[Federal Register Volume 77, Number 63 (Monday, April 2, 2012)]
[Proposed Rules]
[Pages 19591-19596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7836]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002, 1011, 1108, 1109, 1111, and 1115
[Docket No. EP 699]
Assessment of Mediation and Arbitration Procedures
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Surface Transportation Board (Board or STB) proposes
regulations that would require parties to participate in mediation in
certain types of cases and would modify its existing regulations that
permit parties to engage voluntarily in mediation. The Board also
proposes an arbitration program under which carriers and shippers would
agree voluntarily to arbitrate certain types of disputes that come
before the Board, and proposes modifications to clarify and simplify
its existing rules governing the use of arbitration in other disputes.
The Board seeks comments regarding these proposed rules.
DATES: Comments are due by May 17, 2012. Replies are due June 18, 2012.
ADDRESSES: Comments, information, or questions regarding this proposed
rule should reference Docket No. EP 699 and be in writing addressed to:
Chief, Section of Administration, Office of Proceedings, Surface
Transportation Board, 395 E Street SW., Washington, DC 20423-0001.
FOR FURTHER INFORMATION CONTACT: Amy C. Ziehm at 202-245-0391.
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.]
SUPPLEMENTARY INFORMATION: The Board favors the resolution of disputes
through the use of mediation and arbitration procedures, in lieu of
formal Board
[[Page 19592]]
proceedings, wherever possible.\1\ To that end, the Board has existing
rules that encourage parties to agree voluntarily to mediate or
arbitrate certain matters subject to its jurisdiction. The Board's
mediation rules are set forth at 49 CFR 1109.1, 1109.3, 1109.4, 1111.2,
1111.9, and 1111.10. Its arbitration rules are set forth at 49 CFR
1108, 1109.1, 1109.2, 1109.3, and 1115.8. In a decision served on
August 20, 2010,\2\ and published in the Federal Register on August 24,
2010,\3\ the Board sought input regarding measures it might implement
to encourage or require greater use of mediation, and to encourage
greater voluntary use of arbitration, including making changes to the
Board's existing rules and establishing new rules. The Board also
sought input regarding possible changes to its rules to permit the use
of Board-facilitated mediation procedures without the filing of a
formal complaint. The Board served a subsequent notice in this matter
on December 3, 2010,\4\ to clarify that any comments filed by the
Railroad-Shipper Transportation Advisory Council (RSTAC) would be
accorded the same weight as other comments in developing any new
rules.\5\ The modifications to the Board's rules proposed in this
decision are intended to increase the use of mediation and arbitration
in lieu of formal adjudication to resolve disputes before the Board.
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\1\ Mediation is a process in which parties attempt to negotiate
an agreement that resolves some or all of the issues in dispute,
with the assistance of a trained, neutral, third-party mediator.
Arbitration, by comparison, is an informal evidentiary process
conducted by a trained, neutral, third-party arbitrator with
expertise in the subject matter of the dispute. By agreeing to
participate in arbitration, the parties agree to be bound (with
limited appeal rights) by the arbitral decision.
\2\ Assessment of Mediation and Arbitration Procedures, EP 699
(STB served Aug. 20, 2010).
\3\ Assessment of Mediation and Arbitration Procedures, 75 FR
52,054.
\4\ Id., EP 699 (STB served Dec. 3, 2010).
\5\ RSTAC is an advisory board established by Federal law to
advise the U.S. Congress, the U.S. Department of Transportation, and
the Board on issues related to rail transportation policy, with
particular attention to issues of importance to small shippers and
small railroads. By statute, RSTAC members are appointed by the
Board's chairman. Representatives of large and small rail customers,
Class I railroads, and small railroads sit on RSTAC. The Board's
members and the U.S. Secretary of Transportation are ex officio,
nonvoting RSTAC members. (49 U.S.C. 726.)
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The proposed changes to the existing mediation rules would
establish procedures under which the Board could compel mediation in
certain types of adjudications before the Board, on a case-specific
basis, as well as to grant mediation requests of parties to
disputes.\6\ As is the current practice, the Board would assign staff
from its Rail Customer and Public Assistance (RCPA) program, who are
trained mediators, to conduct the mediation process. Mediation periods
would last up to 30 days, and could be extended upon the mutual request
of the parties. The Board would reserve the right to stay underlying
proceedings and toll any applicable statutory deadlines. The Board
believes that the proposed mediation rules would be in the public
interest. If a dispute is amicably resolved, the parties could do so at
considerably less expense and in less time than if they used the
Board's formal adjudicatory process, and could better preserve their
ongoing commercial relationship.
