Code of Federal Regulations 49 Parts 1000-1199

49
Parts 1000 to 1199

Revised as of October 1, 2007
Transportation
Containing a codification of documents

of general applicability and future effect
As of October 1, 2007
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register

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Table of Contents
Page
Explanation ................................................................................................ v
Title 49:
Subtitle B—Other Regulations Relating to Transportation (Contin-

ued)
Chapter X—Surface Transportation Board, Department of Trans-

portation ...................................................................................... 5
Finding Aids:
Table of CFR Titles and Chapters ....................................................... 287
Alphabetical List of Agencies Appearing in the CFR ......................... 305
List of CFR Sections Affected ............................................................. 315

iii
Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 49 CFR
1001.1 refers to title 49,
part 1001, section 1.
iv
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 agen-
cies 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 sub-
divided 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 deter-
mine 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, 2006), 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 Reg-
ister 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 usu-
ally 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.
Many agencies have begun publishing numerous OMB control numbers as amend-
ments to existing regulations in the CFR. These OMB numbers are placed as
close as possible to the applicable recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on the cover
of each volume are not carried. Code users may find the text of provisions in
effect on a given date in the past by using the appropriate numerical list of
sections affected. For the period before January 1, 2001, consult either the List
of CFR Sections Affected, 1949–1963, 1964–1972, 1973–1985, or 1986–2000, published
in 11 separate volumes. For the period beginning January 1, 2001, a ‘‘List of CFR
Sections Affected’’ is published at the end of each CFR volume.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a separate
volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS.
This volume contains the Parallel Table of Statutory Authorities and Agency
Rules (Table I). A list of CFR titles, chapters, and parts and an alphabetical
list of agencies publishing in the CFR are also included in this volume.
An index to the text of ‘‘Title 3—The President’’ is carried within that volume.
The Federal Register Index is issued monthly in cumulative form. This index
is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg-
ister.
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 textual 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, Washington, DC 20408 or e-mail fedreg.info@nara.gov.
SALES
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ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of CFR Sections
Affected), The United States Government Manual, the Federal Register, Public
Laws, Public Papers, Weekly Compilation of Presidential Documents and the Pri-
vacy Act Compilation are available in electronic format at www.gpoaccess.gov/
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vi
The Office of the Federal Register also offers a free service on the National
Archives and Records Administration’s (NARA) World Wide Web site for public
law numbers, Federal Register finding aids, and related information. Connect
to NARA’s web site at www.archives.gov/federal-register. The NARA site also con-
tains links to GPO Access.
RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
October 1, 2006.
vii
THIS TITLE
Title 49—TRANSPORTATION is composed of nine volumes. The parts in these vol-

umes are arranged in the following order: Parts 1–99, parts 100–185, parts 186–
199, parts 200–299, parts 300–399, parts 400–599, parts 600–999, parts 1000–1199, part
1200 to End. The first volume (parts 1–99) contains current regulations issued
under subtitle A—Office of the Secretary of Transportation; the second volume
(parts 100–185) and the third volume (parts 186–199) contain the current regula-
tions issued under chapter I—Pipeline and Hazardous Materials Safety Adminis-
tration (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 400–599) con-
tains the current regulations issued under chapter IV—Coast Guard (DHS), chap-
ter V—National Highway Traffic Safety Administration (DOT); the seventh vol-
ume (parts 600–999) contains 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 Trans-
portation Board, chapter XI—Research and Innovative Technology Administra-
tion, 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, 2006.
In the volume containing parts 100–185, see § 172.101 for the Hazardous Materials
Table. The Federal Motor Vehicle Safety Standards appear in part 571.
Redesignation tables for chapter III—Federal Motor Carrier Safety Administra-

tion, Department of Transportation and chapter XII—Transportation Security
Administration, Department of Transportation appear in the Finding Aids sec-
tion of the fifth and ninth volumes.
For this volume, Carol A. Conroy was Chief Editor. The Code of Federal Regu-
lations publication program is under the direction of Frances D. McDonald, as-
sisted by Kenneth R. Payne.
ix
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Title 49—Transportation
(This book contains parts 1000 to 1199)
Part
SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION

(CONTINUED)
CHAPTER X—Surface Transportation Board, Department of

Transportation ................................................................... 1001
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Subtitle B—Other Regulations
Relating to Transportation
(Continued)
CHAPTER X—SURFACE TRANSPORTATION
BOARD, DEPARTMENT OF TRANSPORTATION
EDITORIAL NOTE: Nomenclature changes to chapter X appear at 62 FR 42075, Aug. 5, 1997.
SUBCHAPTER A—GENERAL RULES AND REGULATIONS
PARTS 1000–1019—GENERAL PROVISIONS
Part Page
1000 [Reserved]
1001 Inspection of records ............................................... 9
1002 Fees ......................................................................... 11
1003 Forms ...................................................................... 19
1004 Interpretations and routing regulations ................. 19
1005 Principles and practices for the investigation and
voluntary disposition of loss and damage claims
and processing salvage ......................................... 19
1007 Records containing information about individuals 22
1011 Board organization; delegations of authority ......... 29
1012 Meetings of the Board ............................................. 34
1013 Guidelines for the proper use of voting trusts ........ 38
1014 Enforcement of nondiscrimination on the basis of
handicap in programs or activities conducted by
the Surface Transportation Board ....................... 39
1016 Special procedures governing the recovery of ex-
penses by parties to Board adjudicatory pro-
ceedings ................................................................ 46
1017 Debt collection—collection by offset from indebted
government and former government employees .. 51
1018 Debt collection ........................................................ 57
1019 Regulations governing conduct of Surface Trans-
portation Board employees .................................. 68
PARTS 1021–1029—ENFORCEMENT
1021 Administrative collection of enforcement claims ... 69

PARTS 1030–1039—CARRIERS SUBJECT TO PART I, INTERSTATE
COMMERCE ACT
1033 Car service ............................................................... 70
49 CFR Ch. X (10–1–07 Edition)
Part Page
1034 Routing of traffic .................................................... 72
1035 Bills of lading .......................................................... 73
1037 Bulk grain and grain products—loss and damage
claims ................................................................... 78
1039 Exemptions ............................................................. 80
PARTS 1070–1079 [RESERVED]
PARTS 1090–1099—INTERMODAL TRANSPORTATION
1090 Practices of carriers involved in the intermodal

movement of containerized freight ...................... 85
SUBCHAPTER B—RULES OF PRACTICE
PARTS 1100–1129—RULES OF GENERAL APPLICABILITY
1100 General provisions .................................................. 87

1101 Definitions and construction .................................. 87
1102 Communications ..................................................... 88
1103 Practitioners ........................................................... 89
1104 Filing with the board-copies-verification-service-
pleadings, generally ............................................. 99
1105 Procedures for implementation of Environmental
Laws ..................................................................... 103
1106 Procedures for Surface Transportation Board con-
sideration of safety integration plans in cases in-
volving railroad consolidations, mergers, and ac-
quisitions of control ............................................. 114
1107 [Reserved]
1108 Arbitration of certain disputes subject to the stat-
utory jurisdiction of the Surface Transportation
Board .................................................................... 116
1109 Use of alternative dispute resolution in Board pro-
ceedings and those in which the Board is a party 121
1110 Procedures governing informal rulemaking pro-
ceedings ................................................................ 122
1111 Complaint and investigation procedures ................. 124
1112 Modified procedures ................................................ 129
1113 Oral hearing ............................................................ 130
1114 Evidence; discovery ................................................. 136
1115 Appellate procedures ............................................... 146
1116 Oral argument before the Board .............................. 149
1117 Petitions (for relief) not otherwise covered ............ 150
1118 Procedures in informal proceedings before em-
ployee boards ........................................................ 150
1119 Compliance with Board decisions ............................ 150
1120 Use of 1977–1978 study of motor carrier platform
handling factors ................................................... 150
1121 Rail exemption procedures ...................................... 151
Surface Transportation Board, DOT
Part Page
1122–1129 [Reserved]
PARTS 1130–1149—RATE PROCEDURES
1130 Informal complaints ................................................ 152

1132 Protests requesting suspension and investigation
of collective ratemaking actions ......................... 154
1133 Recovery of damages ............................................... 155
1135 Railroad cost recovery procedures .......................... 156
1139 Procedures in motor carrier revenue proceedings ... 157
1141 Procedures to calculate interest rates .................... 181
1144 Intramodal rail competition ................................... 181
1146 Expedited Relief for Service Emergencies .............. 183
1147 Temporary relief under 49 U.S.C. 10705 and 11102 for
Service Inadequacies ............................................ 183
PARTS 1150–1174—LICENSING PROCEDURES
PARTS 1150–1159—RAIL LICENSING PROCEDURES
1150 Certificate to construct, acquire, or operate rail-

road lines .............................................................. 184
1151 Feeder railroad development program .................... 196
1152 Abandonment and discontinuance of rail lines and
rail transportation under 49 U.S.C. 10903 .............. 200
PARTS 1177–1199—FINANCE PROCEDURES
PARTS 1177–1179—SECURITIES, SECURITY INTERESTS, AND FINANCIAL

STRUCTURES
1177 Recordation of documents ....................................... 253

PARTS 1180–1189—COMBINATIONS AND OWNERSHIP
1180 Railroad acquisition, control, merger, consolida-

tion project, trackage rights, and lease proce-
dures ..................................................................... 256
1182 Purchase, merger, and control of motor passenger
carriers ................................................................. 279
1184 Motor carrier pooling operations ............................ 283
1185 Interlocking officers ............................................... 284
SUBCHAPTER A—GENERAL RULES AND REGULATIONS
Parts 1000–1019—General by the agency and are not published in

Provisions the FEDERAL REGISTER;
(3) Administrative staff manuals and
instructions to staff that affect a mem-
PART 1000 [RESERVED] ber of the public; and
(4) Copies of all records, regardless of
PART 1001—INSPECTION OF form or format, that have been re-
RECORDS leased to any person under 5 U.S.C.
552(a)(3) and that, because of the na-
Sec. ture of their subject matter, the agen-
1001.1 Records available from the Board. cy determines have become or are like-
1001.2 Certified copies of records.
ly to become the subject of subsequent
1001.3 Requests to inspect other records not
considered public under 5 U.S.C. 552. requests for substantially the same
1001.4 Predisclosure notification procedures records.
for confidential commercial information. (c) The Board maintains, and makes
available for inspection and copying,
AUTHORITY: 5 U.S.C. 552, 49 U.S.C. 702, and
49 U.S.C. 721. indexes of the documents described in
paragraph (b) of this section. Final de-
SOURCE: 62 FR 48954, Sept. 18, 1997, unless cisions are indexed in the ‘‘Surface
otherwise noted.
Transportation Board Daily Releases’’,
§ 1001.1 Records available from the which is issued by the Board every
Board. working day. This document also ex-
plains how copies of decisions can be
(a) The following specific files and purchased. The remaining documents
records in the custody of the Secretary are indexed as they are made available.
of the Surface Transportation Board
(d) Documents described in paragraph
are available to the public and may be
(b) of this section that were created on
inspected at the Board’s office upon
and after November 1, 1996, are indexed
reasonable request during business
by service date or date of issuance and
hours (between 8:30 a.m. and 5 p.m.,
are available for viewing and
Monday through Friday):
downloading from the Board’s Elec-
(1) Copies of tariffs and railroad
tronic Reading Room at
transportation contract summaries
www.stb.dot.gov, the Board’s website.
filed with the Board pursuant to 49
Final decisions are maintained in a
U.S.C. 13702(b) and 10709(d), respec-
database that is full text searchable.
tively.
(2) Annual and other periodic reports [64 FR 47711, Sept. 1, 1999]
filed with the Board pursuant to 49
U.S.C. 11145. § 1001.2 Certified copies of records.
(3) All docket files, which include Copies of and extracts from public
documents of record in a proceeding. records will be certified by the Sec-
(4) File and index of instruments or retary. Persons requesting the Board
documents recorded pursuant to 49 to prepare such copies should clearly
U.S.C. 11301. state the material to be copied, and
(5) Surface Transportation Board Ad- whether it shall be certified. Charges
ministrative Issuances. will be made for certification and for
(b) The following records, so-called the preparation of copies as provided in
‘‘reading room’’ documents, are avail- part 1002 of this chapter.
able for inspection and copying at the
Board’s office: § 1001.3 Requests to inspect other
(1) Final decisions, including concur- records not considered public
ring and dissenting opinions, as well as under 5 U.S.C. 552.
orders, made in the adjudication of Requests to inspect records other
cases; than those now deemed to be of a pub-
(2) Those statements of policy and in- lic nature shall be in writing and ad-
terpretations that have been adopted dressed to the Freedom of Information
§ 1001.4 49 CFR Ch. X (10–1–07 Edition)
Officer (Officer). The Officer shall de- expected to cause substantial competi-
termine within 10 days of receipt of a tive harm.
request (excepting Saturdays, Sundays, (2) Submitter means any person or en-
and legal public holidays) whether a re- tity who provides confidential commer-
quested record will be made available. cial information to the government.
If the Officer determines that a request The term ‘‘submitter’’ includes, but is
cannot be honored, the Officer must in- not limited to, corporations, state gov-
form the requesting party in writing of ernments, and foreign governments.
this decision and such letter shall con- (b) Notice to submitters. Except as pro-
tain a detailed explanation of why the vided in paragraph (g) of this section,
requested material cannot be made the Board, to the extent permitted by
available and explain the requesting law, shall provide a submitter with
party’s right of appeal. If the Officer prompt written notice, in accordance
rules that such records cannot be made with paragraph (c) of this section, of
available because they are exempt receipt of an FOIA request encom-
under the provisions of 5 U.S.C. 552(b), passing its submissions. This notice
an appeal from such ruling may be ad- shall either describe the exact nature
dressed to the Chairman. The Chair- of the information requested or provide
man’s decision shall be administra- copies of the records themselves.
tively final and state the specific ex- (c) When notice is required. Notice
emption(s) contained in 5 U.S.C. 552(b)
shall be given to a submitter whenever:
relied upon for denial. Such an appeal
(1) The Board has reason to believe
must be filed within 30 days of the date
that disclosure of the information
of the Freedom of Information Officer’s
letter. The Chairman shall act in writ- could reasonably be expected to cause
ing on such appeals within 20 days (ex- substantial competitive harm; or
cepting Saturdays, Sundays, and legal (2) The information has been des-
public holidays) of receipt of any ap- ignated, in good faith by the submitter,
peal. In unusual circumstances, as set as confidential commercial informa-
forth in 5 U.S.C. 552(a)(6)(B), the time tion at the time of submission or with-
limit may be extended, by written no- in a reasonable time thereafter. When-
tice to the person making the par- ever possible, the submitter’s claim of
ticular request, setting forth the rea- confidentiality shall be supported by a
sons for such extension, for no more statement or certification by an officer
than 10 working days. If the appeal is or authorized representative of the
denied, the Chairman’s order shall no- company that the information in ques-
tify the requesting party of his or her tion is in fact confidential commercial
right to judicial review. Charges shall information and has not been disclosed
be made as provided for in § 1002.1(f) of to the public.
this chapter. (d) Opportunity to object to disclosure.
(1) Through the notice described in
§ 1001.4 Predisclosure notification pro- paragraph (b) of this section, the Board
cedures for confidential commercial shall afford a submitter a reasonable
information. period of time in which to provide it
(a) In general. Confidential commer- with a detailed statement of any objec-
cial information provided to the Inter- tion to disclosure. Such statement
state Commerce Commission or the shall specify all grounds for with-
Board shall not be disclosed pursuant holding the requested information.
to a Freedom of Information Act (2) When notice is given to a sub-
(FOIA) request except in accordance mitter under this section, the Board
with this section. For such purposes, also shall notify the requester that it
the following definitions apply: has been provided.
(1) Confidential commercial information (e) Notice of intent to disclose. (1) The
means records provided to the govern- Board shall consider carefully a sub-
ment by a submitter that arguably mitter’s objections and specific
contain material exempt from release grounds for nondisclosure prior to its
under Exemption 4 of the Freedom of determination whether or not to dis-
Information Act, 5 U.S.C. 552(b)(4), be- close the requested information. When-
cause disclosure could reasonably be ever the Board decides to disclose the
10
Surface Transportation Board, DOT § 1002.1
information over a submitter’s objec- the time of submission or within a rea-

tion, it shall provide the submitter sonable time thereafter, unless the
with written notice containing the fol- Board has reason to believe that disclo-
lowing: sure of the information could reason-
(i) A description or copy of the infor- ably be expected to cause substantial
mation to be disclosed; competitive harm; or
(ii) The reasons why the submitter’s (6) The designation made by the sub-
disclosure objections were not sus- mitter in accordance with these regula-
tained; and tions appears obviously frivolous; in
(iii) A specific disclosure date, which such case, the Board must provide the
shall be a reasonable number of days submitter only with written notice of
after the notice of intent to disclose any administrative disclosure deter-
has been mailed to the submitter. mination within a reasonable number
(2) At the same time that notice of of days prior to the specified disclosure
intent to disclose is given to a sub- date.
mitter, the Board shall notify the re-
quester accordingly. PART 1002—FEES
(f) Notice of lawsuit. (1) Whenever an
FOIA requester brings legal action Sec.
seeking to compel disclosure of con- 1002.1 Fees for records search, review, copy-
fidential commercial information, the ing, certification, and related services.
Board shall promptly notify the sub- 1002.2 Filing fees.
1002.3 Updating user fees.
mitter.
(2) Whenever a submitter brings legal AUTHORITY: 5 U.S.C. 552(a)(4)(A) and 553; 31
action seeking to prevent disclosure of U.S.C. 9701; and 49 U.S.C. 721. Section
1002.1(g)(11) also issued under 5 U.S.C. 5514
confidential commercial information, and 31 U.S.C. 3717.
the Board shall promptly notify the re-
quester. § 1002.1 Fees for records search, re-
(g) Exception to notice requirement. view, copying, certification, and re-
The notice requirements of this section lated services.
shall not apply if: Certifications and copies of such tar-
(1) The Board determines that the in- iffs, reports and other public records
formation requested should not be dis- and documents on file with the Surface
closed; or Transportation Board as may be prac-
(2) The information already has been ticable to furnish, as well as searches
published or otherwise officially made and copying of records not considered
available to the public; or public under the Freedom of Informa-
(3) Disclosure of the information is tion Act (5 U.S.C. 552), will be furnished
required by law (other than 5 U.S.C. on the following basis:
552); or (a) Certificate of the Secretary,
(4) Disclosure is required by a Board $14.00.
rule that: (b) Service involved in examination
(i) Was adopted pursuant to notice of tariffs or schedules for preparation
and public comment; of certified copies of tariffs or sched-
(ii) Specifies narrow classes of ules or extracts therefrom at the rate
records submitted to the Board that of $36.00 per hour.
are to be released; and (c) Service involved in checking
(iii) Provides in exceptional cir- records to be certified to determine au-
cumstances for notice when the sub- thenticity, including clerical work,
mitter provides written justification, etc., identical thereto, at the rate of
at the time the information is sub- $25.00 per hour.
mitted or within a reasonable time (d) Photocopies of tariffs, reports,
thereafter, that disclosure of the infor- and other public documents, at the
mation could reasonably be expected to rate of $1.20 per letter or legal size ex-
cause substantial competitive harm; or posure. A minimum charge of $6.00 will
(5) The information requested was be made for this service.
not designated by the submitter as ex- (e) Fees for courier services to trans-
empt from disclosure, when the sub- port agency records to provide on-site
mitter had an opportunity to do so at access to agency records stored off-site
11
§ 1002.1 49 CFR Ch. X (10–1–07 Edition)
will be set at the rates set forth in the of which are not intended to promote
Board’s agreement with its courier any particular product or industry.
service provider. Rate information is They must show that their request is
available on the Board’s Web site authorized by and under the auspices of
(http://www.stb.dot.gov), or can be ob- a qualifying institution and the records
tained from the Board’s Information are not sought for a commercial use
Officer, Suite 880, Surface Transpor- but, instead, are in furtherance of
tation Board, Washington, DC 20423– scholarly or scientific research.
0001. (3) Requesters who are representa-
(f) The fee for search and copying tives of the news media (persons ac-
services requiring ADP processing are tively gathering news for an entity
as follows: that is organized and operated to pub-
(1) A fee of $64.00 per hour for profes- lish or broadcast news to the public)
sional staff time will be charged when will be assessed only for the cost of du-
it is required to fulfill a request for plication (excluding charges for the
ADP data. first 100 pages) if they can show that
(2) Printing shall be charged at the their request is not made for a com-
rate of $.10 per page of computer gen- mercial use. A request for records sup-
erated output with a minimum charge porting the news dissemination func-
of $.25. A charge of $30 per reel of mag- tion of the requester shall not be con-
netic tape will be made if the tape is to sidered a request for a commercial use.
be permanently retained by the re- (4) All other requesters will be as-
questor. sessed fees which recover the full, rea-
(g) The fees for search, review and sonable direct cost of searching for and
copying services for records not consid- duplicating records that are responsive
ered public under the Freedom of Infor- to the request (excluding charges for
mation Act are as follows: the first 100 pages of duplication and
(1) When records are sought for com- the first two hours of search time).
mercial use, requesters will be assessed (5) All requesters must reasonably
the full and reasonable direct costs of describe the records sought.
document search, review and duplica- (6) The search and review hourly fees
tion. A ‘‘commercial use’’ request re- will be based upon employee grade lev-
fers to a request from or on behalf of els in order to recoup the full, allow-
one who seeks information for a use or able direct costs attributable to their
purpose that furthers the commercial, performance of these functions. They
trade, or profit interests of the re- are as follows:
quester or the person on whose behalf
the request is made. Grade Rate Grade Rate
(2) When records are not sought for GS–1 .......... $10.71 GS–9 ......................... $25.00
commercial use and a request is made GS–2 .......... 11.66 GS–10 ....................... 27.53
by an educational or noncommercial GS–3 .......... 13.14 GS–11 ....................... 30.25
scientific institution, requesters will GS–4 .......... 14.75 GS–12 ....................... 36.26
GS–5 .......... 16.50 GS–13 ....................... 43.12
be assessed only for the cost of duplica- GS–6 .......... 18.39 GS–14 ....................... 50.95
tion (excluding charges for the first 100 GS–7 .......... 20.44 GS–15 and over ....... 59.93
pages). The term ‘‘Educational Institu- GS–8 .......... 22.64
tion’’ refers to a preschool, a public or
private elementary or secondary (7) The fee for photocopies shall be
school, an institution of graduate high- $1.20 per letter or legal size exposure
er education, an institution of under- with a minimum charge of $6.00.
graduate higher education, an institu- (8) The fees for ADP data are set
tion of professional education, and an forth in paragraph (f) of this section.
institution of vocational education, (9) If the cost of collecting any fee
which operates a program of scholarly would be equal to or greater than the
research. The term ‘‘noncommercial fee itself, it will not be assessed.
scientific institution’’ refers to an in- (10) A fee may be charged for
stitution that is not operated on a searches which are not productive and
‘‘commercial’’ basis and that is oper- for searches for records or those parts
ated solely for the purpose of con- of records which subsequently are de-
ducting scientific research the results termined to be exempt from disclosure.
12
(11) Interest charges will be assessed an understanding of government oper-

on any unpaid bill starting on the date ations or activities;
specified in the bill, at the rate pre- (iii) The contribution to an under-
scribed in 31 U.S.C. 3717 and will accrue standing of the subject by the general
from the date of the billing. The Debt public likely to result from disclosure:
Collection Act, 5 U.S.C. 5514 (1982), in- Whether disclosure of the requested in-
cluding disclosure to the consumer re- formation will contribute to ‘‘public
porting agencies and the use of collec- understanding’’;
tion agencies, as prescribed in the (iv) The significance of the contribu-
Board’s Debt Collection Regulations in tion to public understanding: Whether
49 CFR part 1018, will be utilized to en- the disclosure is likely to contribute
courage payment where appropriate. ‘‘significantly’’ to public under-
(12) If search charges are likely to ex- standing of government operations or
ceed $25, the requester will be notified activities;
of the estimated fees unless requester (v) The existence and magnitude of a
willingness to pay whatever fee is as- commercial interest: Whether the re-
sessed has been provided in advance. quester has a commercial interest that
The administrative time limits pre- would be furthered by the requested
scribed in 5 U.S.C. 552(a)(6) will not disclosure; and, if so
begin until after the requester agrees (vi) The primary interest in disclo-
in writing to accept the prospective sure: Whether the magnitude of the
charges. identified commercial interest of the
(13) An advance payment (before requester is sufficiently large, in com-
work is commenced or continued on a parison with the public interest in dis-
request) may be required if the charges closure, that disclosure is ‘‘primarily
are likely to exceed $250. Requesters in the commercial interest of the re-
who have previously failed to pay a fee quester.’’
charged in timely fashion (i.e. within
30 days of the date of billing) may be This fee waiver and reduction provision
required first to pay this amount plus will be implemented in accordance
any applicable interest (or demonstrate with guidelines issued by the U.S. De-
that the fee has been paid) and then partment of Justice on April 2, 1987 and
make an advance payment of the full entitled ‘‘New FOIA Fee Waiver Policy
amount of the estimated fee before the Guidance.’’ A copy of these guidelines
new or pending request is processed. may be inspected or obtained from the
The administrative time limits pre- Surface Transportation Board’s Free-
scribed in 5 U.S.C. 552(a)(6) also will dom of Information Office, Wash-
not begin until after a requester has ington, DC 20423.
complied with this provision. (h) Fees for services described in
(14) Documents shall be furnished paragraphs (a) through (g) of this sec-
without any charge or at a charge re- tion may be charged to accounts estab-
duced below the fees set forth above if lished in accordance with 49 CFR
disclosure of the information is in the 1002.2(a)(2), or paid for by check, money
public interest because it is likely to order, currency, or credit card in ac-
contribute significantly to public un- cordance with 49 CFR 1002.2(a)(3).
derstanding of the operations or activi- (i) Transcript of testimony and of
ties of the government and is not pri- oral argument, or extracts therefrom,
marily in the commercial interest of may be purchased by the public from
the requester. The following six factors the Board’s official reporter. For infor-
will be employed in determining when mation regarding the official reporter,
such fees shall be waived or reduced: contact the Secretary, Surface Trans-
(i) The subject of the request: Wheth- portation Board, Washington, DC 20423.
er the subject of the requester records [32 FR 20010, Dec. 20, 1967]
concerns ‘‘the operations or activities
EDITORIAL NOTE: For FEDERAL REGISTER ci-
of the government’’; tations affecting § 1002.1, see the List of CFR
(ii) The informative value of the in- Sections Affected, which appears in the
formation to be disclosed: Whether the Finding Aids section of the printed volume
disclosure is ‘‘likely to contribute’’ to and on GPO Access.
13
§ 1002.2 49 CFR Ch. X (10–1–07 Edition)
§ 1002.2 Filing fees. process, the Board will refund the fil-
(a) Manner of payment. (1) Except as ing fee.
specified in this section, all filing fees (d) Related or consolidated proceedings.
will be payable at the time and place (1)(i) Except as provided for in para-
the application, petition, notice, tariff, graph (d)(1)(ii) of this section, separate
contract summary, or other document fees need not be paid for related appli-
is tendered for filing. Filing fees for cations filed by the same applicant
tariffs, including schedules, and con- that would be the subject of one pro-
tract summaries, including supple- ceeding.
ments (Item 78), and filing fees for doc- (ii) In proceedings filed under the rail
uments submitted for recording (Item consolidation procedures at 49 CFR
83) may be charged to accounts estab- part 1180, the applicable filing fee must
lished by the Board in accordance with be paid for each proceeding submitted
paragraph (a)(2) of this section. concurrently with the primary applica-
(2) Billing account procedure. Form tion. The fee for each type of pro-
STB–1032 must be submitted to the ceeding is set forth in the fee schedule
Board’s Section of Financial Services contained in paragraph (f) of this sec-
to establish STB billing accounts for tion.
filing fees for tariffs and for documents (2) A separate fee will be assessed for
submitted for recording. the filing of an application for tem-
(3) Fees will be payable to the Sec- porary authority to operate a motor
retary, Surface Transportation Board, carrier of passengers as provided for in
by check payable in United States cur- paragraph (f)(5) of this section regard-
rency drawn upon funds deposited in a less of whether such application is re-
United States or foreign bank or other lated to a corresponding transfer pro-
financial institution, money order pay- ceeding as provided for in paragraph
able in United States currency, or by (f)(2) of this section.
credit card. (3) The Board may reject concur-
(b) Any filing that is not accom- rently filed applications, petitions, no-
panied by the appropriate filing fee, tices, contracts, or other documents
payment via credit card or STB billing asserted to be related and refund the
account, or a request for waiver of the filing fee if, in its judgment, they em-
fee, is deficient. However, the Board brace two or more severable matters
may find that a tariff which is sub- which should be the subject of separate
mitted without the appropriate filing proceedings.
fee is deficient and reject the tariff fil- (e) Waiver or reduction of filing fees. It
ing, if the filer repeatedly fails to sub- is the general policy of the Board not
mit the appropriate filing fee after the to waive or reduce filing fees except as
Board has advised the filer of the prop- described below:
er filing fee and tariff filing proce- (1) Filing fees are waived for an ap-
dures. plication or other proceeding which is
(c) Fees not refundable. Fees will be filed by a federal government agency,
assessed for every filing in the type of or a state or local government entity.
proceeding listed in the schedule of For purposes of this section the
fees contained in paragraph (f) of this phrases ‘‘federal government agency’’
section, subject to the exceptions con- or ‘‘government entity’’ do not include
tained in paragraphs (d) and (e) of this a quasi-governmental corporation or
section. After the application, petition, government subsidized transportation
notice, tariff, contract, or other docu- company.
ment has been accepted for filing by (2) In extraordinary situations the
the Board, the filing fee will not be re- Board will accept requests for waivers
funded, regardless of whether the appli- or fee reductions in accordance with
cation, petition, notice, tariff, con- the following procedure:
tract, or other document is granted or (i) When to request. At the time that
approved, denied, rejected before dock- a filing is submitted to the Board the
eting, dismissed, or withdrawn. If an applicant may request a waiver or re-
individual exemption proceeding be- duction of the fee prescribed in this
comes a matter of general applicability part. Such request should be addressed
and is handled through the rulemaking to the Secretary.
14
(ii) Basis. The applicant must show (iii) Board action. The Secretary will
the waiver or reduction of the fee is in notify the applicant of the decision to
the best interest of the public, or that grant or deny the request for waiver or
payment of the fee would impose an reduction.
undue hardship upon the requestor. (f) Schedule of filing fees.
Type of proceeding Fee
PART I: Non-Rail Applications or Proceedings to Enter Upon a Particular Financial Transaction or Joint Arrangement
(1) An application for the pooling or division of traffic .................................................................................. $3,700.

(2)(i) An application involving the purchase, lease, consolidation, merger, or acquisition of control of a
motor carrier of passengers under 49 U.S.C. 14303 ................................................................................ 1,700.
(ii) A petition for exemption under 49 U.S.C. 13541 (other than a rulemaking) filed by a non-rail carrier
not otherwise covered ............................................................................................................................... 2,800.
(iii) A petition to revoke an exemption filed under 49 U.S.C. 13541(d) ....................................................... 2,300.
(3) An application for approval of a non-rail rate association agreement. 49 U.S.C. 13703 ....................... 23,600.
(4) An application for approval of an amendment to a non-rail rate association agreement:
(i) Significant amendment ............................................................................................................... 3,900.
(ii) Minor amendment ...................................................................................................................... 90.
(5) An application for temporary authority to operate a motor carrier of passengers. 49 U.S.C. 14303(i) 400.
(6) A notice of exemption for 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 ....................................................... 1,500.
(7)–(10) [Reserved]
PART II: Rail Licensing Proceedings other than Abandonment or Discontinuance Proceedings
(11)(i) An application for a certificate authorizing the extension, acquisition, or operation of lines of rail-
road. 49 U.S.C. 10901 ............................................................................................................................... $6,200.
(ii) Notice of exemption under 49 CFR 1150.31–1150.35 ............................................................................ 1,600.
(iii) Petition for exemption under 49 U.S.C. 10502 ....................................................................................... 10,700.
(12)(i) An application involving the construction of a rail line ....................................................................... 63,800.
(ii) A notice of exemption involving construction of a rail line under 49 CFR 1150.36 ................................ 1,600.
(iii) A petition for exemption under 49 U.S.C. 10502 involving construction of a rail line ............................ 63,800.
(iv) A request for determination of a dispute involving a rail construction that crosses the line of another
carrier under 49 U.S.C. 10902(d) .............................................................................................................. 200.
(13) A Feeder Line Development Program application filed under 49 U.S.C. 10907(b)(1)(A)(i) or
10907(b)(1)(A)(ii) ....................................................................................................................................... 2,600.
(14)(i) An application of a class II or class III carrier to acquire an extended or additional rail line under
49 U.S.C. 10902 ........................................................................................................................................ 5,300.
(ii) Notice of exemption under 49 CFR 1150.41–1150.45 ............................................................................ 1,600.
(iii) Petition for exemption under 49 U.S.C. 10502 relating to an exemption from the provisions of 49
U.S.C. 10902 ............................................................................................................................................. 5,700.
(15) A notice of a modified certificate of public convenience and necessity under 49 CFR 1150.21–
1150.24 ...................................................................................................................................................... 1,400.
PART III: Rail Abandonment or Discontinuance of Transportation Services Proceedings
(21)(i) An application for authority to abandon all or a portion of a line of railroad or discontinue oper-
ation 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) .......................................................................................................................................... $18,900.
(ii) Notice of an exempt abandonment or discontinuance under 49 CFR 1152.50 ...................................... 3,200.
(iii) A petition for exemption under 49 U.S.C. 10502 .................................................................................... 5,400.
(22) An application for authority to 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. ...................................... 400.
(23) Abandonments filed by bankrupt railroads ............................................................................................ 1,600.
(24) A request for waiver of filing requirements for abandonment application proceedings ........................ 1,500.
(25) An offer of financial assistance under 49 U.S.C. 10904 relating to the purchase of or subsidy for a
rail line proposed for abandonment ........................................................................................................... 1,300.
(26) A request to set terms and conditions for the sale of or subsidy for a rail line proposed to be aban-
doned ......................................................................................................................................................... 19,300.
(27)(i) A request for a trail use condition in an abandonment proceeding under 16 U.S.C.1247(d) ........... 200.
(ii) A request to extend the period to negotiate a trail use agreement ........................................................ 350.
PART IV: Rail Applications to Enter Upon a Particular Financial Transaction or Joint Arrangement
(36) An application for use of terminal facilities or other applications under 49 U.S.C. 11102 ................... $16,200.
(37) An application for the pooling or division of traffic. 49 U.S.C. 11322 ................................................... 8,700.
(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 pre-
viously in separate ownership. 49 U.S.C. 11324:

(i) Major transaction ........................................................................................................................ 1,275,100.
15
§ 1002.2 49 CFR Ch. X (10–1–07 Edition)
(ii) Significant transaction ................................................................................................................ 255,000.

(iii) Minor transaction ...................................................................................................................... 6,600.
(iv) Notice of an exempt transaction under 49 CFR 1180.2(d) ...................................................... 1,500.
(v) Responsive application .............................................................................................................. 6,600.
(vi) Petition for exemption under 49 U.S.C. 10502 ........................................................................ 8,000.
(vii) A request for waiver or clarification of regulations filed in a major financial proceeding as
defined at 49 CFR 1180.2(a) ...................................................................................................... 4,700.
(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:
(iv) A notice of an exempt transaction under 49 CFR 1180.2(d) ................................................... 1,100.
defined at 49 CFR 1180.2(a) ...................................................................................................... 4,700.
(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:
defined at 49 CFR 1180.2(a) ...................................................................................................... 4,700.
(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:
defined at 49 CFR 1180.2(a) ...................................................................................................... 4,700.
(42) Notice of a joint project involving relocation of a rail line under 49 CFR 1180.2(d)(5) ........................ 2,100.
(43) An application for approval of a rail rate association agreement. 49 U.S.C. 10706 ............................ 59,700.
(44) An application for approval of an amendment to a rail rate association agreement. 49 U.S.C.
10706:
(i) Significant amendment ............................................................................................................... 11,000.
(ii) Minor amendment ...................................................................................................................... 90.
(45) An application for authority to hold a position as officer or director under 49 U.S.C. 11328 ............... 650.
(46) A petition for exemption under 49 U.S.C. 10502 (other than a rulemaking) filed by rail carrier not
otherwise covered ...................................................................................................................................... 6,800.
(47) National Railroad Passenger Corporation (Amtrak) conveyance proceeding under 45 U.S.C. 562 .... 200.
(48) National Railroad Passenger Corporation (Amtrak) compensation proceeding under Section 402(a)
of the Rail Passenger Service Act ............................................................................................................ 200.
PART V: Formal Proceedings
(56) A formal complaint alleging unlawful rates or practices of carriers:

(i) A formal complaint filed under the coal rate guidelines (Stand-Alone Cost Methodology) al-
leging unlawful rates and/or practices of rail carriers under 49 U.S.C. 10704(c)(1) .................. $178,200.
(ii) A formal complaint involving rail maximum rates filed under the small rate case procedures 150.
(iii) All other formal complaints (except competitive access complaints) ....................................... 17,600.
(iv) Competitive access complaints ................................................................................................ 150.
(v) A request for an order compelling a rail carrier to establish a common carrier rate ............... 200.
(57) A complaint seeking or a petition requesting institution of an investigation seeking the prescription
or division of joint rates or charges. 49 U.S.C. 10705 .............................................................................. 7,500.
(58) A petition for declaratory order:
(i) A petition for declaratory order involving a dispute over an existing rate or practice which is
comparable to a complaint proceeding ....................................................................................... 1,000.
(ii) All other petitions for declaratory order ..................................................................................... 1,400.
(59) An application for shipper antitrust immunity. 49 U.S.C. 10706(a)(5)(A) ............................................. 6,000.
(60) Labor arbitration proceedings ................................................................................................................ 200.
(61)(i) An appeal of a Surface Transportation Board decision on the merits or petition to revoke an ex-
emption pursuant to 49 U.S.C. 10502(d) .................................................................................................. 200.
(ii) An appeal of a Surface Transportation Board decision on procedural matters except dis-
covery rulings .............................................................................................................................. 300.
(62) Motor carrier undercharge proceedings ................................................................................................ 200.
(63)(i) Expedited relief for service inadequacies: A request for expedited relief under 49 U.S.C. 11123
and 49 CFR part 1146 for service emergency .......................................................................................... 200.
16
(ii) Expedited relief for service inadequacies: A request for temporary relief under 49 U.S.C. 10705 and
11102, and 49 CFR part 1147 for service inadequacies .......................................................................... 200.
(64) A request for waiver or clarification of regulations except one filed in an abandonment or dis-
continuance proceeding, or in a major financial proceeding as defined at 49 CFR 1180.2(a) ................ 500.
PART VI: Informal Proceedings
(76) An application for authority to establish released value rates or ratings for motor carriers and freight
forwarders of household goods under 49 U.S.C. 14706 .......................................................................... 1,000.
(77) An application for special permission for short notice or the waiver of other tariff publishing require-
ments ......................................................................................................................................................... $100.
(78) The filing of tariffs, including supplements, or contract summaries ...................................................... $1 per page. ($21
minimum charge.)
(79) Special docket applications from rail and water carriers:
(i) Applications involving $25,000 or less ....................................................................................... 50.
(ii) Applications involving over $25,000 .......................................................................................... 100.
(80) Informal complaint about rail rate applications ...................................................................................... 500.
(81) Tariff reconciliation petitions from motor common carriers:
(i) Petitions involving $25,000 or less ............................................................................................. 50.
(ii) Petitions involving over $25,000 ................................................................................................ 100.
(82) Request for a determination of the applicability or reasonableness of motor carrier rates under 49
U.S.C. 13710(a)(2) and (3) ........................................................................................................................ 200.
(83) Filing of documents for recordation. 49 U.S.C. 11301 and 49 CFR 1177.3(c) .................................... $35 per document.
(84) Informal opinions about rate applications (all modes) .......................................................................... 200.
(85) A railroad accounting interpretation ....................................................................................................... 950.
(86)(i) A request for an informal opinion not otherwise covered .................................................................. 1,200.
(ii) A proposal to use on a voting 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) ........... 4,300.
(iii) A request for an informal opinion on a voting trust agreement pursuant to 49 CFR 1013.3(a) not oth-
erwise covered ........................................................................................................................................... 400.
(87) Arbitration of Certain Disputes Subject to the Statutory Jurisdiction of the Surface Transportation
Board under 49 CFR 1108:
(i) Complaint .................................................................................................................................... 75.
(ii) Answer (per defendant), Unless Declining to Submit to Any Arbitration .................................. 75.
(iii) Third Party Complaint ............................................................................................................... 75.
(iv) Third Party Answer (per defendant), Unless Declining to Submit to Any Arbitration .............. 75.
(v) Appeals of Arbitration Decisions or Petitions to Modify or Vacate an Arbitration Award ......... 150.
(88) Basic fee for STB adjudicatory services not otherwise covered ........................................................... 200.
PART VII: Services
(96) Messenger delivery of decision to a railroad carrier’s Washington, DC, agent .................................... $27 per delivery.
(97) Request for service or pleading list for proceedings ............................................................................. $20 per list.
(98) Processing the paperwork related to a request for the Carload Waybill Sample to be used in a Sur-
face Transportation Board or State proceeding that:
(i) Does not require a FEDERAL REGISTER notice:
(a) Set cost portion ........................................................................................................... $100.
(b) Sliding cost portion ..................................................................................................... $40 per party.
(ii) Does require a FEDERAL REGISTER notice:
(a) Set cost portion ........................................................................................................... $350.
(b) Sliding cost portion ..................................................................................................... $40 per party.
(99)(i) Application fee for the Surface Transportation Board’s Practitioners’ Exam ..................................... $150.
(ii) Practitioners’ Exam Information Package ................................................................................................ 25.
(100) Uniform Railroad Costing System (URCS) software and information:
(i) Initial PC version URCS Phase III software program and manual ............................................ 50.
(ii) Updated URCS PC version Phase III cost file—per year ......................................................... $25 per year.
(iii) Public requests for Source Codes to the PC version URCS Phase III ................................... $100.
(101) Carload Waybill Sample data on recordable compact disk (R–CD):
(i) Requests for Public Use File on R–CD—per year .................................................................... $250 per year.
(ii) Waybill—Surface Transportation Board or State proceedings on R–CD—per year ................ $500 per year.
(iii) User Guide for latest available Carload Waybill Sample ......................................................... $50.
(iv) Specialized programming for Waybill requests to the Board ................................................... $95 per hour.
(g) Returned check policy. (1) If a it is drawn, the Board will notify the
check submitted to the Board for a fil- person who submitted the check that:
ing or service fee is dishonored by a (i) All work will be suspended on the
bank or financial institution on which filing or proceeding, other than a tariff
filing, until the check is made good;
17
§ 1002.3 49 CFR Ch. X (10–1–07 Edition)
(ii) A returned check charge of $20.00 (c) Payment of fees. Any person sub-
and any bank charges incurred by the mitting a filing for which a fee is es-
Board as a result of the dishonored tablished shall pay the fee in effect at
check must be submitted with the fil- the time of the filing.
ing fee which is outstanding; and (d) Method of updating fees. Each fee
(iii) If payment is not made within shall be updated by updating the cost
the time specified by the Board, the components comprising the fee. Cost
proceeding will be dismissed or the fil- components shall be updated as fol-
ing may be rejected. lows:
(2) If a person repeatedly submits dis- (1) Direct labor costs shall be updated
honored checks to the Board for filing by multiplying base level direct labor
fees, the Board may notify the person costs by percentage changes in average
that all future filing fees must be sub- wages and salaries of Board employees.
mitted in the form of a certified or Base level direct labor costs are direct
cashier’s check or a money order. labor costs determined by the cost
[49 FR 18492, May 1, 1984] study set forth in Revision of Fees For
EDITORIAL NOTE: For FEDERAL REGISTER ci-
Services, 1 I.C.C.2d 60 (1984) or subse-
tations affecting § 1002.2, see the List of CFR quent cost studies. The base period for
Sections affected, which appears in the Find- measuring changes shall be April 1984.
ing Aids section of the printed volume and (2) Operations overhead shall be de-
on GPO Access. veloped each year on the basis of cur-
EFFECTIVE DATE NOTE: At 72 FR 51375, rent relationships existing on a weight-
Sept. 7, 2007, § 1002.2 was amended by revising ed basis, for indirect labor applicable
paragraphs (f)(56)(ii) through (v) and adding to the first supervisory work centers
paragraph (f)(56)(vi), effective Oct. 7, 2007. directly associated with user fee activ-
For the convenience of the user, the added ity. Actual updating of operations
and revised text is set forth as follows:
overhead will be accomplished by ap-
§ 1002.2 Filing fees. plying the current percentage factor to
updated direct labor, including current
* * * * * governmental overhead costs.
(3)(i) Office general and administra-
(f) * * *
(56) * * * tive costs shall be developed each year
(ii) A formal complaint involving rail max- on the basis of current level costs, i.e.,
imum rates filed under the Simplified-SAC dividing actual office general and ad-
methodology—10,600. ministrative costs for the current fis-
(iii) A formal complaint involving rail cal year by total office costs for the Of-
maximum rates filed under the Three Bench- fices directly associated with user fee
mark methodology—150. activity. Actual updating of office gen-
(iv) All other formal complaints (except
competitive access complaints)—17,600. eral and administrative costs will be
(v) Competitive access complaints—150. accomplished by applying the current
(vi) A request for an order compelling a percentage factor to updated direct
rail carrier to establish a common carrier labor, including current governmental
rate—200. overhead and current operations over-
head costs.
* * * * * (ii) Board general and administrative
costs shall be developed each year on
§ 1002.3 Updating user fees. the basis of current level costs; i.e., di-
(a) Update. Each fee established in viding actual Board general and admin-
this part shall be updated in accord- istrative costs for the current fiscal
ance with this section at least once a year by total agency expenses for the
year. However, any fee may be updated current fiscal year. Actual updating of
more than once a year, if the Board Board general and administrative costs
finds that an additional update is nec- will be accomplished by applying the
essary. current percentage factor to updated
(b) Publication and effective dates. Up- direct labor, including current govern-
dated fees shall be published in the mental overhead, operations overhead
FEDERAL REGISTER and shall become and office general and administrative
effective 30 days after publication. costs.
18
(4) Publication costs shall be ad- particular shippers or their representa-

justed on the basis of known changes in tives are considered violations of the
the costs applicable to publication of law. Expenditures for such gifts may
material in the FEDERAL REGISTER. not support requests to increase carrier
(e) Rounding of updated fees. Updated rates. The Board shall take appropriate
fees shall be rounded in the following enforcement action to redress such un-
manner: (1) Fees between $1–$30 will be lawful expenditures.
rounded to the nearest $1; (2) fees be-
tween $30–$100 will be rounded to the § 1004.2 Misrouting, adjustment of
claims.
nearest $10; (3) fees between $100–$999
will be rounded to the nearest $50; and Carriers should adjust claims for
(4) fees above $1,000 will be rounded to damages resulting from misrouting.
the nearest $100. (This rounding proce- Where a carrier admits responsibility
dure excludes copying, printing and for billing, forwarding, or diverting a
search fees.) shipment over a higher rated route
than that directed by the shipper or
[49 FR 18494, May 1, 1984, as amended at 52 otherwise available, the misrouting
FR 46483, Dec. 8, 1987; 59 FR 44644, Aug. 30,
1994; 61 FR 42194, Aug. 14, 1996]
carrier should refund the difference to
the shipper (or reimburse the deliv-
ering carrier, as the case may be).
PART 1003—FORMS Where the misrouting carrier alleges
justification for using the higher rated
AUTHORITY: 49 U.S.C. 721, 13301(f). route, the Board may, at its discretion
and upon appropriate petition, deter-
§ 1003.1 General information. mine or express an advisory opinion on
(a) Printed forms are prescribed for the lawfulness of such routing. This in-
various applications under the Inter- terpretation must not be used to evade
state Commerce Act and the Board’s or defeat tariff rates or to meet the
regulations contained in this chapter. rate of a competing carrier or route,
(b) All prescribed forms include in- nor to relieve a shipper from responsi-
structions for their completion. bility for routing instruction. Damages
(c) Copies of all prescribed forms ex- caused by misrouting are not over-
cept insurance forms are available charges.
upon request from the Office of the
Secretary, Surface Transportation PART 1005—PRINCIPLES AND
Board, Washington, DC 20423. PRACTICES FOR THE INVESTIGA-
[57 FR 41112, Sept. 9, 1992, as amended at 64 TION AND VOLUNTARY DISPOSI-
FR 53266, Oct. 1, 1999] TION OF LOSS AND DAMAGE
CLAIMS AND PROCESSING SAL-
PART 1004—INTERPRETATIONS AND VAGE
ROUTING REGULATIONS
Sec.
Sec. 1005.1 Applicability of regulations.
1004.1 Gifts, donations, and hospitality by 1005.2 Filing of claims.
1005.3 Acknowledgment of claims.
carriers.
1005.4 Investigation of claims.
1004.2 Misrouting, adjustment of claims.
1005.5 Disposition of claims.
AUTHORITY: 49 U.S.C. 721. 1005.6 Processing of salvage.
1005.7 Weight as a measure of loss.
SOURCE: 64 FR 47711, Sept. 1, 1999, unless
otherwise noted. AUTHORITY: 49 U.S.C. 721, 11706, 14706, 15906.
§ 1004.1 Gifts, donations, and hospi- § 1005.1 Applicability of regulations.

