on land 
within any unit of or land affiliated with the National Park System, the 
National Wildlife Refuge System, the National Wilderness Preservation 
System, the National Trails System, the National Wild and Scenic Rivers 
System, a National Reserve, or a National Monument. For facilities in 
existence as of October 16, 2008, state whether the facility is located 
in any of these types of lands.
    (12) For facilities not in existence as of October 16, 2008, 
certification that the facility is not proposed to be located on lands 
referenced in The Highlands Conservation Act, Public Law No. 108-421, 
for which a state has implemented a conservation management plan, or, 
that the facility is consistent with the restrictions implemented by the 
applicable state under The Highlands Conservation Act, Public Law No. 
108-421, placed on its proposed location. For facilities in existence as 
of October 16, 2008, state whether the facility is located on any of 
these lands, and, if so, address whether the facility is consistent with 
the restrictions placed on the location by the applicable state under 
that law.
    (13) An explanation of how the facility comes within the Board's 
jurisdiction under 49 U.S.C. 10501.
    (14) The owner and operator of the facility.
    (15) The interest of the rail carrier in the facility.
    (16) An explanation of how the facility meets the definition of a 
solid waste rail transfer facility at 49 U.S.C. 10909(e)(1)(H).
    (17) A statement whether the applicant has sought permission from 
the