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\6\ The Board's authority to revise its mediation rules exists
under 49 U.S.C. 721(a) and under the Alternative Dispute Resolution
Act, 5 U.S.C. 571-584.
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The proposed changes to the Board's arbitration rules are intended
to consolidate the separate arbitration procedures in Parts 1108 and
1109, to encourage greater use of arbitration to resolve disputes
before the Board by simplifying the process, and by clarifying the
types of disputes that may be submitted for arbitration.\7\ Moreover,
the Board proposes establishing an ``arbitration program'' to cover a
subset of arbitrable disputes, in which rail carriers may voluntarily
participate. The Board believes that the proposed arbitration program
would provide value to both carriers and shippers, because disputes can
be resolved through arbitration in a more timely and less adversarial
fashion than through the Board's formal adjudicatory processes, and
arbitration could help the parties to preserve their commercial
relationship. It likewise would allow carriers more flexibility in
resolving customer-specific disputes because resolution would be
confidential and nonprecedential, unless the arbitrator's decision is
appealed.
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\7\ The Board has authority to revise its arbitration rules
under 49 U.S.C. 721(a).
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Under the arbitration program, rail carriers would agree, in
advance, to submit to binding arbitration certain defined types of
disputes, such as complaints related to demurrage and accessorial
charges, or the misrouting or mishandling of rail cars, where the
complainant seeks monetary damages for past harm, not for injunctive or
prospective relief. The Board also proposes to limit the relief that an
arbitrator could award to no more than $200,000, plus interest.
Commenters are invited to suggest a different dollar cap that they
believe would better capture the majority of such disputes that would
be best resolved through arbitration. Arbitration under the arbitration
program would be mandatory for the carrier either where the dispute
involves only carriers that are participants in the Board's arbitration
program, or where the dispute involves at least one carrier-participant
and all other parties to the dispute consent to arbitration pursuant to
the arbitration program.
In addition, the proposed rules provide for arbitration of most
other types of adjudicatory disputes before the Board where all parties
agree, on a case-by-case basis, to participate in binding arbitration.
In all arbitrations, the Board would assign an arbitrator from a roster
of eligible arbitrators, or could grant a mutual request from the
parties to use a particular arbitrator, whether listed on the roster or
not.
The proposed mediation and arbitration rules would not be
available, however, to resolve any matter in which the Board is
statutorily required to determine the public convenience and necessity
(PCN). Thus, these procedures would not be available to obtain the
grant, denial, stay or revocation of any license, authorization (e.g.,
construction, abandonment, purchase, trackage rights, merger, pooling)
or exemption related to these matters. Should participants in such
matters, however, reach a voluntary agreement resolving certain issues
pertaining to a license or authorization proceeding, the Board would
give due consideration to that resolution in weighing the PCN. These
rules would also not be available to arbitrate a labor protection
dispute, which has its own procedures; however, voluntary mediation of
such disputes under the proposed rules would be available.
Additional information is contained in the Board's decision. The
full decision is available on the Board's Web site at www.stb.dot.gov.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. The Board proposes to amend its rules as set forth in this
decision. Notice of the proposed rules will be published in the Federal
Register.
2. Comments regarding these proposed rules are due by May 17, 2012.
Replies are due by June 18, 2012.
3. This decision is effective on the day of service.
[[Page 19593]]
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, Common carriers, Freedom of
information.
49 CFR Part 1011
Administrative practice and procedure, Authority delegations
(Government agencies), Organization and functions (Government
agencies).
49 CFR Part 1108
Administrative practice and procedure, Railroads.
49 CFR Part 1109
Administrative practice and procedure, Maritime carriers, Motor
carriers, Railroads.
49 CFR Part 1111
Administrative practice and procedure, Investigations.
49 CFR Part 1115
Administrative practice and procedure.