tality by carriers. The regulations set forth in this part
It is unlawful for any common car- shall govern the processing of claims
rier engaged in interstate or foreign for loss, damage, injury, or delay to
commerce to offer, make, or cause any property transported or accepted for
undue or unreasonable preference or transportation, in interstate or foreign
advantage to any person. Gifts or serv- commerce, by each railroad, express
ices or anything of substantial value to company, motor carrier, water carrier,
19
§ 1005.2 49 CFR Ch. X (10–1–07 Edition)
and freight forwarder (hereinafter (d) Claims filed for uncertain amounts.
called carrier), subject to the Inter- Whenever a claim is presented against
state Commerce Act. a proper carrier for an uncertain
amount, such as ‘‘$100 more or less,’’
[46 FR 16224, Mar. 11, 1981]
the carrier against whom such claim is
filed shall determine the condition of
§ 1005.2 Filing of claims.
the baggage or shipment involved at
(a) Compliance with regulations. A the time of delivery by it, if it was de-
claim for loss or damage to baggage or livered, and shall ascertain as nearly as
for loss, damage, injury, or delay to possible the extent, if any, of the loss
cargo, shall not be voluntarily paid by or damage for which it may be respon-
a carrier unless filed, as provided in sible. It shall not, however, voluntarily
paragraph (b) of this section, with the pay a claim under such circumstances
receiving or delivering carrier, or car- unless and until a formal claim in writ-
rier issuing the bill of lading, receipt, ing for a specified or determinable
ticket, or baggage check, or carrier on amount of money shall have been filed
whose line the alleged loss, damage, in- in accordance with the provisions of
jury, or delay occurred, within the paragraph (b) of this section.
specified time limits applicable thereto (e) Other claims. If investigation of a
and as otherwise may be required by claim develops that one or more other
law, the terms of the bill of lading or carriers has been presented with a
other contract of carriage, and all tar- similar claim on the same shipment,
iff provisions applicable thereto. the carrier investigating such claim
(b) Minimum filing requirements. A shall communicate with each such
written or electronic communication other carrier and, prior to any agree-
(when agreed to by the carrier and ment entered into between or among
shipper or receiver involved) from a them as to the proper disposition of
claimant, filed with a proper carrier such claim or claims, shall notify all
within the time limits specified in the claimants of the receipt of conflicting
bill of lading or contract of carriage or or overlapping claims and shall require
transportation and: (1) Containing further substantiation, on the part of
facts sufficient to identify the baggage each claimant of his title to the prop-
or shipment (or shipments) of property, erty involved or his right with respect
(2) asserting liability for alleged loss, to such claim.
damage, injury, or delay, and (3) mak- [37 FR 4258, Mar. 1, 1972, as amended at 47 FR
ing claim for the payment of a speci- 12803, Mar. 25, 1982]
fied or determinable amount of money,
shall be considered as sufficient com- § 1005.3 Acknowledgment of claims.
pliance with the provisions for filing (a) Each carrier shall, upon receipt in
claims embraced in the bill of lading or writing or by electronic transmission
other contract of carriage; Provided, of a proper claim in the manner and
however, That where claims are elec- form described in the regulations, ac-
tronically handled, procedures are es- knowledge the receipt of such claim in
tablished to ensure reasonable carrier writing or electronically to the claim-
access to supporting documents. ant within 30 days after the date of its
(c) Documents not constituting claims. receipt by the carrier unless the carrier
Bad order reports, appraisal reports of shall have paid or declined such claim
damage, notations of shortage or dam- in writing or electronically within 30
age, or both, on freight bills, delivery days of the receipt thereof. The carrier
receipts, or other documents, or inspec- shall indicate in its acknowledgment
tion reports issued by carriers or their to the claimant what, if any, addi-
inspection agencies, whether the ex- tional documentary evidence or other
tent of loss or damage is indicated in pertinent information may be required
dollars and cents or otherwise, shall, by it further to process the claim as its
standing alone, not be considered by preliminary examination of the claim,
carriers as sufficient to comply with as filed, may have revealed.
the minimum claim filing require- (b) The carrier shall at the time each
ments specified in paragraph (b) of this claim is received create a separate file
section. and assign thereto a successive claim
20
file number and note that number on depreciation reflected thereon; Pro-
all documents filed in support of the vided, however, That where property in-
claim and all records and correspond- volved in a claim has not been invoiced
ence with respect to the claim, includ- to the consignee shown on the bill of
ing the acknowledgment of receipt. At lading or where an invoice does not
the time such claim is received the car- show price or value, or where the prop-
rier shall cause the date of receipt to erty involved has been sold, or where
be recorded on the face of the claim the property has been transferred at
document, and the date of receipt shall bookkeeping values only, the carrier
also appear in the carrier’s acknowl- shall, before voluntarily paying a
edgment of receipt to the claimant. claim, require the claimant to estab-
The carrier shall also cause the claim lish the destination value in the quan-
file number to be noted on the shipping tity, shipped, transported, or involved;
order, if in its possession, and the de- Provided, further, That when supporting
livery receipt, if any, covering such documents are determined to be a nec-
shipment, unless the carrier has estab- essary part of an investigation, the
lished an orderly and consistent inter- supporting documents are retained by
nal procedure for assuring: (1) That all the carriers for possible Board inspec-
information contained in shipping or- tion.
ders, delivery receipts, tally sheets, (c) Verification of Loss. When an as-
and all other pertinent records made serted claim for loss of an entire pack-
with respect to the transportation of age or an entire shipment cannot be
the shipment on which claim is made, otherwise authenticated upon inves-
is available for examination upon re-
tigation, the carrier shall obtain from
ceipt of a claim; (2) that all such
the consignee of the shipment involved
records and documents (or true and
a certified statement in writing that
complete reproductions thereof) are in
the property for which the claim is
fact examined in the course of the in-
filed has not been received from any
vestigation of the claim (and an appro-
other source.
priate record is made that such exam-
ination has in fact taken place); and (3) [37 FR 4258, Mar. 1, 1972, as amended at 37 FR
that such procedures prevent the dupli- 23909, Nov. 10, 1972; 47 FR 12803, Mar. 25, 1982]
cate or otherwise unlawful payment of
claims. § 1005.5 Disposition of claims.
[37 FR 4258, Mar. 1, 1972, as amended at 37 FR (a) Each carrier subject to the Inter-
20943, Oct. 10, 1972; 47 FR 12803, Mar. 25, 1982] state Commerce Act which receives a
written or electronically transmitted
§ 1005.4 Investigation of claims. claim for loss or damage to baggage or
(a) Prompt investigation required. Each for loss, damage, injury, or delay to
claim filed against a carrier in the property transported shall pay, decline,
manner prescribed herein shall be or make a firm compromise settlement
promptly and thoroughly investigated offer in writing or electronically to the
if investigation has not already been claimant within 120 days after receipt
made prior to receipt of the claim. of the claim by the carrier; Provided,
(b) Supporting documents. When a nec- however, That, if the claim cannot be
essary part of an investigation, each processed and disposed of within 120
claim shall be supported by the origi- days after the receipt thereof, the car-
nal bill of lading, evidence of the rier shall at that time and at the expi-
freight charges, if any, and either the ration of each succeeding 60-day period
original invoice, a photographic copy while the claim remains pending, ad-
of the original invoice, or an exact vise the claimant in writing or elec-
copy thereof or any extract made tronically of the status of the claim
therefrom, certified by the claimant to and the reason for the delay in making
be true and correct with respect to the final disposition thereof and it shall re-
property and value involved in the tain a copy of such advice to the claim-
claim; or certification of prices or val- ant in its claim file thereon.
ues, with trade or other discounts, al- (b) When settling a claim for loss or
lowance, or deductions, of any nature damage, a common carrier by motor
whatsoever and the terms thereof, or vehicle of household goods as defined
21
§ 1005.6 49 CFR Ch. X (10–1–07 Edition)
in § 1056.1(b)(1) shall use the replace- (c) Upon receipt of a claim on a ship-
ment costs of the lost or damaged item ment on which salvage has been proc-
as a base to apply a depreciation factor essed in the manner hereinbefore pre-
to arrive at the current actual value of scribed, the carrier shall record in its
the lost or damaged item: Provided, claim file thereon the lot number as-
That where an item cannot be replaced signed, the amount of money recov-
or no suitable replacement is obtain- ered, if any, from the disposition of
able, the proper measure of damages such property, and the date of trans-
shall be the original costs, augmented mittal of such money to the person or
by a factor derived from a consumer persons lawfully entitled to receive the
price index, and adjusted downward by same.
a factor depreciation over average use-
ful life. [37 FR 4258, Mar. 1972]
[37 FR 4258, Mar. 1, 1972, as amended at 46 FR § 1005.7 Weight as a measure of loss.

16224, Mar. 11, 1981; 47 FR 12803, Mar. 25, 1982]
Where weight is used as a measure of
§ 1005.6 Processing of salvage. loss in rail transit of scrap iron and
(a) Whenever baggage or material, steel and actual tare and gross weights
goods, or other property transported by are determined at origin and destina-
a carrier subject to the provisions here- tion, the settlement of claims shall be
in contained is damaged or alleged to based upon a comparison of net weights
be damaged and is, as a consequence at origin and destination.
thereof, not delivered or is rejected or [41 FR 25908, June 23, 1976]
refused upon tender thereof to the
owner, consignee, or person entitled to
receive such property, the carrier, after
PART 1007—RECORDS CON-
giving due notice, whenever prac- TAINING INFORMATION ABOUT
ticable to do so, to the owner and other INDIVIDUALS
parties that may have an interest
therein, and unless advised to the con- Sec.
trary after giving such notice, shall un- 1007.1 Purpose and scope.
dertake to sell or dispose of such prop- 1007.2 Definitions.
erty directly or by the employment of 1007.3 Requests by an individual for infor-
a competent salvage agent. The carrier mation or access.
shall only dispose of the property in a 1007.4 Procedures for identifying the indi-
vidual making the request.
manner that will fairly and equally
1007.5 Disclosure of requested information
protect the best interests of all persons
to individuals; fees for copies of records.
having an interest therein. The carrier 1007.6 Disclosure to third parties.
shall make an itemized record suffi- 1007.7 Content of systems of records.
cient to identify the property involved 1007.8 Amendment of a record.
so as to be able to correlate it to the 1007.9 Appeals to the Chairman.
shipment or transportation involved, 1007.10 Information supplied by the Board
and claim, if any, filed thereon. The when collecting information from an in-
carrier also shall assign to each lot of dividual.
such property a successive lot number 1007.11 Public notice of records systems.
and note that lot number on its record 1007.12 Exemptions.
of shipment and claim, if any claim is AUTHORITY: 5 U.S.C. 552, 49 U.S.C. 721.
filed thereon.
(b) Whenever disposition of salvage SOURCE: 41 FR 3087, Jan. 21, 1976, unless
material or goods shall be made di- otherwise noted.
rectly to an agent or employee of a car-
rier or through a salvage agent or com- § 1007.1 Purpose and scope.
pany in which the carrier or one or (a) This part contains the rules of the
more of its directors, officers, or man- Surface Transportation Board imple-
agers has any interest, financial or menting the Privacy Act of 1974 (5
otherwise, that carrier’s salvage U.S.C. 552a). These rules apply to all
records shall fully reflect the particu- records maintained by this Board
lars of each such transaction or rela- which are not excepted or exempted as
tionship, or both, as the case may be. provided for in § 1007.12, insofar as they
22
contain personal information con- vided by section 8 of Title 13 of the

cerning an individual, identify that in- United States Code.
dividual by name or other symbol and System of records means a group of
are contained in a system of records any records under the control of the
from which information is retrieved by Board retrieved by the name of the in-
the individual’s name or identifying dividual or by some identifying num-
symbol. Among the primary purposes ber, symbol, or other identifying par-
of these rules are to permit individuals ticular assigned to the individual.
to determine whether information Routine use means, with respect to
about them is contained in Board files the disclosure of a record, the use of
and, if so, to obtain access to that in- such record for a purpose which is com-
formation; to establish procedures patible with the purpose of which the
whereby individuals may have inac- record was compiled.
curate and incomplete information cor- Agency means any executive depart-
rected; and, to restrict access by unau- ment, military department, Govern-
thorized persons to that information. ment corporation, Government-con-
(b) In this part the Board is also ex- trolled corporation or other establish-
empting certain Board systems of ment in the Executive Branch of the
records from some of the provisions of Government or any independent regu-
the Privacy Act of 1974 that would oth- latory agency.
erwise be applicable to those systems.
§ 1007.3 Requests by an individual for
§ 1007.2 Definitions. information or access.
As used in this part: (a) Any individual may request infor-
Board means the Surface Transpor- mation on whether a system of records
tation Board. maintained by the Board contains any
Chairman means the Presidentially information pertaining to him or her,
appointed Board Member who is the ad- or may request access to his or her
ministrative head of the Surface Trans- record or to any information per-
portation Board. taining to him or her which is con-
Privacy Officer refers to the indi- tained in a system of records. All re-
vidual designated to process requests quests shall be directed to the Privacy
and handle various other matters relat- Officer, Surface Transportation Board,
ing to the Board’s implementation of 1925 K Street, NW, Washington, DC
the Privacy Act of 1974. 20423.
Individual means a citizen of the (b) A request for information or for
United States or an alien lawfully ad- access to records under this part may
mitted for permanent residence. be made by mail or in person. The re-
Maintain means the maintenance, quest shall:
collection, use, or dissemination (of (1) Be in writing and signed by the in-
records). dividual making the request; and,
Record means any item, collection or (2) Include the full name of the indi-
grouping of information about an individual seeking the information or
vidual that is maintained by an agen- record, along with his or her home and
cy, including, but not limited to, his business addresses and telephone num-
education, financial transactions, med- bers.
ical history, and criminal or employ- (c) For each system of records from
ment history and that contains his which information is sought, the re-
name, or the identifying number, sym- quest shall:
bol, or other identifying particular as- (1) Specify the title and identifying
signed to the individual, such as a fin- number as it appears in the system no-
ger or voice print or a photograph. tice published by the Board;
Statistical Record means a record in a (2) Provide such additional identi-
system of records maintained for sta- fying information, if any, as may be re-
tistical research or reporting purposes quired by the system notice;
only and not used in whole or in part in (3) Describe the specific information
making any determination about an or kind of information sought within
identifiable individual, except as pro- that system of records; and,
23
§ 1007.4 49 CFR Ch. X (10–1–07 Edition)
(4) Set forth any unusual arrange- tory in the circumstances of a par-
ments sought concerning the time, ticular request.
place, or form of access. (b) Nothing in this section shall pre-
(d) The Board will respond in writing clude the Board from requiring addi-
to a request made under this section tional identification before granting
within ten days (excluding Saturdays, access to the records if there is reason
Sundays and legal public holidays) to believe that the person making the
after receipt of the request. If a defini- request may not be the individual to
tive reply cannot be given within ten whom the record pertains, or where the
days, the request will be acknowledged sensitivity of the data may warrant.
and an explanation will be given of the (c) The requirements of this sub-
status of the request. section shall not apply if the records
(e) The individual either will be noti- involved would be available to any per-
fied in writing of where and when he or son under the Freedom of Information
she may obtain access to the records Act.
requested or will be given the name,
address and telephone number of the § 1007.5 Disclosure of requested infor-
member of the Board staff with whom mation to individuals; fees for cop-
ies of records.
he or she should communicate to make
further arrangements for access. (a) Any individual who has requested
access to his or her record or to any in-
[41 FR 3087, Jan. 21, 1976, as amended at 64 formation pertaining to that individual
FR 53266, Oct. 1, 1999]
in the manner prescribed in § 1007.3 and
§ 1007.4 Procedures for identifying the has identified himself or herself as pre-
individual making the request. scribed in § 1007.4 shall be permitted to
review the record and have a copy
When a request for information or for made of all or any portion thereof in a
access to records has been made pursu- form comprehensible to the individual,
ant to § 1007.3, before information is subject to fees for copying services set
given or access is granted pursuant to forth in paragraph (f) of this section.
§ 1007.5 of these rules, the Board shall Upon request, persons of the individ-
require reasonable identification of the ual’s own choosing may accompany the
person making the request to insure individual, provided that the individual
that information is given and records has furnished a written statement au-
are disclosed only to the proper person. thorizing discussion of his or her
(a) An individual may establish his record in the accompanying person’s
identity by: presence.
(1) Submitting with his written re- (b) Access will generally be granted
quest for information or for access to in the office of the Board where the
photocopy, two pieces of identification records are maintained during normal
bearing his or her name and signature, business hours, but for good cause
one of which shall bear his or her cur- shown the Board may grant access at
rent home or business address; or another office of the Board or at dif-
(2) Appearing at any office of the ferent times for the convenience of the
Board during the regular working individual making the request. When a
hours for that office and presenting ei- request for access is from a Board em-
ther: ployee, this request may be granted by
(i) One piece of identification con- forwarding the information desired
taining a photograph and signature, through registered mail, return receipt
such as a driver’s license or passport, requested.
or, in the case of a Board employee, his (c) Where a document containing in-
or her STB identification card; or formation about an individual also con-
(ii) Two pieces of identification bear- tains information not pertaining to
ing the individual’s name and signa- him or her, the portion not pertaining
ture, one of which shows the individ- to the individual shall not be disclosed
ual’s current home or business address; except to the extent the information is
and available to any person under the Free-
(3) Providing such other proof of dom of Information Act. If the records
identity as the Board deems satisfac- sought cannot be provided for review
24
and copying in a meaningful form, the (3) Disclosure is required under the
Board shall provide to the individual a Freedom of Information Act (5 U.S.C.
summary of the information con- 552).
cerning the individual contained in the (4) Disclosure is for a routine use as
record or records which shall be com- defined in § 1007.2 of these rules and de-
plete and accurate in all material as- scribed in the system notice for that
pects. system of records;
(d) Where the disclosure involves (5) The disclosure is made to the Bu-
medical records, the Privacy Officer reau of the Census for the purposes of
may determine that such information planning or carrying out a census or
will be provided only to a physician survey or related activity;
designated by the individual. (6) The disclosure is made to a recipi-
(e) Requests for copies of documents ent who has provided the agency with
may be directed to the Privacy Officer advance adequate written assurance
or to the member of the Board’s staff that the record will be used solely as a
through whom arrangements for access statistical research or reporting
were made. record, and the record is to be trans-
(f) Fees for copies of records shall be ferred in a form that is not individ-
charged at the rate set forth in 49 CFR ually identifiable;
1002.1(d). Fees for requests requiring (7) The disclosure is made to another
the use of a computer shall be charged agency or to an instrumentality of any
at the actual cost for machine time. Governmental jurisdiction within or
Payment should be made by check or under the control of the United States
money order payable to the Treasury for a civil or criminal law enforcement
of the United States. When it is deter- activity if the activity is authorized by
mined to be in the best interest of the law and if the head of the agency or in-
public, the Privacy Officer may waive strumentality has made a written re-
the fee provision. quest to the Board specifying the par-
(g) Nothing in this subsection or in ticular portion desired and the law en-
§ 1007.3 shall: forcement activity for which the record
(1) Require the disclosure of records is sought;
exempted under § 1007.12 of these rules, (8) The disclosure is made to the Na-
including the exemption relating to in- tional Archives of the United States as
vestigative records; a record which has sufficient historical
(2) Allow an individual access to any or other value to warrant its continued
information compiled in reasonable an- preservation by the United States Gov-
ticipation of a civil action or pro- ernment, or for evaluation by the Ad-
ceeding or a criminal proceeding; or, ministrator of General Services or his
(3) Require the furnishing of informa- designee to determine whether the
tion or records which in the regular record has such value.
course of business cannot be retrieved (9) The disclosure is made to a person
by the name or other identifier of the pursuant to a showing of compelling
individual making the request. circumstances affecting the health or
[41 FR 3087, Jan. 21, 1976, as amended at 53 safety of an individual if upon such dis-
FR 46483, Dec. 8, 1987] closure notification is transmitted to
the last known address of such indi-
§ 1007.6 Disclosure to third parties. vidual;
(a) The Board shall not disclose to (10) The disclosure is made to either
any agency or to any person by any House of Congress, or, to the extent of
means of communication a record per- matter(s) within its jurisdiction, any
taining to an individual which is con- committee or subcommittee thereof,
tained in a system of records, except any joint committee of Congress or
under the following circumstances: subcommittee of any such joint com-
(1) The individual to whom the record mittee;
pertains has given his written consent (11) The disclosure is made to the
to the disclosure; Comptroller General, or any of his au-
(2) The disclosure is to officers and thorized representatives, in the course
employees of the Board who need it in of the performance of the duties of the
the performance of their duties; General Accounting Office; or,
25
§ 1007.7 49 CFR Ch. X (10–1–07 Edition)
(12) Pursuant to the order of a court by statute or by Executive Order of the

of competent jurisdiction. President.
(b) The Board, with respect to each (b) The Board will maintain no
system of records under its control, record describing how any individual
shall keep for at least five years an ac- exercises rights guaranteed by the
curate accounting of certain disclo- First Amendment of the United States
sures: Constitution unless expressly author-
(1) A record shall be kept of all dis- ized by statute or by the individual
closures made under paragraph (a) of about whom the record is maintained
this section, except disclosures made or unless pertinent to and within the
with the consent of the individual to scope of an authorized law enforcement
whom the record pertains (paragraph activity.
(a)(1) of this section), disclosures to au- (c) The Board will collect informa-
thorized employees (paragraph (a)(2) of tion to the greatest extent practicable
this section), and disclosures required directly from the subject individual
under the Freedom of Information Act when the information may result in ad-
(paragraph (a)(3) of this section). verse determinations about an individ-
(2) The record shall include: ual’s rights, benefits, and privileges
(i) The date, nature, and purpose of under Federal programs.
each disclosure of a record made to any (d) The Board will maintain all
person or to another agency; records which are used by the Board in
(ii) The name and address of the per- making any determination about any
son or agency to whom the disclosure individual with such accuracy, rel-
was made. evance, timeliness, and completeness
(c) The accounting described in para- as is reasonably necessary to assure
graph (b) of this section will be made fairness to the individual in the deter-
available to the individual named in mination.
the record upon his written request, di- § 1007.8 Amendment of a record.
rected to the Privacy Officer, Surface
Transportation Board, 1925 K Street, (a) Any individual may request
NW, Washington, DC 20423, except that amendment of information pertaining
the accounting will not be revealed to him which is contained in a system
with respect to disclosures made under of records maintained by the Board and
paragraph (a)(7) of this § 1107.6 per- which is filed under his name or other
taining to law enforcement activity, individual identifier if he believes the
and will not be maintained as to disclo- information is not accurate, relevant,
sures involving systems of records ex- timely or complete. A request for
empted under § 1007.12. amendment shall be directed to the
(d) Whenever an amendment or cor- Privacy Officer.
rection of a record or a notation of dis- (b) A request for amendment may be
pute concerning the accuracy of made by mail or in person and shall: (1)
records is made by the Board in accord- Be in writing and signed by the person
ance with §§ 1007.8 and 1007.9, the Board making the request; (2) describe the
will inform any person or other agency particular record to be amended with
to whom the record was previously dis- sufficient specificity to permit the
closed, if an accounting of the disclo- record to be located among those main-
sure was made pursuant to the require- tained by the Board; and (3) specify the
ments of paragraph (b) of this section. nature of the amendment sought and
the justification for the requested
[41 FR 3087, Jan. 21, 1976. as amended at 64 change. The person making the request
FR 53266, Oct. 1, 1999] may be required to provide the infor-
mation specified in §§ 1007.3 and 1007.4
§ 1007.7 Content of systems of records. in order to simplify identification of
(a) The Board will maintain in its the record and permit verification of
records only such information about an the identity of the person making the
individual as is relevant and necessary request for amendment.
to accomplish the purposes of the (c) Receipt of a request for amend-
Interstate Commerce Act and other ment will be acknowledged in writing
purposes required to be accomplished within ten days (excluding Saturdays,
26
Sundays and legal public holidays); ex- possession or control, considering any
cept that if the individual is given no- explanation given by the other agency
tice within the ten-day period that his for its decision.
or her request will or will not be com- [41 FR 3087, Jan. 21, 1976, as amended at 64
plied with, no acknowledgment is re- FR 53266, Oct. 1, 1999]
quired.
(d) Assistance in preparing a request § 1007.9 Appeals to the Chairman.
to amend a record may be obtained (a) Any individual may petition the
from the Privacy Officer, Surface Chairman:
Transportation Board, 1925 K Street, (1) To review a refusal to comply
NW, Washington, DC 20423. with an individual request for access to
(e) Upon receipt of a request for records pursuant to the Privacy Act (5
amendment the Privacy Officer or a U.S.C. 552a(d)(1)), and §§ 1007.3 and 1007.5
person designated by him shall prompt- in this part;
ly determine whether the record is ma- (2) To review denial of a request for
terially inaccurate, incomplete, mis- amendment made pursuant to § 1007.8;
leading, or is irrelevant or not timely, (3) To correct any determination that
as claimed by the individual, and, if so, may have been made adverse to the in-
shall cause the record to be amended in dividual based in whole or in part upon
accordance with the individual’s re- inaccurate, irrelevant, untimely or in-
quest. complete information; and,
(f) If the Privacy Officer or designee (4) To correct a failure to comply
grants the request to amend the with any other provision of the Privacy
record, the individual shall promptly Act and the rules of this part 1007,
be advised of the decision and of the ac- which has had an adverse effect on the
tion taken, and notice shall be given of individual.
the correction and its substance to (b) The petition to the Chairman
each person or agency to whom the shall be in writing and shall: (1) State
record had previously been disclosed, in what manner it is claimed the Board
as shown on the record of disclosures or any Board employee has failed or re-
maintained in accordance with fused to comply with provisions of the
§ 1007.6(b). Privacy Act or of the rules contained
(g) If the Privacy Officer or designee in this part 1007, and (2) set forth the
disagrees in whole or in part with a re- corrective action the petitioner wishes
quest for amendment of a record, the the Board to take. The petitioner may,
individual shall promptly be notified of if he or she wishes, state such facts and
the complete or partial denial of his re- cite such legal or other authorities as
quest and the reasons for the refusal. are considered appropriate.
The individual shall also be notified of (c) The Chairman will make a deter-
the procedures for administrative re- mination of any petition filed pursuant
view by the Chairman of any complete to this subsection within thirty days
or partial denial of a request for (excluding Saturdays, Sundays and
amendment, which are set forth in legal public holidays) after receipt of
§ 1007.9. the petition, unless for good cause
(h) If a request is received for amend- shown, the Chairman extends the 30-
ment of a record prepared by another day period. If a petition is denied, the
agency which is in the possession or petitioner will be notified in writing of
control of the Board, the request for the reasons for such denial, and the
amendment will be forwarded to that provisions for judicial review of that
agency. If that agency determines that determination which are set forth in
the correction should be made, the section 552a(g) (1)(A) and (2)(A), of
Board will amend its records accord- Title 5 of the United States Code and
ingly and notify the individual making the provisions for disputed records set
the request for amendment of the forth in paragraph (d) of this section.
change. If the other agency declines to (d) If, after review, the Chairman de-
make the amendment, the Privacy Of- clines to amend the records as the indi-
ficer or designee will independently de- vidual has requested, the individual
termine whether the amendment will may file with the Privacy Officer a
be made to the record in the Board’s concise statement setting forth why he
27
§ 1007.10 49 CFR Ch. X (10–1–07 Edition)
or she disagrees with the Chairman’s (6) The title and business address of
denial of the request. Any subsequent the Board official who is responsible
disclosure containing information for the system of records;
about which a statement of disagree- (7) The procedures whereby an indi-
ment has been filed shall clearly note vidual can be notified at his or her re-
the portion which is disputed and in- quest if the system of records contains
clude a copy of a concise statement ex- a record pertaining to that individual;
plaining its reasons for not making the (8) The procedures whereby an indi-
amendments requested. Prior recipi- vidual can be notified at his or her re-
ents of the disputed record will be pro- quest how he or she can gain access to
vided a copy of any statement of dis- any record pertaining to that indi-
pute to the extent that an accounting vidual contained in the system of
of disclosures was maintained. records, and how the content of the
record can be contested; and,
§ 1007.10 Information supplied by the (9) The categories of sources of
Board when collecting information records in the system.
from an individual. (b) Copies of the notices as printed in
The Board will inform each indi- the FEDERAL REGISTER will be avail-
vidual whom it asks to supply informa- able in each office of the Board. Mail
tion, on the form which it uses to col- requests should be directed to the Pri-
lect the information or on a separate vacy Officer, Surface Transportation
form that can be retained by the indi- Board, 1925 K Street, NW, Washington,
vidual, of: DC 20423. The first copy will be pro-
(a) The authority which authorizes vided free of charge; additional copies
the solicitation of the information and are subject to charge provided for in
whether disclosure of such information paragraph (e) of this § 1007.5.
is mandatory or voluntary; [41 FR 3087, Jan. 21, 1976, as amended at 64
(b) The principal purpose or purposes FR 53266, Oct. 1, 1999]
for which the information is intended
to be used; § 1007.12 Exemptions.
(c) The routine uses which may be (a) Investigatory materials compiled
made of the information, as published for law enforcement purposes are ex-
in the FEDERAL REGISTER; and, empt from portions of the Privacy Act
(d) The effects on the individual of of 1974 and of these rules on the basis
not providing all or any part of the re- and to the extent that individual ac-
quested information. cess to these files could impair the ef-
fectiveness and orderly conduct of the
§ 1007.11 Public notice of records sys- Board’s enforcement program. Pro-
tems. vided, however, That if any individual is
(a) The Board will publish in the FED- denied any right, privilege, or benefit
ERAL REGISTER, at least annually, a no- to which he or she would otherwise be
tice of the existence and character of entitled by Federal law, or for which he
each of its system of records, which no- or she would otherwise be eligible, as a
tice shall include: result of the maintenance of such ma-
(1) The name and location of the sys- terial, such materials shall be provided
tem; to the individual; except to the extent
(2) The categories of individuals on that the disclosure of such material
whom records are maintained in the would reveal the identity of a source
system; who furnished information to the Gov-
(3) The categories of records main- ernment under an express promise that
tained in the system; the identity of the source would be
(4) Each routine use of the records held in confidence, or, prior to the ef-
contained in the system, including the fective date of this section, under an
categories of users and purpose of such implied promise that the identity of
use; the source would be held in confidence.
(5) The policies and practices of the (b) Investigatory material compiled
Board regarding storage, retrieval, ac- solely for the purpose of determining
cess controls, retention, and disposal of suitability, eligibility, or qualifica-
the records; tions for employment with or contracts
28
with the Board are exempt from por- § 1011.1 General.

tions of the Privacy Act of 1974 and of (a) This part describes the organiza-
these rules to the extent that it identi- tion of the Board, and the assignment
fies a confidential source. This is done of jurisdiction and the responsibilities
in order to encourage persons from to the Board, individual Board Mem-
whom information is sought to provide bers or employees, and employee
information to the Board which, absent boards.
assurances of confidentiality, they (b) As used in this part, matter in-
might otherwise be unwilling to give. cludes any case, proceeding, question,
However, if practicable, material iden- or other matter within the Board’s ju-
tifying a confidential source shall be risdiction; and decision includes any de-
extracted or summarized in a manner cision, ruling, order, or requirement of
which protects the source, and the the Board, an individual Board Member
summary or extract shall be provided or employee, or an employee board.
to the requesting individual.
§ 1011.2 The Board.
(c) Complaints and investigatory ma-
terials compiled by the Board’s Office (a) The Board reserves to itself for
of Inspector General are exempt from consideration and disposition:
the provisions of 5 U.S.C. 552a and the (1) All rulemaking and similar pro-
regulations in this part, pursuant to 5 ceedings involving the promulgation of
U.S.C. 552a(j)(2), except subsections (b), rules or the issuance of statements of
(c)(1) and (2), (e)(4)(A) through (F), general policy.
(2) All investigations and other pro-
(e)(6), (7), (9), (10), and (11) and (i) to the
ceedings instituted by the Board, ex-
extent that the system of records per-
cept as may be ordered in individual
tains to the enforcement of criminal
situations.
laws. Complaint and investigatory ma- (3) All administrative appeals in a
terials compiled by the Board’s Office matter previously considered by the
of Inspector General for law enforce- Board.
ment purposes also are exempt from (4) All other matters submitted for
the provisions of 5 U.S.C. 552a and the decision except those assigned to an in-
regulations of this part, pursuant to 5 dividual Board Member or employee or
U.S.C. 552a(k)(2). an employee board.
[41 FR 3087, Jan. 21, 1976, as amended at 58 (5) Except for matters assigned to the
FR 15291, Mar. 22, 1993; 58 FR 28520, May 14, Chairman of the Board under
1993] § 1011.4(a)(6):
(i) The determination of whether to
reconsider a decision being challenged
PART 1011—BOARD ORGANIZA- in court;
TION; DELEGATIONS OF AUTHOR- (ii) The disposition of matters that
ITY have been the subject of an adverse de-
cision by a court; and
Sec. (iii) The determination of whether to
1011.1 General. file any memorandum or brief or other-
1011.2 The Board. wise participate on behalf of the Board
1011.3 The Chairman, Vice Chairman, and in any court.
Board Member. (6) The disposition of all matters in-
1011.4 Delegations to individual Board volving issues of general transpor-
Members. tation importance, and the determina-
1011.5 Employee boards. tion whether issues of general trans-
1011.6 Delegations of authority by the
portation importance are involved in
Chairman.
any matter.
1011.7 Delegations of authority by the
Board to specific offices of the Board.
(7) All appeals of initial decisions
issued by the Director of the Office of
AUTHORITY: 5 U.S.C. 553; 31 U.S.C. 9701; 49 Proceedings under the authority dele-
U.S.C. 701, 721, 11123, 11124, 11144, 14122, and gated by § 1011.7(b). Appeals must be
15722. filed within 10 days after service of the
SOURCE: 67 FR 60167, Sept. 25, 2002, unless Director decision or publication of the
otherwise noted. notice, and replies must be filed within
29
§ 1011.3 49 CFR Ch. X (10–1–07 Edition)
10 days after the due date for appeals (3) In carrying out his or her func-
or any extension thereof. tions, the Chairman is governed by
(b) The Board may bring before it general policies of the Board and by
any matter assigned to an individual such regulatory decisions, findings, and
Board Member or employee or em- determinations as the Board by law is
ployee board. authorized to make.
(4) The appointment by the Chairman
§ 1011.3 The Chairman, Vice Chair- of the heads of offices is subject to the
man, and Board Member. approval of the Board. All heads of of-
(a)(1) The Chairman of the Board is fices report to the Chairman.
appointed by the President as provided (c)(1) The Chairman presides at all
by 49 U.S.C. 701(c)(1). The Chairman sessions of the Board and sees that
has authority, duties, and responsibil- every vote and official act of the Board
ities assigned under 49 U.S.C. 701(c)(2) required by law to be recorded is accu-
and described in this part. rately and promptly recorded by the
(2) The Vice Chairman is elected by Secretary or the person designated by
the Board for the term of 1 calendar the Board for that purpose.
year. (2) Regular sessions of the Board are
(3) In the Chairman’s absence, the provided for by Board regulations. The
Vice Chairman is acting Chairman, and Chairman may call the Board into spe-
has the authority and responsibilities cial session to consider any matter or
of the Chairman. In the Vice Chair- business of the Board. The Chairman
man’s absence, the Chairman, if shall convene a special session to con-
present, has the authority and respon- sider any matter or business on request
sibilities of the Vice Chairman. In the of a member of the Board unless a ma-
absence of both the Chairman and Vice jority of the Board votes either not to
Chairman, the remaining Board Mem- hold a special session or to delay con-
ber is acting Chairman, and has the au- ference consideration of that item, or
thority and responsibilities of the unless the Chairman finds that special
Chairman and Vice Chairman. circumstances warrant a delay. Not-
(b)(1) The Chairman is the executive withstanding the two immediately pre-
head of the Board and has general re- ceding sentences of this paragraph, on
sponsibilities for: the written request of any member of
(i) The overall management and func- the Board, the Chairman shall schedule
tioning of the Board; a Board conference to discuss and vote
(ii) The formulation of plans and on significant Board proceedings in-
policies designed to assure the effective volving major transportation issues,
administration of the Interstate Com- and such conference shall be held with-
merce Act and related Acts; in a reasonable time following the
(iii) Prompt identification and early close of the record in the involved pro-
resolution, at the appropriate level, of ceeding.
major substantive regulatory prob- (3) The Chairman exercises general
lems; and control over the Board’s argument cal-
(iv) The development and use of ef- endar and conference agenda.
fective staff support to carry out the (4) The Chairman acts as cor-
duties and functions of the Board. respondent and speaks for the Board in
(2) The Chairman of the Board exer- all matters where an official expression
cises the executive and administrative of the Board is required.
functions of the Board, including: (5) The Chairman brings any delay or
(i) The appointment, supervision, and failure in the work to the attention of
removal of Board employees, except the supervising Board Member, em-
those in the immediate offices of Board ployee, or board, and initiates ways of
Members other than the Chairman; correcting or preventing avoidable
(ii) The distribution of business delays in the performance of any work
among such personnel and among ad- or the disposition of any matter.
ministrative units of the Board; and (6) The Chairman may appoint such
(iii) The use and expenditures of standing or ad hoc committees of the
funds. Board as he or she considers necessary.
30
(7) The Chairman may reassign re- (i) A decision in which a court finds
lated proceedings to a board of employ- under 5 U.S.C. 552(a)(4)(F) that Board
ees and may remove a matter from an personnel may have acted arbitrarily
individual Board Member or employee or capriciously in improperly with-
or employee board for consideration holding records from disclosure; or
and disposition by the Board. (ii) A decision in which a court finds
(8) The Chairman may authorize any under 5 U.S.C. 552a(g)(4) that Board
officer, employee, or administrative personnel acted intentionally or will-
unit of the Board to perform a function fully in violating the Privacy Act.
vested in or delegated to the Chairman.
(7) Issuance of certificates and deci-
(9) The Chairman authorizes the in-
sions authorizing Consolidated Rail
stitution of investigations on the
Board’s own motion, and their dis- Corporation to abandon or discontinue
continuance at any time before hear- service over lines for which an applica-
ing. tion under section 308 of the Regional
(10) The Chairman approves for publi- Rail Reorganization Act of 1973 has
cation all publicly issued documents by been filed.
an office, except: (8) Designation in writing of employ-
(i) Those authorized or adopted by ees authorized to inspect and copy
the Board or an individual Board Mem- records and to inspect and examine
ber that involve decisions in formal lands, buildings, and equipment pursu-
proceedings; ant to 49 U.S.C. 11144, 14122, and 15722.
(ii) Decisions or informal opinions of (9) Authority to act alone to take
an office; and necessary actions in emergency situa-
(iii) Documents prepared for court tions when the Chairman is the only
cases or for introduction into evidence Board member reasonably available.
in a formal proceeding. (b) The following matters are re-
§ 1011.4 Delegations to individual ferred to the Vice Chairman of the
Board Members. Board:
(1) Matters within the jurisdiction of
(a) The following matters are re-
ferred to the Chairman of the Board: the Accounting Board if certified to
(1) Entry of reparation orders respon- the Vice Chairman by the Accounting
sive to findings authorizing the filing Board or if removed from the Account-
of statements of claimed damages as ing Board by the Vice Chairman.
provided at 49 CFR part 1133. (2) Matters involving the admission,
(2) Extensions of time for compliance disbarment, or discipline of practi-
with orders and procedural matters in tioners before the Board under 49 CFR
any formal case or pending matter, ex- part 1103.
cept appeals taken from the decision of (c) The Chairman, Vice Chairman, or
a hearing officer on requests for dis- other Board Member to whom a matter
covery. is assigned under this part may certify
(3) Postponement of the effective such matter to the Board.
date of orders in proceedings that are (d) The Chairman shall notify all
the subject of suits brought in a court Board Members that a petition for a
to enjoin, suspend, or set aside the de- stay has been referred to the Chairman
cision. for disposition under paragraphs (a)(2)
(4) Dismissal of complaints and appli- or (3) of this section. The Chairman
cations on the unopposed motion of shall also inform all Board Members of
any party.
the decision on that petition before
(5) Requests for access to waybills
service of such decision. At the request
and to statistics reported under orders
of the Board. of a Board Member, made at any time
(6) Exercise of control over litigation before the Chairman’s decision is
arising under the Freedom of Informa- served, the petition will be referred to
tion Act (5 U.S.C. 552) and the Privacy the Board for decision.
Act (5 U.S.C. 552a), except for deter- [67 FR 60167, Sept. 25, 2002, as amended at 68
minations whether to seek further ju-
FR 8726, Feb. 25, 2003]

dicial review of:
31
§ 1011.5 49 CFR Ch. X (10–1–07 Edition)
§ 1011.5 Employee boards. ing special hearing procedures; the es-

This section covers matters assigned tablishment of dates for filing state-
to the Accounting Board, a board of ments in cases assigned for hearing
employees of the Board. under modified (non-oral hearing) pro-
(a) The Accounting Board has au- cedure; the consolidation of pro-
thority: ceedings for hearing or disposition; the
(1) To permit departure from general postponement of hearings and proce-
rules prescribing uniform systems of dural dates; the waiver of formal speci-
accounts for carriers and other persons fications for pleadings; and extensions
under the Interstate Commerce Act, of time for filing pleadings. It does not
and from the regulations governing ac- include interlocutory appeals from the
counting and reporting forms; rulings of hearing officers; nor does it
(2) To prescribe rates of depreciation include postponement of the effective
to be used by railroad and water car- date of:
riers; (i) Decisions pending judicial review,
(3) To issue special authorizations (ii) Decisions of the entire Board,
permitted by the regulations governing (iii) Cease and desist orders, or
the destruction of records of carriers (iv) Final decisions where petitions
subject to the Interstate Commerce for discretionary review have been filed
Act; and under 49 CFR 1115.3.
(4) To grant extensions of time for
(2) Unless otherwise ordered by the
filing annual, periodic, and special re-
Board in individual proceedings, au-
ports in matters that do not involve
thority to dispose of procedural mat-
taking testimony at a public hearing
ters is delegated to administrative law
or the submission of evidence by oppos-
judges or Board Members in pro-
ing parties in the form of affidavits.
(b) The board may certify any matter ceedings assigned to them.
assigned to it to the Board. (3) Unless otherwise ordered by the
Board in individual proceedings, au-
§ 1011.6 Delegations of authority by thority to dispose of routine procedural
the Chairman. matters in proceedings assigned for
(a)(1) This section provides for dele- handling under modified procedure,
gations of authority by the Chairman other than those assigned to an admin-
of the Surface Transportation Board to istrative law judge or a Board Member,
individual Board employees. is assigned to the Secretary of the
(2) The Chairman of the Board may Board. The Secretary shall also have
remove for disposition any matter del- authority, unless otherwise ordered by
egated under this section, and any the Chairman or by a majority of the
matter delegated under this section Board in individual proceedings, to de-
may be referred by the Board employee cide whether complaint proceedings
to the Chairman for disposition. shall be handled under the modified
(b) The Board will decide appeals procedure or be assigned for oral hear-
from decisions of employees acting ings. In carrying out these duties, the
under authority delegated under this Secretary shall consult, as necessary,
section. Appeals must be filed within 10 with the General Counsel and the Di-
days after the date of the employee’s rector of any Board office to which an
action, and replies must be filed within individual proceeding has been as-
10 days after the due date for appeals. signed.
Appeals are not favored and will be (d) Except as provided at 49 CFR
granted only in exceptional cir- 1113.3(b)(1), authority to dismiss a com-
cumstances to correct a clear error of plaint on complainant’s request, or an
judgment or to prevent manifest injus- application on applicant’s request, is
tice. delegated to the Secretary.
(c)(1) As used in this paragraph, pro- (e) Authority to grant or deny access
cedural matter includes, but is not lim- to waybills and to statistics reported
ited to, the assignment of the time and under orders of the Board is delegated
place for hearing; the assignment of to the Director of the Office of Eco-
proceedings to administrative law nomics, Environmental Analysis, and
judges; the issuance of decisions direct- Administration.
32
(f) Certain accounts in the Uniform (b) Office of Proceedings. In addition