Decided: March 28, 2012.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and
Commissioner Begeman.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board proposes to amend parts 1002, 1011, 1108, 1109,
1111, and 1115 of title 49, chapter X, of the Code of Federal
Regulations as follows:
PART 1002--FEES
1. The authority citation for part 1002 continues to read as
follows:
Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and
49 U.S.C. 721. Section 1002.1(g)(11) also issued under 5 U.S.C. 5514
and 31 U.S.C. 3717.
2. Amend Sec. 1002.2 by revising paragraph (f)(87) and by removing
and reserving paragraph (f)(88) to read as follows:
Sec. 1002.2 Filing fees.
* * * * *
(f) * * *
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Type of proceeding Fee
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* * * * *
Part VI: Informal Proceedings
* * * * *
(87) Basic fee for STB adjudicatory services not otherwise $250
covered........................................................
(88) [Reserved].................................................
* * * * *
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* * * * *
PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY
3. The authority citation for part 1011 continues to read as
follows:
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721,
11123, 11124, 11144, 14122, and 15722.
4. Amend Sec. 1011.7 by adding paragraphs (a)(2)(xvii),
(a)(2)(xviii) and (a)(2)(xix) to read as follows:
Sec. 1011.7 Delegations of authority by the Board to specific offices
of the Board.
(a) * * *
(2) * * *
(xvii) To authorize parties to a proceeding before the Board, upon
mutual request, to participate in meditation with a Board-appointed
mediator, for a period of up to 30 days.
(xviii) To authorize a proceeding held in abeyance while mediation
procedures are pursued, pursuant to a 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.
* * * * *
PART 1108--ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY
JURISDICTION OF THE SURFACE TRANSPORTATION BOARD
5. The authority citation for part 1011 continues to read as
follows:
Authority: 49 U.S.C. 721(a).
6. Revise Sec. 1108.1 to read as follows:
Sec. 1108.1 Definitions.
As used in this part:
(a) Arbitration program means a program established by the Surface
Transportation Board under which participating rail carriers have
agreed voluntarily in advance to resolve certain types of disputes
brought before the Board using the Board's arbitration procedures.
(b) 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: Demurrage, accessorial charges; misrouting or
mishandling of rail cars; disputes involving a carrier's published
rules and practices as applied to particular rail transportation; and
other service-related matters.
(c) Arbitrator means an arbitrator appointed pursuant to these
rules.
(d) Interstate Commerce Act means the Interstate Commerce Act as
amended by the ICC Termination Act of 1995.
(e) STB or Board means the Surface Transportation Board.
(f) Statutory jurisdiction means the jurisdiction conferred on the
STB by the Interstate Commerce Act, including jurisdiction over rail
transportation or services that have been exempted from regulation.
7. Amend Sec. 1108.2 by revising paragraph (b) and removing
paragraph (d) to read as follows:
Sec. 1108.2 Statement of purpose, organization, and jurisdiction.
* * * * *
(b) These procedures shall be available for use in the resolution
of all matters arbitrated before the Board, other than matters
involving labor protective conditions, which are subject to different
rules. These procedures shall not be available to obtain the grant,
denial, stay or revocation of any license, authorization (e.g.,
construction, abandonment, purchase, trackage rights, merger, pooling),
or exemption related to such matters.
* * * * *
8. Revise Sec. 1108.3 to read as follows:
Sec. 1108.3 Matters subject to arbitration.
(a) Use of arbitration--(1) Arbitration program-eligible matters.
The Board shall assign to arbitration all arbitration program-eligible
matters arising in a docketed proceeding 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.
(2) Matters partially arbitration program-eligible. Where the
issues in a proceeding before the Board relate in part to arbitration
program-eligible matters, only those parts of the dispute related to
arbitration program-eligible matters may be arbitrated pursuant to the
arbitration program, unless the parties petition the Board in
accordance with paragraph (a)(3) of this section to include non-
arbitration program-eligible matters.
(3) Other matters. Parties may petition the Board, on a case-by-
case basis, to assign to arbitration disputes, or portions of disputes,
that do not relate to arbitration program-eligible matters, other than
matters in which the Board is statutorily required to determine the
public convenience and necessity and
[[Page 19594]]
those involving labor protective conditions.
(4) Mutual agreement required. The Board will not assign to
arbitration any dispute in which one or more parties is not a
participant in the Board's arbitration program and does not otherwise
consent to arbitration.