Systems of Accounts, 49 CFR parts 1200 to the authority delegated at 49 CFR
through 1207, require Board approval to 1011.6(h), the Director of the Office of
use. Authority to grant or deny re- Proceedings shall have authority ini-
quests for use of these accounts is dele- tially to determine the following:
gated to the Director and Associate Di- (1) Whether to designate abandon-
rector of the Office of Economics, Envi- ment proceedings for oral hearings on
ronmental Analysis, and Administra- request.
tion and the Chief of the Section of Ec- (2) Whether offers of financial assist-
onomics. ance satisfy the statutory standards of
(g) The Secretary of the Board is del- 49 U.S.C. 10904(d) for purposes of nego-
egated authority, under the Regulatory tiations or, in exemption proceedings,
Flexibility Act, 5 U.S.C. 601, et seq., to: for purposes of partial revocation and
(1) Sign and transmit to the Small negotiations.
Business Administration certifications (3) Whether:
of no significant economic effect for (i) To impose, modify, or remove en-
proposed rules, that if adopted by the vironmental or historic preservation
Board, will not have a significant eco- conditions; and
nomic impact on a substantial number (ii) In abandonment proceedings, to
of small entities; and impose public use conditions under 49
(2) Sign and transmit findings regard- U.S.C. 10905 and the implementing reg-
ing waiver or delay of an initial regu- ulations at 49 CFR 1152.28.
latory flexibility analysis or delay of a (4) In abandonment proceedings,
final regulatory flexibility analysis. when a request for interim trail use/
(h) Issuance of certificates and deci- rail banking is filed under 49 CFR
sions authorizing Consolidated Rail 1152.29, to determine whether the Na-
Corporation to abandon or discontinue tional Trails System Act, 16 U.S.C.
service over lines for which an applica- 1247(d), is applicable and, where appro-
tion under section 308 of the Regional priate, to issue Certificates of Interim
Rail Reorganization Act of 1973 has Trail Use or Abandonment (in applica-
been filed is delegated to the Director tion proceedings) or Notices of Interim
of the Office of Proceedings. Trail Use or Abandonment (in exemp-
tion proceedings).
§ 1011.7 Delegations of authority by (5) In any abandonment proceeding
the Board to specific offices of the where interim trail use/rail banking is
Board. an issue, to make such findings and
(a) The Secretary. The Secretary of issue decisions as may be necessary for
the Board is delegated the following the orderly administration of the Na-
authority: tional Trails System Act, 16 U.S.C.
(1) Whether (in consultation with in- 1247(d).
volved Offices) to waive filing fees set (6) Whether to institute requested de-
forth at 49 CFR 1002.2(f). claratory order proceedings under 5
(2) To issue, on written request, in- U.S.C. 554(e).
formal opinions and interpretations (7) To issue decisions, after 60 days’
(exclusive of informal opinions and in- notice by any person discontinuing a
terpretations on carrier tariff provi- subsidy established under 49 U.S.C.
sions), which are not binding on the 10904 and at the railroad’s request:
Board. In issuing informal opinions or (i) In application proceedings, imme-
interpretations, the Secretary shall diately issuing decisions authorizing
consult with the Director of the appro- abandonment or discontinuance; and
priate Board office. Such requests must (ii) In exemption proceedings, imme-
be directed to the Secretary, Surface diately vacating the decision that post-
Transportation Board, Washington, DC poned the effective date of the exemp-
20423. Authority to issue informal opin- tion.
ions and interpretations on carrier tar- (8) In proceedings under the Feeder
iff provisions is delegated at paragraph Railroad Development Program under
(c)(2) of this section to the Office of 49 U.S.C. 10907 and the implementing
Compliance and Enforcement. regulations at 49 CFR part 1151:
33
Pt. 1012 49 CFR Ch. X (10–1–07 Edition)
(i) Whether to accept or reject pri- for noncompliance with the environ-
mary applications under 49 CFR mental rules at 49 CFR part 1105.
1151.2(b); competing applications under (16) To reject applications by The
section 1151.2(c); and incomplete appli- Burlington Northern and Santa Fe
cations under 49 CFR 1151.2(d). Railway Company to abandon rail lines
(ii) Whether to grant waivers from in North Dakota exceeding the 350-mile
specific provisions of 49 CFR part 1151. cap of section 402 of Public Law 97–102,
(9) In exemption proceedings subject 95 Stat. 1465 (1981), as amended by The
to environmental or historic preserva- Department of Transportation and Re-
tion reporting requirements, to issue a lated Agencies Appropriations Act,
decision, under 49 CFR 1105.10(g), mak- 1992, Public Law 102–143, section 343
ing a finding of no significant impact (Oct. 28, 1991).
where no environmental or historic (c) Office of Compliance and Enforce-
preservation issues have been raised by ment. The Office of Compliance and En-
any party or identified by the Board’s forcement is delegated the authority
Section of Environmental Analysis. to:
(10) Whether to issue notices of ex- (1) Reject tariffs and railroad trans-
emption under 49 U.S.C. 10502: portation contract summaries filed
(i) For acquisition, lease, and oper- with the Board that violate applicable
ation transactions under 49 U.S.C. 10901 statutes, rules, or regulations. Any re-
and 10902 and the implementing regula- jection of a tariff or contract summary
tions at 49 CFR part 1150, subparts D may be by letter signed by or for the
and E; Director, Office of Compliance and En-
(ii) For connecting track construc- forcement, or the Chief, Section of Tar-
tions under 49 U.S.C. 10901 and the im- iffs, Office of Compliance and Enforce-
plementing regulations at 49 CFR ment.
1150.36; (2) Issue, on written request, infor-
(iii) For rail transactions under 49 mal opinions and interpretations on
U.S.C. 11323 and the implementing reg- carrier tariff provisions, which are not
ulations at 49 CFR 1180.2(d); and binding on the Board.
(iv) For abandonments and (3) Grant or withhold special tariff
discontinuances under 49 U.S.C. 10903 authority granting relief from the pro-
and the implementing regulations at 49 visions of 49 CFR part 1312. Any grant
CFR 1152.50. or withholding of such relief may be by
(11) When an application or a petition letter signed by or for the Director, Of-
for exemption for abandonment is filed, fice of Compliance and Enforcement, or
the Director will issue a notice of that the Chief, Section of Tariffs, Office of
filing pursuant to 49 CFR 1152.24(e)(2) Compliance and Enforcement.
and 49 CFR 1152.60, respectively. (4) Resolve any disputes that may
(12) Whether to issue a notice of ex- arise concerning the applicability of
emption under 49 U.S.C. 13541 for a motor common carrier rates under 49
transaction under 49 U.S.C. 14303 with- U.S.C. 13710(a)(2).
in a motor passenger carrier corporate (5) Issue orders by the Director in an
family that does not result in adverse emergency under 49 U.S.C. 11123 and
changes in service levels, significant 11124 if no Board Member is reasonably
operational changes, or a change in the available.
competitive balance with motor pas-
senger carriers outside the corporate [67 FR 60167, Sept. 25, 2002, as amended at 68
family. FR 8726, Feb. 25, 2003]
(13) Whether to issue rail modified
certificates of public convenience and PART 1012—MEETINGS OF THE
necessity under 49 CFR part 1150, sub- BOARD
part C.
(14) Whether to waive the regulations Sec.
at 49 CFR part 1152, subpart C, on ap- 1012.1 General provisions.
propriate petition. 1012.2 Time and place of meetings.
(15) To reject applications, petitions 1012.3 Public notice.
for exemption, and verified notices 1012.4 Public participation.
(filed in class exemption proceedings) 1012.5 Transcripts; minutes.
34
1012.6 Petitions seeking to open or close a § 1012.2 Time and place of meetings.
meeting.
1012.7 Meetings which may be closed to the (a) Conferences, oral arguments, and
public. other meetings are held at the Board’s
offices located at 1925 K Street, NW,
AUTHORITY: 5 U.S.C. 552b(g), 49 U.S.C. 701,
721. Washington, DC, unless advance notice
of an alternative site is given. Room
SOURCE: 42 FR 13796, Mar. 11, 1977, unless assignments will be posted at the
otherwise noted. Board on the day of the meeting.
§ 1012.1 General provisions. (b) Regular Board conferences are
held on the first and third Tuesdays of
(a) The regulations contained in this each month, or on the following day if
part are issued pursuant to the provi- the regular conference day is a holiday.
sions of 5 U.S.C. 552b(g), added by sec- Oral arguments before the Board are
tion 3(a) of the Government in the Sun- normally scheduled on the first or
shine Act, Pub. L. 94–409 (Act), and sec- third Wednesday of each month. Reg-
tion 17(3) of the Interstate Commerce ular Board conferences and oral argu-
Act. They establish procedures under ments before the Board normally begin
which meetings of the Surface Trans- at 9:30 a.m. A luncheon recess is taken
portation Board (Board) are held. They at approximately noon, and other re-
apply to oral arguments as well as to cesses may be called by the presiding
deliberative conferences. They apply to officer. Times for reconvening fol-
meetings of the Board. They include lowing a recess, or on subsequent days
provisions for giving advance public if a conference or oral argument lasts
notice of meetings, for holding meet- more than one day, are set by the pre-
ings which may lawfully be closed to siding officer at the time the recess is
the public, and for issuing minutes and announced.
transcripts of meetings.
(c) Special Board conferences or oral
(b) The words meeting and conference arguments are scheduled by the Chair-
are used interchangeably in this part
man of the Board.
to mean the deliberations of at least a
(d) If one or more portions of the
majority of the members of the Board,
same meeting are open to the public
where such deliberations determine or
result in the joint conduct or disposi- while another portion or other portions
tion of official Board business. They do are closed, all those portions of the
not include meetings held to determine meeting which are open to the public
whether some future meeting should be are scheduled at the beginning of the
open or closed to the public. They do meeting agenda, and are followed by
not include the deliberations of mem- those portions which are closed.
bers of boards of employees of the [42 FR 13796, Mar. 11, 1977, as amended at 64
Board. FR 53267, Oct. 1, 1999]
(c) These regulations are not in-
tended to govern situations in which § 1012.3 Public notice.
members of the Board consider individ- (a) Unless a majority of the Board de-
ually and vote by notation upon mat- termines that such information is ex-
ters which are circulated to them in empt from disclosure under the Act,
writing. Copies of the votes or state- public notice of the scheduling of a
ments of position of all Board Members meeting will be given by filing a copy
eligible to participate in action taken of the notice with the Secretary of the
by notation voting will be made avail- Board for posting and for service on all
able, as soon as possible after the date parties of record in any proceeding
upon which the action taken is made which is the subject of the meeting or
public or any decision or order adopted any other person who has requested no-
is served, in a public reading room or tice with respect to meetings of the
other easily accessible place within the Board, and by submitting a copy of the
Board, or upon written request to the notice for publication in the FEDERAL
Secretary of the Board. REGISTER.
[42 FR 13796, Mar. 11, 1977, as amended at 64 (b) Public notice of a scheduled meet-
FR 53266, 53267, Oct. 1, 1999] ing will contain:
35
§ 1012.4 49 CFR Ch. X (10–1–07 Edition)
(1) The date, time, place, and subject porary authority under section 210a(a)
matter of the meeting. or 311(a) of the Interstate Commerce
(2) Whether it is open to the public. Act (49 U.S.C. 310a(a) or 911(a)). Such
(3) If the meeting or any portion of meetings will normally be called on
the meeting is not open to the public, less than one week’s notice, and public
an explanation of the action taken in notice will be posted and published at
closing the meeting or portion of the the earliest practicable time.
meeting, together with a list of those (e) If a majority of the Board Mem-
expected to attend the meeting and bers eligible to participate in the con-
their affiliations. duct or disposition of the matter which
(4) If a vote is taken on the question is the subject of a meeting determines,
of whether to close a meeting or a por- by recorded vote, that Board business
tion of a meeting to the public, a state- requires that a meeting be called on
ment of the vote or position of each less than one week’s notice, the meet-
Board Member eligible to participate ing may be called on short notice, and
in that vote. If such a vote is taken, public notice will be posted and pub-
public notice of its result will be posted lished at the earliest practicable time.
within one working day following com- (f) Changes in the scheduling of a
pletion of the voting. If the result of meeting which has been the subject of
the vote is to close the meeting or a a public notice will also be made the
portion of the meeting, an explanation subject of a public notice, which will be
of that action will be included in the posted at the earliest practicable time.
notice to be issued within one working Changes in, or additions to a con-
day following completion of the voting. ference agenda or in the open or closed
The public notice otherwise required status of a meeting will be made only
by this subparagraph may be withheld if a majority of the Board Members eli-
if the Board finds that such informa- gible to participate in the conduct or
tion is exempt from disclosure under disposition of the matter which is the
the Act. subject of the meeting determines, by
(5) The name and telephone number recorded vote, that the Board’s busi-
of the Board official designated to re- ness requires such change and that no
spond to requests for information earlier announcement of the change
about the meeting. Unless otherwise was possible. In such a case, the public
specified, that official will be the notice of the change, will show the
Board’s Public Information Officer, vote of each Board Member on the
whose telephone number is (202) 275– change.
7252. [42 FR 13796, Mar. 11, 1977, as amended at 64
(c) Except as provided in paragraphs FR 53267, Oct. 1, 1999]
(d) and (e) of this section, public notice
will be given at least one week before § 1012.4 Public participation.
the date upon which a meeting is (a) In the case of Board or Division
scheduled. conferences or meetings of committees
(d) Due and timely execution of the of the public, members of the public
Board’s functions will not normally will be admitted as observers only. Ac-
permit the giving of one week’s public tive participation, as by asking ques-
notice of meetings called to consider or tions or attempting to participate in
determine whether to suspend or inves- the discussion, will not be permitted,
tigate a tariff or schedule under sec- and anyone violating this proscription
tions 15(7), 15(8), 215(g), 218(c), 307(g), may be required to leave the meeting
307(i), or 406(e) of the Interstate Com- by the presiding officer.
merce Act (49 U.S.C. 15(7), 15(8), 316(g), (b) Oral arguments are always open
318(c), 907(g), 907(i), 1006(e)); to consider to the public. The scheduling of par-
whether to grant special permission to ticipants in the arguments and the al-
deviate from tariff filing requirements lotment of time is governed by 49 CFR
under section 6(3), 217(c), 218(a), 306(d), part 1116.
306(e), or 405(d) of the Interstate Com- [42 FR 13796, Mar. 11, 1977, as amended at 47
merce Act (49 U.S.C. 6(3), 317(c), 318(a), FR 49596 and 49597, Nov. 1, 1982; 47 FR 54083,
906(d), 906(e), or 1005(d)); or to consider Dec. 1, 1982; 47 FR 55686, Dec. 13, 1982; 57 FR
or dispose of an application for tem- 44135, Sept. 24, 1992]
36
§ 1012.5 Transcripts; minutes. (b) A petition to open a meeting pro-

posed to be closed, filed by any inter-
(a) A verbatim transcript, sound re-
ested person, will be entertained.
cording or minutes will be made of all
(c) A petition to close a meeting pro-
meetings closed to the public under
posed to be open will be entertained
these regulation, and will be retained
only in cases in which the subject at
by the Board for two years following
the meeting would:
the date upon which the meeting
ended, or until one year after the con- (1) Involve accusing a person of a
clusion of any proceeding with respect crime or formally censuring a person.
to which the meeting was held, which- (2) Disclose information of a personal
ever occurs later. In the case of meet- nature where disclosure would con-
ings closed to the public under stitute a clearly unwarranted invasion
§ 1012.7(d) (1) through (7) and (9) of this of personal privacy.
part, a transcript or recording rather (3) Disclose trade secrets or commer-
than minutes will be made and re- cial or financial information obtained
tained. on a privileged or confidential basis.
(b) The Board will make available (4) Disclose investigatory records or
free of charge, upon request, in a public information, compiled for law enforce-
reading room or some other easily ac- ment purposes, to the extent that the
cessible place, the minutes, transcript production of such records or informa-
or recording of all portions of any tion would (i) interfere with enforce-
meeting which was closed to the public ment proceedings being conducted or
except those portions which it finds to under consideration by an agency other
be properly exempt from disclosure than the Board; (ii) deprive a person of
under the Act. A copy of such minutes, a right to a fair trial or an impartial
transcript or recording will be pro- adjudication; (iii) constitute an unwar-
vided, upon request, upon payment of ranted invasion of personal privacy;
fees as provided in part 1002 of this (iv) disclose the identity of a confiden-
chapter. tial investigation agency or a national
security intelligence agency; (v) dis-
(c) In the case of all meetings closed
close investigative techniques and pro-
to the public, the presiding officer
cedures of an agency other than the
shall cause to be made, and the Board
Board; or (vi) endanger the life or phys-
shall retain, a statement setting forth:
ical safety of law enforcement per-
(1) The date, time, and place of the sonnel.
meeting. (5) Disclose information the pre-
(2) The names and affiliations of mature disclosure of which could lead
those attending. to significant financial speculation in
(3) The subject matter. securities.
(4) The action taken. (d) Every effort will be made to dis-
(5) A copy of the certification issued pose of petitions to open or close a
by the General Counsel that, in his or meeting in advance of the meeting
her opinion, the meeting was one that date. However, if such a petition is re-
might properly be closed to the public. ceived less than three working days
prior to the date of the meeting, it may
§ 1012.6 Petitions seeking to open or be disposed of as the first order of busi-
close a meeting. ness at the meeting, in which case the
(a) The Board will entertain petitions decision will be communicated to the
requesting either the opening of a petitioner orally through the Board’s
meeting proposed to be closed to the Public Information Officer or other
public or the closing of a meeting pro- spokesperson.
posed to be open to the public. In the
case of a meeting of the Board, the § 1012.7 Meetings which may be closed
original and 15 copies of such a petition to the public.
shall be filed, and in the case of a meet- (a) A meeting may be closed pursuant
ing of a Division or committee of the to this section only if a majority of the
Board, an original and five copies shall Board Members eligible to participate
be filed. in the conduct or disposition of the
37
matter which is the subject of the piled by a criminal law enforcement

meeting votes to close the meeting. authority in the course of a criminal
(b) A single vote may be taken to investigation, or by an agency con-
close a series of meetings on the same ducting a lawful national security in-
particular matters held within 30 days telligence investigation) disclose con-
of the initial meeting in the series. fidential information furnished only by
(c) With respect to any meeting the confidential source, (v) disclose in-
closed to the public under this section, vestigative techniques and procedures,
the General Counsel of the Board will or (vi) endanger the life or physical
issue his or her certification that, in safety of law enforcement personnel.
his opinion, the meeting is one which (8) Disclose information the pre-
may properly be closed pursuant to one mature disclosure of which could (i)
or more of the provisions of paragraph lead to significant financial specula-
(d) of this section. tion in currencies, securities, or com-
(d) Meetings or portions of meetings modities, or (ii) significantly endanger
may be closed to the public if the the stability of any financial institu-
meeting or portion thereof is likely to: tion.
(1) Disclose matters (i) specifically (9) Disclose information, the pre-
authorized under criteria established mature disclosure of which would be
by an Executive order to be kept secret likely significantly to frustrate imple-
in the interests of national defense or mentation of a proposed Board action,
foreign policy and (ii) in fact properly except that this subparagraph shall not
classified pursuant to such Executive apply in any instance after the content
order. or nature of the proposed Board action
(2) Relate solely to the internal per- has already been disclosed to the public
sonnel rules and practices of the Board. by the Board, or where the Board is re-
(3) Disclose matters specifically ex- quired by law to make such disclosure
empted from disclosure by statute prior to the taking of final Board ac-
(other than 5 U.S.C. 552); Provided, That tion on such proposal.
such statute (A) requires that the mat- (10) Specifically concern the issuance
ters be withheld from the public in of a subpoena.
such a manner as to leave no discretion (11) Specifically concern the Board’s
on the issue, or (B) establishes par- participation in a civil action or pro-
ticular criteria for withholding or re- ceeding or an arbitration.
fers to particular types of matters to (12) Specifically concern the initi-
be withheld. ation, conduct, or disposition of a par-
(4) Disclose trade secrets or commer- ticular case or formal adjudication
cial information obtained from a per- conducted pursuant to the procedures
son and privileged or confidential. in 5 U.S.C. 554 or otherwise involving a
(5) Involve accusing any person of a determination on the record after an
crime, or formally censuring any per- opportunity for hearing.
son.
(6) Disclose information of a personal PART 1013—GUIDELINES FOR THE
nature where disclosure would con- PROPER USE OF VOTING TRUSTS
stitute a clearly unwarranted invasion
of personal privacy. Sec.
(7) Disclose investigatory records 1013.1 The independence of the trustee of a
compiled for law enforcement purposes, voting trust.
or information which if written would 1013.2 The irrevocability of the trust.
be contained in such records, but only 1013.3 Review and reporting requirements
for regulated carriers.
to the extent that the production of
such records or information would (i) AUTHORITY: 49 U.S.C. 721, 13301(f).
interfere with enforcement pro- SOURCE: 44 FR 59909, Oct. 17, 1979, unless
ceedings, (ii) deprive a person of a right otherwise noted.
to a fair trial or an impartial adjudica-
tion, (iii) constitute an unwarranted § 1013.1 The independence of the trust-
invasion of personal privacy, (iv) dis- ee of a voting trust.
close the identity of a confidential (a) In order to avoid an unlawful con-
source and (in the case of a record com- trol violation, the independent voting
38
Surface Transportation Board, DOT Pt. 1014
trust should be established before a tions of 49 U.S.C. 11343 will result from
controlling block of voting securities is termination of the trust.
purchased.
(b) In voting the trusteed stock, the § 1013.3 Review and reporting require-
ments for regulated carriers.
trustee should maintain complete inde-
pendence from the creator of the trust (a) Any carrier choosing to utilize a
(the settlor). voting trust may voluntarily submit a
(c) Neither the trustee, the settlor, copy of the voting trust to the Board
nor their respective affiliates should for review. The Board’s staff will give
have any officers or board members in an informal, nonbinding opinion as to
common or direct business arrange- whether the voting trust effectively in-
ments, other than the voting trust, sulates the settlor from any violation
that could be construed as creating an of Board policy against unauthorized
indicium of control by the settlor over acquisition of control of a regulated
the trustee. carrier.
(b) Any person who establishes an
(d) The trustee should not use the
independent trust for the receipt of the
voting power of the trust in any way
voting stock of carrier must file a copy
which would create any dependence or
of the trust, along with any auxiliary
intercorporate relationship between
or modifying documents, with the
the settlor and the carrier whose cor-
Board.
porate securities constitute the corpus
(c) Any carrier required to file a
of the trust.
Schedule 13D with the Securities and
(e) The trustee should be entitled to Exchange Board (17 CFR 240.13d–1)
receive cash dividends declared and which reports the purchase of 5 percent
paid upon the trusteed voting stock or more of the registered securities of
and turn them over to the settlor. Divi- another I.C.C. regulated carrier (or the
dends other than cash should be re- listed shares of a company controlling
ceived and held by the trustee upon the 10 percent or more of the stock of an
same terms and conditions as the stock I.C.C. regulated carrier), must simulta-
which constitutes the corpus of the neously file a copy of that schedule
trust. with this Board, along with any supple-
(f) If the trustee becomes disqualified ments to that schedule.
because of a violation of the trust (d) Failure to comply with the re-
agreement or if the trustee resigns, the porting requirements in paragraphs (b)
settlor should appoint a successor or (c) of this section will result in de-
trustee within 15 days. nial of the application in which acqui-
sition of control, through the acquisi-
§ 1013.2 The irrevocability of the trust. tion of the voting stock of another car-
(a) The trust and the nomination of rier, is sought, unless the applicant
the trustee during the term of the trust shows, by clear and convincing evi-
should be irrevocable. dence, and the Board finds, that the
(b) The trust should remain in effect failure to comply was unintentional
until certain events, specified in the and that denial of the application will
trust, occur. For example, the trust substantially and adversely affect the
might remain in effect until (1) all the public interest and the national trans-
deposited stock is sold to a person not portation policy.
affiliated with the settlor or (2) the
trustee receives a Board decision au- PART 1014—ENFORCEMENT OF
thorizing the settlor to acquire control NONDISCRIMINATION ON THE
of the carrier or authorizing the re- BASIS OF HANDICAP IN PRO-
lease of the securities for any reason. GRAMS OR ACTIVITIES CON-
(c) The settlor should not be able to DUCTED BY THE SURFACE TRANS-
control the events terminating the
trust except by filing with this Board
PORTATION BOARD
an application to control the carrier
Sec.
whose stock is held in trust. 1014.101 Purpose.
(d) The trust agreement should con-
1014.102 Application.
tain provisions to ensure that no viola- 1014.103 Definitions.
39
§ 1014.101 49 CFR Ch. X (10–1–07 Edition)
1014.104–1014.109 [Reserved] telecommunication devices for deaf
1014.110 Self-evaluation. persons (TDD’s), interpreters,
1014.111 Notice. notetakers, written materials, and
1014.112–1014.129 [Reserved]
1014.130 General prohibitions against dis- other similar services and devices.
crimination. Complete complaint means a written
1014.131–1014.139 [Reserved] statement that contains the complain-
1014.140 Employment. ant’s name and address and describes
1014.141–1014.148 [Reserved] the agency’s alleged discriminatory ac-
1014.149 Program accessibility: Discrimina- tion in sufficient detail to inform the
tion prohibited.
agency of the nature and date of the al-
1014.150 Program accessibility: Existing fa-
cilities. leged violation of section 504. It shall
1014.151 Program accessibility: New con- be signed by the complainant or by
struction and alterations. someone authorized to do so on his or
1014.152–1014.159 [Reserved] her behalf. Complaints filed on behalf
1014.160 Communications. of classes or third parties shall describe
1014.161–1014.169 [Reserved] or identify (by name, if possible) the
1014.170 Compliance procedures.
1014.171–1014.999 [Reserved]
alleged victims of discrimination.
Facility means all or any portion of
AUTHORITY: 29 U.S.C. 794. buildings, structures, equipment,
SOURCE: 51 FR 22896, June 23, 1986, unless roads, walks, parking lots, rolling
otherwise noted. stock or other conveyances, or other
real or personal property.
§ 1014.101 Purpose. Handicapped person means any person
This part effectuates section 119 of who has a physical or mental impair-
the Rehabilitation, Comprehensive ment that substantially limits one or
Services, and Developmental Disabil- more major life activities, has a record
ities Amendments of 1978, which of such an impairment, or is regarded
amended section 504 of the Rehabilita- as having such an impairment.
tion Act of 1973 to prohibit discrimina- As used in this definition, the phrase:
tion on the basis of handicap in pro- (1) Physical or mental impairment in-
grams or activities conducted by Exec- cludes—
utive agencies or the United States (i) Any physiological disorder or con-
Postal Service. dition, cosmetic disfigurement, or ana-
tomical loss affecting one or more of
§ 1014.102 Application. the following body systems: Neuro-
This part applies to all programs or logical; musculoskeletal; special sense
activities conducted by the agency. organs; respiratory, including speech
organs; cardiovascular; reproductive;
§ 1014.103 Definitions. digestive; genitourinary; hemic and
For purposes of this part, the term— lymphatic; skin; and endocrine; or
Assistant Attorney General means the (ii) Any mental or psychological dis-
Assistant Attorney General, Civil order, such as mental retardation, or-
Rights Division, United States Depart- ganic brain syndrome, emotional or
ment of Justice. mental illness, and specific learning
Auxiliary aids means services or de- disabilities. The term ‘‘physical or
vices that enable persons with im- mental impairment’’ includes, but is
paired sensory, manual, or speaking not limited to, such diseases and condi-
skills to have an equal opportunity to tions as orthopedic, visual, speech, and
participate in, and enjoy the benefits hearing impairments, cerebral palsy,
of, programs or activities conducted by epilepsy, muscular dystrophy, multiple
the agency. For example, auxiliary aids sclerosis, cancer, heart disease, diabe-
useful for persons with impaired vision tes, mental retardation, emotional ill-
include readers, brailled materials, ness, and drug addiction and alco-
audio recordings, telecommunications holism.
devices and other similar services and (2) Major life activities includes func-
devices. Auxiliary aids useful for per- tions such as caring for one’s self per-
sons with impaired hearing include forming manual tasks, walking, seeing,
telephone handset amplifiers, tele- hearing, speaking, breathing, learning,
phones compatible with hearing aids, and working.
40
(3) Has a record of such an impairment (4) Qualified handicapped person is de-
means has a history of, or has been fined for purposes of employment in 29
misclassified as having, a mental or CFR 1613.702(f), which is made applica-
physical impairment that substantially ble to this part by § 1014.140.
limits one or more major life activi- Section 504 means section 504 of the
ties. Rehabilitation Act of 1973 (Pub. L. 93–
(4) Is regarded as having an impairment 112, 87 Stat. 394 (29 U.S.C. 794)), as
means— amended by the Rehabilitation Act
(i) Has a physical or mental impair- Amendments of 1974 (Pub. L. 93–516, 88
ment that does not substantially limit Stat. 1617), and the Rehabilitation,
major life activities but is treated by Comprehensive Services, and Develop-
the agency as constituting such a limi- mental Disabilities Amendments of
tation; 1978 (Pub. L. 95–602, 92 Stat. 2955). As
(ii) Has a physical or mental impair- used in this part, section 504 applies
ment that substantially limits major only to programs or activities con-
life activities only as a result of the at- ducted by Executive agencies and not
titudes of others toward such impair- to federally assisted programs.
ment; or Substantial impairment means a sig-
nificant loss of the integrity of finished
(iii) Has none of the impairments de-
materials, design quality, or special
fined in paragraph (1) of this definition
character resulting from a permanent
but is treated by the agency as having
alteration.
such an impairment.
Historic preservation programs means §§ 1014.104–1014.109 [Reserved]
programs conducted by the agency that
have preservation of historic properties § 1014.110 Self-evaluation.
as a primary purpose. (a) The agency shall, by August 24,
Historic properties means those prop- 1987, evaluate its current policies and
erties that are listed or eligible for practices, and the effects thereof, that
listing in the National Register of His- do not or may not meet the require-
toric Places or properties designated as ments of this part, and, to the extent
historic under a statute of the appro- modification of any such policies and
priate State or local government body. practices is required, the agency shall
Qualified handicapped person means— proceed to make the necessary modi-
(1) With respect to preschool, elemen- fications.
tary, or secondary education services (b) The agency shall provide an op-
provided by the agency, a handicapped portunity to interested persons, includ-
person who is a member of a class of ing handicapped persons or organiza-
persons otherwise entitled by statute, tions representing handicapped per-
regulation, or agency policy to receive sons, to participate in the self-evalua-
education services from the agency. tion process by submitting comments
(2) With respect to any other agency (both oral and written).
program or activity under which a per- (c) The agency shall, until three
son is required to perform services or years following the completion of the
to achieve a level of accomplishment, a self-evaluation, maintain on file and
handicapped person who meets the es- make available for public inspection:
sential eligibility requirements and (1) A description of areas examined
who can achieve the purpose of the pro- and any problems identified, and
gram or activity without modifications (2) A description of any modifications
in the program or activity that the made.
agency can demonstrate would result
in a fundamental alteration in its na- § 1014.111 Notice.
ture; The agency shall make available to
(3) With respect to any other pro- employees, applicants, participants,
gram or activity, a handicapped person beneficiaries, and other interested per-
who meets the essential eligibility re- sons such information regarding the
quirements for participation in, or re- provisions of this part and its applica-
ceipt of benefits from, that program or bility to the programs or activities
activity; and conducted by the agency, and make
41
§§ 1014.112–1014.129 49 CFR Ch. X (10–1–07 Edition)
such information available to them in activities that are not separate or dif-
such manner as the head of the agency ferent, despite the existence of permis-
finds necessary to apprise such persons sibly separate or different programs or
of the protections against discrimina- activities.
tion assured them by section 504 and (3) The agency may not, directly or
this regulation. through contractual or other arrange-
ments, utilize criteria or methods of
§§ 1014.112–1014.129 [Reserved] administration the purpose or effect of
§ 1014.130 General prohibitions which would—
against discrimination. (i) Subject qualified handicapped per-
sons to discrimination on the basis of
(a) No qualified handicapped person handicap; or
shall, on the basis of handicap, be ex-
(ii) Defeat or substantially impair ac-
cluded from participation in, be denied
complishment of the objectives of a
the benefits of, or otherwise be sub-
program or activity with respect to
jected to discrimination under any pro-
handicapped persons.
gram or activity conducted by the
agency. (4) The agency may not, in deter-
(b)(1) The agency, in providing any mining the site or location of a facil-
aid, benefit, or service, may not, di- ity, make selections the purpose or ef-
rectly or through contractual, licens- fect of which would—
ing, or other arrangements, on the (i) Exclude handicapped persons
basis of handicap— from, deny them the benefits of, or oth-
(i) Deny a qualified handicapped per- erwise subject them to discrimination
son the opportunity to participate in under any program or activity con-
or benefit from the aid, benefit, or ducted by the agency; or
service; (ii) Defeat or substantially impair
(ii) Afford a qualified handicapped the accomplishment of the objectives
person an opportunity to participate in of a program or activity with respect
or benefit from the aid, benefit, or to handicapped persons.
service that is not equal to that af- (5) The agency, in the selection of
forded others; procurement contractors, may not use
(iii) Provide a qualified handicapped criteria that subject qualified handi-
person with an aid, benefit, or service capped persons to discrimination on
that is not as effective in affording the basis of handicap.
equal opportunity to obtain the same (6) The agency may not administer a
result, to gain the same benefit, or to licensing or certification program in a
reach the same level of achievement as manner that subjects qualified handi-
that provided to others; capped persons to discrimination on
(iv) Provide different or separate aid, the basis of handicap, nor may the
benefits, or services to handicapped agency establish requirements for the
persons or to any class of handicapped programs or activities of licensees or
persons than is provided to others un- certified entities that subject qualified
less such action is necessary to provide handicapped persons to discrimination
qualified handicapped persons with aid, on the basis of handicap. However, the
benefits, or services that are as effec- programs or activities of entities that
tive as those provided to others; are licensed or certified by the agency
(v) Deny a qualified handicapped per- are not, themselves, covered by this
son the opportunity to participate as a part.
member of planning or advisory boards; (c) The exclusion of nonhandicapped
or persons from the benefits of a program
(vi) Otherwise limit a qualified limited by Federal statute or Execu-
handicapped person in the enjoyment tive order to handicapped persons or
of any right, privilege, advantage, or the exclusion of a specific class of
opportunity enjoyed by others receiv- handicapped persons from a program
ing the aid, benefit, or service. limited by Federal statute or Execu-
(2) The agency may not deny a quali- tive order to a different class of handi-
fied handicapped person the oppor- capped persons is not prohibited by
tunity to participate in programs or this part.
42
(d) The agency shall administer proposed action would fundamentally
grams and activities in the most inte- alter the program or activity or would
grated setting appropriate to the needs result in undue financial and adminis-
of qualified handicapped persons. trative burdens, the agency has the
burden of proving that compliance with
§§ 1014.131–1014.139 [Reserved] § 1014.150(a) would result in such alter-
§ 1014.140 Employment. ation or burdens. The decision that
compliance would result in such alter-
No qualified handicapped person ation or burdens must be made by the
shall, on the basis of handicap, be sub- agency head or his or her designee
jected to discrimination in employ-
after considering all agency resources
ment under any program or activity
available for use in the funding and op-
conducted by the agency. The defini-
eration of the conducted program or
tions, requirements, and procedures of
section 501 of the Rehabilitation Act of activity, and must be accompanied by
1973 (29 U.S.C. 791), as established by a written statement of the reasons for
the Equal Employment Opportunity reaching that conclusion. If an action
Commission in 29 CFR part 1613, shall would result in such an alteration or
apply to employment in federally con- such burdens, the agency shall take
ducted programs or activities. any other action that would not result
in such an alteration or such burdens
§§ 1014.141–1014.148 [Reserved] but would nevertheless ensure that
handicapped persons receive the bene-
§ 1014.149 Program accessibility: Dis- fits and services of the program or ac-
crimination prohibited. tivity.
Except as otherwise provided in (b) Methods—(1) General. The agency
§ 1014.150, no qualified handicapped per- may comply with the requirements of
son shall, because the agency’s facili- this section through such means as re-
ties are inaccessible to or unusable by design of equipment, reassignment of
handicapped persons, be denied the services to accessible buildings, assign-
benefits of, be excluded from participa- ment of aides to beneficiaries, home
tion in, or otherwise be subjected to visits, delivery of services at alternate
discrimination under any program or accessible sites, alteration of existing
activity conducted by the agency. facilities and construction of new fa-
§ 1014.150 Program accessibility: Exist- cilities, use of accessible rolling stock,
ing facilities. or any other methods that result in
making its programs or activities read-
(a) General. The agency shall operate
ily accessible to and usable by handi-
each program or activity so that the
capped persons. The agency is not re-
program or activity, when viewed in its
quired to make structural changes in
entirety, is readily accessible to and
existing facilities where other methods
usable by handicapped persons. This
paragraph does not— are effective in achieving compliance
(1) Necessarily require the agency to with this section. The agency, in mak-
make each of its existing facilities ac- ing alterations to existing buildings,
cessible to and usable by handicapped shall meet accessibility requirements
persons; to the extent compelled by the Archi-
(2) In the case of historic preserva- tectural Barriers Act of 1968, as amend-
tion programs, require the agency to ed (42 U.S.C. 4151–4157), and any regula-
take any action that would result in a tions implementing it. In choosing
substantial impairment of significant among available methods for meeting
historic features of an historic prop- the requirements of this section, the
erty; or agency shall give priority to those
(3) Require the agency to take any methods that offer programs and ac-
action that it can demonstrate would tivities to qualified handicapped per-
result in a fundamental alteration in sons in the most integrated setting ap-
the nature of a program or activity or propriate.
in undue financial and administrative (2) Historic preservation programs. In
burdens. In those circumstances where meeting the requirements of
agency personnel believe that the pro- § 1014.150(a) in historic preservation
43
§ 1014.151 49 CFR Ch. X (10–1–07 Edition)
programs, the agency shall give pri- § 1014.151 Program accessibility: New
ority to methods that provide physical construction and alterations.
access to handicapped persons. In cases Each building or part of a building
where a physical alteration to an his- that is constructed or altered by, on
toric property is not required because behalf of, or for the use of the agency
of § 1014.150(a)(2) or (a)(3), alternative shall be designed, constructed, or al-
methods of achieving program accessi- tered so as to be readily accessible to
bility include— and usable by handicapped persons.
(i) Using audio-visual materials and The definitions, requirements, and
devices to depict those portions of an standards of the Architectural Barriers
historic property that cannot other- Act (42 U.S.C. 4151–4157), as established
wise be made accessible; in 41 CFR 101–19.600 to 101–19.607, apply
(ii) Assigning persons to guide handi- to buildings covered by this section.
capped persons into or through por-
tions of historic properties that cannot §§ 1014.152–1014.159 [Reserved]
otherwise be made accessible; or
(iii) Adopting other innovative meth- § 1014.160 Communications.
ods.
(a) The agency shall take appropriate
(c) Time period for compliance. The
steps to ensure effective communica-
agency shall comply with the obliga-
tion with applicants, participants, per-
tions established under this section by
sonnel of other Federal entities, and
October 21, 1986, except that where
members of the public.
structural changes in facilities are un-
dertaken, such changes shall be made (1) The agency shall furnish appro-
by August 22, 1989, but in any event as priate auxiliary aids where necessary
expeditiously as possible. to afford a handicapped person an equal
(d) Transition plan. In the event that opportunity to participate in, and
structural changes to facilities will be enjoy the benefits of, a program or ac-
undertaken to achieve program acces- tivity conducted by the agency.
sibility, the agency shall develop, by (i) In determining what type of auxil-
February 23, 1987, a transition plan set- iary aid is necessary, the agency shall
ting forth the steps necessary to com- give primary consideration to the re-
plete such changes. The agency shall quests of the handicapped person.
provide an opportunity to interested (ii) The agency need not provide indi-
persons, including handicapped persons vidually prescribed devices, readers for
or organizations representing handi- personal use or study, or other devices
capped persons, to participate in the of a personal nature.
development of the transition plan by (2) Where the agency communicates
submitting comments (both oral and with applicants and beneficiaries by
written). A copy of the transition plan telephone, telecommunication devices
shall be made available for public infor deaf person (TDD’s) or equally ef-
spection. The plan shall, at a min- fective telecommunication systems
imum— shall be used.
(1) Identify physical obstacles in the (b) The agency shall ensure that in-
agency’s facilities that limit the acces- terested persons, including persons
sibility of its programs or activities to with impaired vision or hearing, can
handicapped persons; obtain information as to the existence
(2) Describe in detail the methods and location of accessible services, ac-
that will be used to make the facilities tivities, and facilities.
accessible; (c) The agency shall provide signage
(3) Specify the schedule for taking at a primary entrance to each of its in-
the steps necessary to achieve compli- accessible facilities, directing users to
ance with this section and, if the time a location at which they can obtain in-
period of the transition plan is longer formation about accessible facilities.
than one year, identify steps that will The international symbol for accessi-
be taken during each year of the tran- bility shall be used at each primary en-
sition period; and trance of an accessible facility.
(4) Indicate the official responsible (d) This section does not require the
for implementation of the plan. agency to take any action that it can
44
demonstrate would result in a funda- tion. The agency may extend this time
mental alteration in the nature of a period for good cause.
program or activity or in undue finan- (e) If the agency receives a complaint
cial and administrative burdens. In over which it does not have jurisdic-
those circumstances where agency per- tion, it shall promptly notify the com-
sonnel believe that the proposed action plainant and shall make reasonable ef-
would fundamentally alter the program forts to refer the complaint to the ap-
or activity or would result in undue fi- propriate government entity.
nancial and administrative burdens, (f) The agency shall notify the Archi-
the agency has the burden of proving
tectural and Transportation Barriers
that compliance with § 1014.160 would
Compliance Board upon receipt of any
result in such alteration or burdens.
The decision that compliance would re- complaint alleging that a building or
sult in such alteration or burdens must facility that is subject to the Architec-
be made by the agency head or his or tural Barriers Act of 1968, as amended
her designee after considering all agen- (42 U.S.C. 4151–4157), or section 502 of
cy resources available for use in the the Rehabilitation Act of 1973, as
funding and operation of the conducted amended (29 U.S.C. 792), is not readily
program or activity, and must be ac- accessible to and usable by handi-
companied by a written statement of capped persons.
the reasons for reaching that conclu- (g) Within 180 days of the receipt of a
sion. If an action required to comply complete complaint for which it has ju-
with this section would result in such risdiction, the agency shall notify the
an alteration or such burdens, the complainant of the results of the inves-
agency shall take any other action tigation in a letter containing—
that would not result in such an alter- (1) Findings of fact and conclusions
ation or such burdens but would never- of law;
theless ensure that, to the maximum (2) A description of a remedy for each
extent possible, handicapped persons violation found; and
receive the benefits and services of the
(3) A notice of the right to appeal.
program or activity.
(h) Appeals of the findings of fact and
§§ 1014.161–1014.169 [Reserved] conclusions of law or remedies must be
filed by the complainant within 90 days
§ 1014.170 Compliance procedures. of receipt from the agency of the letter
(a) Except as provided in paragraph required by § 1014.170(g). The agency
(b) of this section, this section applies may extend this time for good cause.
to all allegations of discrimination on (i) Timely appeals shall be accepted
the basis of handicap in programs or and processed by the head of the agen-
activities conducted by the agency. cy.
(b) The agency shall process com- (j) The head of the agency shall no-
plaints alleging violations of section tify the complainant of the results of
504 with respect to employment accord- the appeal within 60 days of the receipt
ing to the procedures established by of the request. If the head of the agen-
the Equal Employment Opportunity cy determines that additional informa-
Commission in 29 CFR part 1613 pursu- tion is needed from the complainant,
ant to section 501 of the Rehabilitation he or she shall have 60 days from the
Act of 1973 (29 U.S.C. 791). date of receipt of the additional infor-
(c) The Equal Opportunity Officer
mation to make his or her determina-
shall be responsible for coordinating
tion on the appeal.
implementation of this section. Com-
plaints may be sent to the Section of (k) The time limits cited in para-
Personnel Services, Surface Transpor- graphs (g) and (j) of this section may be
tation Board, Washington, DC 20423. extended with the permission of the
(d) The agency shall accept and in- Assistant Attorney General.
vestigate all complete complaints for (l) The agency may delegate its au-
which it has jurisdiction. All complete thority for conducting complaint in-
complaints must be filed within 180 vestigations to other Federal agencies,
days of the alleged act of discrimina- except that the authority for making
45
§§ 1014.171–1014.999 49 CFR Ch. X (10–1–07 Edition)
the final determination may not be An eligible party may receive an award
delegated to another agency. when it prevails over the Board or an-
other agency of the United States par-
[51 FR 22896, June 23, 1986, as amended at 51
FR 22896, June 23, 1986; 64 FR 53267, Oct. 1, ticipating in the Board proceeding, un-
1999] less the Board’s position in the pro-
ceeding, or that of the other agency,
§§ 1014.171–1014.999 [Reserved] was substantially justified or special
circumstances make an award unjust.
PART 1016—SPECIAL PROCEDURES The rules in this part describe the par-
GOVERNING THE RECOVERY OF ties eligible for awards and the pro-
ceedings that are covered. They also
EXPENSES BY PARTIES TO BOARD explain how to apply for awards, and
ADJUDICATORY PROCEEDINGS the procedures and standards that the
Board will use to make them.
Subpart A—General Provisions
§ 1016.102 When the Act applies.
Sec.
1016.101 Purpose of these rules. The Act applies to any adversary ad-
1016.102 When the Act applies. judication pending before the Board
1016.103 Proceedings covered. after October 1, 1981. This includes pro-
1016.104 Decisionmaking authority. ceedings begun before October 1, 1981, if
1016.105 Eligibility of applicants.
final Board action has not been taken
1016.106 Standards for awards.
1016.107 Allowable fees and expenses. before that date, regardless of when
1016.109 Awards against other agencies. they were initiated or when final Board
action occurs. These rules incorporate
Subpart B—Information Required From the changes made in Pub. L. No. 99–80,
Applicants 99 Stat. 183, which applies generally to
cases instituted after October 1, 1984. If
1016.201 Contents of application.
awards are sought for cases pending on
1016.202 Net worth exhibit.
1016.203 Documentation of fees and ex- October 1, 1981 or filed between that
penses. date and September 30, 1984, the prior
statutory provisions (to the extent
Subpart C—Procedures for Considering they differ from the existing ones, and
Applications our implementing rules) apply.
1016.301 When an application may be filed. [54 FR 26379, June 23, 1989]
1016.302 Filing and service of documents.
1016.303 Answer to application. § 1016.103 Proceedings covered.
1016.304 Reply. (a) The Act applies to adversary adju-
1016.305 Comments by other parties. dications conducted by the Board
1016.306 Settlement.
1016.307 Further proceedings.
under 5 U.S.C. 554 in which the position
1016.308 Decision. of this or any other agency of the
1016.309 Agency review. United States, or any component of an
1016.310 Judicial review. agency, is presented by an attorney or
1016.311 Payment of award. other representative (hereinafter
AUTHORITY: 5 U.S.C. 504(c)(1), 49 U.S.C. 721. ‘‘agency counsel’’) who enters an ap-
pearance and participates in the pro-
SOURCE: 46 FR 61660, Dec. 18, 1981, unless ceeding. Proceedings for the purpose of
otherwise noted.
establishing or fixing a rate are not
covered by the Act. Proceedings to
Subpart A—General Provisions grant or renew licenses are also ex-
cluded, but proceedings to modify, sus-
§ 1016.101 Purpose of these rules. pend, or revoke licenses are covered if
The Equal Access to Justice Act (5 they are otherwise ‘‘adversary adju-
U.S.C. 504) (called the ‘‘Act’’ in this dications.’’ Generally, the types of
part), provides for the award of attor- Board proceedings covered by the Act
ney fees and other expenses to eligible include, but are not limited to, inves-
individuals and entities who are parties tigation proceedings instituted under
to certain administrative proceedings 49 U.S.C. 11701 and 49 U.S.C. 10925 and
(called ‘‘adversary adjudications’’) be- disciplinary proceedings conducted
fore the Surface Transportation Board. pursuant to 49 CFR 1100.11.
46
(b) The Board may also designate a had no more than 500 employees at the
proceeding not listed in paragraph (a) time the adversary adjudication was
of this section as an adversary adju- initiated;
dication for purposes of the Act by so (3) Any organization described in sec-
stating in an order initiating the pro- tion 501(c)(3) of the Internal Revenue
ceeding, designating the matter for Code of 1954 (26 U.S.C. 501(c)(3)) exempt
hearing or at any other time during from taxation under section 501(a) of
the proceeding. The Board’s failure to such Code, or a cooperative association
designate a proceeding as an adversary as defined in section 15(a) of the Agri-
adjudication shall not preclude the fil-
cultural Marketing Act (12 U.S.C.
ing of an application by a party who
1141j(a)), may be a party regardless of
believes the proceeding is covered by
the net worth of such organization or
the Act; whether the proceeding is cov-
ered will then be an issue for resolution cooperative association.
in proceedings on the application. (c) For the purpose of eligibility, the
(c) If a proceeding includes both mat- net worth and number of employees of
ters covered by the Act and matters an applicant shall be determined as of
specifically excluded from coverage, the date the proceeding was initiated.
any award made will include only fees (d) The employees of an applicant in-
and expenses related to covered issues. clude all persons who regularly per-
form services for remuneration for the
§ 1016.104 Decisionmaking authority. applicant, under the applicant’s direc-
Unless otherwise ordered by the tion and control. Part-time employees
Board in a particular proceeding, each shall be included on a proportional
application for an award under this basis. Independent contractors under
part shall be assigned for decision to lease to motor carriers are not employ-
the official or decisionmaking body ees of the carriers under these rules.
that entered the decision in the adver- Also, agents for motor common car-
sary adjudication. That official or deci- riers of household goods are not em-
sionmaking body is referred to in this ployees of their respective principal
part as the ‘‘adjudicative officer.’’ carriers.
[46 FR 61660, Dec. 18, 1981, as amended at 54 (e) The net worth and number of em-
FR 26379, June 23, 1989] ployees of the applicant and all of its
affiliates shall be aggregated to deter-
§ 1016.105 Eligibility of applicants.
mine eligibility. Any individual, cor-
(a) To be eligible for an award of at- poration or other entity that directly
torney fees and other expenses under or indirectly controls or owns a major-
the Act, the applicant must be a party ity of the voting shares or other inter-
to the adversary adjudication for which est of the applicant or any corporation
it seeks an award, it must have stood or other entity of which the applicant
in an adversary relationship to the po-
directly or indirectly owns or controls
sition taken by agency counsel, and it
a majority of the voting shares or
must have prevailed on one or more of
other interest, will be considered an af-
the issues raised by agency counsel.
The term ‘‘party’’is defined in 5 U.S.C. filiate for purposes of this part, unless
504(b)(1)(B). The applicant must show the adjudicative officer determines
that it meets all conditions of eligi- that such treatment would be unjust
bility set out in this subpart and in and contrary to the purposes of the Act
Subpart B. in light of the actual relationship be-
(b) The types of eligible applicants tween the affiliated entities. In addi-
are as follows: tion, the adjudicative officer may de-
(1) An individual whose net worth did termine that financial relationships of
not exceed $2 million at the time the the applicant other than those de-
adversary adjudication was initiated; scribed in this paragraph constitute
(2) Any owner of an unincorporated special circumstances that would make
business, or any partnership, corpora- an award unjust.
tion, association, unit of local govern- (f) An applicant that participates in a
ment, or organization whose net worth proceeding primarily on behalf of one
does not exceed $7 million and which or more other persons or entities that
47
§ 1016.106 49 CFR Ch. X (10–1–07 Edition)
would be ineligible is not itself eligible tomary fee for similar services, or, if
for an award. an employee of the applicant, the fully
allocated cost of the services;
[46 FR 61660, Dec. 18, 1981, as amended at 54
FR 26379, June 23, 1989] (2) The prevailing rate for similar
services in the community in which the
§ 1016.106 Standards for awards. attorney, agent, or witness ordinarily
performs services;
(a) A prevailing applicant may re-
(3) The time actually spent in the
ceive an award for fees and expenses in-
representation of the applicant;
curred in connection with a proceeding,
(4) The time reasonably spent in light
or in a significant and discrete sub-
of the difficulty or complexity of the
stantive portion of the proceeding, un-
issues in the proceeding; and
less the position of the agency over
which the applicant has prevailed was (5) Such other factors as may bear on
substantially justified. Whether or not the value of the services provided.
the position of the agency was substan- (d) The reasonable cost of any study,
tially justified shall be determined on analysis, engineering report, test,
the basis of the administrative record project or similar matter prepared on
made in the adversary adjudication for behalf of a party may be awarded, to
which fees and other expenses are the extent that the charge for the serv-
sought. The burden of proof that an ice does not exceed the prevailing rate
award should not be made to an eligi- for similar services, and the study or
ble prevailing applicant is on the agen- other matter was necessary for prepa-
cy counsel, which may avoid an award ration of the applicant’s case.
by showing that its position was rea- [46 FR 61660, Dec. 18, 1981, as amended at 54
sonable in law and fact. FR 26379, June 23, 1989]
(b) An award will be reduced or de-
nied if the applicant has unduly or un- § 1016.109 Awards against other agen-
reasonably protracted the proceeding cies.
or if special circumstances make the If an applicant is entitled to an
award sought unjust. award because it prevails over another
agency of the United States that par-
FR 26379, June 23, 1989] ticipates in a proceeding before this
agency and takes a position that is not
§ 1016.107 Allowable fees and ex- substantially justified, the award or an
penses. appropriate portion of the award shall
(a) Awards will be based on rates cus- be made against that agency.
tomarily charged by persons engaged
in the business of acting as attorneys, Subpart B—Information Required
agents and expert witnesses, even if the From Applicants
services were made available without
charge or at a reduced rate to the ap- § 1016.201 Contents of application.
plicant. (a) An application for an award of
(b) No award for the fee of an attor- fees and expenses under the Act shall
ney or agent under these rules may ex- identify the applicant and the pro-
ceed $75.00 per hour, unless a higher fee ceeding for which an award is sought.
is justified. 5 U.S.C. 504(b)(1)(A). How- The application shall show that the ap-
ever, an award may also include the plicant has prevailed and identify the
reasonable expenses of the attorney, position of the Board or other agencies
agent, or witness as a separate item, if in the proceeding that the applicant al-
the attorney, agent, or witness ordi- leges was not substantially justified.
narily charges clients separately for Unless the applicant is an individual,
such expenses. the application shall also state the
(c) In determining the reasonableness number of employees of the applicant
of the fee sought for an attorney, agent and describe briefly the type and pur-
or expert witness, the adjudicative offi- pose of its organization or business.
cer shall consider the following: (b) The application shall also include
(1) If the attorney, agent or witness a statement that the applicant’s net
is in private practice, his or her cus- worth does not exceed $2 million (if an
48
individual) or $7 million (for all other The burden is on the moving party to
applicants, including their affiliates). justify the confidentiality of the infor-
However, an applicant may omit this mation.
statement if:
(1) It attaches a copy of a ruling by
FR 26380, June 23, 1989]
the Internal Revenue Service that it
qualifies as an organization described § 1016.203 Documentation of fees and
in section 501(c)(3) of the Internal Rev- expenses.
enue Code (26 U.S.C. 501(c)(3)) exempt
from taxation under section 501(a) of The application shall be accompanied
such Code; or by full documentation of the fees and
(2) It states that it is a cooperative expenses, including the cost of any
association as defined in section 15(a) study, analysis, engineering report,
of the Agricultural Marketing Act (12 test, project or similar matter, for
U.S.C. 1141j(a)). which an award is sought. A separate
(c) The application shall state the itemized statement shall be submitted
amount of fees and expenses for which for each professional firm or individual
an award is sought. whose services are covered by the ap-
(d) The application may also include plication, showing the hours spent in
any other matters that the applicant connection with the proceeding by each
wishes the Board to consider in deter- individual, a description of the specific
mining whether and in what amount an services performed, the rate at which
award should be made. each fee has been computed, any ex-
(e) The application shall be signed by penses for which reimbursement is
the applicant or an authorized officer sought, the total amount claimed, and
or attorney of the applicant. It shall the total amount paid or payable by
also contain or be accompanied by a the applicant or by another person or
written verification under oath or entity for the services provided. The
under penalty of perjury that the infor- adjudicative officer may require the
mation provided in the application is applicant to provide vouchers, receipts,
true and correct. or other substantiation for any ex-
[46 FR 61660, Dec. 18, 1981, as amended at 54 penses claimed.
FR 26380, June 23, 1989]
Subpart C—Procedures for
§ 1016.202 Net worth exhibit.
Considering Applications
(a) Each applicant must provide with
its application a detailed exhibit show- § 1016.301 When an application may be
ing the net worth of the applicant and filed.
any affiliates (as defined in § 1016.105(f) (a) An application may be filed when-
of this part) when the proceeding was ever the applicant has prevailed in the
initiated. The exhibit may be in any proceeding or in a significant and dis-
form convenient to the applicant that crete substantive portion of the pro-
provides full disclosure of the appli- ceeding, but in no case later than 30
cant’s and its affiliates’ assets and li- days after an administratively final
abilities and is sufficient to determine disposition of the proceeding.
whether the applicant qualifies under
(b) If review or reconsideration is
the standards in this part. The adju-
sought or taken of a decision as to
dicative officer may require an appli-
which an applicant believes it has pre-
cant to file additional information to
vailed, proceedings for the award of
determine its eligibility for an award.
fees shall be stayed pending final dis-
(b) Ordinarily, the net worth exhibit
position of the underlying controversy.
will be included in the public record of
the proceeding. However, an applicant (c) For purposes of this rule, see the
that objects to public disclosure of in- Board’s rules governing appellate pro-
formation in any portion of the exhibit cedures at §§ 1115.2 and 1115.3 to deter-
and believes that there are legal mine when a decision becomes adminis-
grounds for withholding it from disclo- tratively final.
sure may file a motion to withhold the [46 FR 61660, Dec. 18, 1981, as amended at 54
information from public disclosure. FR 26380, June 23, 1989]
49
§ 1016.302 49 CFR Ch. X (10–1–07 Edition)
§ 1016.302 Filing and service of docu- file comments on an application within