(b) Participation in the Board's arbitration program--(1) Class I
and Class II rail carriers. Class I and Class II rail carriers are
deemed to have agreed in advance to participate in the Board's
arbitration program, unless they have opted out of the program. To opt
out, a Class I or Class II carrier shall do either of the following:
(i) File a notice, under docket number EP 699, informing the Board
of its opt-out decision no later than 20 days following the effective
date of these rules, and subsequently, no later than January 10 (or the
immediately following business day) of each calendar year. Such notice
shall take effect immediately.
(ii) File a notice with the Board, under docket number EP 699, at
any time. Such notice shall take effect 90 days after filing and shall
not excuse the filing carrier from arbitration proceedings that are
ongoing, or permit it to withdraw its consent to participate in any
arbitration program-eligible dispute associated with any matter pending
before the Board at any time within the 90-day period before the opt-
out notice takes effect. Class I and Class II rail carriers that opt
out of the arbitration program will be deemed to be participants in the
program in subsequent years if they do not file a new notice with the
Board each year. A carrier that has opted out of the arbitration
program may opt into the arbitration program at any time by notifying
the Board. Opt-in notices shall take effect immediately.
(2) Class III rail carriers. A Class III rail carrier may
participate in the Board's arbitration program by filing a written
notice with the Board under docket number EP 699, advising the Board of
its intent to participate in the program. Such notice may be filed at
any time and shall take effect immediately. A participating Class III
carrier shall remain a participant in the Board's arbitration program
thereafter, unless it files a notice with the Board under docket number
EP 699, advising the Board of its intent to cease participation in the
arbitration program. Such notice shall take effect 90 days after filing
and shall not excuse the filing carrier from arbitration proceedings
that are ongoing, or permit it to withdraw its consent to participate
in any arbitration program-eligible dispute associated with any matter
pending before the Board at any time within the 90-day period before
the opt-out notice takes effect.
(3) Shippers and other parties. Shippers and other parties may
participate in arbitration-program eligible arbitrations on a case-by-
case basis by filing notice with the Board. Such notice shall be filed
under the docket number assigned to the proceeding, indicating
agreement to participate in arbitration.
(c) Arbitrator's authority. In resolving any dispute subject to the
Board's arbitration procedures, the arbitrator shall not be bound by
any procedural rules or regulations adopted by the STB for the formal
resolution of similar disputes, except as specifically provided in this
Part 1108. The arbitrator, however, shall be guided by the Interstate
Commerce Act and by STB and ICC precedent.
(d) 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.
9. Amend Sec. 1108.4 by revising paragraphs (a)(1) and (a)(2) and
removing paragraph (b) to read as follows:
Sec. 1108.4 Relief.
(a) * * *
(1) Monetary damages, to the extent available under the Interstate
Commerce Act, shall be available through the arbitration. In disputes
arbitrated pursuant to the Board's arbitration program, damages shall
not exceed $200,000, exclusive of interest at a reasonable rate to be
specified by the arbitrator. Participants in the Board's arbitration
program shall not be obligated to arbitrate any dispute in which the
alleged damages exceed $200,000.
(2) No prospective or injunctive relief shall be available through
the Board's arbitration program, or through any other arbitration
before the Board.
* * * * *
10. Revise Sec. 1108.5 to read as follows:
Sec. 1108.5 Fees and costs.
When parties use the Board's arbitration procedures to resolve a
dispute, the party filing the complaint shall pay the applicable filing
fee pursuant to 49 CFR Part 1002. The Board shall pay any fees and/or
costs charged by the arbitrator, except where parties agree to use an
arbitrator not included on the roster of arbitrators maintained by the
Board, as described in Sec. 1108.6(a), in which case the parties shall
share the fees and/or costs of the arbitrator.
11. Revise Sec. 1108.6 to read as follows:
Sec. 1108.6 Arbitrators.
(a) Arbitration shall be conducted by a single arbitrator selected,
as provided herein, from a roster of persons (other than active
government officials) experienced in rail transportation or economic
issues similar to those capable of arising before the STB. The roster
of arbitrators shall be established by the Chairman of the STB with
input from interested parties who may nominate individuals for
inclusion on the list. The roster shall thereafter be maintained and
updated by the Chairman of the STB on an every other year basis. The
roster may also be augmented or revised at any time, and interested
parties are encouraged to nominate qualified individuals for addition
to the list. The roster shall be available to the public, upon request,
and shall be posted on the Board's Web site at www.stb.dot.gov.