ments. 30 days after it is served or on an an-
Any application for an award or swer within 15 days after it is served. A
other pleading or document related to commenting party may not broaden
an application shall be filed and served the issues.
on all parties to the proceeding in the [46 FR 61660, Dec. 18, 1981, as amended at 54
same manner as other pleadings in the FR 26380, June 23, 1989]
proceeding, except as provided in
§ 1016.202(b) for confidential financial § 1016.306 Settlement.
information. The applicant and agency counsel
may agree on a proposed settlement of
§ 1016.303 Answer to application. the award before final action on the ap-
(a) Within 30 days after service of an plication, either in connection with a
application, counsel representing the settlement of the underlying pro-
agency against which an award is ceeding, or after the underlying pro-
sought may file an answer to the appli- ceeding has been concluded. If a pre-
cation. Unless agency counsel requests vailing party and agency counsel agree
an extension of time for filing or files on a proposed settlement of an award
a statement of intent to negotiate before an application has been filed,
under paragraph (b) of this section, the application shall be filed with the
failure to file an answer within the 30- proposed settlement.
day period may be treated as a consent
to the award requested. § 1016.307 Further proceedings.
(b) If agency counsel and the appli- (a) Ordinarily, the determination of
cant believe that the issues in the fee an award will be made on the basis of
application can be settled, they may the written record. However, on re-
jointly file a statement of their intent quest of either the applicant or agency
to negotiate a settlement. The filing of counsel or on his or her own initiative,
this statement shall extend the time the adjudicative officer may order fur-
for filing an answer for an additional 30 ther proceedings when necessary.
days, and further extensions may be (b) A request that the adjudicative
granted as justified. officer order further proceedings under
(c) The answer shall explain in detail this section shall specifically identify
any objections to the award requested the information sought or the disputed
and identify the facts relied on in sup- issues and shall explain why the addi-
port of agency counsel’s position. If the tional proceedings are necessary to re-
answer is based on any alleged facts solve the issues.
not already in the record of the pro-
ceeding, agency counsel shall include
FR 26380, June 23, 1989]
with the answer either supporting affi-
davits or a request for further pro- § 1016.308 Decision.
ceedings under § 1016.307.
The adjudicative officer shall issue a
[46 FR 61660, Dec. 18, 1981, as amended at 54 decision on the application within 50
FR 26380, June 23, 1989] days after completion of proceedings
on the application. The decision shall
§ 1016.304 Reply. include written findings and conclu-
Within 15 days after service of an an- sions on the applicant’s eligibility and
swer, the applicant may file a reply. If status as a prevailing party, and an ex-
the reply is based on any alleged facts planation of the reasons for any dif-
not already in the record of the pro- ference between the amount requested
ceeding, the applicant shall include and the amount awarded. The decision
with the reply either supporting affida- shall also include, if at issue, findings
vits or a request for further pro- on whether the Board’s or other agen-
ceedings under § 1016.307. cy’s position was substantially justi-
fied, whether the applicant unduly pro-
§ 1016.305 Comments by other parties. tracted the proceedings, or whether
Any party to a proceeding other than special circumstances make an award
the applicant and agency counsel may unjust. If the applicant has sought an
50
award against more than one agency, 1017.3 Applicability.

the decision shall allocate responsi- 1017.4 Notice requirements.
bility for payment of any award made 1017.5 Hearing procedures.
among the agencies, and shall explain 1017.6 Result if employee fails to meet dead-
lines.
the reasons for the allocation made.
1017.7 Written decision following hearing.
[46 FR 61660, Dec. 18, 1981, as amended at 54 1017.8 Exception to entitlement to notice,
FR 26380, June 23, 1989] hearing, written responses and final deci-
sions.
§ 1016.309 Agency review. 1017.9 Coordinating offset with another Fed-
In the event the adjudicative officer eral agency.
1017.10 Procedures for administrative offset.
is not the entire Board, the applicant 1017.11 Refunds.
or agency counsel may seek review of 1017.12 Statute of limitations.
the initial decision on the fee applica- 1017.13 Nonwaiver of rights.
tion, or the Board may review the deci- 1017.14 Interest, penalties, and administra-
sion on its own initiative, in accord- tive costs.
ance with § 1115.2. If no appeal is taken,
AUTHORITY: 31 U.S.C. 3716, 5 U.S.C. 5514;
the initial decision becomes the action Pub. L. 97–365; 4 CFR parts 101–105; 5 CFR
of the Board 20 days after it is issued. part 550.
If the adjudicative officer is the entire
Board, § 1115.3 applies. SOURCE: 56 FR 32333, July 16, 1991, unless
otherwise noted.
[54 FR 26380, June 23, 1989]
§ 1017.1 Purpose and scope.
§ 1016.310 Judicial review.
(a) These regulations set forth guide-
Judicial review of final Board deci- lines for implementing the Debt Collec-
sions on awards may be sought as pro- tion Act of 1982 at the Surface Trans-
vided in 5 U.S.C. 504(c)(2). portation Board (STB). The purpose of
the Act is to give agencies the ability
§ 1016.311 Payment of award.
to more aggressively pursue debts owed
An applicant seeking payment of an the Federal Government and to in-
award shall submit to the appropriate crease the efficiency of government-
official of the paying agency a copy of wide efforts to collect debts owed the
the Board’s final decision granting the United States. The authority for these
award, accompanied by a statement regulations is found in the Debt Collec-
that the applicant will not seek review tion Act of 1982 (Pub. L. 97–365 and 4
of the decision in the United States CFR 101.1 et seq.), Collection by Offset
courts. Where the award is granted From Indebted Government Employees
against the Surface Transportation (5 CFR 550.1101 et seq.), Federal Claims
Board the applicant shall make its sub- Collection Standards (4 CFR 101.1 et
mission to the Secretary, Surface seq.), and Administrative Offset (31
Transportation Board, Washington, DC U.S.C. 3716).
20423. The Board will pay the amount (b) These regulations provide proce-
awarded to the applicant within 60 dures for administrative offset of a
days of the applicant’s submission un- Federal employee’s salary without his/
less the judicial review of the award or her consent to satisfy certain debts
of the underlying decision of the adver- owed to the Federal Government. The
sary adjudication has been sought by regulations covered in this part apply
the applicant or any other party to the to all current and former Federal em-
proceeding. ployees who owe debts to the Board
and to current Board employees who
PART 1017—DEBT COLLECTION— owe debts to other Federal agencies.
COLLECTION BY OFFSET FROM The regulations set forth herein do not
INDEBTED GOVERNMENT AND apply when the employee consents to
FORMER GOVERNMENT EMPLOY- recovery from his/her current pay ac-
EES count.
(c) These regulations do not apply to
Sec. debts or claims arising under:
(1) The Social Security Act;
1017.1 Purpose and scope.

1017.2 Definitions. (2) The Internal Revenue Code of 1954;
51
§ 1017.2 49 CFR Ch. X (10–1–07 Edition)
(3) The tariff laws of the United insurance premiums; Federal employ-
States; or ment taxes; and any other deductions
(4) Any case where a collection of a that are required to be withheld by
debt by salary offset is explicitly pro- law.
vided for or prohibited by another stat- (e) FCCS. The Federal Claims Collec-
ute. tion Standards jointly published by the
(d) These regulations also do not pre- Justice Department and the General
clude the compromise, suspension, or Accounting Office at 4 CFR 101.1 et seq.
termination of collection action, where (f) Hearing official. The official re-
appropriate, under the standards im- sponsible for conducting a hearing
plementing the Federal Claims Collec- which is properly and timely requested
tion Act (31 U.S.C. 3711 et seq., 4 CFR by the debtor. An Administrative Law
101.1 et seq.). These regulations do not Judge shall be responsible for con-
preclude an employee’s requesting a ducting the hearing and the Chief Ad-
waiver of a salary overpayment (i.e., ministrative Law Judge shall deter-
alleged indebtedness) under 5 U.S.C. mine which judicial official will be as-
5584, 10 U.S.C. 2774, or 32 U.S.C. 716, or signed the hearing.
in any way questioning the amount or (g) Paying agency. The agency that
validity of a debt by submitting a employs the individual who owes the
claim to the General Accounting Office debt and authorizes the payment of his/
(GAO), or requesting a waiver under her current pay.
statutory provisions pertaining to the (h) Administrative offset. The with-
particular debt. holding of monies payable by the
(e) The Board’s regulations governing United States to or held by the United
debt collection for entities and individ- States on behalf of an employee to sat-
uals who are not current or former gov- isfy a debt owed the United States by
ernment employees are contained in 49 that employee.
CFR part 1018. (i) Waiver. A cancellation, forgive-
[56 FR 32333, July 16, 1991, as amended at 58 ness, or non-recovery of a debt alleg-
FR 7749, Feb. 9, 1993] edly owed by an employee or former
employee to the agency as permitted or
§ 1017.2 Definitions. required by law.
For the purposes of these regula-
§ 1017.3 Applicability.
tions, the following definitions will
apply: These regulations are to be followed
(a) Agency. An executive agency as when:
defined at 5 U.S.C. 105, including the (a) The Board is owed a debt by a cur-
U.S. Postal Service; the U.S. Postal rent employee;
Rate Board; a military department as (b) The Board is owed a debt by an in-
defined at 5 U.S.C. 102; an agency or dividual currently employed by an-
court in the Judicial Branch; an agen- other Federal agency;
cy of the Legislative Branch, including (c) The Board employs an individual
the U.S. Senate and House of Rep- who owes a debt to another Federal
resentatives; and other independent es- agency; and
tablishments that are entities of the (d) The Board is owed a debt by an
Federal Government. employee who separates from Federal
(b) Creditor agency. The agency to Government service. The authority to
which the debt is owed. collect debts owed by former Federal
(c) Debt. An amount of money or employees is found in the FCCS and 31
property which has been determined by U.S.C. 3716.
an appropriate agency official to be
owed to the United States from any § 1017.4 Notice requirements.
person. (a) Deductions shall not be made un-
(d) Disposable pay. The amount that less the employee is provided with
remains from an employee’s Federal written notice, signed by the debt col-
pay after required deductions for social lection official (Chief, Section of Fi-
security; Federal, State, or local in- nancial Services), of the debt at least
come taxes; health insurance pre- 30 days before administrative offset
miums; retirement contributions; life commences.
52
(b) The written notice to current the filing of the petition requesting the
Federal employees shall be hand deliv- hearing unless the employee requests,
ered if at headquarters or sent certified and the hearing official grants, a delay
mail, return receipt requested, if lo- in the proceedings;
cated in a field office and shall contain: (11) A statement that knowingly
(1) A statement that the debt is owed false or frivolous statements, represen-
and an explanation of its nature and tations, or evidence may subject the
amount; employee to appropriate disciplinary
(2) The agency’s intention to collect procedures and criminal penalties (i.e.,
the debt by means of deduction from for false certification, etc.);
the employee’s current disposable pay (12) A statement of other rights and
account;
remedies available to the employee
(3) The amount, frequency, proposed
under statutes or regulations gov-
beginning date, and duration of the in-
erning the program for which the col-
tended deduction(s);
lection is being made; and
(4) An explanation of interest, pen-
alties, and administrative charges, in- (13) Unless there are contractual or
cluding a statement that such charges statutory provisions to the contrary, a
will be assessed unless excused in ac- statement that amounts paid on or de-
cordance with the FCCS (4 CFR 101.1 et ducted for the debt which are later
seq.); waived or found not owed to the United
(5) The employee’s right to inspect, States will be promptly refunded to the
request, and copy Government records employee.
relating to the debt (if an employee is (c) The written notice to former Fed-
unable to physically inspect the Gov- eral employees shall be sent certified
ernment records, the agency will repro- mail, return receipt requested, and
duce copies of the records and may shall contain:
charge for those copies); (1) A statement that the debt is owed
(6) If not previously provided, the op- and an explanation of its nature and
portunity (under terms agreeable to amount;
the creditor agency) to establish a (2) The agency’s intention to collect
schedule for the voluntary repayment the debt by administrative offset
of the debt or to enter into a written against amounts due and payable to
agreement with the agency to establish the debtor from the Civil Service Re-
a schedule for the voluntary repayment tirement and Disability Fund or by use
of the debt in lieu of offset. The agree- of a collection service to recover the
ment must be in writing, signed by delinquent debt;
both the employee and the creditor (3) An explanation of interest, pen-
agency, and documented in the creditor alties, and administrative charges, in-
agency’s files (4 CFR 102.2(e)); cluding a statement that such charges
(7) The right to a hearing conducted will be assessed unless excused in ac-
by an impartial hearing official con- cordance with 4 CFR 101.1 et seq.;
cerning the existence or amount of the
(4) The former employee’s rights to
debt and the repayment schedule, if it
inspect, request, and copy Government
was not established by a written agree-
ment between the employee and the records relating to the debt (if the
creditor agency; former employee is unable to phys-
(8) The method and time period for ically inspect the Government records,
petitioning for a hearing; the agency will reproduce copies of the
(9) A statement that the timely filing records and may charge for those cop-
of a petition for a hearing (on or before ies);
the 15th day following receipt of the (5) The opportunity to enter into a
written notice) will stay the com- written agreement with the agency to
mencement of collection proceedings, establish a schedule for the voluntary
together with instructions on how and repayment of the debt;
where to file a petition; (6) The right to a hearing conducted
(10) A statement that a final decision by an impartial hearing official con-
on the hearing (if one is requested) will cerning the existence or amount of the
be issued not later than 60 days after debt and the repayment schedule, if it
53
§ 1017.5 49 CFR Ch. X (10–1–07 Edition)
was not established by a written agree- his or her case or defense by oral or
ment between the former employee and documentary evidence, and to conduct
the creditor agency; such cross-examination as may be re-
(7) The method and time period for quired for a full and true disclosure of
petitioning for a hearing; the facts.
(8) A statement that the timely filing (e) The Board has the initial burden
of a petition for a hearing (on or before of proof as to the existence and amount
the 15th day following receipt of the of the debt.
written notice) will stay the com- (f) The employee requesting the hear-
mencement of collection proceedings, ing shall bear the ultimate burden of
together with instructions on how and proof.
where to file a petition;
(g) The evidence presented by the
(9) A statement that a final decision
employee must prove that no debt ex-
on the hearing will be issued not later
than 60 days after the filing of the peti- ists or cast sufficient doubt that rea-
tion requesting the hearing unless the sonable minds could differ as to the ex-
former employee requests, and the istence or amount of the debt.
hearing official grants, a delay in the (h) Where the employee files a peti-
proceedings; tion for a hearing contesting the offset
(10) A statement that knowingly schedule imposed by the Board, the Ad-
false or frivolous statements, represen- ministrative Law Judge shall take into
tations, or evidence may subject the consideration all relevant factors as to
former employee to appropriate crimi- the employee’s financial situation in
nal penalties (i.e., for false certifi- determining whether said offset sched-
cation, etc.); ule should be altered.
(11) A statement of other rights and (i) Any party to a hearing under
remedies available to the former em- these regulations is entitled to be ac-
ployee under statutes or regulations companied, represented, and advised by
governing the program for which the counsel, as well as to appear in person
collection is being made; and or by or with counsel.
(12) Unless there are contractual or (j) The Administrative Law Judge
statutory provisions to the contrary, a shall issue a final written decision at
statement that amounts paid on or de- the earliest practicable date, but not
ducted for the debt which are later later than 60 days after the filing of the
waived or found not owed to the United petition requesting the hearing, as
States will be promptly refunded to the stated in § 1017.4(b)(10) or § 1017.4(c)(9) of
former employee. this part, whichever is applicable.
[56 FR 32333, July 16, 1991, as amended at 64
FR 53267, Oct. 1, 1999]
§ 1017.6 Result if employee fails to
meet deadlines.
§ 1017.5 Hearing procedures. An employee will not be granted a
(a) Upon the Administrative Law hearing and will have his/her dispos-
Judge’s determination of an employee’s able pay offset in accordance with the
compliance with §§ 1017.4(b)(8) or Board’s offset schedule if the employee:
1017.4(c)(7) of this part, whichever is ap- (a) Fails to file a petition for a hear-
plicable, he/she shall set the time, date, ing in conformity with the require-
and location for the hearing, paying ments of § 1017.4(b)(8) or § 1017.4(c)(9) of
due consideration to convenience to this part, whichever is applicable. How-
the employee. ever, failure to file within the requisite
(b) All significant matters discussed time period set out in § 1017.4(b)(8) or
at the hearing shall be documented, al- § 1017.4(c)(9) of this part whichever is
though a verbatim transcript of the applicable, will not result in denial of a
hearing shall not be made. hearing or in immediate offset, if the
(c) The Administrative Law Judge Administrative Law Judge excuses the
may exclude any evidence he/she deems late filing if the employee can show
irrelevant, immaterial, or unduly rep- that the delay was because of cir-
etitious. cumstances beyond his/her control or
(d) Any party to a hearing under because of failure to receive notice of
these regulations is entitled to present the filing deadline.
54
(b) Is scheduled to appear and fails to of Personnel Management, and that the
appear at the hearing without good provisions of 4 CFR 102.3(f) have been
cause. fully complied with;
(3) If collection must be made in in-
§ 1017.7 Written decision following stallments, advise the paying agency of
hearing.
the amount or percentage of disposable
(a) Written decisions provided after a pay to be collected in each installment;
request for a hearing will include: (4) Advise the paying agency of any
(1) A statement of the facts presented action taken under 5 U.S.C. 5514(a);
to support the nature and origin of the (5) If the employee is in the process
alleged debt; of separating, the Board must submit
(2) The Administrative Law Judge’s its debt claim to the paying agency as
analysis, findings, and conclusions, in provided in this part. The paying agen-
light of the hearing, concerning the cy must certify any amounts already
employee’s or the Board’s grounds; collected, notify the employee, and
(3) The amount and validity of the al- send a copy of the certification and no-
leged debt; and tice of the employee’s separation to the
(4) The repayment schedule (includ- creditor agency—if the paying agency
ing percentage), if applicable. is aware that the employee is entitled
(b) The Administrative Law Judge’s to money from the Civil Service Re-
decision does not preclude an employee tirement and Disability Fund, it must
from requesting a waiver of a salary certify to the Office of Personnel Man-
payment under 5 U.S.C. 5584, 10 U.S.C. agement (OPM) that:
2774, or 32 U.S.C. 716, or in any way
(i) The debtor owes the U.S. a debt,
questioning the amount or validity of a
including the amount of that debt;
debt by submitting a subsequent claim
to GAO in accordance with procedures (ii) The Board has complied with the
prescribed by GAO. applicable statutes, regulations, and
procedures of OPM; and
§ 1017.8 Exception to entitlement to (iii) The Board has complied with the
notice, hearing, written responses requirements of 4 CFR 102.3, including
and final decisions. any hearing or review; and
The Board shall except from the pro- (6) If the employee has already sepa-
visions of § 1017.4 through § 1017.7 any rated and all payments due from the
adjustment to pay arising out of an paying agency have been paid, the
employee’s election of coverage or a Chief, Section of Financial Services,
change in coverage under a Federal may request from OPM, unless other-
benefits program, requiring periodic wise prohibited, that money payable to
deductions from pay, if the amount to the employee from the Civil Service
be recovered was accumulated over Retirement and Disability Fund or
four pay periods or less. other similar funds be collected by ad-
ministrative offset and provide the cer-
§ 1017.9 Coordinating offset with an- tification described in paragraph (a)(5)
other Federal agency. of this section.
(a) The Board as creditor agency. When (b) The Board as paying agency. (1)
the Chief, Section of Financial Serv- Upon receipt of a properly certified
ices, determines that an employee of debt claim from another agency, de-
another Federal agency owes a delin- ductions will be scheduled to begin at
quent debt to the Board, he/she shall: the next established pay interval. The
(1) Arrange for a hearing upon proper employee must receive written notice
petitioning by the employee; that the Board has received a certified
(2) Certify in writing to the other debt claim from the creditor agency,
Federal agency that the employee owes the amount of the debt, the date ad-
the debt, the amount and basis of the ministrative offset will begin, and the
debt, the date on which payment is amount of the deduction(s). The Board
due, the date the Government’s right shall not review the merits of the cred-
to collect the debt accrued, that the itor agency’s determination of the va-
Board’s regulations for administrative lidity or the amount of the certified
offset have been approved by the Office claim.
55
§ 1017.10 49 CFR Ch. X (10–1–07 Edition)
(2) When the Board receives an in- Board to satisfy debts owed to a cred-
complete debt from another (creditor) itor agency when the debt is waived,
agency, the Board must return the debt found not owed, or when directed by an
claim with a notice that procedures administrative or judicial order.
under 5 U.S.C. 5514 and 5 CFR 1108 must (c) Unless required by law, refunds
be provided and a properly certified under this subsection shall not bear in-
debt claim received before action will terest.
be taken to collect from the employ-
ee’s current pay account. § 1017.12 Statute of limitations.
(3) If the employee transfers to an- If a debt has been outstanding for
other agency after the creditor agency more than 10 years after the agency’s
has submitted its debt claim to the right to collect the debt first accrued,
Board and before the debt is fully col- the agency may not collect by salary
lected, the Board must certify the total offset unless facts material to the Gov-
amount collected to the creditor agen- ernment’s right to collect were not
cy, along with notice of the transfer, known and could not reasonably have
and furnish a copy of same to the em- been known by the official or officials
ployee. who were charged with the responsi-
[56 FR 32333, July 16, 1991, as amended at 64 bility for discovery and collection of
FR 53267, Oct. 1, 1999] such debts.
§ 1017.10 Procedures for administra- § 1017.13 Nonwaiver of rights.

tive offset. An employee’s involuntary payment
(a) Debts will be collected in one of all or any part of a debt collected
lump sum where possible. If the em- under these regulations will not be
ployee is financially unable to pay in construed as a waiver of any rights
one lump sum, collection shall be made that employee may have under 5 U.S.C.
in installments. 5514 or any other provision of law.
(b) Debts shall be collected by deduc-
tion at officially established pay inter- § 1017.14 Interest, penalties, and ad-
vals from an employee’s current pay ministrative costs.
account, unless alternative arrange- (a) The rate of interest assessed shall
ments for repayment are made. be the rate of the current value of
(c) Installment deductions will be funds to the U.S. Treasury (i.e., the
made over a period not greater than Treasury tax and loan account rate), as
the anticipated period of employment. prescribed and published by the Sec-
The size of installment deductions retary of the Treasury in the FEDERAL
must bear a reasonable relationship to REGISTER and the Treasury Financial
the size of the debt and the employee’s Manual Bulletins. A higher rate of in-
ability to pay. The deduction for the terest can be assessed if the Board can
pay intervals for any period shall not reasonably determine that a higher
exceed 15 percent of disposable pay, un- rate is necessary to protect the inter-
less the employee has agreed in writing ests of the United States. The rate of
to a deduction of a greater amount. interest, as initially assessed, shall re-
(d) Unliquidated debts may be offset main fixed for the duration of the in-
against any financial payment due to a debtedness, except where a debtor has
separated employee (including, but not defaulted on a repayment agreement
limited to, final salary payment or and seeks to enter into a new agree-
lump-sum payment for leave). ment. The Board may set a new inter-
est rate which reflects the current
§ 1017.11 Refunds. value of funds to the Treasury at the
(a) The Board shall promptly refund time the new agreement is executed.
any amounts deducted to satisfy debts The Board shall waive the collection of
owed to it when the debt is waived, interest on the debt or any portion of
found not owed to the Board, or when the debt which is paid within 30 days
directed by an administrative or judi- after the date on which interest began
cial order. to accrue.
(b) A creditor agency will promptly (b) The Board shall assess a penalty
return any amounts deducted by the charge not to exceed 6 percent a year
56
on any portion of a debt that is delin- 1018.51 Reasons for compromising of a

quent as defined in 4 CFR 101.2(b) for claim.
more than 90 days. This charge need 1018.52 Restrictions on the compromise of a
claim.
not be calculated until the 91st day of 1018.53 Finality of a compromise.
delinquency, but shall accrue from the
date that the debt became delinquent. Subpart D—Suspension or Termination of
(c) The Board shall assess against a Collection Action
debtor charges to cover administrative
costs incurred as a result of a delin- 1018.60 When collection action may be sus-
pended or terminated.
quent debt—that is, the additional 1018.61 Reasons for suspending collection
costs incurred in processing and han- action.
dling the debt because it became delin- 1018.62 Reasons for terminating collection
quent as defined in 4 CFR 101.2(b). action.
(d) When a debt is paid in partial or 1018.63 Termination of collection action.
installment payments, amounts re- 1018.64 Transfer of a claim.
ceived by the agency shall be applied
Subpart E—Referral of a Claim
first to outstanding penalty and ad-
ministrative cost charges, second to 1018.70 Prompt referral.
accrued interest, and third to out- 1018.71 Referral of a compromise offer.
standing principal. 1018.72 Referral to the Department of Jus-
tice.
PART 1018—DEBT COLLECTION Subpart F—Internal Revenue Service

Procedure
Subpart A—Application and Coverage
1018.80 Reporting discharged debts to the
Sec. Internal Revenue Service.
1018.1 Application.
1018.2 Definitions. Subpart G—Tax Refund Offset
1018.3 Communications.
1018.90 Purpose.
1018.4 Claims that are covered.
1018.91 Applicability and scope.
1018.5 Monetary limitation on Board au-
1018.92 Administrative charges.
thority.
1018.93 Notice requirement before offset.
1018.6 Omissions not a defense. 1018.94 Review within the Board.
1018.7 Conversion claims. 1018.95 Board determination.
1018.8 Subdivision of claims. 1018.96 Stay of offset.
Subpart B—Administrative Collection of AUTHORITY: 31 U.S.C. 3701, 31 U.S.C. 3711 et
Claims seq., 49 U.S.C. 721, 4 CFR parts 101–105.
SOURCE: 58 FR 7749, Feb. 9, 1993, unless oth-
1018.20 Written demand for payment. erwise noted.
1018.21 Telephone inquiries and investiga-
tions.
1018.22 Personal interviews. Subpart A—Application and
1018.23 Use of consumer reporting agencies. Coverage
1018.24 Contact with the debtor’s employing
agency. § 1018.1 Application.
1018.25 Sanctions. (a) This part applies to claims for the
1018.26 Disputed debts. payment of debts owed to the United
1018.27 Contracting for collection services.
1018.28 Collection by administrative offset.
States Government in the form of
1018.29 Payments. money or property and unless a dif-
1018.30 Interest, penalties, and administra- ferent procedure is specified in a stat-
tive costs. ute, regulation, or a contractual agree-
1018.31 Use of credit reports. ment with the Board, prescribes proce-
1018.32 Bankruptcy claims. dures by which the Board:
1018.33 Use and disclosure of mailing ad- (1) Collects, compromises, suspends,
dresses. and terminates collection actions for
1018.34 Additional administrative collection claims;
action. (2) Determines and collects interest
Subpart C—Compromise of a Claim and other charges on these claims; and
(3) Refers unpaid claims to the Gen-
1018.50 When a claim may be compromised. eral Accounting Office (GAO) and the
57
§ 1018.2 49 CFR Ch. X (10–1–07 Edition)
Department of Justice (DOJ) for litiga- § 1018.3 Communications.

tion.
Unless otherwise specified, all com-
(b) The following are examples of the munications concerning the regula-
kinds of debts to which special statu- tions in this part should be addressed
tory and administrative procedures to Chief, Section of Financial Services,
apply: Surface Transportation Board, room
(1) A claim against an employee for 1330, Washington, DC 20423.
erroneous payment of pay and allow-
ances subject to waiver under 5 U.S.C. [58 FR 7749, Feb. 9, 1993, as amended at 64 FR
5584 and other claims against employ- 53267, Oct. 1, 1999]
ees which are handled under 49 CFR
§ 1018.4 Claims that are covered.
part 1017.
(2) A claim involving the payment of (a) These procedures generally apply
civil penalties or forfeitures which may to any claim for payment of a debt
arise under provisions of the Interstate which:
Commerce Act or legislation supple- (1) Results from activities of the
mental thereto. Those claims are han- Board including fees imposed under 49
dled under procedures set forth in 49 CFR part 1002; or
CFR part 1021. (2) Is referred to the Board for collec-
(3) A claim involved in a case pending tion.
before any Federal Contract Appeals (b) These procedures do not apply to:
Board or Grant Appeals Board. How- (1) A claim based on a civil monetary
ever, nothing in this part prevents ne- penalty for violation of a requirement
gotiation and settlement of a claim of the Interstate Commerce Act or an
pending before a Board. order or regulation of the Board unless
49 CFR part 1021 provides otherwise;
§ 1018.2 Definitions. (2) A claim as to which there is an in-
(a) Administrative offset means with- dication of fraud, the presentation of a
holding money payable by the United false claim, or misrepresentation on
States to, or held by the Government the part of the debtor, or any other
for, a person to satisfy a debt the per- party having an interest in the claim;
son owes the Government. (3) A claim between Federal agencies;
(b) Claim and debt are used synony- and
mously and interchangeably for pur- (4) A claim once it becomes subject
poses of this part. These terms refer to to salary offset which is governed by 5
an amount of money or property which U.S.C. 5514.
has been determined by an appropriate
agency official to be owed to the § 1018.5 Monetary limitation on Board
authority.
United States by any person, organiza-
tion, or entity except another Federal The Board’s authority to compromise
agency. a claim or to terminate or suspend col-
(c) Delinquent. A debt is considered lection action on a claim covered by
delinquent if it has not been paid by these procedures is limited by 31 U.S.C.
the date specified in the initial written 3711(a) to claims that:
demand for payment or applicable con- (a) Have not been referred to another
tractual agreement with the Board, un- Federal agency, including the GAO, for
less other satisfactory payment ar- further collection action; and
rangements have been made by that (b) Do not exceed $100,000, exclusive
date. If the debtor fails to satisfy an of interest, penalties, and administra-
obligation under a payment agreement tive costs (the monetary limitation).
with the Board after other payment ar-
rangements have been made, the debt § 1018.6 Omissions not a defense.
becomes a delinquent debt. (a) The failure of the Board to in-
(d) Payment in full means payment of clude in this part any provision of the
the total debt due the United States, Federal Claims Collection Standards, 4
including any interest, penalty, and ad- CFR parts 101 through 105, does not
ministrative costs of collection as- prevent the Board from applying these
sessed against the debtor. provisions.
58
(b) A debtor may not use the failure that alternative remedies better pro-
of the Board to comply with any provi- tect the Government’s interest, that
sion of this part or the Federal Claims the debtor has explicitly refused to
Collection Standards as a defense to pay, or that sending a further demand
the debt. is futile. Depending upon the cir-
cumstances of the particular case, the
§ 1018.7 Conversion claims. second and third demands may:
These procedures are directed pri- (1) Offer or seek to confer with the
marily to the recovery of money on be- debtor;
half of the Government. The Board (2) State the amount of the interest
may demand: and penalties that will be added on a
(a) The return of specific property; or daily basis, as well as the administra-
(b) Either the return of property or tive costs that will be added to the
the payment of its value. debt until the debt is paid; and
(3) State that the authorized collec-
§ 1018.8 Subdivision of claims. tion procedures include any procedure
The Board shall consider a debtor’s authorized in this part including:
liability arising from a particular (i) Contacts with the debtor’s em-
transaction or contract as a single ployer when the debtor is employed by
claim in determining whether the the Federal Government or is a mem-
claim is less than the monetary limita- ber of the military establishment or
tion for the purpose of compromising the Coast Guard;
or suspending or terminating collec- (ii) Possible referral of the debt to a
tion action. A claim may not be sub- private agency for collection;
divided to avoid the monetary limita- (iii) Possible reporting of the delin-
tion established by 31 U.S.C. 3711(a)(2) quent debt to consumer reporting agen-
and § 1018.5 of this part. cies in accordance with the guidelines
and standards contained in 4 CFR 102.5
Subpart B—Administrative and the Board’s procedures set forth in
Collection of Claims § 1018.23 of this part;
(iv) The suspension or revocation of a
§ 1018.20 Written demand for payment. license or other remedy under § 1018.25
(a) The Board shall make appropriate of this part;
written demand upon the debtor for (v) Installment payments possibly re-
payment of money in terms which quiring security; and
specify: (vi) The right to refer claims to GAO
(1) The basis for the indebtedness and or DOJ for litigation.
the right of the debtor to request re- (c) The failure to state in a letter of
view within the Board; demand a matter described in § 1018.20
(2) The amount claimed; is not a defense for a debtor and does
(3) The date by which payment is to not prevent the Board from proceeding
be made, which normally should not be with respect to that matter.
more than 30 days from the date that [58 FR 7749, Feb. 9, 1993; 58 FR 11099, Feb. 23,
the initial demand letter statement 1993]
was mailed, unless otherwise specified
by contractual agreement, established § 1018.21 Telephone inquiries and in-
by Federal statute or regulation, or vestigations.
agreed to under a payment agreement; (a) If a debtor has not responded to
(4) The applicable standards for as- one or more written demands, the
sessing interest, penalties, and admin- Board shall make reasonable efforts by
istrative costs (4 CFR 102.13 and 49 CFR telephone to determine the debtor’s in-
1018.30); and tentions. If the debtor cannot be
(5) The applicable policy for report- reached by telephone at the debtor’s
ing the delinquent debt to consumer replace of employment, the Board may
porting agencies. telephone the debtor at his or her resi-
(b) The Board normally shall send dence between 8 a.m. and 9 p.m.
three progressively stronger written (b) The Board may undertake an in-
demands at not more than 30-day inter- vestigation to locate a debtor, if the
vals, unless circumstances indicate whereabouts of a debtor is a problem,
59
§ 1018.22 49 CFR Ch. X (10–1–07 Edition)
or if a debtor cannot be contacted by (iv) That the debtor has the right to
telephone. The Board may also send a a complete explanation of the debt (if
representative to a debtor’s place of that has not already been given), to
employment if the debtor cannot be dispute information on Board records
contacted by phone or the debtor does about the debt, and to request recon-
not respond to written demands by the sideration of the debt by administra-
Board for payment of claims. tive appeal or review of the debt.
(c) The Board under 15 U.S.C. 1681(f) (3) The Board has sent at least one
may obtain consumer credit informa- written demand by either registered or
tion from private firms, including certified mail with the notification de-
name, address, former address, place of scribed in paragraph (a)(2) of this sec-
employment, and former place of em- tion.
ployment of a debtor. (4) The Board has reconsidered its
initial decision on the debt when the
§ 1018.22 Personal interviews. debtor has requested a review under
(a) The Board may seek an interview § 1018.23(a)(2)(iv).
with the debtor at the offices of the (5) The Board has taken reasonable
Board when: action to locate a debtor for whom the
(1) A matter involved in the claim Board does not have a current address
needs clarification; to send the notifications provided for
(2) Information is needed concerning in paragraph (a)(2) of this section.
the debtor’s circumstances; or (b) If there is a substantial change in
(3) An agreement of payment might the condition or amount of the debt,
be negotiated. the Board shall:
(b) The Board shall grant an inter- (1) Promptly disclose that fact(s) to
view with a debtor upon the debtor’s each consumer reporting agency to
request. The Board will not reimburse which the original disclosure was
a debtor’s interview expenses. made;
(2) Promptly verify or correct infor-
§ 1018.23 Use of consumer reporting mation about the debt, on request of a
agencies. consumer reporting agency for
(a) In addition to assessing interest, verification of any or all information
penalties, and administrative costs so disclosed by the Board; and
under § 1018.30 of this part, the Board (3) Obtain satisfactory assurances
may report a debt that has been delin- from each consumer reporting agency
quent for 90 days to a consumer report- that they are complying with all appli-
ing agency, if all the conditions of this cable Federal, state, and local laws re-
paragraph are met. lating to its use of consumer credit in-
(1) The debtor has not: formation.
(i) Paid or agreed to pay the debt (c) The information the Board dis-
under a written payment plan that has closes to the consumer reporting agen-
been signed by the debtor and agreed to cy is limited to:
by the Board; or (1) Information necessary to estab-
(ii) Filed for review of the debt under lish the identity of the individual debt-
§ 1018.23(a)(2)(iv) of this section. or, including name, address, and tax-
(2) The Board has included a notifica- payer identification number;
tion in the third written demand (see (2) The amount, status, and history
§ 1018.20(b)) to the debtor stating: of the debt; and
(i) That the account has been re- (3) The Board activity under which
viewed and payment of the debt is de- the claim arose.
linquent;
(ii) That, within not less than 60 days § 1018.24 Contact with the debtor’s em-
after the date of notification, the ploying agency.
Board intends to disclose to a con- If a debtor is employed by the Fed-
sumer reporting agency that the indi- eral government or is a member of the
vidual is responsible for the debt; military establishment or the Coast
(iii) The specific information to be Guard, and collection by offset cannot
disclosed to the consumer reporting be accomplished in accordance with 5
agency; and U.S.C. 5514, the Board shall contact the
60
employing agency to arrange with the Board may suspend or revoke any cer-
debtor for payment of the indebtedness tificate, license, permit, approval or
by allotment or otherwise. filing privilege at the end of this period
upon a finding of willful noncompli-
§ 1018.25 Sanctions. ance with the Board’s order. If any cer-
(a) Closure of accounts. If a tariff fil- tificate, license, permit, or filing privi-
ing fee or insurance filing fee account lege is revoked under this authority of
is past due more than 90 days, the this part, a new application with ap-
Board will freeze the account until the propriate fees must be made to the
account is made current. The Board Board, and all previous delinquent
will notify the account holder that the debts of the debtor to the Board must
account has been frozen and that until be paid before the Board will consider
the account balance including any ap- such application.
plicable interest, penalties, and admin- (e) Other sanctions. The remedies and
istrative costs are paid, all future fil- sanctions available to the Board in this
ings, must be accompanied by a cer- area are not exclusive. The Board may
tified or cashier’s check or a money impose other sanctions, where per-
order. The Board reserves the right to mitted by law for any inexcusable, pro-
refuse to maintain an account which is longed, or repeated failure of a debtor
repeatedly delinquent. to pay such claim. In such cases, the
(b) Suspension or revocation of tariff or Board will provide notice and a hear-
insurance filing privileges. If the account ing, as required by law, to the debtor
holder fails to satisfy all claims for prior to the imposition of any such
tariff or insurance filing fees including sanctions.
applicable interest, penalties, and the
administrative costs of collection of § 1018.26 Disputed debts.
the debt, the Board may suspend or
prohibit a tariff or insurance filing fee (a) A debtor who disputes a debt shall
account holder from submitting tariff explain why the debt is incorrect in
or insurance filings in its own name or fact or law within 30 days from the
on behalf of others. date that the initial demand letter was
(c) Suspension or revocation of certifi- mailed. The debtor may support the ex-
cates, licenses, or permits granted by the planation by submitting affidavits,
Board. The Board may suspend or re- statements certified under penalty of
voke any certificates, permits, or li- perjury, canceled checks, or other rel-
censes which the Board has granted to evant evidence.
an account holder or other debtor for (b) The Board may extend the inter-
any inexcusable, prolonged, or repeated est waiver period as described in
failure or refusal to pay a delinquent § 1018.30(j) pending a final determina-
debt. tion of the existence or amount of the
(d) Procedures for suspension or revoca- debt.
tion of filing privileges or certificates, li- (c) The Board may investigate the
censes, or permits for failure to pay tariff facts involved in the dispute and if nec-
or insurance filing fees. Before sus- essary, the Board may arrange for a
pending or revoking an account hold- conference at which the debtor may
er’s privilege to submit tariff or insur- present evidence and arguments in sup-
ance filings or suspending or revoking port of the debtor’s positions.
any certificate, license, or permit
which the Board has granted to any ac- § 1018.27 Contracting for collection
count holder, the Board shall issue to services.
the account holder an order to show The Board may contract for collec-
cause why the tariff or insurance filing tion services in order to recover delin-
privilege or any certificate, license, or quent debts. However, the Board re-
permit should not be suspended or retains the authority to resolve disputes,
voked. The Board shall allow the debt- compromise claims, suspend or termi-
or no more than 30 days to pay the debt nate collection action, and initiate en-
in full including applicable interest, forced collection through litigation.
penalties, and administrative costs of When appropriate, the Board shall con-
collection of the delinquent debt. The tract in accordance with 4 CFR 102.6.
61
§ 1018.28 49 CFR Ch. X (10–1–07 Edition)
§ 1018.28 Collection by administrative with written certification that the debt

offset. is owed to the Board and that the
(a) The Board may administratively Board has complied with the provisions
undertake collection by offset on each of 4 CFR 102.3. The Board shall request
claim which is liquidated or certain in that funds which are due the debtor
amount in accordance with the guide- and which are necessary to offset the
lines and the standards contained in 4 debt to the Board be transferred to the
CFR 102.2, 102.3, and 102.4 and 5 U.S.C. Board.
5514, as applicable. The Board may not (3) The Board may accept a repay-
initiate administrative offset to collect ment or payment agreement, as appro-
a debt more than 10 years after the priate, in lieu of offset, but will do so
Government’s right to the debt first only after balancing the Government’s
accrued, unless facts material to the interest in collecting the debts against
Government’s right to collect the debt fairness to the debtor. If the debt is de-
were not known and could not reason- linquent and the debtor has not dis-
ably have been known to the Board. puted its existence or amount, the
(b) Collection by administrative off- Board may accept a repayment or pay-
set of amounts payable from the Civil ment agreement in lieu of offset only if
Service Retirement and Disability the debtor is able to establish under
Fund, the Federal Employees Retire- sworn affidavit or statement certified
ment System, or other similar fund is under penalty of perjury that offset
made pursuant to 4 CFR 102.4 and the would result in financial hardship or
provisions of paragraph (d) of this sec- would result in undue financial hard-
tion. ship or would be against equity and
(c) Salary offset is governed by 5 good conscience.
U.S.C. 5514. (4) Administrative offset is not au-
(d) The following procedures apply thorized with respect to:
when the Board seeks to collect a debt (i) Debts owed by any State or local
by offset against any payment to be government;
made to a debtor or against the assets (ii) Debts once they become subject
of a holder of a certificate, permit, li- to the salary offset provisions of 5
cense, or authorization issued by the U.S.C. 5514; or
Board. (iii) Any case in which collection of
(1) Before the offset is made, the the type of debt involved by adminis-
Board shall provide the debtor written trative offset is explicitly provided for
notice of the nature and amount of the or prohibited by another statute.
debt and: (5) The Board reserves the right to
(i) Notice of the Board’s intent to take any other action in respect to off-
collect the debt by offset; set as is permitted under 4 CFR 102.3.
(ii) An opportunity to inspect and
(e) The Board shall make appropriate
copy Board records pertaining to the
use of the cooperative efforts of other
debt;
agencies including the Army Holdup
(iii) An opportunity to request recon-
List in effecting collections by offset.
sideration of the debt by the Board, or
The Army Holdup List is a list of con-
if provided for by statute, waiver of the
tractors indebted to the United States.
debt;
(iv) An opportunity to enter into a § 1018.29 Payments.
written agreement with the Board to
repay or pay the debt, as the case may (a) Payment in full. The Board shall
be; make every effort to collect a claim in
(v) An explanation of the debtor’s full before it becomes delinquent. The
rights under this subpart; and Board shall impose charges for inter-
(vi) An opportunity for a hearing est, penalties, and administrative costs
when required under the provisions of 4 as specified in § 1018.30.
CFR 102.3(c). (b) Payment in installments. If a debtor
(2) If the Board learns that other furnishes satisfactory evidence of in-
agencies of the Government are hold- ability to pay a claim in one lump sum,
ing funds payable to the debtor, the payment in regular installments may
Board shall provide the other agencies be arranged. Evidence may consist of a
62
financial statement or a signed state- debts owed to the United States Gov-
ment certified under penalty of perjury ernment in accordance with the guid-
to be true and correct that application ance provided under the Federal
for a loan to enable the debtor to pay Claims Collection Standards, 4 CFR
the claim in full was rejected. Except 102.13 unless otherwise directed by
for a claim described at 5 U.S.C. 5514, statute, regulation, or contract.
all installment payment arrangements (b) Before assessing any charges on
must be in writing and require the pay- delinquent debts, the Board shall mail
ment of interest and administrative a written notice to debtor explaining
charges. its requirements concerning these
(1) Installment note forms including charges under 4 CFR 102.2 and 102.13.
confess-judgement notes may be used. (c) Interest begins to accrue from the
The written installment agreement date on which the initial invoice is
must contain a provision accelerating first mailed to the debtor unless a dif-
the debt payment in the event the ferent date is specified on a statute,
debtor defaults. If the debtor’s finan- regulation, or contract.
cial statement discloses the ownership (d) The Board shall assess interest
of assets which are free and clear of based upon the rate of the current
liens or security interests, or assets in value of funds to the United States
which the debtor owns equity, the Treasury (the Treasury tax and loan
debtor may be asked to secure the pay- account rate) prescribed by statute,
ment of an installment note by exe- regulation, or contract.
cuting a Security Agreement and Fi- (e) Interest is computed only on the
nancial Statement transferring to the principal of the debt, and the interest
United States a security interest in the rate remains fixed for the duration of
assets until the debt is discharged. the indebtedness, unless the debtor de-
(2) If the debtor owes more than one faults on a repayment agreement and
debt and designates how a voluntary seeks to enter into a new agreement.
installment payment is to be applied (f) The Board shall assess against a
among those debts, the Board shall fol- debtor charges to cover administrative
low that designation. If the debtor does costs incurred as a result of a delin-
not designate the application of the quent debt. Administrative costs may
payment, the Board shall apply the include costs incurred in obtaining a
payment to the various debts in ac- credit report or in using a private debt
cordance with the best interest of the collector, to the extent they are attrib-
United States as determined by the utable to the delinquency.
facts and circumstances of the par- (g) The Board shall assess a penalty
ticular case. charge of six percent a year on any por-
(c) To whom payment is made. Pay- tion of a debt that is delinquent for
ment of a debt is made by check, more than 90 days. The charge accrues
money order, or credit card payable to retroactively to the date that the debt
the Surface Transportation Board and became delinquent.
mailed or delivered to the Section of (h) Amounts received by the Board as
Financial Services, Surface Transpor- partial or installment payments are
tation Board, Washington, DC 20423, applied first to outstanding penalty
unless payment is: and administrative cost charges, sec-
(1) Made pursuant to arrangements ond to accrued interest, and third to
with the GAO or DOJ; outstanding principal.
(2) Ordered by a Court of the United (i) The Board shall waive collection
States; or of interest on the debt or any portion
(3) Otherwise directed in any other of the debt which is paid in full within
part of this chapter. 30 days after the date on which interest
[58 FR 7749, Feb. 9, 1993, as amended at 64 FR began to accrue.
53267, Oct. 1, 1999] (j) The Board may waive interest dur-
ing the periods a debt disputed under
§ 1018.30 Interest, penalties, and ad- § 1018.26 is under investigation or re-
ministrative costs. view before the Board. This additional
(a) The Board shall assess interest, waiver is not automatic and must be
penalties, and administrative costs on requested before the expiration of the
63
§ 1018.31 49 CFR Ch. X (10–1–07 Edition)
initial 30-day waiver period. The Board § 1018.33 Use and disclosure of mailing
may grant the additional waiver only addresses.
when it finds merit in the explanation (a) When attempting to locate a debt-
the debtor has submitted under or in order to collect or compromise a
§ 1018.26. debt under this part, the Board may
(k) The Board may waive the collec- send a written request to the Secretary
tion of interest, penalties, and adminis- of the Treasury (or designee) in order
trative costs if it finds that one or to obtain a debtor’s mailing address
more of the following conditions exists: from the records of the Internal Rev-
(1) The debtor is unable to pay any enue Service.
significant sum toward the debt within (b) The Board may disclose a mailing
a reasonable time; address obtained under paragraph (a) of
(2) Collection of interest, penalties, this section to other agents, including
and administrative costs will jeop- collection service contractors, in order
ardize collection of the principal of the to facilitate the collection or com-
promise of debts under this part, ex-
debt;
cept that a mailing address may be dis-
(3) The Board is unable to enforce closed to a consumer reporting agency
collection in full within a reasonable only for the limited purpose of obtain-
time by enforced collection pro- ing a commercial credit report on the
ceedings; or particular taxpayer.
(4) Collection would be against equity (c) The Board and its agents, includ-
and good conscience or not in the best ing consumer reporting agencies and
interest of the United States, including collection services, must comply with
the situation in which an administra- the provisions of 26 U.S.C. 6103(p)(4)
tive offset or installment payment and applicable regulations of the Inter-
agreement is in effect. nal Revenue Service.
§ 1018.31 Use of credit reports. § 1018.34 Additional administrative

collection action.
The Board may institute a credit in-
vestigation of the debtor at any time Nothing contained in this part is in-
following receipt of knowledge of the tended to preclude any other adminis-
debt in order to aid the Board in mak- trative remedy which may be avail-
able.
ing appropriate determinations as to:
(a) The collection and compromise of
a debt; Subpart C—Compromise of a
(b) The collection of interest, pen- Claim
alties, and administrative costs; § 1018.50 When a claim may be com-
(c) The use of administrative offset; promised.
(d) The use of other collection meth- The Board may compromise a claim
ods; and not in excess of the monetary limita-
(e) The likelihood of collecting the tion if it has not been referred to GAO
debt. or DOJ for litigation. Only the Comp-
troller General of the United States or
§ 1018.32 Bankruptcy claims. designee may effect the compromise of
When the Board receives information a claim that arises out of the excep-
that a debtor has filed a petition in tions made by the GAO in that account
bankruptcy or is the subject of a bank- of an accountable officer, including a
ruptcy proceeding, it shall suspend all claim against the payee, prior to its re-
collection actions against the debtor in ferral by GAO for litigation.
accordance with 11 U.S.C. 362 and shall [58 FR 7749, Feb. 9, 1993; 58 FR 11099, Feb. 23,
furnish information concerning the 1993]
debt owed the United States to the De-
partment of Justice’s Nationwide Cen- § 1018.51 Reasons for compromising a
tral Intake Facility to permit the fil- claim.
ing of a claim. (a) A claim may be compromised for
one or more reasons set forth below:
64
(1) The full amount cannot be col- binding in determining the amount
lected because: which will be required from other debt-
(i) The debtor is unable to pay the ors jointly and severally liable on the
full amount within a reasonable time; claim.
or
(ii) The debtor refuses to pay the § 1018.53 Finality of a compromise.
claim in full, and the Government is An offer of compromise must be in
unable to enforce collection in full writing and signed by the debtor. An
within a reasonable time; or offer of compromise which is accepted
(2) There is a real doubt concerning by the Board is final and conclusive on
the Government’s ability to prove its the debtor and on all officials, agencies
case in Court for the full amount and courts of the United States, unless
claimed, either because of the legal obtained by fraud, misrepresentation,
issues involved or a bona fide dispute the presentation of a false claim, or
as to the facts; or mutual mistake of fact.
(3) The costs of collecting the claim
do not justify the enforced collection Subpart D—Suspension or
of the full amount. The Board shall Termination of Collection Action
apply this reason for compromise in ac-
cordance with the guidelines in 4 CFR § 1018.60 When collection action may
103.4. be suspended or terminated.
(b) The Board shall determine the The Board may suspend or terminate
debtor’s inability to pay, the Govern- collection action on a claim not in ex-
ment’s ability to enforce collection, cess of the monetary limitation, exclu-
and the amounts which are acceptable sive of interest, penalties, and adminis-
in compromise in accordance with the trative costs, after deducting the
Federal Claims Collection Standards, 4 amount of partial payments, if any, if
CFR part 103. it has not been referred to GAO or DOJ
(c) Compromises payable in install- for litigation.
ments are discouraged, but, if nec-
essary, must be in the form of a legally § 1018.61 Reasons for suspending col-
enforceable agreement for the rein- lection action.
statement of the prior indebtedness Collection action may be suspended
less sums paid thereon. The agreement temporarily:
also must provide that in the event of (a) When the debtor cannot be lo-
default: cated after diligent efforts, and there is
(1) The entire balance of the debt be- reason to believe that future collection
comes immediately due and payable; action may be sufficiently productive
and to justify periodic review and action on
(2) The Government has the right to the claim considering the size of the
enforce any security agreement. claim and the amount which may be
realized on it; or
§ 1018.52 Restrictions on the com- (b) When the debtor owns no substan-
promise of a claim. tial equity in realty and is unable to
(a) The Board may not accept a per- make payments on the Government’s
centage of a debtor’s profits or stock in claim or effect a compromise on it at
a debtor’s corporation in compromise the time, but the debtor’s future pros-
of a claim. In negotiating a com- pects justify retention of the claim for
promise with a business concern, con- periodic review and action:
sideration is given to requiring a waiv- (1) The applicable statute of limita-
er of the tax-loss-carry-forward and tions has been tolled or started anew;
tax-loss-carry-back rights of the debt- or
or. (2) Future collection can be effected
(b) If two or more debtors are jointly by offset notwithstanding the statute
or severally liable, collection action is of limitations.
not withheld against one debtor until
the other or others pay their share. § 1018.62 Reasons for terminating col-
The amount of a compromise with one lection action.
debtor is not considered a precedent or Collection action may be terminated:
65
§ 1018.63 49 CFR Ch. X (10–1–07 Edition)
(a) When it becomes clear that the to GAO for resolution and instruction
Government cannot collect or enforce prior to proceeding with collection ac-
collection of any significant sum from tions and/or referral to DOJ for litiga-
the debtor having due regard for the ju- tion.
dicial remedies available to the Gov- (c) The Board may refer a claim to
ernment, the debtor’s future financial GAO or DOJ even though the termi-
prospects, and the exemptions avail- nation of collection activity might
able to the debtor under State and Fed- otherwise be given consideration under
eral law; § 1018.63 if:
(b) When the debtor cannot be lo- (1) A significant enforcement policy
cated, there is no security remaining is involved in reducing a statutory pen-
to be liquidated, the applicable statute alty or forfeiture to judgment; or
of limitations has run, and the pros- (2) Recovery of a judgment is a pre-
pects of collecting by offset, notwith- requisite to the imposition of adminis-
standing the bar of the statute of limi- trative sanctions, such as suspension
tations, are too remote to justify re- or revocation of a license or privilege
tention of the claim; or of participating in a Government spon-
(c) When it is likely that the cost of sored program.
the collection action will exceed the (d) Once a claim has been referred to
amount recoverable. GAO or DOJ under this subpart, the
Board shall refrain from any contact
§ 1018.63 Termination of collection ac-
tion. with the debtor and shall direct the
debtor to GAO or DOJ as appropriate,
Collection action shall be termi- when questions concerning the claim
nated: are raised by the debtor. The Board
(a) Whenever it is determined that shall immediately advise GAO or DOJ,
the claim is legally without merit; or as appropriate, of any payments by the
(b) When it is determined that the debtor.
evidence necessary to prove the claim
cannot be produced, or necessary wit- § 1018.71 Referral of a compromise
nesses are unavailable, and efforts to offer.
induce voluntary payments have been The Board may refer a debtor’s firm
unavailing. written offer of compromise which is
substantial in amount to GAO or to
§ 1018.64 Transfer of a claim.
DOJ if the Board is uncertain whether
The Board may refer a claim to GAO the offer should be accepted.
when there is doubt as to whether or
not a collection action should be sus- § 1018.72 Referral to the Department
pended or terminated. of Justice.
(a) Claims for which the gross origi-
Subpart E—Referral of a Claim nal amount is over $500,000 must be re-
ferred to the Commercial Litigation
§ 1018.70 Prompt referral. Branch, Civil Division, Department of
(a) A claim which requires enforced Justice, Washington, DC 20530. Claims
collection is referred to GAO or DOJ for which the gross original amount is
for litigation. A referral is made as $500,000 or less must be referred to the
early as possible consistent with ag- Department of Justice’s Nationwide
gressive collection action and, in, any Central Intake Facility.
event, well within the time required to (b) A claim of less than $600, exclu-
bring a timely suit against the debtor. sive of interest, is not referred for liti-
Ordinarily, referrals are made within 1 gation unless:
year of the Board’s final determination (1) Referral is important to a signifi-
of the fact and the amount of the debt. cant enforcement policy; or
(b) When the merits of the Board’s (2) The debtor has the clear ability to
claim, the amount owed on the claim, pay the claim, and the government can
or the propriety of acceptance of a pro- effectively enforce payment.
posed compromise, suspension, or ter- (c) A claim on which the Board holds
mination of collection actions is in a judgment is referred to DOJ for fur-
doubt, the Board shall refer the matter ther action if renewal of the judgment
66
lien or enforced collection proceedings (b) For purposes of this section, a

are justified under the criteria dis- past-due legally enforceable debt ref-
cussed in this part. erable to the IRS is a debt which is
(d) Claims must be referred to the owed to the Government of the United
Department of Justice in the manner States and:
prescribed by 4 CFR 105.2. Care must be (1) Except in the case of a judgment
taken to preserve all files, records, and debt, has been delinquent for at least 3
exhibits on claims referred under para- months but has not been delinquent for
graphs (a) and (b) of this section. more than 10 years at the time the off-
set is made;
Subpart F—Internal Revenue (2) Cannot be currently collected pur-
Service Procedure suant to the salary offset provisions of
5 U.S.C. 5514(a)(1);
§ 1018.80 Reporting discharged debts (3) Is ineligible for administrative
to the Internal Revenue Service. offset under 31 U.S.C. 3716(a) by reason
of 31 U.S.C. 3716(c)(2) or cannot be col-
When the Board discharges a debt for
lected by administrative offset under 31
less than the full value of the indebted-
U.S.C. 3716(a) by the Board against
ness, it will report the outstanding bal-
amounts payable to or on behalf of the
ance discharged, not including interest debtor by or on behalf of the Board.
to the Internal Revenue Service, using
(4) With respect to which the Board
IRS Form 1099–G or any other form
has given the taxpayer at least 60 days
prescribed by the IRS, when:
from the date of notification to present
(a) The principal amount of the debt evidence that all or part of the debt is
not in dispute is $600 or more; not past-due or legally enforceable, has
(b) The obligation has not been dis- considered evidence presented by such
charged in a bankruptcy proceeding; taxpayer, and has determined that an
and amount of such debt is past-due and le-
(c) The obligation is no longer col- gally enforceable.
lectible either because the time limit (5) Has been disclosed by the Board to
in the applicable statute for enforcing a consumer reporting agency as au-
collection expired during the tax year, thorized by 31 U.S.C. 3711(f), unless a
or because during the tax year a formal consumer reporting agency would be
compromise agreement was reached in prohibited from using such information
which the debtor was legally dis- by 15 U.S.C. 1681c, or unless the amount
charged of all or a portion of the obli- of the debt does not exceed $100.00;
gation. (6) With respect to which the Board
has notified or has made a reasonable
Subpart G—Tax Refund Offset attempt to notify the taxpayer that
the debt is past-due and, unless repaid
§ 1018.90 Purpose. within 60 days thereafter, the debt will
This subpart establishes procedures be referred to the IRS for offset against
for the Board to refer past-due debts to any overpayment of tax;
the Internal Revenue Service (IRS) for (7) Is at least $25.00;
the offset against the income tax re- (8) All other requirements of 31
funds of persons owing debts to the U.S.C. 3720A and the Department of the
Board. It specifies the Board’s proce- Treasury regulations codified at 26
dures and the rights of the debtor ap- CFR 301.6402–6T relating to the eligi-
plicable to claims for the payment of bility of a debt for tax return offset
debts owed to the Board. have been satisfied.
§ 1018.91 Applicability and scope. § 1018.92 Administrative charges.

(a) These regulations implement 31 In accordance with 49 CFR 1018.30, all
U.S.C. 3720A which authorizes the IRS administrative charges incurred in
to reduce a tax refund by the amount connection with the referral of the
of a past-due legally enforceable debt debts to the IRS shall be assessed on
owed to the Government of the United the debt and thus increase the amount
States. of the offset.
67
§ 1018.93 49 CFR Ch. X (10–1–07 Edition)
§ 1018.93 Notice requirement before (c) Review of the evidence. The Board
offset. will consider all available evidence re-
A request for reduction of an IRS tax lated to the debt. Within 30 days, if fea-
refund will be made only after the sible, the Board will notify the debtor
Board makes a determination that an whether the Board has sustained,
amount is owed and past-due and pro- amended, or canceled its determination
vides the debtor with 60 days written that the debt is past-due and legally
notice. The Board’s notice of intention enforceable.
to collect by IRS tax refund offset (No- § 1018.95 Board determination.
tice of intent) will state:
(a) The amount of the debt; (a) Following review of the evidence,
(b) That unless the debt is repaid the Board will issue a written decision
within 60 days from the date of the which will include the supporting ra-
Board’s Notice of Intent, the Board in- tionale for the decision.
(b) If the Board either sustains or
tends to collect the debt by requesting
amends its determination, it shall no-
that the IRS reduce any amount pay-
tify the debtor of its intent to refer the
able to the debtor as Federal Income
debt to the IRS for offset against the
tax refunds an amount equal to
debtor’s Federal income tax refund. If
amount of the debt including all accu-
the Board cancels its original deter-
mulated interest and other charges;
mination, the debt will not be referred
(c) That the debtor has the right to
to IRS.
present evidence that all or part of the
debt is not past-due or legally enforce- § 1018.96 Stay of offset.
able; and
If the debtor timely notifies the
(d) A mailing address for forwarding
Board that the debtor is exercising the
any written correspondence and a con-
right described in § 1018.94(a) of this
tact name and phone number for any
subpart, any notice to the IRS will be
questions.
stayed until the issuance of a written
§ 1018.94 Review within the Board. decision which sustains or amends its
original determination.
(a) Notification by Debtor. A debtor
who receives a Notice of Intent has the
right to present evidence that all or
PART 1019—REGULATIONS GOV-
part of the debt is not past-due or not ERNING CONDUCT OF SURFACE
legally enforceable. To exercise this TRANSPORTATION BOARD EM-
right, the debtor must: PLOYEES
(1) Send a written request for a re-
view of the evidence to the address pro- Sec.
vided in the notice. 1019.1 Cross-reference to employee ethical
conduct standards and financial disclo-
(2) State in the request the amount sure regulations.
disputed and the reasons why the debt- 1019.2 Interpretation and advisory service.
or believes that the debt is not past- 1019.3 Ex parte communications.
due or is not legally enforceable. 1019.4 Use of intoxicants.
(3) Include in the request any docu- 1019.5 Sexual harassment.
ments which the debtor wishes to be 1019.6 Disciplinary and other remedial ac-
considered or state that additional in- tion.
formation will be submitted within the AUTHORITY: 49 U.S.C. 721.
60-day period. SOURCE: 58 FR 42027, Aug. 6, 1993, unless
(b) Submission of evidence. The debtor otherwise noted.
may submit evidence showing that all
or part of the debt is not past-due or § 1019.1 Cross-reference to employee
not legally enforceable along with the ethical conduct standards and fi-
notification required by paragraph (a) nancial disclosure regulations.
of this section. Failure to submit the Members and employees of the Sur-
notification and evidence within 60 face Transportation Board also should
days will result in an automatic refer- refer to the executive branch Stand-
ral of the debt to the IRS without fur- ards of Ethical Conduct at 5 CFR part
ther action by the Board. 2635, the STB regulations at 5 CFR part
68
5001 which supplement the executive personnel action is involved, within 45

branch standards, and the executive days of its effective date.
branch financial disclosure regulations (c) The regulations in this section
at 5 CFR part 2634. apply also to harassment based on
race, color, religion, or national origin.
§ 1019.2 Interpretation and advisory
service. § 1019.6 Disciplinary and other reme-
(a) The Board’s Executive Counsel dial action.
shall be the Board’s Designated Agency Any violation of the regulations in
Ethics Official (DAEO). this part by an employee shall be cause
(b) By June 30 of each year, the for appropriate disciplinary or other
DAEO shall report to the Board on the remedial action as provided in the
operation of the Board’s ethics pro- STB’s Manual of Administration 22–751,
gram with any recommendations that which may be in addition to any pen-
the DAEO deems advisable. alty prescribed by law. The manual is
available from the Section of Per-
[58 FR 42027, Aug. 6, 1993, as amended at 64
sonnel Services, Surface Transpor-
FR 53267, Oct. 1, 1999]
tation Board, Washington, DC 20423.
§ 1019.3 Ex parte communications. [58 FR 42027, Aug. 6, 1993, as amended at 64
Members and employees of the Board FR 53267, Oct. 1, 1999]
must conform to the standards adopted
by the Board in 49 CFR 1102.2. Parts 1021–1029—Enforcement
§ 1019.4 Use of intoxicants. PART 1021—ADMINISTRATIVE COL-
Members and employees of the Board LECTION OF ENFORCEMENT
shall not use alcohol, drugs, or other CLAIMS
intoxicants so as to impede the dis-
charge of their official duties. Sec.
1021.1 Standards.
§ 1019.5 Sexual harassment. 1021.2 Enforcement claims and debtors.
(a) Members and employees shall not 1021.3 Enforcement collection designee.
engage in harassment on the basis of 1021.4 Notice of claim and demand.
1021.5 Agreement and release.
sex. Unwelcome sexual advances, re- 1021.6 Method of claim payment.
quests for sexual favors, and other
verbal or physical conduct of a sexual AUTHORITY: 31 U.S.C. 3701, 3711, 3717, 3718.
nature constitute sexual harassment SOURCE: 32 FR 20015, Dec. 20, 1967, unless
when: otherwise noted.
(1) Submission to such conduct is
made either explicitly or implicitly a § 1021.1 Standards.
term or condition of an individual’s The regulations issued jointly by the
employment; Comptroller General of the United
(2) Submission to or rejection of such States and the Attorney General of the
conduct by an individual is used as the United States under section 3 of the
basis for employment decisions affect- Federal Claims Collection Act of 1966
ing such individual; or (31 U.S.C. 951 et seq.) and published in
(3) Such conduct has the purpose or 4 CFR parts 101 through 105 are hereby
effect of interfering with an individ- adopted by the Surface Transportation
ual’s work performance or creating an Board for the administrative collection
intimidating, hostile, offensive, or un- of enforcement claims.
pleasant working environment.
(b) Employees and applicants may § 1021.2 Enforcement claims and debt-
follow the standard Equal Employment ors.
Opportunity Board complaint process if (a) Enforcement claims are all sepa-
they believe they have a work-related rate civil penalty or forfeiture claims
sexual harassment problem. This re- not exceeding $20,000 which may arise
quires that the employee or applicant under the provisions of the Interstate
contact an EEO Counselor within 45 Commerce Act or legislation supple-
days of the alleged harassment or, if a mentary thereto.
69
§ 1021.3 49 CFR Ch. X (10–1–07 Edition)
(b) Debtor is any person or corpora- (2) Installment payments by check

tion subject to civil penalties or for- after the execution of a promissory
feitures for violation of the provisions note containing an agreement for judg-
of the Interstate Commerce Act or leg- ment.
islation supplementary thereto. (b) All checks or other instruments
will be made out to ‘‘Surface Transpor-
§ 1021.3 Enforcement collection des- tation Board,’’ and after receipt will be
ignee. forwarded to U.S. Treasury.
The Director, Office of Compliance
and Enforcement, Surface Transpor- Parts 1030–1039—Carriers Subject
tation Board, is the Board’s designee to
take all necessary action administra-
to Part I, Interstate Commerce Act
tively to settle by collection, com-
promise, suspension or termination, PART 1033—CAR SERVICE
enforcement claims within the con-
templation of the Federal Claims Col- Sec.
lection Act of 1966. 1033.1 Car hire rates.
1033.2 Car service orders.
[45 FR 31374, May 13, 1980, as amended at 64
FR 53267, Oct. 1, 1999] AUTHORITY: 49 U.S.C. 721, 11121, 11122.
§ 1021.4 Notice of claim and demand. § 1033.1 Car hire rates.

Initiation of administrative collec- (a) Definitions applicable to this sec-
tion of enforcement claims will be tion:
commenced by the enforcement collec- (1) Car. A freight car bearing railroad
tion designee mailing a letter of notice reporting marks, other than an ex-
of claim and demand to the debtor. cluded boxcar as defined in
Such letter will state the statutory § 1039.14(c)(2) of this chapter whenever
basis for the claim, a brief resume of it is owned or leased by any class III
the factual basis for the claim, the carrier and bears a class III carrier’s
amount of the claim, and indicate the reporting marks.
availability of the designee or his per- (2) Car hire. Compensation to be paid
sonal agent for discussion of the claim by a user to an owner for use of a car.
should the debtor so desire. Such compensation may include, but
need not be limited to, hourly and
§ 1021.5 Agreement and release. mileage rates.
Upon the debtor’s agreement to set- (3) Fixed rate car. Any car placed in
tle a claim, an Agreement and Release service or rebuilt prior to January 1,
Form will be provided to the debtor in 1993 or for which there was a written
duplicate. This form, after reciting the and binding contract to purchase,
statutory basis for the claim, will con- build, or rebuild prior to July 1, 1992,
tain a statement to be signed in dupli- regardless of whether such car bore
cate by the debtor evidencing his railroad reporting marks prior to Janu-
agreement to settlement of the claim ary 1, 1993, provided, however, that
for the amount stated in the agree- until December 31, 1993, all cars shall
ment. Both copies of the signed agree- be deemed to be fixed rate cars.
ment shall be returned to the collec- (4) Market rate car. Any car that is
tion designee. Upon final collection of not a fixed rate car.
the claim, one copy of the agreement (5) Owner. A rail carrier entitled to
and release shall be returned to the receive car hire on cars bearing its re-
debtor with the release thereon signed porting marks.
by the enforcement collection des- (6) Prescribed rates. The hourly and
ignee. mileage rates in effect on December 31,
1990, as published in Association of
§ 1021.6 Method of claim payment. American Railroads Circular No. OT–10
(a) Debtors: Debtors shall be required found in the information section of tar-
to settle claims by: iff STB RER 6411–U known as the Offi-
(1) Payment by bank cashier check or cial Railway Equipment Register. This
other instrument acceptable to des- information can be obtained at the As-
ignee. sociation of American Railroads or the
70
Board. Prescribed rates will be en- election from the party holding legal
hanced to reflect OT–37 surcharges and title; or
Rule 88 rebuilds for work undertaken (3) The transaction pursuant to
and completed during 1991 and 1992, and which the party holding legal title to
for rebuilding work for which there was the car has furnished the car to the rail
a written and binding contract prior to carrier making the election was en-
July 1, 1992. tered into after January 1, 1991.
(7) User. A rail carrier in possession (B) An election shall be irrevocable
of a car of which it is not the owner. and binding only for the term of the
(b) Fixed rate cars. Car hire for fixed transaction pursuant to which the car
rate cars shall be determined as fol- was furnished to the rail carrier mak-
lows: ing the election as to that rail carrier
(1) Except as provided in paragraph and all users and subsequent owners if:
(b)(3) of this section, for a 10-year pe- (1) That rail carrier does not have
riod beginning January 1, 1993, the pre- legal title to the car and does not ob-
scribed rates shall continue to apply to tain written consent or such election
fixed rate cars without regard to the from the party holding legal title;
aging of such cars subsequent to De- (2) The transaction was entered into
cember 31, 1990. Prescribed car hire prior to January 1, 1991; and
rates shall not be increased for any ad- (3) The transaction does not provide
ditions and betterments performed on that the compensation to be paid to
such cars after December 31, 1990. Any the party furnishing the car is to be
OT–37 surcharge to prescribed rates for based in whole or in part directly on
work performed prior to January 1, 1993 the car hire earnings of the car; pro-
shall expire upon the earlier of: vided, however, that if the rail carrier
(i) The car becoming a market rate making the election subsequently ob-
car; or tains legal title to the car, such elec-
(ii) The expiration date provided in tion shall then be irrevocable and bind-
Association of American Railroads Cir- ing as to the rail carrier and all users
cular No. OT–37. and subsequent owners.
(2) Upon termination of the 10-year (C) The party holding legal title to
period specified in paragraph (b)(1) of the car may revoke an election subject
this section, all fixed rate cars shall be to the provisions of paragraph
deemed to be market rate cars and (b)(3)(i)(B) of this section only:
shall be governed by paragraph (c) of
(1) At the time the transaction pur-
this section.
suant to which the car was furnished to
(3) (i) During each calendar year be-
the rail carrier making the election is
ginning January 1, 1994, a rail carrier
first extended or renewed after Janu-
may voluntarily elect to designate up
ary 1, 1991; or
to 10% of the cars in its fleet as of Jan-
uary 1, 1993 to be treated as market (2) If such transaction is not ex-
rate cars for the purposes of this sec- tended or renewed, at the time such
tion. The 10% limitation shall apply transaction terminates.
each calendar year and shall be non- If such election is so revoked, a rail
cumulative. Cars designated to be carrier may make a new election only
treated as market rate cars shall be with the written consent of the party
governed by paragraph (c) of this sec- holding legal title to the car, and such
tion. Such election shall be effective election shall be irrevocable and bind-
only in accordance with the following ing as to the rail carrier making the
provisions: election and all users and subsequent
(A) An election shall be irrevocable owners.
and binding as to the rail carrier mak- (ii) Nothing in paragraph (b)(3)(i) of
ing the election and all users and sub- this section shall be construed to limit
sequent owners if: the rights of parties to any transaction
(1) The rail carrier making the elec- to provide for the consent of any party
tion has legal title to the car; or to an election made pursuant to para-
(2) The rail carrier making the elec- graph (b)(3)(i) of this section.
tion does not have legal title to the car (c) Market rate cars. (1) Market rate
but obtains written consent for such cars shall not be subject to prescribed
71
§ 1033.2 49 CFR Ch. X (10–1–07 Edition)
rates or to the provisions of 49 CFR American Railroads and the Board’s

1039.14(c)(1) (i) and (ii) and (c)(4). Office of Compliance and Enforcement
(2) (i) The Board shall not prescribe explaining why the rerouting is nec-
car hire for market rate cars. essary, when it began, when the dis-
(ii) The Code of Car Hire Rules ref- ability occurred, why an extension is
erenced in the Association of American necessary, the specific lines disabled,
Railroads Car Service and Car Hire the rerouting to be continued, which
Agreement provides that owners and shippers are affected, and any other
users party to that agreement shall re- important facts.
solve car hire disputes thereunder. The (b) Concurrence by carriers. A railroad
Board may review allegations of abuse rerouting traffic must receive the con-
of the car hire dispute resolution proc- currence of other railroads to which
ess established under those rules. the traffic will be diverted or rerouted,
(iii) Car hire disputes involving an before the rerouting or diversion be-
owner or user not a party to that gins. A rerouting carrier must also
agreement may be resolved by the confirm the inability of a disabled re-
Board. ceiving carrier to handle the traffic be-
(d) Car hire agreements. Rail carriers fore rerouting that traffic. If the re-
are authorized to negotiate and enter ceiving carrier is no longer disabled, it
into agreements governing car hire. must accept the traffic according to
(e) Effective date. This part shall take the routing originally designated.
effect on January 1, 1994. (c) Notice by rerouting carrier. A re-
routing carrier must notify the Board’s
[58 FR 60144, Nov. 15, 1993]
Office of Compliance and Enforcement,
§ 1033.2 Car service orders. the Association of American Railroads,
Car Service Division, as agent of all
Emergency and temporary service or- railroads subscribing to car service and
ders are issued under this part but are car hire agreements, and the American
not carried in the Code of Federal Reg- Short Line Railroad Association before
ulations. the rerouting or diversion begins. The
[58 FR 60145, Nov. 15, 1993] originating carrier must notify each
shipper at the time each shipment is
PART 1034—ROUTING OF TRAFFIC rerouted or diverted and furnish to
each shipper the rerouting, except when
the disability requiring the rerouting oc-
AUTHORITY: 49 U.S.C. 721, 11123. curs after the movement has begun. When
a rerouting carrier submits to the
§ 1034.1 Temporary authority. Board a notice and explanation for an
(a) Authority. Any railroad subject to extension of the rerouting period, it
regulation under 49 U.S.C. 10501 may must immediately also submit a copy
reasonably divert or reroute traffic to of that notice and explanation to the
other carriers, if it is unable due to cir- AAR, the ASLRA and all shippers that
cumstances beyond its control prompt- have been affected or that the carrier
ly to transport traffic over a portion of believes will be affected or that request
its lines. Traffic necessarily diverted a copy.
under this authority shall be rerouted (d) Notice by AAR. The AAR shall no-
to preserve as much as possible the tify all carriers affected by rerouting
participation and revenues of other or by an extension of a rerouting pe-
carriers provided in the original rout- riod, in a manner similar to that used
ing. This authority may be exercised for embargoes.
for no more than 30 days following the (e) Applicable rates. The rates applica-
day on which the rerouting begins. If a ble on shipments rerouted or diverted
carrier needs more than 30 days before will be the rates applicable over the
its disability or the disability of a reroute originally designated at the time
ceiving carrier is cured, it may auto- the shipments are tendered.
matically extend its rerouting for addi- (f) Divisions. The carriers involved in
tional 30-day periods. To extend the pe- the rerouting or diversion shall proceed
riod, it must submit a written or tele- even though no contracts, agreements,
graphic notice to the Association of or arrangements exist between them at
72
Surface Transportation Board, DOT Pt. 1035, App. A
the time concerning the divisions of § 1035.2 Modification of front of uni-

the rates applicable to the traffic. Divi- form bill of lading.
sions shall be, during the time the re- Notwithstanding any other provision
routing is in effect, those voluntarily of § 1035.1(a), with respect to the infor-
agreed upon by the carriers. mation called for, the front portion
[46 FR 21782, Apr. 14, 1981, as amended at 46 only (appendix A to this part) of a bill
FR 26064, May 11, 1981; 64 FR 53267, Oct. 1, of lading may deviate from the lan-
1999] guage prescribed in this part so long as
the deviation conforms with approved
PART 1035—BILLS OF LADING national standards for the electronic
data interchange or other commercial
Sec. requirements for bill of lading informa-
1035.1 Requirement for certain forms of bills tion; provided that no such deviation in
of lading. the language shall affect the obliga-
1035.2 Modification of front of uniform bill tions of any shipper to provide infor-
of lading.
mation absent the consent of such
APPENDIX A TO PART 1035—UNIFORM
shipper nor shall such deviation be
STRAIGHT BILL OF LADING
APPENDIX B TO PART 1035—CONTRACT TERMS deemed to alter any rights or obliga-
AND CONDITIONS tions conferred by statute or regula-
tion on either carriers or shippers with
AUTHORITY: 49 U.S.C. 721, 11706, 14706.
respect to the preparation or issuance
SOURCE: 58 FR 60797, Nov. 18, 1993, unless of bills of lading.
otherwise noted.
CROSS REFERENCES: For interstate trans- APPENDIX A TO PART 1035—UNIFORM
portation of livestock, see 9 CFR parts 71–77. STRAIGHT BILL OF LADING
For lading and unlading of vessels, see 19
CFR part 4. UNIFORM STRAIGHT BILL OF LADING
Original—Not Negotiable
§ 1035.1 Requirement for certain forms
of bills of lading. Shipper’s No llllllllllllllll
(a) All common carriers, except ex- Agent’s No lllllllllllllllll
press companies, engaged in the trans- Company llllllllllllllllll
portation of property other than live- Received, subject to the classifications and
stock and wild animals, by rail or by tariffs in effect on the date of this Bill of
water subject to the Interstate Com- Lading:
merce Act are required to use straight atlllllllllllll, 19ll
bills of lading as prescribed in Appen- from lllllllllllllllllllll
dix A and B to this part, or order bills
the property described below, in apparent
of lading as prescribed in Appendix A good order, except as noted (contents and
and B to this Part, except that order condition of contents of packages unknown),
bills of lading shall: marked, consigned, and destined as indicated
(1) Be entitled ‘‘Uniform Order Bill of below, which said company (the word com-
Lading’’ and be designated as ‘‘Nego- pany being understood throughout this con-
tiable’’ on the front (appendix A to this tract as meaning any person or corporation
part); in possession of the property under the con-
(2) Indicate consignment ‘‘to the tract) agrees to carry to its usual place of
delivery at said destination, if on its own
order of * * * ’’ on the front (appendix road or its own water line, otherwise to de-
A to this part); and liver to another carrier on the route to said
(3) Provide for endorsement on the destination. It is mutually agreed, as to each
back portion (appendix B to this part). carrier of all or any of said property over all
(b) All such bills of lading: or any portion of said route to destination,
(1) May be either documented on and as to each party at any time interested
paper or issued electronically; in all or any of said property, that every
(2) May be a copy, reprographic or service to be performed hereunder shall be
subject to all the conditions not prohibited
otherwise, of a printed bill of lading, by law, whether printed or written, herein
free from erasure and interlineation; contained, including the conditions on back
(3) May vary in the arrangement and hereof, which are hereby agreed to by the
spacing of the printed matter on the shipper and accepted for himself and his as-
face of the form. signs.
73
Pt. 1035, App. B 49 CFR Ch. X (10–1–07 Edition)
[Mail or street address of consignee—For Trailer Initials/Number lllllllllll
purposes of notification only.] Length lllllllllllllllllll
Consigned to llllllllllllllll
Plan lllllllllllllllllllll
Destination lllllllllllllllll Length lllllllllllllllllll
State of lllllllllllllllllll Plan lllllllllllllllllllll
County of llllllllllllllllll Container Initials/Number lllllllll
Route llllllllllllllllllll Length lllllllllllllllllll
Delivering Carrier lllllllllllll Plan lllllllllllllllllllll
Car Initial llllllllllllllllll Length lllllllllllllllllll
Car No llllllllllllllllllll Plan lllllllllllllllllllll
Description of arti- *Weight

cles, special Class or Check col-
No. packages (subject to
marks, and excep- rate umn
correction)
tions
. ...................... .............................. .................... .................... .................... Subject to Section 7 of conditions, if this

shipment is to be delivered to the con-
signee without recourse on the consignor,
the consignor shall sign the following state-
ment:
. ...................... .............................. .................... .................... ....................
. ...................... .............................. .................... .................... .................... 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 $lll to apply in prepayment of
the charges on the property described
hereon.
. ...................... .............................. .................... .................... ....................
. ...................... .............................. .................... .................... .................... ..................................................
Agent or Cashier
. ...................... .............................. .................... .................... .................... Perllllllll
. ...................... .............................. .................... .................... .................... (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—
llllllllllllllllllll perllllllllllllllllllll
Charges advanced: llllllllllllllllllll
Shipper
Agent
Per
Per
Permanent post office address of shipper
APPENDIX B TO PART 1035—CONTRACT thereof or damage thereto, except as herein-