(b) Matters arbitrated under these rules shall be resolved by a
single neutral arbitrator, selected by the Board, from the roster of
qualified arbitrators. If the parties to an arbitration proceeding
mutually agree upon an arbitrator (whether listed on the roster or not)
to resolve their dispute, they may petition the Board to appoint that
arbitrator to the arbitration proceeding.
(c) If, at any time during the arbitration process, a selected
arbitrator becomes incapacitated, unwilling, or unable to fulfill his/
her duties, or if all parties agree that the arbitrator should be
replaced, a replacement arbitrator will be selected promptly under the
process set forth in paragraphs (a) and (b) of this section.
12. Revise Sec. 1108.7 to read as follows:
Sec. 1108.7 Arbitration commencement procedures.
(a) Each 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. Each complaint must contain a
statement that the complainant is a participant in the Board's
arbitration program pursuant to Sec. 1108.3(b), or that the
complainant is willing to arbitrate voluntarily all or part of the
dispute pursuant to the Board's arbitration procedures. Following the
filing of a complaint whose subject matter is arbitration program-
eligible, the Board shall issue a notice advising other parties of
whether any carrier-parties to the matter are participants in the
arbitration program.
(b) Any respondent must, within 20 days of the date of the filing
of a
[[Page 19595]]
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 on a voluntary basis.
Where the respondent agrees to arbitrate voluntarily, the answer must
identify those issues contained in the complaint that the respondent is
willing to resolve through arbitration. The answer must also identify
any issues contained in the complaint that the respondent is not
willing to resolve through arbitration. If the answer contains an
agreement to arbitrate some but not all of the arbitration issues in
the complaint, the complainant will have 10 days from the date of the
answer to advise the respondent and the Board in writing whether the
complainant is willing to arbitrate on that basis. Where the respondent
is a participant in the Board's arbitration program, the answer should
further state that the respondent has thereby agreed to use arbitration
to resolve all of the arbitration program-eligible issues in the
complaint. The Board will then set the matter for arbitration, if
appropriate, and assign an arbitrator.
13. Revise Sec. 1108.8 to read as follows:
Sec. 1108.8 Arbitration procedures.
The arbitrator shall establish all rules for each arbitration
proceeding, including with regard to discovery, the submission of
evidence and the treatment of confidential information, subject to the
requirements that the evidentiary process shall be completed within 90
days from the start date established by the arbitrator, and that the
arbitrator's decision will be issued within 30 days following
completion of the evidentiary phase.
14. Revise Sec. 1108.9 to read as follows:
Sec. 1108.9 Decisions.
(a) Decisions of the arbitrator shall be in writing and shall
contain findings of fact and conclusions.
(b) The arbitrator simultaneously shall serve a copy of the
decision on the parties and upon the Board. The arbitrator may serve
the decision via any service method permitted by the Board's
regulations that is consistent with protecting the confidentiality of
the decision, if so requested by the parties.
(c) By arbitrating pursuant to these procedures, each party agrees
that the decision and award of the arbitrator shall be binding and
judicially enforceable in law and equity in any court of appropriate
jurisdiction, subject to a limited right of appeal to the STB, as
provided below.
15. Revise Sec. 1108.11 to read as follows:
Sec. 1108.11 Enforcement and appeals.
(a) A party may petition the Board to modify or vacate an arbitral
award. The appeal must be filed within 20 days of service 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. The
appealing party shall also serve a copy of its appeal upon the
arbitrator. 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) 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) of this chapter.
(c) The STB will review, and may modify or vacate, an arbitration
award, in whole or in part, only on grounds that such award reflects a
clear abuse of arbitral authority or discretion.
16. Revise Part 1109 to read as follows:
PART 1109--USE OF MEDIATION IN BOARD PROCEEDINGS
Sec.
1109.1 Mediation.
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.
Authority: 5 U.S.C. 571 et seq.
Sec. 1109.1 Mediation.
Parties may seek to resolve a dispute brought before the Board
using the Board's mediation procedures. These procedures shall not be
available to obtain the grant, denial, stay or revocation of any
license, authorization (e.g., construction, abandonment, purchase,
trackage rights, merger, pooling), or exemption related to such
matters. The Board may, by its own order, direct the parties to
participate in mediation using the Board's mediation procedures.