TERMS AND CONDITIONS after provided.
(b) No carrier or party in possession of all
CONTRACT TERMS AND CONDITIONS or any of the property herein described shall
be liable for any loss thereof or damage
Sec. 1. (a) The carrier or party in posses- thereto or delay caused by the act of God,
sion of any of the property herein described the public enemy, the authority of law, or
shall be liable as at common law for any loss the act or default of the shipper or owner, or
for natural shrinkage. The carrier’s liability
74
Surface Transportation Board, DOT Pt. 1035, App. B
shall be that of warehouseman, only, for in writing by the shipper or has been agreed
loss, damage, or delay caused by fire occur- upon in writing as the released value of the
ring after the expiration of the free time al- property as determined by the classification
lowed by tariffs lawfully on file (such free or tariffs upon which the rate is based, such
time to be computed as therein provided) lower value plus freight charges if paid shall
after notice of the arrival of the property at be the maximum amount to be recovered,
destination or at the port of export (if in- whether or not such loss or damage occurs
tended for export) has been duly sent or from negligence.
given, and after placement of the property (b) As a condition precedent to recovery,
for delivery at destination, or tender of de- claims must be filed in writing with the re-
livery of the property to the party entitled ceiving or delivering carrier, or carrier
to receive it, has been made. Except in case issuing this bill of lading, or carrier on
of negligence of the carrier or party in pos- whose line the loss, damage, injury or delay
session (and the burden to prove freedom occurred, within nine months after delivery
from such negligence shall be on the carrier of the property (or, in case of export traffic,
or party in possession), the carrier or party within nine months after delivery at port of
in possession shall not be liable for loss, export) or, in case of failure to make deliv-
damage, or delay occurring while the prop- ery, then within nine months after a reason-
erty is stopped and held in transit upon the able time for delivery has elapsed; and suits
request of the shipper, owner, or party enti- shall be instituted against any carrier only
tled to make such request, or resulting from within two years and one day from the day
a defect or vice in the property, or for coun- when notice in writing is given by the car-
try damage to cotton, or from riots or rier to the claimant that the carrier has dis-
strikes. allowed the claim or any part or parts there-
(c) In case of quarantine the property may of specified in the notice. Where claims are
be discharged at risk and expense of owners not filed or suits are not instituted thereon
into quarantine depot or elsewhere, as rein accordance with the foregoing provisions,
quired by quarantine regulations or authori- no carrier hereunder shall be liable, and such
ties, or for the carrier’s dispatch at nearest claims will not be paid.
available point in carrier’s judgment, and in (c) Any carrier or party liable on account
any such case carrier’s responsibility shall of loss of or damage to any of said property
cease when property is so discharged, or shall have the full benefit of any insurance
property may be returned by carrier at own- that may have been effected upon or on ac-
er’s expense to shipping point, earning count of said property, so far as this shall
freight both ways. Quarantine expenses of not avoid the policies or contracts of insur-
whatever nature or kind upon or in respect ance: Provided, That the carrier reimburse
to property shall be borne by the owners of the claimant for the premium paid thereon.
the property or be a lien thereon. The carrier Sec. 3. Except where such service is re-
shall not be liable for loss or damage occa- quired as the result of carrier’s negligence,
sioned by fumigation or disinfection or other all property shall be subject to necessary
acts required or done by quarantine regula- cooperage and baling at owner’s cost. Each
tions or authorities even though the same carrier over whose route cotton or cotton
may have been done by carrier’s officers, linters is to be transported hereunder shall
agents, or employees, nor for detention, loss, have the privilege, at its own cost and risk,
or damage of any kind occasioned by quar- of compressing the same for greater conven-
antine or the enforcement thereof. No car- ience in handling or forwarding, and shall
rier shall be liable, except in case of neg- not be held responsible for deviation or un-
ligence, for any mistake or inaccuracy in avoidable delays in procuring such compres-
any information furnished by the carrier, its sion. Grain in bulk consigned to a point
agents, or officers, as to quarantine laws or where there is a railroad, public or licensed
regulations. The shipper shall hold the car- elevator, may (unless otherwise expressly
riers harmless from any expense they may noted herein, and then if it is not promptly
incur, or damages they may be required to unloaded) be there delivered and placed with
pay, by reason of the introduction of the other grain of the same kind and grade with-
property covered by this contract into any out respect to ownership (and prompt notice
place against the quarantine laws or regula- thereof shall be given to the consignor), and
tions in effect at such place. if so delivered shall be subject to a lien for
Sec. 2. (a) No carrier is bound to transport elevator charges in addition to all other
said property by any particular train or ves- charges hereunder.
sel, or in time for any particular market or 4. (a) Property not removed by the party
otherwise than with reasonable dispatch. entitled to receive it within the free time al-
Every carrier shall have the right in case of lowed by tariffs, lawfully on file (such free
physical necessity to forward said property time to be computed as therein provided),
by any carrier or route between the point of after notice of the arrival of the property at
shipment and the point of destination. In all destination or at the port of export (if in-
cases not prohibited by law, where a lower tended for export) has been duly sent or
value than actual value has been represented given, and after placement of the property
75
Pt. 1035, App. B 49 CFR Ch. X (10–1–07 Edition)
for delivery at destination has been made, and any other lawful charges and the ex-
may be kept in vessel, car, depot, warehouse pense of notice, advertisement, sale, and
or place of delivery of the carrier, subject to other necessary expense and of caring for
the tariff charge for storage and to carrier’s and maintaining the property, if proper care
responsibility as warehouseman, only, or at of the same requires special expense, and
the option of the carrier, may be removed to should there be a balance it shall be paid to
and stored in a public or licensed warehouse the owner of the property sold hereunder.
at the place of delivery or other available (f) Property destined to or taken from a
place, at the cost of the owner, and there station, wharf, or landing at which there is
held without liability on the part of the car- no regularly appointed freight agent shall be
rier, and subject to a lien for all freight and entirely at risk of owner after unloaded from
other lawful charges, including a reasonable cars or vessels or until loaded into cars or
charge for storage. vessels, and except in case of carrier’s neg-
(b) Where nonperishable property which ligence, when received from or delivered to
has been transported to destination here- such stations, wharves, or landings shall be
under is refused by consignee or the party at owner’s risk until the cars are attached to
entitled to receive it, or said consignee or and after they are detached from locomotive
party entitled to receive it fails to receive it or train or until loaded into and after un-
within 15 days after notice of arrival shall loaded from vessels.
have been duly sent or given, the carrier
Sec. 5. No carrier hereunder will carry or
may sell the same at public auction to the
be liable in any way for any documents, spe-
highest bidder, at such place as may be des-
cie, or for any articles of extraordinary value
ignated by the carrier: Provided, That the
not specifically rated in the published classi-
carrier shall have first mailed, sent, or given
fications or tariffs unless a special agree-
to the consignor notice that the property has
ment to do so and a stipulated value of the
been refused or remains unclaimed, as the
articles are indorsed hereon.
case may be, and that it will be subject to
sale under the terms of the bill of lading if Sec. 6. Every party, whether principal or
disposition be not arranged for, and shall agent, shipping explosives or dangerous
have published notice containing a descrip- goods, without previous full written disclo-
tion of the property, the name of the party sure to the carrier of their nature, shall be
to whom consigned, or, if shipped order no- liable for and indemnify the carrier against
tify, the name of the party to be notified, all loss or damage caused by such goods, and
and the time and place of sale, once a week such goods may be warehoused at owner’s
for two successive weeks, in a newspaper of risk and expense or destroyed without com-
general circulation at the place of sale or pensation.
nearest place where such newspaper is pub- Sec. 7. The owner or consignee shall pay
lished: Provided, That 30 days shall have the freight and average, if any, and all other
elapsed before publication of notice of sale lawful charges accruing on said property;
after said notice that the property was re- but, except in those instances where it may
fused or remains unclaimed was mailed, sent, lawfully be authorized to do so, no carrier by
or given. railroad shall deliver or relinquish posses-
(c) Where perishable property which has sion at destination of the property covered
been transported hereunder to destination is by this bill of lading until all tariff rates and
refused by consignee or party entitled to re- charges thereon have been paid. The con-
ceive it, or said consignee or party entitled signor shall be liable for the freight and all
to receive it shall fail to receive it promptly, other lawful charges, except that if the con-
the carrier, may, in its discretion, to prevent signor stipulates, by signature, in the space
deterioration or further deterioration, sell provided for that purpose on the face of this
the same to the best advantage at private or bill of lading that the carrier shall not make
public sale: Provided, That if time serves for delivery without requiring payment of such
notification to the consignor or owner of the charges and the carrier, contrary to such
refusal of the property or the failure to re- stipulation, shall make delivery without re-
ceive it, and request for disposition of the quiring such payment, the consignor (except
property, such notification shall be given, in as hereinafter provided) shall not be liable
such manner as the exercise of due diligence for such charges. Provided, that, where the
requires, before the property is sold. carrier has been instructed by the shipper or
(d) Where the procedure provided for in the consignor to deliver said property to a con-
two paragraphs last preceding is not pos- signee other than the shipper or consignor,
sible, it is agreed that nothing contained in such consignee shall not be legally liable for
said paragraphs shall be construed to abridge transportation charges in respect of the
the right of the carrier at its option to sell transportation of said property (beyond
the property under such circumstances and those billed against him at the time of deliv-
in such manner as may be authorized by law. ery for which he is otherwise liable) which
(e) The proceeds of any sale made under may be found to be due after the property
this section shall be applied by the carrier to has been delivered to him, if the consignee
the payment of freight, demurrage, storage, (a) is an agent only and has no beneficial
76
Surface Transportation Board, DOT Pt. 1035, App. B
title in said property, and (b) prior to deliv- consignor shall himself be liable for such
ery of said property has notified the deliv- transportation charges, notwithstanding the
ering carrier in writing of the fact of such foregoing provisions of this paragraph and ir-
agency and absence of beneficial title, and, respective of any provisions to the contrary
in the case of a shipment reconsigned or di- in the bill of lading or in the contract of
verted to a point other than that specified in transportation under which the shipment
the original bill of lading, has also notified was made. The term ‘‘delivering carrier’’
the delivering carrier in writing of the name means the line-haul carrier making ultimate
and address of the beneficial owner of said delivery.
property; and, in such cases the shipper or Nothing herein shall limit the right of the
consignor, or, in the case of a shipment so carrier to require at time of shipment the
reconsigned or diverted, the beneficial prepayment or guarantee of the charges. If
owner, shall be liable for such additional upon inspection it is ascertained that the ar-
charges. If the consignee has given to the ticles shipped are not those described in this
carrier erroneous information as to who the bill of lading, the freight charges must be
beneficial owner is, such consignee shall paid upon the articles actually shipped.
himself be liable for such additional charges. Where delivery is made by a common car-
On shipments reconsigned or diverted by an rier by water the foregoing provisions of this
agent who has furnished the carrier in the section shall apply, except as may be incon-
reconsignment or diversion order with a no- sistent with part III of the Interstate Com-
tice of agency and the proper name and ad- merce Act.
dress of the beneficial owner, and where such Sec. 8. If this bill of lading is issued on the
shipments are refused or abandoned at ulti- order of the shipper, or his agent, in ex-
mate destination, the said beneficial owner change or in substitution for another bill of
shall be liable for all legally applicable lading, the shipper’s signature to the prior
charges in connection therewith. If the re- bill of lading as to the statement of value or
consignor or diverter has given to the carrier otherwise, or election of common law or bill
erroneous information as to who the bene- of lading liability, in or in connection with
ficial owner is, such reconsignor or diverter such prior bill of lading, shall be considered
shall himself be liable for all such charges. a part of this bill of lading as fully as if the
If a shipper or consignor of a shipment of same were written or made in or in connec-
property (other than a prepaid shipment) is tion with this bill of lading.
also the consignee named in the bill of lad- Sec. 9. (a) If all or any part of said property
ing and, prior to the time of delivery, noti- is carried by water over any part of said
fies, in writing, a delivering carrier by rail- route, and loss, damage or injury to said
road (a) to deliver such property at destina- property occurs while the same is in the cus-
tion to another party, (b) that such party is tody of a carrier by water the liability of
the beneficial owner of such property, and (c) such carrier shall be determined by the bill
that delivery is to be made to such party of lading of the carrier by water (this bill of
only upon payment of all transportation lading being such bill of lading if the prop-
charges in respect of the transportation of erty is transported by such water carrier
such property, and delivery is made by the thereunder) and by and under the laws and
carrier to such party without such payment, regulations applicable to transportation by
such shipper or consignor shall not be liable water. Such water carriage shall be per-
(as shipper, consignor, consignee, or other- formed subject to all the terms and provi-
wise) for such transportation charges but the sions of, and all the exemptions from liabil-
party to whom delivery is so made shall in ity contained in the Act of Congress of the
any event be liable for transportation United States, approved on February 13, 1893,
charges billed against the property at the and entitled ‘‘An act relating to the naviga-
time of such delivery, and also for any addition of vessels, etc.’’ and of other statutes of
tional charges which may be found to be due the United States according carriers by
after delivery of the property, except that if water the protection of limited liability as
such party prior to such delivery has notified well as the following subdivisions of this sec-
in writing the delivering carrier that he is tion: and to the conditions contained in this
not the beneficial owner of the property, and bill of lading not inconsistent with this sec-
has given in writing to such delivering car- tion, when this bill of lading becomes the
rier the name and address of such beneficial bill of lading of the carrier by water.
owner, such party shall not be liable for any (b) No such carrier by water shall be liable
additional charges which may be found to be for any loss or damage resulting from any
due after delivery of the property; but if the fire happening to or on board the vessel, or
party to whom delivery is made has given to from explosion, bursting of boilers or break-
the carrier erroneous information as to the age of shafts, unless caused by the design or
beneficial owner, such party shall neverthe- neglect of such carrier.
less be liable for such additional charges. If (c) If the owner shall have exercised due
the shipper or consignor has given to the de- diligence in making the vessel in all respects
livering carrier erroneous information as to seaworthy and properly manned, equipped
who the beneficial owner is, such shipper or and supplied, no such carrier shall be liable
77
for any loss or damage resulting from the of lading shall be enforceable according to
perils of the lakes, seas, or other waters, or its original tenor.
from latent defects in hull, machinery, or ap-
purtenances whether existing prior to, at the
time of, or after sailing, or from collision,
PART 1037—BULK GRAIN AND
stranding, or other accidents of navigation, GRAIN PRODUCTS—LOSS AND
or from prolongation of the voyage. And, DAMAGE CLAIMS
when for any reason it is necessary, any ves-
sel carrying any or all of the property herein Sec.
described shall be at liberty to call at any 1037.1 Weights and weighing.
port or ports, in or out of the customary 1037.2 Cars.
route, to tow and be towed, to transfer, 1037.3 Claims.
trans-ship, or lighter, to load and discharge
goods at any time, to assist vessels in dis- AUTHORITY: 49 U.S.C. 721.
tress, to deviate for the purpose of saving life SOURCE: 40 FR 49342, Oct. 22, 1975, unless
or property, and for docking and repairs. Ex- otherwise noted.
cept in case of negligence such carrier shall
not be responsible for any loss or damage to § 1037.1 Weights and weighing.
property if it be necessary or is usual to
carry the same upon deck. (a) How determined—Accuracy of the
(d) General Average shall be payable ac- weights used in determining the quan-
cording to the York-Antwerp Rules of 1924, tity of grain and grain products re-
sections 1 to 15, inclusive, and sections 17 to ceived for transportation by carriers
22, inclusive, and as to matters not covered and delivered by them to consignees
thereby according to the laws and usages of being of primary and fundamental im-
the Port of New York. If the owners shall
portance, the use of estimated weights
have exercised due diligence to make the
vessel in all respects seaworthy and properly based upon the cubical contents of the
manned, equipped and supplied, it is hereby load and the test weight per bushel of
agreed that in case of danger, damage or dis- the grain and grain products, or other-
aster resulting from faults or errors in navi- wise, will not be accepted. All ship-
gation, or in the management of the vessel, ments shall be carefully weighed by
or from any latent or other defects in the competent weighers upon scales that
vessel, her machinery or appurtenance, or are known to be accurate within the
from unseaworthiness, whether existing at
limits of tolerance stated in scale spec-
the time of shipment or at the beginning of
the voyage (provided the latent or other de- ifications.
fects or the unseaworthiness was not discov- (b) Inspection of scales—Before
erable by the exercise of due diligence), the weighing grain and grain products to
shippers, consignees and/or owners of the and from cars, the scale and all other
cargo shall nevertheless pay salvage and any facilities to be used must be thor-
special charges incurred in respect of the oughly inspected to ascertain whether
cargo, and shall contribute with the ship- they are in proper working condition,
owner in general average to the payment of
necessary adjustments or repairs, if
any sacrifices, losses or expenses of a general
average nature that may be made or in- any required, must be made, and an ac-
curred for the common benefit or to relieve curate and complete record thereof
the adventure from any common peril. shall be entered at the time of inspec-
(e) If the property is being carried under a tion.
tariff which provides that any carrier or car- (c) Shipping weights—Where the
riers party thereto shall be liable for loss shipper weighs the grain or grain prod-
from perils of the sea, then as to such carrier ucts for shipment and a claim for loss
or carriers the provisions of this section
and damage is subsequently filed on
shall be modified in accordance with the tar-
iff provisions, which shall be regarded as in- that shipment, the shipper shall fur-
corporated into the conditions of this bill of nish the carrier with whom the claim
lading. is filed certificates of weight showing
(f) The term ‘‘water carriage’’ in this sec- car initials and number; the kind of
tion shall not be construed as including grain or grain products; the total scale
lighterage in or across rivers, harbors, or weight; the type and house number of
lakes, when performed by or on behalf of rail the scale used; the number of drafts
carriers.
and weight of each draft; the date and
Sec. 10. Any alteration, addition, or era-
sure in this bill of lading which shall be time of weighing; whether the weight
made without the special notation hereon of is official, board-of-trade, grain-ex-
the agent of the carrier issuing this bill of change, State, or other supervised
lading, shall be without effect, and this bill weight; and the number of grain doors
78
used. This information should be fur- § 1037.3 Claims.

nished at the time the claim is filed.
(a) In computing the amount of the
(d) Destination weights—Where the
loss for which the carrier will pay
consignee weighs a shipment of grain
there will be deducted from the gross
or grain products and a claim for loss
amount of the ascertained actual loss
and damage is subsequently filed on
one-fourth of 1 percent of the estab-
the shipment, the consignee shall fur-
lished loading weight to cover invisible
nish the carrier with whom the claim
loss and waste; provided, however, that
is filed certificates of weight showing
where grain and grain products heat in
the car initials and number; the kind of
transit and investigation shows that
grain or grain products; the total scale
the invisible loss resulting therefrom
weight; the type and house number of
exceeded one-fourth of 1 percent of
the scale used; the number of drafts
and weight of each draft, and the date such other amount as may hereafter be
and time of weighing; and whether the fixed in the manner above stated, and
weight is official, board-of-trade, grain- that the carrier is not otherwise liable
exchange, State, or other supervised for said loss, then the ascertained ac-
weight. This information should be fur- tual amount of the invisible loss due to
nished at the time the claim is filed. heating of the grain and grain products
will be deducted.
(e) A difference in weights at origin
and destination, both of which are (b) Where investigation discloses a
based on supervised scales, establishes defect in equipment, seal or seal
prima facie that the loss occurred in record, or a transfer in transit by the
transit and that the railroad is liable. carrier of a carload of bulk grain or
When a difference in weights is based grain products upon which the unload-
in part on an unsupervised weight, ing weight is less than the loading
which nevertheless, was accepted by weight and the shipper furnishes duly
the railroad as the basis for assessing attested certificates showing the cor-
freight charges, such unsupervised rectness of the claimed weight, and in-
weight in combination with a super- vestigation fails to show that the dis-
vised weight establishes prima facie crepancy is due to defective scales or
that the loss occurred in transit and other shipper facilities, or to inac-
the railroad is liable. When a difference curate weighing or other error at point
in weights is based in part on an unsu- of origin or destination, or to fraud,
pervised weight, with the above excep- then the resulting claim will be ad-
tion, a prima facie case of railroad li- justed subject to the deductions au-
ability for loss in transit has not been thorized in the immediately preceding
established. Such difference in weights paragraph (a) of this § 1037.3; provided,
is a factor, however, to be considered in however, that the clear record of either
connection with other evidence that a the carrier’s or shippers’ facilities shall
clear-record car arrived at destination not be interpreted as affecting or
with seals intact and unbroken or that changing the burden of proof now law-
the shipper made a written complaint fully resting upon either party. There-
that any car placed for loading was de- fore, movement in a clear-record car is
fective, in response to which the rail- not conclusive evidence of the fact that
road filed a written report after inves- the car is not defective. It must be con-
tigation of the complaint. See para- sidered along with other evidence to
graph (c) of § 1037.3. determine liability. See paragraph (e)
of § 1037.1
§ 1037.2 Cars. (c) In case of a disputed claim, the
records of both the carrier and the
A car is not in suitable condition for
claimant affecting the shipment in-
the transportation of bulk grain and
volved shall be available to both par-
grain products when it is defective. The
ties. These records shall include a writ-
rules prescribed in this part 1037 apply
ten complaint, if any, filed by the ship-
on shipments transported solely in
per with the railroad at the time the
railroad-owned and railroad-leased
car was placed for loading that the car
cars.
was defective, and the written report of
[57 FR 54334, Nov. 18, 1992] an investigation of the complaint, filed
79
by the railroad with the shipper, if 20–11 ................... Fresh meat.

20–15 ................... Fresh dressed poultry.
made. 20–17 ................... Processed poultry.
20–21 ................... Creamery Butter.
PART 1039—EXEMPTIONS 20–23 ...................
20–25 ...................
Condensed, Evaporated or Dried Milk.
Cheese and Special Dairy Products.
20–26 ................... Processed Whole Milk.
Sec. 20–141 ................. Hides and Skins.
1039.10 Exemption of agricultural commod- 20–144 ................. Animal refuse, tankage, or meat meal.
ities except grain, soybeans, and sun- 20–421–27 ........... Citrus pomace.
flower seeds. 20–712–12 ........... Shelled walnuts.
20–914–25 ........... Cottonseed hulls.
1039.11 Miscellaneous commodities exemp-
20–915 ................. Cotton linters.
tions. 20–999–29 ........... Butter and honey mixed.
1039.12 Long and short haul transportation 20–999–41 ........... Honey, comb, granulated or strained, or
exemption. heat treated to retard granulation.
1039.13 Rail intermodal transportation ex- 20–999–76 ........... Freeze-dried poultry.
emption. 20–999–77 ........... Freeze-dried meat.
1039.14 Boxcar transportation exemptions 20–999–78 ........... Freeze-dried salad ingredients.
and rules. 20–999–93 ........... Fresh and salted meat and products
mixed, not hung.
1039.16 Exemption of new highway trailers 20–999–94 ........... Fresh and salted meat and products
or containers. mixed, hung and not hung.
1039.17 Protective service contracts exemp- 21–4 ..................... Stemmed or redried tobacco.
tion. 22–811–30 ........... Cotton, carded, dyed or not dyed, but
1039.20 Storage leases. not spun, woven or knitted, but includ-
1039.21 International joint through rates. ing cotton lap.
1039.22 Exemption of certain payments, 22–911–63 ........... Mattress felt, nec, cjors, not finished.
22–911–74 ........... Felts, cotton, nec.
services, and commitments from the Elk-
22–971–35 ........... Wool, nec, scoured.
ins Act and related provisions. 22–995–22 ........... Flax fibre.
AUTHORITY: 49 U.S.C. 10502, 13301. 22–999–26 ........... Cotton linters, bleached or dyed.
28–423–37 ........... Beeswax.
SOURCE: 47 FR 50262, Nov. 5, 1982, unless
otherwise noted. and shall embrace all articles assigned
additional digits. The STCC shall be
§ 1039.10 Exemption of agricultural those code numbers in effect as of Jan-
commodities except grain, soy- uary 1, 1979, as shown in Standard
beans, and sunflower seeds.
Transportation Commodity Code Tariff
The rail transportation of the com- 1–G, STB STCC 6001–C. Nothing in this
modities listed below is exempt from exemption shall be construed to affect
the provisions of subtitle IV of title 49, our jurisdiction under section 10502 or
except that carriers must continue to our ability to enforce this decision or
comply with Board accounting and re- any subsequent decision made under
porting requirements, including a brief authority of this exemption section.
statement in their annual reports of This exemption shall remain in effect,
operations under this exemption, and unless modified or revoked by a subse-
must maintain copies of rates, charges, quent order of this Board.
rules or regulations, for traffic moved
[48 FR 9277, Mar. 4, 1983; 49 FR 22095, May 25,
under this exemption, at their prin- 1984, as amended at 49 FR 26745, June 29, 1984;
cipal office, subject to inspection, and 49 FR 27321, July 3, 1984; 64 FR 53267, Oct. 1,
send a letter of notification to the 1999; 69 FR 58365, Sept. 30, 2004]
docket [Ex Parte No. 346 (Sub-No. 14)],
within 30 days, of the fact that they are § 1039.11 Miscellaneous commodities
using the exemption. All tariffs per- exemptions.
taining to the transportation of these (a) Commodities exempted. Except as
miscellaneous commodities will no indicated in paragraph (b) of this sec-
longer apply except to the extent tion, the rail transportation of the
adopted by carrier quotations. The cat- commodities listed below is exempt
egories of commodities which are ex- from the provisions of 49 U.S.C. sub-
empt under this decision, by Standard title IV. The Standard Transportation
Transportation Commodity Code Commodity Code (STCC) numbers that
(STCC) number are: identify the exempted commodities are
01 ......................... Farm products, with the exception of those in effect on the effective date of
grain (STCC No. 0113), soybeans
(STCC No. 01144), and sunflower
the tariff cited, and shall embrace all
commodities assigned additional dig-
seeds (STCC No. 0114940).

09 ......................... Fresh fish and other marine products. its.
80
STCC No. STCC tariff Commodity
14 1 ............... 6001–T, eff. 1–1–92 Dimension stone, quarry.

14 2 ............... ......do ........................ Crushed or broken stone or riprap.
14 411 ........... ......do ........................ Sand (aggregate or ballast).
14 412 ........... ......do ........................ Gravel (aggregate or ballast).
20 .................. ......do ........................ Food or kindred products except
20 143 Grease or inedible tallow.
20 32 Canned specialties.
20 33 Canned fruits, jams, jellies, preserves or vegetables.
20 4 Grain mill products.
20 6 Sugar, beet or cane.
20 8 Beverages or flavoring extracts.
20 911 Cottonseed oil, crude or refined.
20 914 Cottonseed cake or meal or by-products.
20 92 Soybean oil or by-products.
20 93 Nut or vegetable oils or by-products.
22 .................. ......do ........................ Textile mill products.
23 .................. ......do ........................ Apparel or other finished textile products or knit apparel.
24 .................. ......do ........................ Lumber or wood products.
25 .................. ......do ........................ Furniture or fixtures.
26 .................. ......do ........................ Pulp, paper or allied products except
26 1 Pulp or pulp mill products.
26 211 Newsprint.
26 212 Ground wood paper, uncoated.
26 213 Printing paper, coated or uncoated, etc.
26 214 Wrapping paper, wrappers or coarse paper.
26 218 Sanitary tissue stock.
26 471 Sanitary tissues or health products.
26 6 Building paper or building board except
26 613 Wallboard.
27 .................. ......do ........................ Printed matter.
28 195 22–23 ......do ........................ Iron chloride, liquid.
28 195 27–30 ......do ........................ Iron sulphate.
28 195 68–69 ......do ........................ Ferrous sulphate.
29 914 ........... ......do ........................ Coke produced from coal.
29 915 ........... ......do ........................ Distillate or residual fuel oil from coal refining.
30 .................. ......do ........................ Rubber or miscellaneous plastics products except
30 111 Rubber pneumatic tires or parts.
31 .................. ......do ........................ Leather or leather products.
32 .................. ......do ........................ Clay, concrete, glass or stone products except
32 411 Hydraulic cement, natural, portland or masonry.
32 741 Lime or lime plaster.
32 95 Nonmetallic earths or minerals, ground or treated in any other manner except
32 952 15 Cinders, clay, shale expanded shale), slate or volcanic (not pumice stone),
or haydrite.
33 .................. ......do ........................ Primary metal products, including galvanized.
34 .................. ......do ........................ Fabricated metal products except
34 6 Metal stampings.
34 919 40 Radioactive material shipping containers, etc.
35 .................. ......do ........................ Machinery except
35 11 Steam engines, turbines, turbine generator sets, or parts.
35 85 Refrigerators or refrigeration machinery or complete air-conditioning units.
36 .................. ......do ........................ Electrical machinery, equipment or supplies except
36 12 Power, distribution or specialty transformers.
36 21 Motors or generators.
37 11 ............. ......do ........................ Motor vehicles.
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).
81
§ 1039.12 49 CFR Ch. X (10–1–07 Edition)
STCC No. STCC tariff Commodity
24293 ............ ......do. ....................... Shavings or sawdust.

30311 ............ ......do. ....................... Reclaimed rubber.
3229924 ........ ......do. ....................... Cullet (broken glass).
33312 ............ ......do. ....................... Copper matte, speiss, flue dust, or residues, etc.
33322 ............ ......do. ....................... Lead matte, speiss, flue dust, dross, slag, skimmings, etc.
33332 ............ ......do. ....................... Zinc dross, residues, ashes, etc.
33342 ............ ......do. ....................... Aluminum residues, etc.
33398 ............ ......do. ....................... Misc. nonferrous metal residues, including solder babbitt or type metal residues.
40112 ............ ......do. ....................... Ashes.
40212 ............ ......do. ....................... Brass, bronze, copper or alloy scrap, tailings, or wastes.
40213 ............ ......do. ....................... Lead, zinc, or alloy scrap, tailings or wastes.
40214 ............ ......do. ....................... Aluminum or alloy scrap, tailings or wastes.
4021960 ........ ......do. ....................... Tin scrap, consisting of scraps or pieces of metallic tin, clippings, drippings, shavings,
turnings, or old worn-out block tin pipe having value for remelting purposes only.
40221 ............ ......do. ....................... Textile waste, scrap or sweepings.
40231 ............ ......do. ....................... Wood scrap or waste.
40241 ............ ......do. ....................... Paper waste or scrap.
40251 ............ ......do. ....................... Chemical or petroleum waste, including spent.
40261 ............ ......do. ....................... Rubber or plastic scrap or waste.
4029114 ........ ......do. ....................... Municipal garbage waste, solid, digested and ground, other than sewage waste or fer-
tilizer.
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 move-
ment, 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 EDITORIAL NOTE: For FEDERAL REGISTER ci-
movements for which a finding of mar- tations affecting § 1039.11, see the List of CFR
ket dominance has been made. How- Sections Affected, which appears in the
ever, this exemption shall not be con- Finding Aids section of the printed volume
and on GPO Access.
strued as affecting in any way the ex-
isting regulations, agreements, pre- § 1039.12 Long and short haul trans-
scriptions, conditions, allowances or portation exemption.
levels of compensation regarding the
use of equipment, whether shipper or (a) All rates and charges for rail
railroad owned or leased, including car transportation are exempt from the
hire, per diem and mileage allowances, provisions of 49 U.S.C. 10726 to the ex-
and also including exemption from the tent that:
anti-trust laws necessary to negotiate (1) Board approval or consideration
car service regulations or mandatory before the effective date of these rates
interchange of equipment or to main- and charges is not required; and
tain and execute such agreements. Nor (2) Section 10707 will not apply to
shall this exemption be construed to rates to the extent that they are chal-
affect existing Class III railroad ‘‘pro- lenged on the basis of alleged viola-
tections’’ in the case of boxcars. tions of section 10726.
(b) Conditions. Carriers must continue (b) This exemption does not extend to
to comply with Board accounting and review by the Board upon the filing of
reporting requirements. All railroad a formal complaint alleging a violation
tariffs pertaining to the transportation of section 10726. Board review will,
of these miscellaneous commodities however, be subject to the following
will no longer apply. This exemption conditions:
shall remain in effect, unless modified (1) A showing that a rate violates
or revoked by a subsequent order of section 10726 will not create a presump-
this Board. tion that the higher rate is unreason-
[48 FR 24901, June 3, 1983] ably high, and
82
(2) A finding by the Board that a rate (iii) Negotiate bilateral agreements
or charge violates the provisions of sec- governing car hire rates, empty move-
tion 10726 will not, absent a specific ments, and storage.
showing of damages, afford a basis for (2) The authorization in paragraphs
an award of reparations. (c)(1) (i) and (ii) of this section will not
apply to excluded carriers, as defined
[48 FR 9649, Mar. 8, 1983] in paragraph (c)(2)(i) of this section,
nor will it apply to any boxcar which,
§ 1039.13 Rail intermodal transpor-
tation exemption. on December 30, 1983, was owned or
leased by a carrier which then would
See Part 1090. have qualified as an excluded carrier
[52 FR 23660, June 24, 1987] and which bears the reporting marks of
an excluded carrier.
§ 1039.14 Boxcar transportation ex- (i) An ‘‘excluded carrier’’ is a Class
emptions and rules. III carrier or a Class II carrier not af-
filiated with one or more Class I car-
(a) The Rail transportation of all
riers. To be affiliated, the Class II car-
commodities in boxcars is exempt from rier must be more than 50 percent
the provisions of 49 U.S.C. subtitle IV owned by one or more Class I carriers.
except as otherwise provided in this (ii) The boxcar exclusion of para-
section. graph (c)(2) of this section will apply:
(b) The Board retains jurisdiction in (A) To an excluded boxcar whenever
the following areas: it is owned or leased by any Class III
(1) Car hire and car service. carrier and bears a Class III carrier’s
(2) Mandatory interchange of equip- reporting marks; and
ment. (B) To an excluded boxcar owned or
(3) Reciprocal switching or joint use leased by an excluded Class II carrier
of terminal facilities. beginning on October 16, 1986, and end-
(4) Car supply. ing on October 31, 1990, so long as such
(5) Freight car pooling agreements. boxcar has not been otherwise owned
(6) Freight rates applicable to boxcar or leased by another carrier during this
traffic originating or terminating at an period.
industry facility served physically by a (iii) The exclusion will not apply dur-
Class III rail carrier, to the extent pro- ing any period in which an excluded
vided in paragraphs (c)(4) and (c)(5) of boxcar is leased or assigned to a Class
this section. I or affiliated Class II carrier. If an ex-
cluded Class II carrier becomes a Class
(c)(1) Except as provided in paragraph
III carrier within the period under
(c)(2) of this section, carriers are au-
§ 1039.14(c)(2)(ii)(B), that carrier will
thorized to take the following actions thereafter, for purposes of this rule, be
with respect to boxcar equipment use: treated as if it had been a Class III car-
(i) Assess charges for empty move- rier on December 10, 1983.
ment of cars where movements are (iv) Nothing in paragraph (c)(2) of
made at the request of the car owner, this section will affect the right of any
the Association of American Railroads, carrier to negotiate bilateral agree-
or the Board. The empty mileage ments governing car hire rates and
charge is subject to a maximum of 35 rules.
cents per mile, as adjusted for inflation (3) The hourly and mileage car hire
or deflation using the rail cost adjust- rates in effect on January 1, 1985, as
ment factors published periodically by published in AAR Traffic Circular No.
the Board in Ex Parte No. 290 (Sub-No. OT–10, for any boxcar excluded under
2), Railroad Cost Recovery Procedures. In paragraph (c)(2) of this section, will re-
applying those factors, the figure of 35 main in effect without regard to the
cents will be treated as having been in aging of such car subsequent to Janu-
effect on October 1, 1982. ary 1, 1986, and any modification to the
(ii) Store empty cars and reclaim car existing car hire formula will not apply
hire payments beginning at the expira- to such cars. With respect to an ex-
tion of a 72-hour grace period after the cluded boxcar owned or leased by an
car is made empty. excluded Class II carrier, those car hire
83
§ 1039.16 49 CFR Ch. X (10–1–07 Edition)
rates shall remain in effect through Oc- (d) Carriers must continue to comply
tober 31, 1990. Any improvements sub- with Board accounting and reporting
sequent to January 1, 1985, to the ex- requirements. Railroad tariffs per-
cluded boxcars capitalized under OT–37 taining to the exempted transportation
criteria or under rebuilt criteria will of commodities in boxcars will no
be subject to the same formula applica- longer apply. This exemption shall re-
ble to OT–37 or rebuilt cars under Ex main in effect, unless modified or re-
Parte No. 334 or any other railroad car voked by a subsequent order of this
hire proceeding, including any effi- Board.
ciency ratio, if adopted. Any improve-
ments or repairs subsequent to Decem- [48 FR 20415, May 6, 1983, as amended at 50
FR 20419, May 16, 1985; 51 FR 32656, Sept. 15,
ber 31, 1990, to the excluded boxcars 1986; 51 FR 32922, Sept. 17, 1986; 52 FR 37971,
performed under OT–37 criteria or Oct. 13, 1987; 55 FR 41339, Oct. 11, 1990; 57 FR
under rebuilt criteria or any other cri- 53451, Nov. 10, 1992; 57 FR 56641, Nov. 30, 1992;
teria shall not result in any increases, 61 FR 26847, May 29, 1996]
additions, or surcharges in the car hire
rates for such cars. § 1039.16 Exemption of new highway
(4) No freight rate made effective trailers or containers.
after April 1, 1985, that applies to traf- The rail transportation of new high-
fic moving by boxcar and originating way trailers or containers (which is not
or terminating at an industry facility otherwise exempt) is exempt from the
served physically by a Class III rail provisions of 49 U.S.C. Subtitle IV, ex-
carrier may discriminate while these cept that carriers must continue to
rules are in effect on the basis of: comply with the Board’s accounting
(i) The ownership of the boxcar used and reporting requirements. This ex-
or the reporting marks any such box- emption will remain in effect unless
car bears; modified or revoked by subsequent
(ii) The car hire rate applicable to order of this Board.
the boxcar used; or
(iii) Any car hire discounts, in the [52 FR 17404, May 8, 1987]
form of reclaims or otherwise, avail-
able to any carriers with respect to the § 1039.17 Protective service contracts
boxcar used. exemption.
Except as prohibited above, carriers Contracts for protective services
may use car ownership or car marks against heat or cold, provided to or on
for identification purposes when estab- behalf of rail carriers and express com-
lishing rates. panies, are exempt from the require-
(5) The provisions of 49 U.S.C. 10705 ments of 49 U.S.C. 11105. Nothing in
and 10705a applicable to joint rates and this exemption shall be construed to
through routes will be effective as to affect our jurisdiction under section
rates and routes applicable to boxcar 10505 or our ability to enforce this deci-
traffic originating or terminating at an sion or any subsequent decision made
industry facility served physically by a under authority of this exemption sec-
Class III rail carrier. tion. This exemption shall remain in
(6) The following carriers are not re- effect, unless modified or revoked by a
garded as Class III or unaffiliated Class subsequent order of this Board.
II carriers for the purpose of this sec- [49 FR 19025, May 4, 1984]
tion:
Central New York Railroad Corporation § 1039.20 Storage leases.
Cooperstown and Charlotte Valley Railway Storage leases for all equipment for
Corporation all carriers are exempt from the provi-
Fonda, Johnstown & Gloversville Railroad sions of 49 U.S.C. subtitle IV except for
Corporation
49 U.S.C. 11123. Nothing in this exemp-
Lackawaxen and Stourbridge Railroad Cor-
poration tion should be construed to affect our
New York, Susquehanna & Western Railway jurisdiction under section 10502 or our
Corporation ability to enforce this decision or any
Rahway Valley Railroad Company subsequent decision made under au-
Staten Island Railway Corporation. thority of this exemption section. This
84
exemption shall remain in effect, un- conform to all other applicable provi-
less modified or revoked by a subse- sions of the Interstate Commerce Act,
quent decision of this Board. but this paragraph shall not be inter-
preted to limit, revoke, or remove the
FR 58365, Sept. 30, 2004] effect of the exemption granted under
paragraph (a) of this section with re-
§ 1039.21 International joint through spect to any payments, services, or
rates. commitments made prior to the filing
Rail carriers are exempt from the of the rate or contract.
provisions of § 1312.37 that require the (e) When any person files with the
filing of tariffs containing inter- Board a petition to revoke the exemp-
national joint through rates. Rail car- tion granted by this section as to any
riers must continue to comply with specific transaction, the rail carrier
Board accounting and reporting re- shall have the burden of showing that,
quirements. This exemption shall re- with respect to such transaction, all
main in effect, unless modified or re- requirements of paragraph (a) of this
voked by a subsequent order of this section were met, and the carrier rea-
Board. sonably expected, before undertaking
such payments, services or commit-
[51 FR 27046, July 29, 1986] ments, that such payments, services or
commitments would result, within a
§ 1039.22 Exemption of certain pay- reasonable time, in a contribution to
ments, services, and commitments the carrier’s going concern value.
from the Elkins Act and related
provisions. (f) This exemption shall remain in ef-
fect unless modified or revoked by a
(a) Whenever a rail carrier: subsequent order of this Board.
(1) Provides payments or services for
industrial development activities; or, [57 FR 11913, Apr. 8, 1992]
(2) Makes commitments regarding fu-
ture transportation; PARTS 1070–1079 [RESERVED]
and reasonably determines that such
payments, services or commitments Parts 1090–1099—Intermodal
would not be eligible for inclusion in Transportation
rail contracts under 49 U.S.C. 10713,
such transaction(s) shall be exempt PART 1090—PRACTICES OF CAR-
from 49 U.S.C. 10761(a), 10762(a)(1), RIERS INVOLVED IN THE INTER-
11902, 11903, and 11904(a), subject to the MODAL MOVEMENT OF CON-
conditions set forth in paragraphs (b)
through (e) of this section.
TAINERIZED FREIGHT
(b) If any interested person(s) be- Sec.
lieves a transaction is eligible for in- 1090.1 Definition of TOFC/COFC service.
clusion in one or more contracts under 1090.2 Exemption of rail and highway TOFC/
49 U.S.C. 10713, that person’s exclusive COFC service.
remedy shall be to request the Board to 1090.3 Use of TOFC/COFC service by motor
so determine, and if the Board does so, and water carriers.
the transaction shall no longer be ex- AUTHORITY: 49 U.S.C. 721.
empted by this section commencing 60
days after the date of the Board’s de- § 1090.1 Definition of TOFC/COFC
termination. service.
(c) Transactions that are exempt (a) Rail trailer-on-flatcar/container-
under paragraph (a) of this section on-flatcar (TOFC/COFC) service means
shall be subject to all other applicable the transportation by rail, in inter-
provisions of Title 49 U.S.C. Subtitle IV state or foreign commerce, of—
and to the antitrust laws to the extent (1) Any freight-laden highway truck,
that the activity does not fall within trailer, or semitrailer,
the Board’s exclusive jurisdiction. (2) The freight-laden container por-
(d) For any actual movement of traf- tion of any highway truck, trailer, or
fic, a carrier must file any required semitrailer having a demountable
tariff or section 10713 contract, and chassis,
85
§ 1090.2 49 CFR Ch. X (10–1–07 Edition)
(3) Any freight-laden multimodal ve- by a rail carrier are similarly exempt.
hicle designed to operate both as a Tariffs heretofore applicable to any
highway truck, trailer, or semitrailer transportation service exempted by
and as a rail car, this section shall no longer apply to
(4) Any freight-laden intermodal con- such service. The exemption does not
tainer comparable in dimensions to a apply to a motor carrier service in
highway truck, trailer, or semitrailer which a rail carrier participates only
and designed to be transported by more as the motor carrier’s agent (Plan I
than one mode of transportation, or TOFC/COFC), nor does the exemption
(5) Any of the foregoing types of operate to relieve any carrier of any
equipment when empty and being obligation it would otherwise have, ab-
transported incidental to its previous sent the exemption, with respect to
or subsequent use in TOFC/COFC serv- providing contractual terms for liabil-
ice. ity and claims.
(b) Highway TOFC/COFC service [54 FR 51746, Dec. 18, 1989]
means the highway transportation, in
interstate or foreign commerce, of any § 1090.3 Use of TOFC/COFC service by
of the types of equipment listed in motor and water carriers.
paragraph (a) of this section as part of (a) Except as otherwise prohibited by
a continuous intermodal movement these rules, motor and water common
that includes rail TOFC/COFC service, and contract carriers may use rail
and during which the trailer or con- TOFC/COFC service in the performance
tainer is not unloaded. of all or any portion of their authorized
[52 FR 23660, June 24, 1987] service.
(b) Motor and water common carriers
§ 1090.2 Exemption of rail and high- may use rail TOFC/COFC service only
way TOFC/COFC service. if their tariff publications give notice
that such service may be used at their
Except as provided in 49 U.S.C. 10505
option, but that the right is reserved to
(e) and (g), 109229(1), and 10530, rail
the user of their services to direct that
TOFC/COFC service and highway
in any particular instance TOFC/COFC
TOFC/COFC service provided by a rail
service not be used.
carrier either itself or jointly with a
(c) Motor and water contract carriers
motor carrier as part of a continuous
may use rail TOFC/COFC service only
intermodal freight movement is ex-
if their transportation contracts and
empt from the requirements of 49
tariffs (for water carriers) make appro-
U.S.C. subtitle IV, regardless of the
priate provisions therefor.
type, affiliation, or ownership of the
(d) Tariffs of motor and water com-
carrier performing the highway portion
mon or water contract carriers pro-
of the service. Motor carrier TOFC/
viding for the use of rail TOFC/COFC
COFC pickup and delivery services ar-
service shall set forth the points be-
ranged independently with the shipper
tween which TOFC/COFC service may
or receiver (or its representative/agent)
be used.
and performed immediately before or
after a TOFC/COFC movement provided [52 FR 27811, July 24, 1987]
86
SUBCHAPTER B—RULES OF PRACTICE
Parts 1100–1129—Rules of General PART 1101—DEFINITIONS AND

Applicability CONSTRUCTION
PART 1100—GENERAL PROVISIONS Sec.

1101.1 Statutory definitions.
1101.2 Definitions applicable to this sub-
Sec.
chapter.
1100.1 Scope of rules.
1101.3 Construction.
1100.2 Applicability.
1100.3 Liberal construction. AUTHORITY: 49 U.S.C. 721.
1100.4 Information and inquiries. SOURCE: 47 FR 49548, Nov. 1, 1982, unless
AUTHORITY: 49 U.S.C. 721. otherwise noted.
SOURCE: 47 FR 49548, Nov. 1, 1982, unless § 1101.1 Statutory definitions.

otherwise noted.
The definitions contained in section
§ 1100.1 Scope of rules. 10102 of the Act (49 U.S.C. 10102) apply
in this chapter.
These rules govern practice and pro-
cedure before the Surface Transpor- § 1101.2 Definitions applicable to this
tation Board under title 49, subtitle IV subchapter.
of the United States Code (49 U.S.C.
(a) Act or Interstate Commerce Act
10101 et seq.). This subchapter will be means subtitle IV of title 49 of the
referred to as the ‘‘Rules of Practice’’. United States Code (49 U.S.C. 10101 et
seq.).
§ 1100.2 Applicability.
(b) Board means (1) the Surface
The rules in parts 1100–1129, Rules of Transportation Board and (2) any body
General Applicability, establish gen- or individual to which or to whom deci-
eral rules applicable to all types of pro- sion making authority is assigned by
ceedings. Other rules in this sub- the Board or the Chairman of the
chapter establish special rules applica- Board, including the Chairman, an-
ble to particular types of proceedings. other Board Member, employee board,
When there is a conflict or inconsist- an individual employee, an administra-
ency between a rule of general applica- tive law judge, or other hearing officer
bility and a special rule, the special entitled to act in a particular pro-
rule will govern. ceeding. See 49 CFR part 1011, Board
Organization; Delegations of Author-
[47 FR 49548, Nov. 1, 1982, as amended at 50 ity.
FR 30275, July 25, 1985] (c) Decision means any formal, pub-
lished action of the Board, including
§ 1100.3 Liberal construction.
orders and notices.
The rules will be construed liberally (d) Party means a complainant, de-
to secure just, speedy and inexpensive fendant, applicant, respondent, protes-
determination of the issues presented. tant, intervener, or petitioner in any
proceeding, or other persons permitted
§ 1100.4 Information and inquiries. or directed by the Board to participate
Persons with questions concerning in a proceeding. It will not include per-
these rules should either send a written sons merely signing certificates of sup-
inquiry addressed to the Secretary, port or witnesses at oral hearing or in
Surface Transportation Board or modified procedure proceedings, unless
should telephone the Secretary’s Of- they are otherwise a party to the pro-
fice. ceeding. Persons on the docket service
list merely for the purpose of receiving
[64 FR 53267, Oct. 1, 1999] copies of Board releases are not consid-
ered parties to the proceeding.
(e) Proceeding includes:
87
§ 1101.3 49 CFR Ch. X (10–1–07 Edition)
(1) An informal complaint filed under designate the docket number and title,
§§ 1130.1, or 1130.3 or a formal complaint if any. The person communicating
alleging violation of any provision of shall state his address, and the party
the Act or of any regulation or require- he represents.
ment made pursuant to a power grant- [47 FR 49548, Nov. 1, 1982]
ed by such Act, including petitions on
special dockets; § 1102.2 Ex parte communications pro-
(2) An application for (i) the granting hibited; penalties provided.
of any right, privilege, authority, or re- (a) Definitions. (1) ‘‘On-the-record pro-
lief under or from any provision of the ceeding’’ means any matter described
Act or of any regulation or require- in Sections 556–557 of the Administra-
ment made pursuant to a power grant- tive Procedure Act (5 U.S.C. 556–557) or
ed by such Act, or (ii) the consider- any matter required by the Constitu-
ation of any submission required by tion, statute, Board rule, or by decision
law to be made to the Board; in the particular case, that is decided
(3) An investigation instituted by the solely on the record made in a Board
Board; proceeding.
(4) A rulemaking proposal instituted (2) ‘‘Person who intercedes in any
by the Board; or proceeding’’ means any person, part-
(5) A petition for exemption filed
nership, corporation, or association,
under 49 U.S.C. 10502 requesting the
private or public, outside of the Board
Board to exempt from application all
which is neither a party nor party’s
or part of subtitle IV of title 49 of the
agent, that volunteers a communica-
United States Code any person, class of
tion that it has reason to know may
persons, transaction, or service related
advance or adversely affect the interest
to a rail carrier.
of a party or party’s agent in any pro-
[47 FR 49548, Nov. 1, 1982, as amended at 50 ceeding before the Board.
FR 30275, July 25, 1985; 64 FR 53267, Oct. 1, (3) Ex Parte communication con-
1999; 69 FR 58365, Sept. 30, 2004] cerning the merits means an oral or
written communication by or on the
§ 1101.3 Construction.
behalf of a party which is made with-
The rules of construction contained out the knowledge or consent of any
in chapter 1 of title 1 of the United other party that could or is intended to
States Code (1 U.S.C. 1 et seq.) apply in influence anyone who participates or
this chapter. Among other things, they could reasonably be expected to par-
provide that the singular includes the ticipate in the decision.
plural, and vice versa; that the mas- (b) Communications that are not pro-
culine includes the feminine; that the hibited. (1) Any communication to
word ‘‘person’’ includes corporations, which all the parties to the proceeding
associations, and the like; that ‘‘coun- agree, or on which the Board formally
ty’’ includes parish and similar sub- rules, may be made on an ex parte
divisions; and that ‘‘company’’ includes basis;
successors and assigns. (2) Any communication of facts or
contention which has general signifi-
PART 1102—COMMUNICATIONS cance for a regulated industry if the
communicator cannot reasonably be
Sec. expected to have known that the facts
1102.1 How addressed. or contentions are material to a sub-
1102.2 Ex parte communications prohibited; stantive issue in a pending on-the-
penalties provided.
record proceeding in which it is inter-
AUTHORITY: 49 U.S.C. 721. ested;
(3) Any communication by means of
§ 1102.1 How addressed. the news media that in the ordinary
All communications should be ad- course of business of the publisher is
dressed to the Secretary of the Board, intended to inform the general public,
Surface Transportation Board, Wash- members of the organization involved,
ington, DC 20423 unless otherwise spe- or subscribers to such publication with
cifically directed by another Board reg- respect to pending on-the-record pro-
ulation. All communications should ceedings.
88
(c) Prohibitions. (1) No party, counsel, the Secretary. The Designated Agency
agent of a party, or person who inter- Ethics Official shall promptly notify
cedes in any on-the-record proceeding the Chairman of all requests for rulings
shall engage in any ex parte commu- sent to the Designated Agency Ethics
nication concerning the merits of the Official. The Chairman may require
proceeding with any Board Member, that any communication be placed in
hearing officer, joint board member, the correspondence section of the dock-
employee board member or employee of et when fairness requires that it be
the Board who participates, or who made public, even if it is not a prohib-
may reasonably be expected to partici- ited communication. The Chairman
pate, in the decision in the proceeding. may direct the taking of such other ac-
(2) No Board Member, hearing officer, tion as may be appropriate under the
joint board member, employee board circumstances.
member or employee of the Board who (f) Sanctions. (1) The Board may cen-
participates, or is reasonably expected sure, suspend, or revoke the privilege
to participate, in the decision in an on- of practicing before the agency of any
the-record proceeding shall invite or person who knowingly and willfully en-
knowingly entertain any ex parte com- gages in or solicits prohibited ex parte
munication concerning the merits of a communication concerning the merits
proceeding or engage in any such com- of a proceeding.
munication to any party, counsel, (2) The relief or benefit sought by a
agent of a party, or person reasonably party to a proceeding may be denied if
expected to transmit the communica- the party, or his agent knowingly and
tion to a party or party’s agent. willfully violates the foregoing rules.
(d) When prohibitions take effect. The (3) The Board may censure, suspend,
prohibitions against ex parte commu- dismiss, or institute proceedings to
nications concerning the merits of a suspend or dismiss any Board employee
proceeding apply from the date on who knowingly and willfully violates
which a proceeding is noticed for oral the foregoing rules.
hearing or for the taking of evidence
[47 FR 49548, Nov. 1, 1982, as amended at 58
by modified procedure, or when the
FR 42027, Aug. 6, 1993]
person responsible for the communica-
tion has knowledge that the proceeding
will be so noticed, or at any time the PART 1103—PRACTITIONERS
Board, by rule or decision, specifies.
(e) Procedure required of Board mem- Subpart A—General Information
bers and employees upon receipt of ex Sec.
parte communications concerning the mer- 1103.1 Register of practitioners.
its of a proceeding. Any person who re- 1103.2 Attorneys-at-law—qualifications and
ceives an ex parte communication con- requirements to practice before the
cerning the merits of a proceeding Board.
must promptly transmit either the 1103.3 Persons not attorneys-at-law—quali-
written communication, or a written fications and requirements for practice
summary of the oral communication before the Board.
1103.4 Initial appearances.
with an outline of the surrounding cir-
1103.5 Discipline.
cumstances to the Secretary of the
Board. The Secretary shall place all of Subpart B—Canons of Ethics
the material in the correspondence sec-
tion of the public docket of the pro- 1103.10 Introduction.
ceeding. A recipient of such ex parte
THE PRACTITIONER’S DUTIES AND
communication, who has doubt as to RESPONSIBILITIES TOWARD THE BOARD
the nature of the communication, may
request a ruling on the question from 1103.11 Standards of ethical conduct in
the Board’s Designated Agency Ethics courts of the United States to be ob-
served.
Official. The Designated Agency Ethics 1103.12 The practitioner’s duty to and atti-
Official shall promptly reply to such tude toward the Board.
requests. The Secretary shall promptly 1103.13 Attempts to exert political or per-
notify the Chairman of the Board of sonal influence on the Board are prohib-
such ex parte communications sent to ited.
89
§ 1103.1 49 CFR Ch. X (10–1–07 Edition)
1103.14 Private communications with the § 1103.2 Attorneys-at-law—qualifica-
Board are prohibited. tions and requirements to practice
THE PRACTITIONER’S DUTIES AND
before the Board.
RESPONSIBILITIES TOWARD A CLIENT Any person who is a member in good
1103.15 The practitioner’s duty to clients, standing of the bar of the highest court
generally. of any State, Commonwealth, posses-
1103.16 Adverse influences and conflicting sion, territory, or the District of Co-
interests. lumbia may represent persons before
1103.17 Joint association of practitioners the Board.
and conflicts of opinion.
1103.18 Withdrawal from employment. § 1103.3 Persons not attorneys-at-law—
1103.19 Advising upon the merits of a cli- qualifications and requirements for
ent’s cause. practice before the Board.
1103.20 Practitioner’s fees and related prac-
tices. (a) In general. Any citizen or resident
1103.21 How far a practitioner may go in of the United States, not an attorney-
supporting a client’s cause. at-law, who files an application for ad-
1103.22 Restraining clients from impropri- mission to practice, accompanied by
eties. the payment of the fee prescribed by
1103.23 Confidences of a client. rule or order of the Board, and who
THE PRACTITIONER’S DUTIES AND RESPON- successfully completes the practi-
SIBILITIES REGARDING WITNESSES, OTHER tioners’ examination, and shows that
LITIGANTS AND THE PUBLIC applicant possesses the necessary legal
1103.24 Use of adverse witnesses.
and technical qualifications to enable
1103.25 Treatment of witnesses, litigants applicant to render valuable service be-
and other counsel. fore the Board and that applicant is
1103.26 Discussion of pending litigation in competent to advise and assist in the
the public press. presentation of matters before the
1103.27 Candor and fairness in dealing with Board, may be permitted to practice
other litigants. before the Board.
1103.28 Negotiations with opposing party. (b) Qualifications standards. A non-at-
1103.29 Public communication and solicita-
tion.
torney applicant for admission to prac-
1103.30 Acceptance of employment. tice must meet one of the following re-
1103.31 Responsibility for litigation. quirements:
1103.32 Discovery of imposition and decep- (1) An applicant must have completed
tion and duty to report corrupt or dis- 2 years (60 semester hours or 90 quarter
honest conduct. hours) of post secondary education and
1103.33 Responsibility when proposing a per- must possess technical knowledge,
son for admission to practice before the training or experience in the field of
Board.
1103.34 Intermediaries.
transportation which is regarded by
1103.35 Partnership or professional corpora- the Board as the equivalent of 2 addi-
tion names and titles. tional years of college education;
(2) An applicant must have worked in
AUTHORITY: 21 U.S.C. 862; 49 U.S.C. 703(e),
721.
the field of transportation for at least
10 years;
SOURCE: 47 FR 49549, Nov. 1, 1982, unless (3) An applicant must have received a
otherwise noted. bachelor’s degree with at least 12 se-
mester hours or 18 quarter hours in
Subpart A—General Information transportation or business; or
(4) An applicant must have received a
§ 1103.1 Register of practitioners. bachelor’s degree and worked in the
The Board maintains a register con- field of transportation for at least one
taining the names of all non-attorneys year. An applicant’s statement of col-
entitled to practice before it. The reg- lege education must be supported by a
ister is maintained according to the in- transcript of records attached to the
dividual non-attorney practitioner’s original application. Transcripts from
name and not by corporate or firm any college accredited by the U.S. De-
name. Corporations and firms are not partment of Education will be accepted
admitted or recognized as practitioners without question. With all other insti-
before the Board. tutions, the burden of proof is on the
90
applicant to establish that the formal their knowledge of applicant’s quali-

education satisfies the standards set fications. Upon consideration of this
forth above. The qualifications stand- material, if the Board is not satisfied
ards are intended as general guidelines. as to the adequacy of applicant’s quali-
Individual situations that vary from fications, the applicant will be notified
the standards will continue to be eval- by registered mail. Applicant may then
uated on their own merits. request a hearing to prove his quali-
(c)(1) Application for admission. An ap- fications. If applicant makes such a re-
plication filed pursuant to this rule quest, the Board will allow a hearing.
under oath for admission to practice In the absence of a request for a hear-
shall be submitted between January ing within 20 days after receipt of the
and May 1 of the year in which the ex- notice, the application will be consid-
amination is to be taken. The applica- ered withdrawn.
tion is to be completed in full on the (f) Scope of examination. If applicant
form provided by the Board, and shall meets the educational and experience
be addressed to the Secretary, Surface standards, and is found to be of good
Transportation Board, Washington, DC character, the applicant will be per-
20423, to the attention of the room mitted to take the examination. The
number indicated on the form. examination tests the applicant’s expe-
(2) Certification: All applicants must rience and knowledge of the principal
complete the following certification: regulations, laws, and economic prin-
ciples in the field of transportation as
I, lllll (Name) lllll, certify
under penalty of perjury under the laws of
well as knowledge of the Board’s Rules
the United States, that I have not been con- of Practice and Canons of Ethics.
victed, after September 1, 1989, of any Fed- (g) Time and place of examination. The
eral or State offense involving the distribu- examination will be conducted once a
tion or possession of a controlled substance, year on the second Tuesday in July.
or that if I have been so convicted, I am not Notice of the time and place to appear
ineligible to receive Federal Benefits, either for the examination will be mailed to
by court order or operation of law, pursuant qualifying applicants approximately 30
to 21 U.S.C. 853a.
days prior to the date of the examina-
(d) Application fee. Each application tion.
filed pursuant to this rule must be ac- (h) Location of examination. Examina-
companied by the non-refundable fee in tions will ordinarily be conducted in
the amount set forth in 49 CFR selected cities where Board offices are
1002.2(f)(100). Payment must be made located. A listing of the available sites
either by check, money order or credit will be attached to the application
card payable to the Surface Transpor- form. Applicants may select their pre-
tation Board. Cash payment will not be ferred examination site. If a group of
accepted. prospective applicants (three appli-
(e) Additional certification. (1) When cants or more) wishes to take the ex-
an application meets the required amination at a location not listed, a
standards, a copy will be referred to letter stating the preferred test site
the Association of Surface Transpor- should be included with the applica-
tation Board Practitioners for a report tion. The Board will make every effort
to the Board as to the reputation and to administer the test at the requested
character of the applicant. Inquiry also location.
will be made by the Board of the spon- (i) Cancellation of examination. If the
sors as to their knowledge of the appli- Board determines that there is an in-
cant’s legal and technical qualifica- sufficient number of applicants to war-
tions as contemplated by the Board’s rant conducting the examination, the
Rules of Practice. If the Board is satis- Board will cancel the examination for
fied as to the applicant’s qualifica- that year. Notice of the cancellation
tions, reputation and character, then will be mailed to applicants on or be-
applicant will be considered eligible to fore June 15 and the application fee
take the examination. will be refunded. The Board will con-
(2) The Board may require an appli- duct the examination the next year fol-
cant’s sponsors to provide a detailed lowing the cancellation of the exam-
statement of the nature and extent of ination.
91
§ 1103.4 49 CFR Ch. X (10–1–07 Edition)
(j) Examination results. Results will be Board until applicant shall subscribe to
released within 90 days after the exam- an oath or affirmation that applicant
ination. Individual results will be for- will conduct practice uprightly and ac-
warded to the applicants at least 1 cording to the law, as a practitioner
week before being publicly released. To before the Board, and that applicant
protect the privacy of those taking the will support the Constitution of the
examination, individual grades will not United States and laws of the United
be released over the telephone to any- States and will conform to the rules
one. Requests for grades may, however, and regulations of the Board.
be submitted in writing to the Office of [47 FR 49549, Nov. 1, 1982, as amended at 49
the Secretary to the attention of the FR 38614, Oct. 1, 1984; 52 FR 46483, Dec. 8, 1987;
address stated in the application form. 54 FR 48250, Nov. 22, 1989; 56 FR 1374, Jan. 14,
(k) Failure to appear for examination. 1991; 64 FR 53267, Oct. 1, 1999]
Applicants who have failed to appear
for, or postponed taking an examina- § 1103.4 Initial appearances.
tion, a total of three times without Practitioners shall file a declaration
showing good cause will have any sub- that they are authorized to represent
sequently filed application returned. the particular party on whose behalf
(l) Failing or postponing the examina- they appear at the time of making an
tion. Applicants who fail the examina- initial appearance, in all proceedings.
tion may reapply by submitting a re- This requirement can be met by:
quest in writing with an additional fil- (a) Entering the practitioner’s name
ing fee in the amount set forth in 49 as the representative of an applicant in
CFR 1002.2(f)(100). Applicants who post- the appropriate space on an application
pone taking the examination three form;
times without showing good cause will (b) Signing any complaint, petition,
have their applications returned. protest, reply or other pleading with a
(m) The filing fee in the amount set designation following the practi-
forth in 49 CFR 1002.2(f)(100) is not re- tioner’s signature that he is the rep-
fundable. resentative of a party;
(n) Any application resubmitted to (c) Entering an appearance at any
the Board after being returned must be hearing on the form provided; or
accompanied by a filing fee in the (d) Filing a letter with the Secretary
amount set forth in 49 CFR of the Board stating that practitioner
1002.2(f)(100). is authorized to represent a party. The
(o) Content and grading of examina- party represented, their address, and
tion. The Employee Board on Education the docket number of the proceeding
and Practice is responsible, under the must also be identified at the time of
general supervision of the Vice-Chair- the initial appearance.
man, for the examination of non-attor-
ney applicants, for the preparation of § 1103.5 Discipline.
examination questions, and for grading (a) A member of the Board’s bar may
examinations. The Board consists of be subject to suspension, disbarment,
two attorneys and one non-attorney or other disciplinary action if it is
appointed by the Chairman with the shown that the practitioner:
approval of the Board. Under the super- (1) Has been suspended or disbarred
vision of this Board, a seven-member from practice in any court of record;
Committee of Examiners will grade the (2) Violated any of the Board’s rules
examination questions. The members including the Canons of Ethics set out
of this Committee must have at least 2 in §§ 1103.10 through 1103.35; or
years experience with the Board and (3) Engaged in conduct unbecoming a
are appointed for a 2 year term by the member of the bar of the Board.
Chairman, with the approval of the (b) The practitioner will be afforded
Board. Members may be reappointed an opportunity to show why he should
and, to the extent possible, no more not be suspended, disbarred, or other-
than three members of the Committee wise disciplined. Upon the practi-
will be replaced at one time. tioner’s timely response to the show
(p) Applicant’s oath. No applicant cause order after any requested hear-
shall be admitted to practice before the ing, or upon failure to make a timely
92
response to the show cause order, the Court, and practitioners should regard
Board shall issue an appropriate deci- themselves as officers of that Court
sion. and uphold its honor and dignity.
(b) It is the right and duty of the
Subpart B—Canons of Ethics practitioner to submit grievances
about a member or employee of the
§ 1103.10 Introduction. Board to the proper authorities when
The following canons of ethics are proper grounds for complaint exists. In
adopted as a general guide for those ad- such cases, charges should be encour-
aged and the person making them
mitted to practice before the Surface
should be protected.
Transportation Board. The practi-
(c) It is the duty of the practitioner
tioners before the Board include (a)
to be punctual in attendance, and to be
lawyers, who have been regularly ad-
concise and direct in the trial and dis-
mitted to practice law and (b) others
position of causes.
who have fulfilled the requirements set
forth in § 1103.3. The former are bound § 1103.13 Attempts to exert political or
by a broad code of ethics and unwritten personal influence on the Board are
rules of professional conduct which prohibited.
apply to every activity of a lawyer. (a) It is unethical for a practitioner
The canons do not release the lawyer to attempt to influence the judgment
from any of the duties or principles of of the Board by threats of political or
professional conduct by which lawyers personal reprisal.
are bound. They apply similarly to all (b) Marked attention and unusual
practitioners before the Board, but do hospitality on the part of a practi-
not negate the applicability of other tioner to a Board Member, administra-
ethical codes. The canons are organized tive law judge, or other representative
under three headings, The Practi- of the Board, which is unwarranted by
tioner’s Duties and Responsibilities to the personal relationship of the par-
the Board, The Practitioner’s Duties ties, is subject to misconstruction of
and Responsibilities to the Client, The motive and should be avoided.
Practitioner’s Duties and Responsibil-
ities to Other Litigants, Witnesses and § 1103.14 Private communications with
the Public. the Board are prohibited.
To the extent that the Board acts in
THE PRACTITIONER’S DUTIES AND a quasi-judicial capacity, it is improper
RESPONSIBILITIES TOWARD THE BOARD for litigants, directly or through any
counsel or representative, to commu-
§ 1103.11 Standards of ethical conduct
in courts of the United States to be nicate privately with a Board Member,
observed. administrative law judge, or other rep-
resentative of the Board about a pend-
These canons further the purpose of ing case, or to argue privately the mer-
the Board’s Rules of Practice which di- its thereof in the absence of the adver-
rect all persons appearing in pro- saries or without notice to them. Prac-
ceedings before it to conform, as nearly titioners at all times shall scru-
as possible, to the standards of ethical pulously refrain from going beyond ex
conduct required of practice before the parte representations which are clearly
courts of the United States. Such proper in view of the administrative
standards are taken as the basis for work of the Board in their communica-
these specifications and are modified tion with the Board and its staff.
as the nature of the practice before the
Board requires. THE PRACTITIONER’S DUTIES AND
RESPONSIBILITIES TOWARD A CLIENT
§ 1103.12 The practitioner’s duty to
and attitude toward the Board. § 1103.15 The practitioner’s duty to cli-
(a) It is the duty of the practitioner ents, generally.
to maintain a respectful attitude to- The practitioner shall be respectful
ward the Board and for the importance of the law and its official ministers,
of the functions it administers. In and shall not be involved in corruption
many respects the Board functions as a of public officials or deception of the
93
§ 1103.16 49 CFR Ch. X (10–1–07 Edition)
public. In giving improper service or practicable for the practitioner whose

advice, the practitioner invites and de- judgment has been overruled to cooper-
serves stern condemnation. The practi- ate effectively. In that event, it is the
tioner shall observe and advise all cli- practitioner’s duty to ask the client to
ents to observe the statutory law to relieve him of his obligation.
the best of his knowledge or as inter- (c) It is the right of any practitioner
preted by competent adjudication. The to give proper advice to those seeking
practitioner owes a general duty to relief against an unfaithful or neglect-
practice candor toward his client with ful practitioner. The practitioner
respect to all aspects to his service to against whom the complaint is made
the client.
should be notified of such action.
§ 1103.16 Adverse influences and con-
flicting interests. § 1103.18 Withdrawal from employ-
ment.
(a) At the time of the retainer, the
practitioner shall disclose to the client The right of a practitioner to with-
all circumstances of his relations to draw from employment, once begun,
the parties, and any interest in or con- arises only from good cause. The desire
nection with the case. or consent of the client is not always
(b) It is unethical for a practitioner sufficient cause for withdrawal. The
to represent conflicting interests, ex- practitioner shall not abandon the un-
cept by express consent of all con- finished task to the detriment of the
cerned given after a full disclosure of client except for reasons of honor, or
the facts. Within the meaning of this the client’s persistence over the practi-
section, a practitioner represents con- tioner’s remonstrance in presenting
flicting interest, when on behalf of one frivolous defenses, or the client’s delib-
client, it is his duty to contend for that erate disregard of an obligation as to
which duty to another client requires fees or expenses. In these cases, the
him to oppose. practitioner may be warranted in with-
(c) The obligation to represent the drawing after due notice to the client
client with undivided fidelity and not with time allowed for the employment
to divulge secrets or confidence forbids of another practitioner. Other reasons
also the subsequent acceptance of re-
for withdrawal might include instances
tainers or employment from others in
in which a practitioner discovers that
matters adversely affecting any inter-
his client has no cause and the client is
est of the client with respect to which
confidence has been reposed. determined to continue the cause, or
the practitioner’s own inability to con-
§ 1103.17 Joint association of practi- duct a case effectively. Upon with-
tioners and conflicts of opinion. drawing from a case, the practitioner
(a) A client’s offer of the assistance shall refund any part of a retainer
of an additional practitioner should which clearly has not been earned.
not be regarded as evidence of lack of
confidence, but the matter should be § 1103.19 Advising upon the merits of a
left to the determination of the client. client’s cause.
A practitioner shall decline association A practitioner shall try to obtain full
as colleague if it is objectionable to the knowledge of his client’s cause before
practitioner first retained, but if the advising thereon. The practitioner
client should relieve the practitioner shall give a candid opinion of the mer-
first retained, another may come into its and probable result of bringing the
the case. case or of any related pending or con-
(b) When practitioners jointly associ- templated litigation. The practitioner
ated in a case cannot agree as to any shall beware of bold and confident as-
matter vital to the interest of the cli- surances to clients, especially where
ent the conflict of opinion should be employment may depend upon such as-
frankly stated to the client for final
surances. Whenever a fair settlement
determination. The client’s decision
can be reached, the client shall be ad-
should be accepted by them unless the
nature of the difference makes it im- vised to avoid or to end litigation.
94
§ 1103.20 Practitioner’s fees and re- practitioner shall pay or bear the ex-
lated practices. penses of litigation. He may in good
(a) Establishing fees. In establishing faith advance expenses as a matter of
fees, a practitioner shall avoid charges convenience but must do so subject to
which overestimate the value of his ad- reimbursement by the client. A practi-
vice and services. A client’s ability to tioner shall bill and collect from a cli-
pay cannot justify a charge in excess of ent, and thereafter retain only such
the value of the service although a cli- payments and reimbursements for ex-
ent’s poverty may require a lesser penses as have actually been incurred
charge or even no charge at all. Pub- in behalf of the client.
licly quoted fees should be adhered to (h) Witnesses’ compensation. Com-
when actual charges are made. Practi- pensation of a witness is not to be
tioners are bound to charge no more made contingent on the success of a
than the quoted rates for 30 days fol- case in which the witness is called.
lowing the date of their quotations un- (i) Dealing with trust property. Money
less a different period of time for the of the client or other trust property
effectiveness of such rates is clearly coming into the possession of the prac-
specified when quoted, or unless per- titioner should be reported promptly,
mission to charge a higher rate is ob- and, except with the client’s knowledge
tained from the Vice Chairman of the and consent, should not be commingled
Board. with the practitioner’s private prop-
(b) Compensation, Boards and rebates. erty or be put to the practitioner’s pri-
A practitioner shall accept no com- vate use.
pensation, Boards, rebates or other ad-
vantages from the parties in a pro- § 1103.21 How far a practitioner may
go in supporting a client’s cause.
ceeding other than his client without
the knowledge and consent of his client A practitioner shall put forth his
after full disclosure. best effort to maintain and defend the
(c) Contingent fees. Contingent fees rights of his client. Fear of disfavor of
should be only those sanctioned by law. the Board or public unpopularity
In no case, except a charity case, should not cause a practitioner to re-
should fees be entirely contingent upon frain from the full discharge of his
success. duty. The client is entitled to the ben-
(d) Division of fees. Fees for services efit of any and every remedy and de-
should be divided only with another fense authorized by law. The client
member of the bar of practitioners and may expect his counsel to assert every
should be based upon a division of serv- such remedy or defense. However, the
ice or responsibility. It is unethical for practitioner shall act within the
a practitioner to retain laymen to so- bounds of the law. A practitioner shall
licit his employment in pending or pro- not violate the law or be involved in
spective cases, and to reward them by any manner of fraud or chicanery for
a share of the fees. Such a practice can- any client.
not be too severely condemned.
(e) Suing clients for fees. Controversies § 1103.22 Restraining clients from im-
proprieties.
with clients concerning compensation
are to be entered into only insofar as A practitioner should see that his cli-
they are compatible with self-respect ents act with the same restraint that
and with the right to receive reason- the practitioner himself uses, particu-
able compensation for services. Law- larly with reference to the client’s con-
suits against clients should be resorted duct toward the Board, fellow practi-
to only to prevent injustice, imposition tioners, witnesses and other litigants.
or fraud. If a client persists in improper conduct,
(f) Acquiring interest in litigation. The the practitioner should terminate their
practitioner shall not purchase or oth- relationship.
erwise acquire any pecuniary interest
in the subject matter of litigation § 1103.23 Confidences of a client.
which the practitioner is conducting. (a) The practitioner’s duty to pre-
(g) Expenses. A practitioner may not serve his client’s confidence outlasts
properly agree with a client that the the practitioner’s employment by the
95
§ 1103.24 49 CFR Ch. X (10–1–07 Edition)
client, and this duty extends to the culiarities or idiosyncracies of practi-

practitioner’s employees as well. Nei- tioners on the other side, or otherwise
ther practitioner nor his employees engage in personal abuse of other prac-
shall accept employment which in- titioners.
volves the disclosure or use of a cli-
ent’s confidences without knowledge § 1103.26 Discussion of pending litiga-
and consent of the client even though tion in the public press.
there are other available sources of in- Attempts to influence the action and
formation. A practitioner shall not attitude of the members and adminis-
continue employment when he dis- trative law judges of the Board through
covers that this obligation presents a propaganda or through colored or dis-
conflict in his duty between the former torted articles in the public press,
and the new client. should be avoided. However, it is not
(b) If a practitioner is falsely accused against the public interest or unfair to
by his client, he is not precluded from the Board if the facts of pending litiga-
disclosing the truth in respect to the tion are made known to the public
false accusation. The announced inten- through the press in a fair and unbi-
tion of a client to commit a crime is ased manner and in dispassionate
not included in the confidence which a terms. When the circumstances of a
practitioner is bound to respect. The particular case appear to justify a
practitioner may properly make such statement to the public through the
disclosures to prevent the act or pro- press, it is unethical to make it anony-
tect those against whom that is threat- mously.
ened.
§ 1103.27 Candor and fairness in deal-
THE PRACTITIONER’S DUTIES AND RE- ing with other litigants.
SPONSIBILITIES REGARDING WIT-
NESSES, OTHER LITIGANTS AND THE (a) The conduct of practitioners be-
PUBLIC fore the Board and with other practi-
tioners should be characterized by can-
§ 1103.24 Use of adverse witnesses. dor and fairness. The practitioner shall
A practitioner shall not be deterred observe scrupulously the principles of
from seeking information from a wit- fair dealing and just consideration for
ness connected with or reputed to be the rights of others.
biased in favor of an adverse party, if (b) It is not candid or fair for a prac-
the ascertainment of the truth requires titioner knowingly to misstate or mis-
that such a person be called as a wit- quote the contents of a paper, the tes-
ness in a proceeding. timony of a witness, the language or
the argument of an opposing practi-
§ 1103.25 Treatment of witnesses, liti- tioner, or the language or effect of a
gants and other counsel. decision or a text book; or, with knowl-
(a) A practitioner shall always treat edge of its invalidity to cite as author-
adverse witnesses and other litigants ity a decision which has been overruled
with fairness and due consideration. He or otherwise impaired as a precedent or
should never minister to the prejudice a statute which has been repealed; or
of a client in a trial or conduct in a in argument to assert as a fact that
cause. The client has no right to de- which has not been proved, or to mis-
mand that the practitioner rep- lead his opponent by concealing or
resenting him abuse the opposing party withholding positions in his opening
or indulge in offensive personal at- argument upon which his side then in-
tacks. tends to rely.
(b) A practitioner shall not attempt (c) It is dishonorable to deal other
to obstruct Board investigations or than candidly with the facts in taking
corruptly to influence witnesses and the statements of witnesses, in drawing
potential witnesses during an inves- affidavits and other documents, and in
tigation. the presentation of cases.
(c) In conducting a case it is im- (d) A practitioner shall not offer evi-
proper for a practitioner to allude to dence which he knows the Board should
the personal history or the personal pe- reject, in order to get the same before
96
the Board by argument for its admissi- statements of fee information which
bility, or arguments upon any point are not complete and accurate;
not properly calling for determination. (3) Statements containing informa-
He shall not introduce into an argu- tion on past performance or prediction
ment remarks or statements intended of future success;
to influence the bystanders. (4) Statements of prior Board em-
(e) A practitioner shall rely on his ployment outside the context of bio-
judgment concerning matters inci- graphical information; statements con-
dental to the trial which may, in some taining a testimonial about or endorse-
cases, affect the proceeding. For exam- ment of a practitioner;
ple, a practitioner should not force a (5) Statements containing an opinion
matter to trial when there is affliction as to the quality of a practitioner’s
or bereavement on the part of the op- services, or statements intended or
posing practitioner if no harm will likely to attract clients by the use of
come from postponing the proceeding. showmanship, puffery, or self-lauda-
(f) A practitioner shall not ignore tion, including the use of slogans, jin-
known customs or practice of the gles, or sensational language or for-
Board, even when the law permits, mat.
without giving timely notice to the op- (b) A practitioner shall not solicit a
posing practitioner. potential client who has given the
(g) Insofar as is possible, important practitioner adequate notice that he
agreements affecting the rights of the does not want to receive communica-
clients should be made in writing. It is, tions from the practitioner, nor shall a
however, dishonorable to avoid per- practitioner make a solicitation which
formance of an agreement fairly made involves the use of undue influence.
only because it is not made in writing. (c) A practitioner shall not solicit a
potential client who is apparently in a
§ 1103.28 Negotiations with opposing physical or mental condition which
party. would make it unlikely that he could
A practitioner shall not in any way exercise reasonable, considered judg-
communicate upon the subject of con- ment as to the selection of a practi-
troversy with a party represented by tioner.
another practitioner except upon ex- (d) A practitioner shall not pay or
press agreement with the practitioner otherwise assist any other person who
representing such party. He shall not is not also a practitioner and a member
negotiate or make compromises with or associate of the same firm to solicit
the other party, but shall deal only employment for the practitioner.
with the opposing practitioner. The (e) If a public communication is to be
practitioner shall avoid everything made through use of radio or tele-
that may tend to mislead a party not vision, it must be prerecorded and ap-
represented by a practitioner and proved for broadcast by the practi-
should not advise that party as to the tioner. A recording of the actual trans-
law. mission must be retained by the practi-
tioner for a period of 1 year after the
§ 1103.29 Public communication and date of the final transmission.
solicitation. (f) A paid advertisement must be
(a) A practitioner shall not make any identified as such unless it is apparent
public communication or solicitation from the context that it is a paid ad-
for employment containing a false, vertisement.
fraudulent, misleading, or deceptive (g) A practitioner shall not com-
statement or claim. This prohibition pensate or give anything of value to a
includes, but is not limited to: representative of any communication
(1) The use of statements containing medium in anticipation of or in return
a material misrepresentation of fact or for professional publicity in a news
omission of a material fact necessary item.
to keep the statement from being mis-
leading; § 1103.30 Acceptance of employment.
(2) Statements intended or likely to (a) The practitioner must decline to
create an unjustifiable expectation; conduct a case or to make a defense
97
§ 1103.31 49 CFR Ch. X (10–1–07 Edition)
when convinced that it is intended § 1103.33 Responsibility when pro-

merely to harass or to injure the opposing a person for admission to
posing party, or to work oppression or practice before the Board.
wrong. Otherwise, it is the practi- The practitioner shall aid in guard-
tioner’s right, and having accepted re- ing the bar of the Board against admis-
tainer, it becomes the practitioner’s sion of candidates unfit or unqualified
duty, to insist upon the judgment of because deficient in either moral char-
the Board as to the merits of the cli- acter or qualification. A practitioner
ent’s claim. The practitioner’s accept- shall propose no person for admission
ance of a case is equivalent to the as- to practice before the Board unless
sertion that the client’s case is proper from personal knowledge or after rea-
for determination. sonable inquiry he sincerely believes
and is able to vouch that such person
(b) No practitioner is obliged to act
possesses the qualifications prescribed
either as adviser or advocate for every in § 1103.3.
potential client. The practitioner has
the right to decline employment. Every § 1103.34 Intermediaries.
practitioner shall decide what employ- (a) The services of a practitioner
ment he will accept, what cases he will should not be controlled or exploited
bring before the Board for complain- by any lay agency, personal or cor-
ants, or contest for defendants or re- porate, which intervenes between cli-
spondents. ent and practitioner. The responsi-
bility and qualifications of the practi-
§ 1103.31 Responsibility for litigation. tioner are individual. The practitioner
The practitioner bears the responsi- shall avoid all relations which direct
bility for advising as to questionable the performance of his duties in the in-
transactions, bringing questionable terest of such intermediaries. The prac-
proceedings, or urging questionable de- titioner’s relationship and responsi-
fenses. Client’s instructions cannot be bility to the client should be direct.
used as an excuse for questionable (b) The practitioner may accept em-
practices. ployment from any organization (such
as an association, club or trade organi-
§ 1103.32 Discovery of imposition and zation) authorized by law to be a party
deception and duty to report cor- to proceedings before the Board, to
rupt or dishonest conduct. render services in such proceedings in
any matter in which the organization,
(a) The practitioner, upon detecting as an entity, is interested. This em-
fraud or deception practiced against ployment should only include the ren-
the Board or a party in a case, shall dering of such services to the members
make every effort to rectify the prac- of the organization in respect to the in-
tice by advising his client to forgo any dividual affairs as are consistent with
unjustly earned advantage. If such ad- the free and faithful performance of his
vice is refused, the practitioner should duties to the Board.
inform the injured party or that par- (c) Nothing in this canon shall be
ty’s practitioner so that appropriate construed as conflicting with
steps may be taken. § 1103.20(d).
(b) Practitioners shall expose with-
out fear or favor before the proper tri- § 1103.35 Partnership or professional
corporation names and titles.
bunals any corrupt or dishonest con-
duct and should accept without hesi- In the formation of a partnership or
tation employment against a practi- professional corporation among practi-
tioner who has wronged his client. The tioners care should be taken to avoid
practitioner upon the trial of a case in any misleading name or representation
which would create a false impression
which perjury has been committed
as to the position or privileges of a
owes it to the Board and to the public
member not duly authorized to prac-
to bring the matter to the knowledge
tice. No person should be held as a
of the prosecuting authorities. practitioner who is not duly qualified
under § 1103.2 or § 1103.3 of these rules.
98
No person who is not duly admitted to beled ‘‘volume 1 of 4,’’ the second vol-
practice should be held out in a way ume ‘‘volume 2 of 4’’ and so forth).
which will give the impression that he (e) Persons filing pleadings and docu-
is so admitted. No false or assumed or ments with the Board have the option
trade name should be used to disguise of electronically filing (e-filing) cer-
the practitioner or his partnership or tain types of pleadings and documents
professional corporation. instead of filing paper copies. Details
regarding the types of pleadings and
PART 1104—FILING WITH THE documents eligible for e-filing, the pro-
BOARD-COPIES-VERIFICATION- cedures to be followed, and other perti-
SERVICE-PLEADINGS, GEN- nent information are available on the
ERALLY Board’s Web site, http://www.stb.dot.gov.
If the e-filing option is chosen (for
Sec. those pleadings and documents that
1104.1 Address, identification, and elec- are appropriate for e-filing, as deter-
tronic filing option.
mined by reference to the information
1104.2 Document specifications.
1104.3 Copies. on the Board’s Web site), then the ap-
1104.4 Attestation and verification. plicable requirements will be those
1104.5 Affirmation or delegations under pen- specified on the Web site, and any re-
alty of perjury in accordance with 18 quirements of 49 CFR part 1104 that are
U.S.C. 1621 in lieu of oath. specifically applicable to filing of paper
1104.6 Timely filing required.
1104.7 Computation and extension of time. copies will not apply to the e-filed
1104.8 Objectionable matter. pleadings and documents (these re-
1104.9 [Reserved] quirements include, but are not limited
1104.10 Rejection of a deficient document. to, number of copies, stapling or bind-
1104.11 Amendments. ing specifications, submission of com-
1104.12 Service of pleadings and papers.
pact disks or floppy diskettes for docu-
1104.13 Replies and motions.
1104.14 Protective orders to maintain con- ments of 20 pages or more, signature
fidentiality. ‘‘in ink,’’ etc.). Persons are not re-
1104.15 Certification of eligibility for Fed- quired to e-file, and may continue to
eral benefits under 21 U.S.C. 862. use the Board’s processes for filing
AUTHORITY: 5 U.S.C. 553 and 559; 18 U.S.C. paper copies.
1621; 21 U.S.C. 862; and 49 U.S.C. 721.
SOURCE: 47 FR 49554, Nov. 1, 1982, unless FR 34475, July 29, 1983; 53 FR 20854, June 7,
otherwise noted. 1988; 61 FR 52711, Oct. 8, 1996; 69 FR 18498,
Apr. 8, 2004]
§ 1104.1 Address, identification, and
electronic filing option. § 1104.2 Document specifications.
(a) Except as provided in § 1115.7, (a) Documents, except electronic fil-
pleadings should be addressed to the
ings, filed with the Board must be on
‘‘Secretary, Surface Transportation
white paper not larger than 81⁄2 by 11
Board, Washington, DC 20423,’’ and
inches, including any tables, charts, or
should designate the docket number
and title of the proceeding, if known. other documents that may be included.
(b) The address of the person filing Ink must be dark enough to provide
the pleading should be included on the substantial contrast for scanning and
first page of the pleading. photographic reproduction. Text must
(c) All envelopes in which a pleading be double-spaced (except for footnotes
is being submitted should be marked in and long quotations, which may be sin-
the lower left hand corner with the gle-spaced), using type not smaller
docket number, if known, (not the full than 12 point. Printing may appear
title) and the pleading type. only on one side of the paper for origi-
(d) All multi-volume pleadings must nal documents, but copies of filings
be sequentially numbered on the cover may be printed on both sides of the
of each volume to indicate the volume paper.
number of the pleading and the total (b) In order to facilitate automated
number of volumes filed (e.g., the first processing in document sheet feeders,
volume in a 4-volume set should be la- original documents of more than one
99
§ 1104.3 49 CFR Ch. X (10–1–07 Edition)
page may not be bound in any perma- § 1104.3 Copies.

nent form (no metal, plastic, or adhe- (a) An executed original, plus 10 cop-
sive staples or binders) but must be ies, of every paper pleading, document,
held together with removable metal or paper permitted or required to be
clips or similar retainers. Original doc- filed under this subchapter, including
uments may not include divider tabs, correspondence, must be furnished for
but copies must if workpapers or ex- the use of the Board, unless otherwise
pert witness testimony are submitted. specifically directed by another Board
All pages of original documents, and regulation or notice in an individual
each side of pages that are printed on proceeding. Copies may be reproduced
both sides, must be paginated continu- by any duplicating process, provided
ously, including cover letters and at- all copies are clear and legible. Appro-
tachments. Where, as a result of assem- priate notes or other indications shall
bly processes, such pagination is im- be used so that matters shown in color
practical, documents may be numbered on the original, but in black and white
within the logical sequences of vol- on the copies, will be accurately identi-
umes or sections that make up the fil- fied on all copies.
ing and need not be renumbered to (b) Electronic submissions accom-
maintain a single numbering sequence panying paper filings must be furnished
throughout the entire filing. as follows:
(c) Some filings or portions of filings (1) Textual submissions of 20 or more
will not conform to the standard paper pages must be accompanied by three
specifications set forth in paragraph (a) electronic copies submitted on com-
of this section and may not be scan- pact discs or 3.5-inch IBM-compatible
nable. For example, electronic spread- formatted floppy diskettes.
sheets are not susceptible to scanning, (2) Three sets of evidence or
but oversized documents, such as over- workpapers consisting of mathematical
sized maps and blueprints, may or may computations must be submitted as
not be scannable. Filings that are not functioning electronic spreadsheets in
scannable will be referenced on-line Lotus 1–2–3 Release 9 or Microsoft
and made available to the public at the Excel 97, or compatible versions, on
Board’s offices. If parties file oversized compact discs or 3.5-inch IBM-compat-
paper documents, they are encouraged ible formatted floppy diskettes. In
to file, in addition to the oversized doc- order to fully evaluate evidence, all
uments, representations of them that spreadsheets must be fully accessible
fit on the standard paper, either and manipulable. Electronic databases
through reductions in size that do not placed in evidence or offered as support
for spreadsheet calculations must be
undermine legibility, or through divi-
compatible with the Microsoft Open
sion of the oversized whole into mul-
Database Connectivity (ODBC) stand-
tiple sequential pages. The standard
ard. ODBC is a Windows technology
paper representations must be identi-
that allows a database software pack-
fied and placed immediately behind the
age to import data from a database cre-
oversized documents they represent.
ated using a different software pack-
(d) Color printing may not be used
age. We currently use Microsoft Access
for textual submissions. Use of color in
97 and databases submitted should be
filings is limited to images such as
in either this format or another ODBC-
graphs, maps and photographs. To fa-
compatible format. All databases must
cilitate automated processing of color
be supported with adequate docu-
pages, color pages may not be inserted
mentation on data attributes, SQL
among pages containing text, but may
queries, programmed reports, and so
be filed only as appendices or attach-
forth.
ments to filings. Also, the original of (3) One copy of each diskette or com-
any filing that includes color images pact disc submitted to the Board
must bear an obvious notation, on the should, if possible, be provided to any
cover sheet, that the filing contains other party requesting a copy.
color. (4) Each diskette and compact disc
[67 FR 5514, Feb. 6, 2002, as amended at 69 FR must be clearly labeled with the Dock-
18499, Apr. 8, 2004] et Number of the proceeding in which
100
it is filed; the name(s) of the party(ies) (b) Whenever any rule of this Board
on whose behalf the filing is made, and requires or permits matter to be sup-
‘‘CONFIDENTIAL’’ or ‘‘REDACTED’’ ported, evidenced, established, or
as appropriate. If more than one disk- proved by sworn declaration,
ette or disc is submitted for one filing, verification, certificate, statement,
the label of each must be sequentially oath, or affidavit, in writing of the per-
numbered to indicate the diskette or son making the same (other than a
disc number and the total number of deposition, oath of office, or an oath
diskettes or discs filed (e.g., the first required to be taken before a special
disc of a 4-disc set should be labeled official other than a notary public),
‘‘Disc 1 of 4,’’ the second disc ‘‘Disc 2 of such matter may, with like force and
4,’’ and so forth). effect, be supported, evidenced, estab-
[67 FR 5515, Feb. 6, 2002, as amended at 69 FR
lished, or proven by the unsworn dec-
18499, Apr. 8, 2004] laration, certificate, verification, or
statement, in writing of such person
§ 1104.4 Attestation and verification. which is subscribed by him, as true
(a) Signature of attorney or practi- under penalty of perjury and dated, in
tioner. If a party is represented by a the following form:
practitioner or an attorney, the origi- I llllllllllllll, declare (cer-
nal of each paper filed should be signed tify, verify, or state) under penalty of
in ink by the practitioner or attorney, perjury (‘‘under the laws of the United
whose address should be stated. The States,’’ if executed outside of the United
States) that the foregoing is true and
signature of a practitioner or attorney
correct. Further, I certify that I am
constitutes a certification that the rep- qualified and authorized to file this
resentative: (specify type of document). Executed on
(1) Has read the pleading, document (date).
or paper; Signature
(2) Is authorized to file it;
(3) Believes that there is good ground (c) Knowing and willful
for the document; misstatements or omissions of mate-
(4) Has not interposed the document rial facts constitute federal criminal
for delay; violations punishable under 18 U.S.C.
1001 by imprisonment up to 5 years and
A pleading, document or paper thus
fines up to $10,000 for each offense. Ad-
signed need not be verified or accom-
ditionally, these misstatements are
panied by affidavit unless required
punishable as perjury under 18 U.S.C.
elsewhere in these rules.
1621 which provides for fines up to
(b) Signature by one not authorized to
$2,000 or imprisonment up to 5 years for
represent others before the Board. The
each offense.
original of each document not signed
by a practitioner or attorney must be: [47 FR 49554, Nov. 1, 1982, as amended at 61
(1) Signed in ink; FR 52711, Oct. 8, 1996]
(2) Accompanied by the signer’s ad-
dress; and § 1104.6 Timely filing required.
(3) Verified, if it contains allegations Documents must be received for fil-
of fact, under oath by the person, in ing at the Board’s offices in Wash-
whose behalf it is filed, or by a duly au- ington, DC within the time limits set
thorized officer of the corporation in for filing. The date of receipt at the
whose behalf it is filed. If the pleading Board, and not the date of deposit in
is a complaint, at least one complain- the mail, determines the timeliness of
ant must sign and verify the pleading. filing. However, if a document is
mailed by United States express mail,
FR 52711, Oct. 8, 1996] postmarked at least one day prior to
the due date, it will be accepted as
§ 1104.5 Affirmation or declarations timely. Other express mail, received by
under penalty of perjury in accord- the private express mail carrier at
ance with 18 U.S.C. 1621 in lieu of least one day prior to the due date,
oath. also will be accepted as timely filed.
(a) An affirmation will be accepted in The term express mail means that the
lieu of an oath. carrier or delivery service offers next
101
§ 1104.7 49 CFR Ch. X (10–1–07 Edition)
day delivery to Washington, DC. If the § 1104.8 Objectionable matter.