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 Board 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 a mediation request
is not submitted by all parties to a matter.
Sec. 1109.3 Mediation procedures.
(a) The Board will appoint a Board employee, who is a qualified
mediator, to facilitate 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 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 may serve as a mediator who has previously served as
an advocate or representative, in any matter, for any party to the
mediation;
(2) 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
(3) If the mediation does not fully resolve all issues before the
Board, the person serving as a mediator may not thereafter advise the
Board regarding the future disposition of the dispute.
(b) Parties shall have 30 days from the date of the first mediation
session to reach a settlement agreement, or to narrow the issues in
dispute, or to agree to stipulations that may be incorporated into any
adjudication before the Board if mediation does not fully resolve the
dispute. The mediator may assist the parties in preparing a settlement
agreement. The mediator shall notify the Board whether the parties have
reached any agreement by the end of the 30-day period.
(c) 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, provided that the parties, or the mediator, notify the Board
that the parties have reached a mutually
[[Page 19596]]
agreeable resolution, and request that the Board terminate the
underlying Board proceeding. Parties to the settlement agreement shall
waive all appeal rights as to the issues resolved by the settlement
agreement.
(d) If the parties reach only a partial resolution of their
dispute, they or the mediator 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.
(e) 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 proceeding. The Board will not extend mediation
for additional periods of time where one or more parties to a matter 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.
(f) Mediation is a confidential process except for those limited
exceptions permitted by the Administrative Dispute Resolution Act at 5
U.S.C. 574.
(1) All notes taken by participants (including but not limited to
the mediator, parties, and their representatives) during the mediation
must be destroyed following the conclusion of the matter subject to
mediation. As a condition of participation, the parties and any
interested parties joining the mediation must agree to the
confidentiality of the mediation process. The parties to mediation,
including the mediator, 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.
(2) Evidence of conduct or statements made during mediation are not
admissible in any Board proceeding. However, 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 body.
(g) Except as otherwise provided for in 49 CFR 1109.4(f) and Part
1111, the mutual request of all parties that a proceeding be held in
abeyance while mediation procedures are pursued 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 49 CFR 1109.4(f) and Part 1111, the Board may
also direct that a proceeding be held in abeyance pending the
conclusion of mediation. The period while any proceeding is held in
abeyance to facilitate mediation shall not be counted toward any
applicable statutory deadlines.
Sec. 1109.4 Mandatory mediation in rate cases to be considered under
the stand-alone cost methodology.
(a) 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) Within 10 business days after the shipper files its formal
complaint, the Board will assign a mediator to the case. Within 5
business days of the assignment to mediate, the mediator shall contact
the parties to discuss ground rules and the time and location of any
meeting. At least one principal of each party, who has the authority to
bind that party, shall participate in the mediation and be present at
any session at which the mediator requests that the principal be
present.
(c) The mediator 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 may assist in
preparing a settlement agreement.
(d) The entire mediation process shall be private and confidential.
No party may use any concessions made or information disclosed to
either the mediator or the opposing party before the Board or in any
other forum without the consent of the other party.
(e) The mediation shall be completed within 60 days of the
appointment of the mediator. The mediation may be terminated prior to
the end of the 60-day period only with the certification of the
mediator 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.
(f) 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).
PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES
17. The authority citation for part 1111 continues to read as
follows:
Authority: 49 U.S.C. 721, 10704, and 11701.
18. Amend Sec. 1111.10 by revising paragraph (b) to read as
follows:
Sec. 1111.10 Meeting to discuss procedural matters.
* * * * *
(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.
PART 1115--APPELLATE PROCEDURES
19. The authority citation for part 1115 continues to read as
follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
20. Revise Sec. 1115.8 to read as follows:
Sec. 1115.8 Petitions to review arbitration decisions.
An appeal of right is permitted. The appeal must be filed within 20
days of a final arbitration decision, unless a later date is authorized
by the Board, and is subject to the page limitations of Sec.
1115.2(d). The standard of review will be whether there is a showing of
a clear abuse of arbitral authority or discretion. 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).
[FR Doc. 2012-7836 Filed 3-30-12; 8:45 am]
BILLING CODE 4915-01-P