e-filing option is chosen (for those The Board may order that any redun-
pleadings and documents that are ap- dant, irrelevant, immaterial, imper-
propriate for e-filing, as determined by tinent, or scandalous matter be strick-
reference to the information on the en from any document.
Board’s Web site), then the e-filed
pleading or document is timely filed if [47 FR 49554, Nov. 1, 1982, as amended at 61
FR 52711, Oct. 8, 1996]
the e-filing process is completed before
5 p.m. eastern time on the due date. § 1104.9 [Reserved]
FR 52711, Oct. 8, 1996; 69 FR 18499, Apr. 8,
§ 1104.10 Rejection of a deficient docu-
ment.
2004]
(a) The Board may reject a docu-
§ 1104.7 Computation and extension of ment, submitted for filing if the Board
time. finds that the document does not com-
(a) Computation. In computing any ply with the rules.
period of time, the day of the act, (b) The Board may either return the
event, or default upon which the des- material unfiled or tentatively accept
the material for filing and advise the
ignated period of time begins to run is
person tendering it of the deficiency
not included. The last day of the period
and require that the deficiency be cor-
is included unless it is Saturday, Sun-
rected.
day, or a legal holiday in the District
of Columbia, in which event the period [47 FR 49554, Nov. 1, 1982, as amended at 61
runs until the end of the next day FR 52711, Oct. 8, 1996]
which is not a Saturday, Sunday or
§ 1104.11 Amendments.
holiday. This rule applies to forward
and backward measurement of time. Leave to amend any document is a
(b) Extensions. Any time period, ex- matter of the Board’s discretion.
cept those provided by law or specified [47 FR 49554, Nov. 1, 1982, as amended at 61
in these rules respecting informal com- FR 52711, Oct. 8, 1996]
plaints seeking damage may be ex-
tended by the Board in its discretion, § 1104.12 Service of pleadings and pa-
pers.
upon request and for good cause. Re-
quests for extensions must be served on (a) Generally. Every document filed
all parties of record at the same time with the Board should include a certifi-
and by the same means as service is cate showing simultaneous service
made on the Board, except if service is upon all parties to the proceeding.
made on the Board in person and per- Service on the parties should be by the
sonal service on other parties is not same method and class of service used
feasible, service on other parties should in serving the Board, with charges, if
be made by first class or express mail. any, prepaid. One copy should be served
A request for an extension must be on each party. If service is made on the
filed not less than 10 days before the Board in person, and personal service
due date. Only the original of the re- on other parties is not feasible, service
quest and certificate of service need be should be made by first-class or express
filed with the Board. If granted, the mail. If a document is filed with the
party making the request should Board through the e-filing process, a
promptly notify all parties to the pro- copy of the e-filed document should be
ceeding of the extension and so certify emailed to other parties if that means
to the Board, except that this notifica- of service is acceptable to those other
tion is not required in rulemaking pro- parties, or a paper copy of the docu-
ment should be personally served on
ceedings.
the other parties, but if email is not
(c) Exception to time computation rules.
acceptable to the receiving party and
See 49 CFR part 1152 for special aban-
personal service is not feasible, service
donment rules. of a paper copy should be by first-class
[47 FR 49554, Nov. 1, 1982, as amended at 61 or express mail. When a party is rep-
FR 52711, Oct. 8, 1996] resented by a practitioner or attorney,
102
service upon the practitioner is deemed clearly headed ‘‘Motion for protective
to be service upon the party. order.’’
(b) Exceptions. Copies of letters to the [48 FR 44827, Sept. 30, 1983, as amended at 61
Board relating to oral argument under FR 52711, Oct. 8, 1996]
part 1116, and subpoenas under § 1113.2,
need not be served on other parties of § 1104.15 Certification of eligibility for
the proceeding. Service of comments in Federal benefits under 21 U.S.C.
rulemaking proceedings is not re- 862.
quired, unless specifically directed by (a) An individual who is applying in
the Board. his or her name for a certificate, li-
(c) Sample Certificate of Service. cense or permit to operate as a rail car-
rier must complete the certification
I certify that I have this day served copies set forth in paragraph (b) of this sec-
of document upon all parties of record in this tion. This certification is required if
proceeding, by (here state the method of the transferee in a finance proceeding
making service which must be consistent
under 49 U.S.C. 11323 and 11324 is an in-
with this part).
dividual. The certification also is re-
llllllllllllllllllllllll quired if an individual applies for au-
Signature Date thorization to acquire, to construct, to
extend, or to operate a rail line.
(49 U.S.C. 10321, 5 U.S.C. 553) (b) Certification:
[47 FR 49554, Nov. 1, 1982, as amended at 48 I lll (Name) lll, certify under pen-
FR 44827, Sept. 30, 1983; 61 FR 52711, Oct. 8, alty of perjury under the laws of the United
1996; 69 FR 18499, Apr. 8, 2004] States, that I have not been convicted, after
September 1, 1989, of any Federal or State of-
§ 1104.13 Replies and motions. fense involving the distribution or possession
(a) Time. A party may file a reply or of a controlled substance, or that if I have
been so convicted, I am not ineligible to re-
motion addressed to any pleading with- ceive Federal Benefits, either by court order
in 20 days after the pleading is filed or by operation of law, pursuant to 21 U.S.C.
with the Board, unless otherwise pro- 862.
vided. [54 FR 48250, Nov. 22, 1989, as amended at 61
(b) Number of copies. The original of a FR 52711, Oct. 8, 1996; 64 FR 53268, Oct. 1, 1999;
reply or motion should be accompanied 67 FR 5515, Feb. 6, 2002]
by the same number of copies required
to be filed with the pleading to which PART 1105—PROCEDURES FOR IM-
the reply or motion is addressed. PLEMENTATION OF ENVIRON-
(c) Reply to a Reply. A reply to a reply MENTAL LAWS
is not permitted.
[47 FR 49554, Nov. 1, 1982, as amended at 61 Sec.
FR 52711, Oct. 8, 1996] 1105.1 Purpose.
1105.2 Responsibility for administration of
§ 1104.14 Protective orders to maintain these rules.
confidentiality. 1105.3 Information and assistance.
1105.4 Definitions.
(a) Segregation of confidential material. 1105.5 Determinative criteria.
A party submitting materials which it 1105.6 Classification of actions.
believes are entitled to be kept con- 1105.7 Environmental reports.
fidential and not made part of the pub- 1105.8 Historic reports.
1105.9 Coastal Zone Management Act re-
lic docket should submit these mate- quirements.
rials as a separate package, clearly 1105.10 Board procedures.
marked on the outside ‘‘Confidential 1105.11 Transmittal letter for Applicant’s
materials subject to a request for a Report.
protective order.’’ 1105.12 Sample newspaper notices for aban-
(b) Requests for protective orders. A re- donment exemption cases.
quest that materials submitted to the AUTHORITY: 16 U.S.C. 470f, 1456, and 1536; 42
Board be kept confidential should be U.S.C. 4332 and 6362(b); and 49 U.S.C. 701 note
(1995) (Savings Provisions), 721(a), 10502, and
submitted as a separate pleading and

10903–10905.
103
§ 1105.1 49 CFR Ch. X (10–1–07 Edition)
SOURCE: 56 FR 36105, July 31, 1991, unless face Transportation Board, 1925 K
otherwise noted. Street, NW, Washington, DC 20423.
§ 1105.1 Purpose. [64 FR 53268, Oct. 1, 1999]
These rules are designed to assure § 1105.4 Definitions.

adequate consideration of environ- In addition to the definitions con-
mental and energy factors in the tained in the regulations of the Council
Board’s decisionmaking process pursu- on Environmental Quality (40 CFR part
ant to the National Environmental 1508), the following definitions apply to
Policy Act, 42 U.S.C. 4332; the Energy these regulations:
Policy and Conservation Act, 42 U.S.C. (a) Act means the Interstate Com-
6362(b); and related laws, including the merce Act, Subtitle IV of Title 49, U.S.
National Historic Preservation Act, 16 Code, as amended.
U.S.C. 470f, the Coastal Zone Manage- (b) Applicant means any person or en-
ment Act, 16 U.S.C. 1451, and the En- tity seeking Board action, whether by
dangered Species Act, 16 U.S.C. 1531. application, petition, notice of exemp-
tion, or any other means that initiates
§ 1105.2 Responsibility for administra- a formal Board proceeding.
tion of these rules. (c) Board means the Surface Trans-
The Director of the Office of Econom- portation Board.
ics, Environmental Analysis, and Ad- (d) Environmental Assessment or ‘‘EA’’
ministration shall have general respon- means a concise public document for
sibility for the overall management which the Board is responsible that
and functioning of the Section of Envi- contains sufficient information for de-
ronmental Analysis. The Director is termining whether to prepare an Envi-
ronmental Impact Statement or to
delegated the authority to sign, on be-
make a finding of no significant envi-
half of the Board, memoranda of agree-
ronmental impact.
ment entered into pursuant to 36 CFR (e) Environmental documentation
800.5(e)(4) regarding historic preserva- means either an Environmental Impact
tion matters. The Chief of the Section Statement or an Environmental As-
of Environmental Analysis is respon- sessment.
sible for the preparation of documents (f) Environmental Impact Statement or
under these rules and is delegated the ‘‘EIS’’ means the detailed written
authority to provide interpretations of statement required by the National En-
the Board’s NEPA process, to render vironmental Policy Act, 42 U.S.C.
initial decisions on requests for waiver 4332(2)(c), for a major Federal action
or modification of any of these rules significantly affecting the quality of
for individual proceedings, and to rec- the human environment.
ommend rejection of environmental re- (g) Environmental Report means a doc-
ports not in compliance with these ument filed by the applicant(s) that:
rules. This delegated authority shall be (1) Provides notice of the proposed
used only in a manner consistent with action; and
Board policy. The Director may further (2) Evaluates its environmental im-
delegate procedural authority to the pacts and any reasonable alternatives
Chief of the Section of Environmental to the action. An environmental report
Analysis as appropriate. Appeals to the may be in the form of a proposed draft
Board will be available as a matter of Environmental Assessment or proposed
right. draft Environmental Impact State-
ment.
[56 FR 36105, July 31, 1991, as amended at 64 (h) Filing means any request for STB
FR 53268, Oct. 1, 1999]
authority, whether by application, pe-
tition, notice of exemption, or any
§ 1105.3 Information and assistance.
other means that initiates a formal
Information and assistance regarding Board proceeding.
the rules and the Board’s environ- (i) Section of Environmental Analysis
mental and historic review process is or ‘‘SEA’’ means the Section that pre-
available by writing or calling the Sec- pares the Board’s environmental docu-
tion of Environmental Analysis, Sur- ments and analyses.
104
(j) Third-Party Consultant means an § 1105.6 Classification of actions.

independent contractor, utilized by the (a) Environmental Impact State-
applicant, who works with SEA’s ap- ments will normally be prepared for
proval and under SEA’s direction to rail construction proposals other than
prepare any necessary environmental those described in paragraph (b)(1) of
documentation. The third party con- this section.
sultant must act on behalf of the (b) Environmental Assessments will
Board. The railroad may participate in normally be prepared for the following
the selection process, as well as in the proposed actions:
subsequent preparation of environ- (1) Construction of connecting track
mental documents. However, to avoid within existing rail rights-of-way, or
any impermissible conflict of interest on land owned by the connecting rail-
(i.e., essentially any financial or other roads;
interest in the outcome of the railroad- (2) Abandonment of a rail line (unless
sponsored project), the railroad may proposed under the Northeast Rail
not be responsible for the selection or Services Act or the Bankruptcy Act);
control of independent contractors. (3) Discontinuance of passenger train
[56 FR 36105, July 31, 1991, as amended at 64 service or freight service (except for
FR 53268, Oct. 1, 1999] discontinuances of freight service
under modified certificates issued
§ 1105.5 Determinative criteria. under 49 CFR 1150.21 and
(a) In determining whether a ‘‘major discontinuances of trackage rights
Federal action’’ (as that term is de- where the affected line will continue to
fined by the Council on Environmental be operated);
Quality in 40 CFR 1508.18) has the po- (4) An acquisition, lease or operation
tential to affect significantly the qual- under 49 U.S.C. 10901 or 10910, or con-
ity of the human environment, the solidation, merger or acquisition of
Board is guided by the definition of control under 49 U.S.C. 11343, if it will
‘‘significantly’’ at 40 CFR 1508.27. result in either
(b) A finding that a service or trans- (i) Operational changes that would
action is not within the STB’s jurisdic- exceed any of the thresholds estab-
tion does not require an environmental lished in § 1105.7(e) (4) or (5); or
analysis under the National Environ- (ii) An action that would normally
mental Policy Act or historic review require environmental documentation
under the National Historic Preserva- (such as a construction or abandon-
tion Act. ment);
(c) The environmental laws are not (5) A rulemaking, policy statement,
triggered where the STB’s action is or legislative proposal that has the po-
nothing more than a ministerial act, as tential for significant environmental
in: impacts;
(1) The processing of abandonments (6) Water carrier licensing under 49
proposed under the Northeast Rail U.S.C. 10922 that:
Services Act (45 U.S.C. 744(b)(3)); (i) Involves a new operation (i.e., one
that adds a significant number of
(2) Statutorily-authorized interim
barges to the inland waterway system
trail use arrangements under 16 U.S.C.
requiring the addition of towing capac-
1247(d) [see, 49 CFR 1152.29]; or
ity, or otherwise significantly alters an
(3) Financial assistance arrange-
existing operation, or introduces serv-
ments under 49 U.S.C. 10905 (see 49 CFR
ice to a new waterway that has had no
1152.27).
previous traffic, or involves the com-
Finally, no environmental analysis is mencement of a new service that is not
necessary for abandonments that are statutorily exempt); or
authorized by a bankruptcy court, or (ii) Involves the transportation of
transfers of rail lines under plans of re- hazardous materials; and
organization, where our function is (7) Any other proceeding not listed in
merely advisory under 11 U.S.C. 1166, paragraphs (a) or (c) of this section.
1170, and 1172. (c) No environmental documentation
[56 FR 36105, July 31, 1991; 56 FR 49821, Oct. 1, will normally be prepared (although a
1991] Historic Report may be required under
105
§ 1105.7 49 CFR Ch. X (10–1–07 Edition)
section 1105.8) for the following ac- either an EA or an EIS will be pre-
tions: pared. For actions generally requiring
(1) Motor carrier, broker, or freight an EA, the Board may prepare a full
forwarder licensing and water carrier EIS where the probability of signifi-
licensing not included in section cant impacts from the particular pro-
1105.6(b)(6); posal is high enough to warrant an EIS.
(2) Any action that does not result in Alternatively, in a rail construction,
significant changes in carrier oper- an applicant can seek to demonstrate
ations (i.e., changes that do not exceed (with supporting information address-
the thresholds established in section ing the pertinent aspects of § 1105.7(e))
1105.7(e) (4) or (5)), including (but not that an EA, rather than an EIS, will be
limited to) all of the following actions sufficient because the particular pro-
that meet this criterion: posal is not likely to have a significant
(i) An acquisition, lease, or operation environmental impact. Any request for
under 49 U.S.C. 10901 or 10910, or con- reclassification must be in writing and,
solidation, merger, or acquisition of in a rail construction, should be pre-
control under 49 U.S.C. 11343 that does sented with the prefiling notice re-
not come within subsection (b)(4) of quired by § 1105.10(a)(1) (or a request to
this section. waive that prefiling notice period).
(ii) Transactions involving corporate (e) The classifications in this section
changes (such as a change in the own- apply without regard to whether the
ership or the operator, or the issuance action is proposed by application, peti-
of securities or reorganization) includ- tion, notice of exemption, or any other
ing grants of authority to hold position means that initiates a formal Board
as an officer or director; proceeding.
(iii) Declaratory orders, interpreta-
tion or clarification of operating au- § 1105.7 Environmental reports.
thority, substitution of an applicant,
(a) Filing. An applicant for an action
name changes, and waiver of lease and
identified in § 1105.6 (a) or (b) must sub-
interchange regulations;
mit to the Board (with or prior to its
(iv) Pooling authorizations, approval
application, petition or notice of ex-
of rate bureau agreements, and ap-
emption) except as provided in para-
proval of shipper antitrust immunity;
graph (b) for abandonments and
(v) Approval of motor vehicle rental
discontinuances) an Environmental Re-
contracts, and self insurance;
port on the proposed action containing
(vi) Determinations of the fact of
the information set forth in paragraph
competition;
(e) of this section.
(3) Rate, fare, and tariff actions;
(4) Common use of rail terminals and (b) At least 20 days prior to the filing
trackage rights; with the Board of a notice of exemp-
(5) Discontinuance of rail freight tion, petition for exemption, or an ap-
service under a modified certificate plication for abandonment or dis-
issued pursuant to 49 CFR 1150.21; continuance, the applicant must serve
(6) Discontinuance of trackage rights copies of the Environmental Report on:
where the affected line will continue to (1) The State Clearinghouse of each
be operated; and State involved (or other State equiva-
(7) A rulemaking, policy statement, lent agency if the State has no clear-
or legislative proposal that has no po- inghouse);
tential for significant environmental (2) The State Environmental Protec-
impacts. tion Agency of each State involved;
(d) The Board may reclassify or mod- (3) The State Coastal Zone Manage-
ify these requirements for individual ment Agency for any state where the
proceedings. For actions that generally proposed activity would affect land or
require no environmental documenta- water uses within that State’s coastal
tion, the Board may decide that a par- zone;
ticular action has the potential for sig- (4) The head of each county (or com-
nificant environmental impacts and parable political entity including any
that, therefore, the applicant should Indian reservation) through which the
provide an environmental report and line goes;
106
(5) The appropriate regional offices of § 1105.8, the Environmental Report

the Environmental Protection Agency; should also include the Historic Report
(6) The U.S. Fish and Wildlife Serv- required by that section.
ice; (1) Proposed action and alternatives.
(7) The U.S. Army Corps of Engi- Describe the proposed action, including
neers; commodities transported, the planned
(8) The National Park Service; disposition (if any) of any rail line and
(9) The U.S. Soil Conservation Serv- other structures that may be involved,
ice; and any possible changes in current op-
(10) The National Geodetic Survey erations or maintenance practices.
(formerly known as the Coast and Geo- Also describe any reasonable alter-
detic Survey) as designated agent for natives to the proposed action. Include
the National Geodetic Survey and the
a readable, detailed map and drawings
U.S. Geological Survey; and
clearly delineating the project.
(11) Any other agencies that have
been consulted in preparing the report. (2) Transportation system. Describe the
effects of the proposed action on re-
For information regarding the names gional or local transportation systems
and addresses of the agencies to be con-
and patterns. Estimate the amount of
tacted, interested parties may contact
traffic (passenger or freight) that will
SEA at the address and telephone num-
be diverted to other transportation
ber indicated in § 1105.3.
systems or modes as a result of the
(c) Certification. In its Environmental
Report, the applicant must certify that proposed action.
it has sent copies of the Environmental (3) Land use. (i) Based on consulta-
Report to the agencies listed and with- tion with local and/or regional plan-
in the time period specified in para- ning agencies and/or a review of the of-
graph (b) of this section and that it has ficial planning documents prepared by
consulted with all appropriate agencies such agencies, state whether the pro-
in preparing the report. These con- posed action is consistent with existing
sultations should be made far enough land use plans. Describe any inconsist-
in advance to afford those agencies a encies.
reasonable opportunity to provide (ii) Based on consultation with the
meaningful input. Finally, in every U.S. Soil Conservation Service, state
abandonment exemption case, appli- the effect of the proposed action on any
cant shall certify that it has published prime agricultural land.
in a newspaper of general circulation in (iii) If the action affects land or
each county through which the line water uses within a designated coastal
passes a notice that alerts the public to zone, include the coastal zone informa-
the proposed abandonment, to avail- tion required by § 1105.9.
able reuse alternatives, and to how it (iv) If the proposed action is an aban-
may participate in the STB proceeding. donment, state whether or not the
(d) Documentation. Any written re- right-of-way is suitable for alternative
sponses received from agencies that public use under 49 U.S.C. 10906 and ex-
were contacted in preparing the Envi- plain why.
ronmental Report shall be attached to (4) Energy. (i) Describe the effect of
the report. Oral responses from such the proposed action on transportation
agencies shall be briefly summarized in
of energy resources.
the report and the names, titles, and
(ii) Describe the effect of the pro-
telephone numbers of the persons con-
tacted shall be supplied. A copy of, or posed action on recyclable commod-
appropriate citation to, any reference ities.
materials relied upon also shall be pro- (iii) State whether the proposed ac-
vided. tion will result in an increase or de-
(e) Content. The Environmental Re- crease in overall energy efficiency and
port shall include all of the informa- explain why.
tion specified in this paragraph, except (iv) If the proposed action will cause
to the extent that applicant explains diversions from rail to motor carriage
why any portion(s) are inapplicable. If of more than:
an historic report is required under (A) 1,000 rail carloads a year; or
107
§ 1105.7 49 CFR Ch. X (10–1–07 Edition)
(B) An average of 50 rail carloads per and freon) is contemplated, identify:

mile per year for any part of the af- the materials and quantity; the fre-
fected line, quantify the resulting net quency of service; safety practices (in-
change in energy consumption and cluding any speed restrictions); the ap-
show the data and methodology used to plicant’s safety record (to the extent
arrive at the figure given. To minimize available) on derailments, accidents
the production of repetitive data, the and spills; contingency plans to deal
information on overall energy effi- with accidental spills; and the likeli-
ciency in § 1105.7(e)(4)(iii) need not be hood of an accidental release of ozone
supplied if the more detailed informa- depleting materials in the event of a
tion in § 1105.7(e)(4)(iv) is required. collision or derailment.
(5) Air. (i) If the proposed action will (6) Noise. If any of the thresholds
result in either: identified in item (5)(i) of this section
(A) An increase in rail traffic of at are surpassed, state whether the pro-
least 100 percent (measured in gross posed action will cause:
ton miles annually) or an increase of at (i) An incremental increase in noise
least eight trains a day on any segment levels of three decibels Ldn or more; or
of rail line affected by the proposal, or (ii) An increase to a noise level of 65
(B) An increase in rail yard activity decibels Ldn or greater. If so, identify
of at least 100 percent (measured by sensitive receptors (e.g., schools, librar-
carload activity), or
ies, hospitals, residences, retirement
(C) An average increase in truck traf-
communities, and nursing homes) in
fic of more than 10 percent of the aver-
the project area, and quantify the noise
age daily traffic or 50 vehicles a day on
increase for these receptors if the
any affected road segment, quantify
thresholds are surpassed.
the anticipated effect on air emissions.
For a proposal under 49 U.S.C. 10901 (or (7) Safety. (i) Describe any effects of
10502) to construct a new line or re- the proposed action on public health
institute service over a previously and safety (including vehicle delay
abandoned line, only the eight train a time at railroad grade crossings).
day provision in subsection (5)(i)(A) (ii) If hazardous materials are ex-
will apply. pected to be transported, identify: the
(ii) If the proposed action affects a materials and quantity; the frequency
class I or nonattainment area under of service; whether chemicals are being
the Clean Air Act, and will result in ei- transported that, if mixed, could react
ther: to form more hazardous compounds;
(A) An increase in rail traffic of at safety practices (including any speed
least 50 percent (measured in gross ton restrictions); the applicant’s safety
miles annually) or an increase of at record (to the extent available) on
least three trains a day on any seg- derailments, accidents and hazardous
ment of rail line, spills; the contingency plans to deal
(B) An increase in rail yard activity with accidental spills; and the likeli-
of at least 20 percent (measured by car- hood of an accidental release of haz-
load activity), or ardous materials.
(C) An average increase in truck traf- (iii) If there are any known haz-
fic of more than 10 percent of the aver- ardous waste sites or sites where there
age daily traffic or 50 vehicles a day on have been known hazardous materials
a given road segment, then state spills on the right-of-way, identify the
whether any expected increased emis- location of those sites and the types of
sions are within the parameters estab- hazardous materials involved.
lished by the State Implementation (8) Biological resources. (i) Based on
Plan. However, for a rail construction consultation with the U.S. Fish and
under 49 U.S.C. 10901 (or 49 U.S.C. Wildlife Service, state whether the pro-
10502), or a case involving the reinstitu- posed action is likely to adversely af-
tion of service over a previously aban- fect endangered or threatened species
doned line, only the three train a day or areas designated as a critical habi-
threshold in this item shall apply. tat, and if so, describe the effects.
(iii) If transportation of ozone deplet- (ii) State whether wildlife sanc-
ing materials (such as nitrogen oxide tuaries or refuges, National or State
108
parks or forests will be affected, and ticipated daily and annual number of
describe any effects. train movements, number of cars per
(9) Water. (i) Based on consultation train, types of cars, motive power re-
with State water quality officials, quirements, proposed speeds, labor
state whether the proposed action is force, and proposed maintenance-of-
consistent with applicable Federal, way practices.
State or local water quality standards. (v) Describe the effects, including in-
Describe any inconsistencies. direct or down-line impacts, of the new
(ii) Based on consultation with the or diverted traffic over the line if the
U.S. Army Corps of Engineers, state thresholds governing energy, noise and
whether permits under section 404 of air impacts in § § 1105.7(e)(4), (5), or (6)
the Clean Water Act (33 U.S.C. 1344) are are met.
required for the proposed action and
(vi) Describe the effects, including
whether any designated wetlands or
impacts on essential public services
100-year flood plains will be affected.
Describe the effects. (e.g., fire, police, ambulance, neighbor-
(iii) State whether permits under sec- hood schools), public roads, and adjoin-
tion 402 of the Clean Water Act (33 ing properties, in communities to be
U.S.C. 1342) are required for the pro- traversed by the line.
posed action. (Applicants should con- (vii) Discuss societal impacts, includ-
tact the U.S. Environmental Protec- ing expected change in employment
tion Agency or the state environ- during and after construction.
mental protection or equivalent agen- (f) Additional information. The Board
cy if they are unsure whether such per- may require applicants to submit addi-
mits are required.) tional information regarding the envi-
(10) Proposed Mitigation. Describe any ronmental or energy effects of the pro-
actions that are proposed to mitigate posed action.
adverse environmental impacts, indi- (g) Waivers. The Board may waive or
cating why the proposed mitigation is modify, in whole or in part, the provi-
appropriate. sions of this section where a railroad
(11) Additional Information for Rail applicant shows that the information
Constructions. The following additional requested is not necessary for the
information should be included for rail Board to evaluate the environmental
construction proposals (including con- impacts of the proposed action.
necting track construction):
(i) Describe the proposed route(s) by [56 FR 36105, July 31, 1991; 56 FR 49821, Oct. 1,
State, county, and subdivision, includ- 1991, as amended at 58 FR 44619, Aug. 24, 1993;
60 FR 32277, June 21, 1995; 61 FR 67883, Dec.
ing a plan view, at a scale not to ex- 24, 1996; 64 FR 53268, Oct. 1, 1999; 69 FR 58366,
ceed 1:24,000 (71⁄2 minute U.S.G.S. quad- Sept. 30, 2004]
rangle map), clearly showing the rela-
tionship to the existing transportation § 1105.8 Historic Reports.
network (including the location of all
highway and road crossings) and the (a) Filing. An applicant proposing an
right-of-way according to ownership action identified in § 1105.6 (a) or (b), or
and land use requirements. an action in § 1105.6(c) that will result
(ii) Describe any alternative routes in the lease, transfer, or sale of a rail-
considered, and a no-build alternative road’s line, sites or structures, must
(or why this would not be applicable), submit (with its application, petition
and explain why they were not se- or notice) the Historic Report de-
lected. scribed in paragraph (d) of this section,
(iii) Describe the construction plans, unless excepted under paragraph (b) of
including the effect on the human envi- this section. This report should be
ronment, labor force requirements, the combined with the Environmental Re-
location of borrow pits, if any, and port where one is required. The purpose
earthwork estimates. of the Historic Report is to provide the
(iv) Describe in detail the rail oper- Board with sufficient information to
ations to be conducted upon the line, conduct the consultation process re-
including estimates of freight (carloads quired by the National Historic Preser-
and tonnage) to be transported, the an- vation Act.
109
§ 1105.8 49 CFR Ch. X (10–1–07 Edition)
(b) Exceptions. The following proof any major alterations, to the extent
posals do not require an historic re- such information is known;
port: (5) A brief narrative history of car-
(1) A sale, lease or transfer of a rail rier operations in the area, and an ex-
line for the purpose of continued rail planation of what, if any, changes are
operations where further STB approval contemplated as a result of the pro-
is required to abandon any service and posed action;
there are no plans to dispose of or alter (6) A brief summary of documents in
properties subject to STB jurisdiction the carrier’s possession, such as engi-
that are 50 years old or older. neering drawings, that might be useful
(2) A sale, lease, or transfer of prop- in documenting a structure that is
erty between corporate affiliates where found to be historic;
there will be no significant change in (7) An opinion (based on readily
operations. available information in the railroad’s
(3) Trackage rights, common use of possession) as to whether the site and/
rail terminals, common control or structures meet the criteria for list-
through stock ownership or similar ac- ing on the National Register of His-
tion which will not substantially toric Places (36 CFR 60.4), and whether
change the level of maintenance of there is a likelihood of archeological
railroad property. resources or any other previously un-
(4) A rulemaking, policy statement, known historic properties in the
petition for declaratory order, petition project area, and the basis for these
for waiver of procedural requirements, opinions (including any consultations
or proceeding involving transportation
with the State Historic Preservation
rates or classifications.
Office, local historical societies or uni-
(c) Distribution. The applicant must
versities);
send the Historic Report to the appro-
(8) A description (based on readily
priate State Historic Preservation Offi-
cer(s), preferably at least 60 days in ad- available information in the railroad’s
vance of filing the application, peti- possession) of any known prior sub-
tion, or notice, but not later than 20 surface ground disturbance or fill, envi-
days prior to filing with the Board. ronmental conditions (naturally occur-
(d) Content. The Historic Report ring or manmade) that might affect the
should contain the information re- archeological recovery of resources
quired by § 1105.7(e)(1) and the following (such as swampy conditions or the
additional historic information: presence of toxic wastes), and the sur-
(1) A U.S.G.S. topographic map (or an rounding terrain.
alternate map drawn to scale and suffi- (9) Within 30 days of receipt of the
ciently detailed to show buildings and historic report, the State Historic
other structures in the vicinity of the Preservation Officer may request the
proposed action) showing the location following additional information re-
of the proposed action, and the loca- garding specified nonrailroad owned
tions and approximate dimensions of properties or groups of properties im-
railroad structures that are 50 years mediately adjacent to the railroad
old or older and are part of the pro- right-of-way: photographs of specified
posed action; properties that can be readily seen
(2) A written description of the right- from the railroad right-of-way (or
of-way (including approximate widths, other public rights-of-way adjacent to
to the extent known), and the topog- the property) and a written description
raphy and urban and/or rural charac- of any previously discovered archeo-
teristics of the surrounding area; logical sites, identifying the location
(3) Good quality photographs (actual and type of the site (i.e., prehistoric or
photographic prints, not photocopies) native American).
of railroad structures on the property (e) Any of these requirements may be
that are 50 years old or older and of the waived or modified when the informa-
immediately surrounding area; tion is not necessary to determine the
(4) The date(s) of construction of the presence of historic properties and the
structure(s), and the date(s) and extent effect of the proposed action on them.
110
(f) Historic preservation conditions prepared for a proposed action, the

imposed by the Board in rail abandon- Board will publish in the FEDERAL REG-
ment cases generally will not extend ISTER a notice of its intent to prepare
beyond the 330-day statutory time pe- an EIS, with a description of the pro-
riod in 49 U.S.C. 10904 for abandonment posed action and a request for written
proceedings. comments on the scope of the EIS.
[56 FR 36105, July 31, 1991, as amended at 61 Where appropriate, the scoping process
FR 67883, Dec. 24, 1996] may include a meeting open to inter-
ested parties and the public. After con-
§ 1105.9 Coastal Zone Management Act sidering the comments, the Board will
requirements.
publish a notice of the final scope of
(a) If the proposed action affects land the EIS. If the Environmental Impact
or water uses within a State coastal Statement is to be prepared in coopera-
zone designated pursuant to the Coast- tion with other agencies, this notice
al Zone Management Act (16 U.S.C. 1451 will also indicate which agencies will
et seq.) applicant must comply with the be responsible for the various parts of
following procedures: the Statement.
(1) If the proposed action is listed as
(3) Notice of availability. The Board
subject to review in the State’s coastal
zone management plan, applicant will serve copies of both the draft Envi-
(with, or prior to its filing) must cer- ronmental Impact Statement (or an ap-
tify (pursuant to 15 CFR 930.57 and propriate summary) and the full final
930.58) that the proposed action is con- Environmental Impact Statement (or
sistent with the coastal zone manage- an appropriate summary) on all parties
ment plan. to the proceeding and on appropriate
(2) If the activity is not listed, appli- Federal, State, and local agencies. A
cant (with, or prior to its filing) must notice that these documents are avail-
certify that actual notice of the pro- able to the public will be published
posal was given to the State coastal (normally by the Environmental Pro-
zone manager at least 40 days before tection Agency) in the FEDERAL REG-
the effective date of the requested ac- ISTER. (Interested persons may obtain
tion. copies of the documents by contacting
(b) If there is consistency review the Section of Environmental Anal-
under 15 CFR 930.54, the Board and the ysis.)
applicant will comply with the consist- (4) Comments. The notice of avail-
ency certification procedures of 15 CFR ability of the draft Environmental Im-
930. Also, the Board will withhold a de- pact Statement will establish the time
cision, stay the effective date of a deci- for submitting written comments,
sion, or impose a condition delaying which will normally be 45 days fol-
consummation of the action, until the lowing service of the document. When
applicant has submitted a consistency
the Board decides to hold an oral hear-
certification and either the state has
ing on the merits of a proposal, the
concurred in the consistency certifi-
draft Environmental Impact Statement
cation, or an appeal to the Secretary of
Commerce (under 15 CFR 930.64(e)) is will be made available to the public in
successful. advance, normally at least 15 days
prior to the portion of the hearing re-
§ 1105.10 Board procedures. lating to the environmental issues. The
(a) Environmental Impact Statements— draft EIS will discuss relevant environ-
(1) Prefiling Notice. Where an environmental and historic preservation
mental impact statement is required or issues. The final Environmental Impact
contemplated, the prospective appli- Statement will discuss the comments
cant must provide the Section of Envi- received and any changes made in re-
ronmental Analysis with written no- sponse to them.
tice of its forthcoming proposal at (5) Supplements. An Environmental
least 6 months prior to filing its appli- Impact Statement may be supple-
cation. mented where necessary and appro-
(2) Notice and scope of EIS. When an priate to address substantial changes
Environmental Impact Statement is in the proposed action or significant
111
§ 1105.11 49 CFR Ch. X (10–1–07 Edition)
new and relevant circumstances or in- pervision. In such a case, the consult-
formation. If so, the notice and com- ant acts on behalf of the Board, work-
ment procedures outlined above will be ing under SEA’s direction to collect
followed to the extent practical. the needed environmental information
(b) Environmental Assessments. In pre- and compile it into a draft EA or draft
paring an Environmental Assessment, EIS, which is then submitted to SEA
the Section of Environmental Analysis for its review, verification, and ap-
will verify and independently analyze proval. We encourage the use of third-
the Environmental Report and/or His- party consultants.
toric Report and related material sub- (e) Service of Environmental Pleadings.
mitted by an applicant pursuant to sec- Agencies and interested parties sending
tions 1105.7 and 1105.8. The Environ- material on environmental and historic
mental Assessment will discuss rel- preservation issues directly to the
evant environmental and historic pres- Board should send copies to the appli-
ervation issues. SEA will serve copies cant. Copies of Board communications
of the Environmental Assessment on to third-parties involving environ-
all parties to the proceeding and appro- mental and historic preservation issues
priate federal, state, and local agen- also will be sent to the applicant where
cies, and will announce its availability appropriate.
to the public through a notice in the (f) Consideration in decisionmaking.
FEDERAL REGISTER. In the case of aban- The environmental documentation
donment applications processed under (generally an EA or an EIS) and the
49 U.S.C. 10903, the availability of the comments and responses thereto con-
Environmental Assessment must be an- cerning environmental, historic preser-
nounced in the applicant’s Notice of In- vation, CZMA, and endangered species
tent filed under 49 CFR 1152.21. The issues will be part of the record consid-
deadline for submission of comments ered by the Board in the proceeding in-
on the Environmental Assessment will volved. The Board will decide what, if
generally be within 30 days of its serv- any, environmental or historic preser-
ice (15 days in the case of a notice of vation conditions to impose upon the
abandonment under 49 CFR 1152.50). authority it issues based on the envi-
The comments received will be ad- ronmental record and its substantive
dressed in the Board’s decision. A sup- responsibilities under the Interstate
plemental Environmental Assessment Commerce Act. The Board will with-
may be issued where appropriate. hold a decision, stay the effective date
(c) Waivers. (1) The provisions of of an exemption, or impose appropriate
paragraphs (a)(1) or (a)(4) of this sec- conditions upon any authority granted,
tion or any STB-established time when an environmental or historic
frames in paragraph (b) of this section preservation issue has not yet been re-
may be waived or modified where ap- solved.
propriate. (g) Finding of No Significant Impact. In
(2) Requests for waiver of all exemption cases, if no environ-
§ 1105.10(a)(1) must describe as com- mental or historic preservation issues
pletely as possible the anticipated en- are raised by any party or identified by
vironmental effects of the proposed ac- SEA in its independent investigation,
tion, and the timing of the proposed ac- the Board will issue a separate decision
tion, and show that all or part of the making a Finding of No Significant
six month lead period is not appro- Impact (‘‘FONSI’’) to show that it has
priate. formally considered the environmental
(d) Third-Party Consultants. Appli- record.
cants may utilize independent third- [56 FR 36105, July 31, 1991 as amended at 56
party consultants to prepare any nec- FR 49821, Oct. 1, 1991;64 FR 53268, Oct. 1, 1999]
essary environmental documentation,
if approved by SEA. The environmental § 1105.11 Transmittal letter for Appli-
reporting requirements that would oth- cant’s Report.
erwise apply will be waived if a rail- A carrier shall send a copy of its En-
road hires a consultant, SEA approves vironmental and/or Historic Report to
the scope of the consultant’s work, and the agencies identified in section
the consultant works under SEA’s su- 1105.7(b) and/or the appropriate State
112
Historic Preservation Officer(s) and has done this by the date its notice of
certify to the Board that it has done (or petition for) exemption is filed. The
this. The form letter contained in the notice shall alert the public to the pro-
Appendix to this section should be used posed abandonment, to available reuse
in transmitting the Environmental alternatives, such as trail use and pub-
and/or Historic Reports. lic use, and to how it may participate
APPENDIX TO § 1105.11—TRANSMITTAL LETTER
in a Board proceeding. Sample news-
FOR APPLICANT’S REPORT paper notices are provided in the Ap-
pendix to this section for guidance to
(Carrier Letterhead)
the railroads.
(Addresses)
Re: (Brief description of proposed action APPENDIX TO § 1105.12—SAMPLE NEWSPAPER
with STB docket number, if available) NOTICES
(Date)
On (date), we are (or expect to be) filing SAMPLE LOCAL NEWSPAPER NOTICE FOR OUT-
with the Surface Transportation Board a OF-SERVICE ABANDONMENT EXEMPTIONS NO-
(type of proceeding) seeking authority to TICE OF INTENT TO ABANDON OR TO DIS-
( ) located in (state) (city or town) and CONTINUE RAIL SERVICE
(mileposts, if applicable). Attached is an En-
vironmental Report (and/or Historic Report) (Name of railroad) gives notice that on or
describing the proposed action and any ex- about (insert date notice of exemption will
pected environmental (and/or historic) ef- be filed with the Surface Transportation
fects, as well as a map of the affected area. Board), it intends to file with the Surface
We are providing this report so that you Transportation Board, Washington, DC 20423,
may review the information that will form a notice of exemption under 49 CFR 1152 Sub-
the basis for the STB’s independent environ- part F—Exempt Abandonments permitting the
mental analysis of this proceeding. If any of (abandonment of or discontinuance of serv-
the information is misleading or incorrect, if ice on) a lll mile line of railroad between
you believe that pertinent information is railroad milepost lll, near (station name),
missing, or if you have any questions about which traverses through United States Post-
the Board’s environmental review process, al Service ZIP Codes (ZIP Codes) and rail-
please contact the Section of Environmental road milepost lll, near (station name)
Analysis (SEA), Surface Transportation which traverses through United States Post-
Board, 1925 K Street, NW, Washington, DC al Service ZIP Codes (ZIP Codes) in lll
20423, telephone [INSERT TELEPHONE County(ies), (State). The proceeding will be
NUMBER] and refer to the above Docket No. docketed as No. AB lll (Sub-No. lll X).
(if available). Because the applicable stat- The Board’s Section of Environmental
utes and regulations impose stringent dead- Analysis (SEA) will generally prepare an En-
lines for processing this action, your written vironmental Assessment (EA), which will
comments to SEA (with a copy to our rep- normally be available 25 days after the filing
resentative) would be appreciated within 3 of the notice of exemption. Comments on en-
weeks. vironmental and energy matters should be
Your comments will be considered by the filed no later than 15 days after the EA be-
Board in evaluating the environmental and/ comes available to the public and will be ad-
or historic preservation impacts of the con- dressed in a Board decision. Interested per-
templated action. If there are any questions sons may obtain a copy of the EA or make
concerning this proposal, please contact our inquiries regarding environmental matters
representative directly. Our representative by writing to the Section of Environmental
in this matter is (name) who may be con- Analysis (SEA), Surface Transportation
tacted by telephone at (telephone number) or Board, Washington, DC 20423 or by calling
by mail at (address). that office at [INSERT TELEPHONE NUM-
(Complimentary close) BER].
(Name and title of author of letter) Appropriate offers of financial assistance
[56 FR 36105, July 31, 1991, as amended at 58 to continue rail service can be filed with the
FR 44619, Aug. 24, 1993; 64 FR 53268, Oct. 1, Board. Requests for environmental condi-
1999] tions, public use conditions, or rail banking/
trails use also can be filed with the Board.
§ 1105.12 Sample newspaper notices An original and 10 copies of any pleading
for abandonment exemption cases. that raises matters other than environ-
mental issues (such as trails use, public use,
In every abandonment exemption and offers of financial assistance) must be
case, the applicant shall publish a no- filed directly with the Board’s Office of the
tice in a newspaper of general circula- Secretary, 1925 K Street, NW., Washington,
tion in each county in which the line is DC 20423 [See 49 CFR 1104.1(a) and 1104.3(a)],
located and certify to the Board that it and one copy must be served on applicants’
113
representative [See 49 CFR 1104.12(a)]. Ques- BER]. Copies of any comments or requests
tions regarding offers of financial assistance, for conditions should be served on the appli-
public use or trails use may be directed to cant’s representative (name and address).
the Board’s Office of Congressional and Pub-
[56 FR 36105, July 31, 1991, as amended at 56
lic Services at [INSERT TELEPHONE NUM-
FR 49821, Oct. 1, 1991; 58 FR 44619, Aug. 24,
BER]. Copies of any comments or requests 1993; 61 FR 67883, Dec. 24, 1996; 64 FR 53268,
for conditions should be served on the appli- Oct. 1, 1999; 69 FR 58366, Sept. 30, 2004]
cant’s representative: (name, address and
phone number).
PART 1106—PROCEDURES FOR
SAMPLE LOCAL NEWSPAPER NOTICE FOR PETI- SURFACE TRANSPORTATION
TIONS FOR ABANDONMENT EXEMPTIONS NO-
TICE OF INTENT TO ABANDON OR TO DIS-
BOARD CONSIDERATION OF
CONTINUE RAIL SERVICE SAFETY INTEGRATION PLANS IN
(Name of railroad) gives notice that on or
CASES INVOLVING RAILROAD
about (insert date petition for abandonment CONSOLIDATIONS, MERGERS,
exemption will be filed with the Surface AND ACQUISITIONS OF CON-
Transportation Board) it intends to file with TROL
the Surface Transportation Board, Wash-
ington, DC 20423, a petition for exemption
Sec.
under 49 U.S.C. 10502 from the prior approval
1106.1 Purpose.
requirements of 49 U.S.C. 10903, et seq., per-
1106.2 Definitions.
mitting the (abandonment of or discontinu-
1106.3 Actions for which Safety Integration
ance of service on) a lll mile line of rail-
Plan is Required.
road between railroad milepost lll, near 1106.4 The Safety Integration Plan Process.
(station name) which traverses through 1106.5 Waiver.
United States Postal Service ZIP Codes (ZIP 1106.6 Reservation of jurisdiction.
Codes), and railroad milepost lll, near
(station name) which traverses through AUTHORITY: 5 U.S.C. 553; 5 U.S.C. 559; 49
United States Postal Service ZIP Codes (ZIP U.S.C. 721; 49 U.S.C. 10101; 49 U.S.C. 11323–
Codes) in lll County(ies), (State). The 11325; 42 U.S.C. 4332.
proceeding has been docketed as No. AB SOURCE: 67 FR 11607, Mar. 15, 2002, unless
lll (Sub-No. lll X). otherwise noted.
The Board’s Section of Environmental
Analysis (SEA) will generally prepare an En- § 1106.1 Purpose.
vironmental Assessment (EA), which will
normally be available 60 days after the filing This part is designed to ensure ade-
of the petition for abandonment exemption. quate and coordinated consideration of
Comments on environmental and energy safety integration issues, by both the
matters should be filed no later than 30 days Board and the Federal Railroad Admin-
after the EA becomes available to the public istration, the agency within the De-
and will be addressed in a Board decision. In- partment of Transportation responsible
terested persons may obtain a copy of the
for the enforcement of railroad safety,
EA or make inquiries regarding environ-
mental matters by writing to SEA, Surface in the implementation of rail trans-
Transportation Board, Washington, DC 20423 actions subject to the Board’s jurisdic-
or by calling SEA at [INSERT TELEPHONE tion. It establishes the procedures by
NUMBER]. which the Board will consider safety
Appropriate offers of financial assistance integration plans in connection with
to continue rail service can be filed with the its approval and authorization of trans-
Board. Requests for environmental condi- actions for which the Board has con-
tions, public use conditions, or rail banking/
cluded such consideration is required.
trails use also can be filed with the Board.
An original and 10 copies of any pleading
§ 1106.2 Definitions.
that raises matters other than environ-
mental issues (such as trails use, public use, The following definitions apply to
and offers of financial assistance) must be this part:
filed directly with the Board’s Office of the Act means the ICC Termination Act
Secretary, 1925 K Street, NW., Washington, of 1995, Pub. L. 104–88, 109 Stat. 803
DC 20423 [See 49 CFR 1104.1(a) and 1104.3(a)], (1995).
and one copy must be served on applicants’
Amalgamation of operations, as defined
representative [See 49 CFR 1104.12(a)]. Ques-
tions regarding offers of financial assistance, by the Federal Railroad Administra-
public use or trails use may be directed to tion at 49 CFR 244.9, means the migra-
the Board’s Office of Congressional and Pub- tion, combination, or unification of one
lic Services at [INSERT TELEPHONE NUM- set of railroad operations with another
114
set of railroad operations, including, of the application or other request for

but not limited to, the allocation of re- authority.
sources affecting railroad operations
(e.g., changes in personnel, track, § 1106.3 Actions for which Safety Inte-
bridges, or communication or signal gration Plan is required.
systems; or use or deployment of main- A SIP shall be filed by any applicant
tenance-of-way equipment, loco- requesting authority to undertake a
motives, or freight or passenger cars). transaction as defined under § 1106.2 of
Applicant means a Class I railroad or this part.
a Class II railroad engaging in a trans-
action subject to this part. § 1106.4 The Safety Integration Plan
Board means the Surface Transpor- process.
tation Board. (a) Each applicant in a transaction
Class I or Class II railroad has the subject to this part shall file a pro-
meaning assigned by the Board’s regu- posed SIP in accordance with the infor-
lations (49 CFR part 1201; General In- mational requirements prescribed at 49
structions 1–1), as those regulations CFR part 244, or other FRA guidelines
may be revised by the Board (including or requirements regarding the contents
modifications in class thresholds based of a SIP, with SEA and FRA no later
on the revenue deflator formula) from than 60 days from the date the applica-
time to time. tion is filed with the Board.
Environmental documentation means (b) The proposed SIP shall be made
either an Environmental Assessment part of the environmental record in the
or an Environmental Impact State- Board proceeding and dealt with in the
ment prepared in accordance with the ongoing environmental review process
National Environmental Policy Act under 49 CFR part 1105. The procedures
and Board’s environmental rules at 49 governing the process shall be as fol-
CFR part 1105. lows:
Federal Railroad Administration (1) In accordance with 49 CFR 244.17,
(‘‘FRA’’) means the agency within the FRA will provide its findings and con-
Department of Transportation respon- clusions on the adequacy of the pro-
sible for railroad safety. posed SIP (i.e., assess whether the pro-
Safety Integration Plan (‘‘SIP’’) means posed SIP establishes a process that
a comprehensive written plan, prepared provides a reasonable assurance of safe-
in accordance with FRA guidelines or ty in executing the proposed trans-
regulations, explaining the process by action) to SEA at a date sufficiently in
which Applicants intend to integrate advance of the Board’s issuance of its
the operation of the properties in- draft environmental documentation in
volved in a manner that would main- the case to permit incorporation in the
tain safety at every step of the integra- draft environmental document.
tion process, in the event the Board ap- (2) The draft environmental docu-
proves the transaction that requires a mentation shall incorporate the pro-
SIP. posed SIP, any revisions or modifica-
Section of Environmental Analysis tions to it based on further consulta-
(‘‘SEA’’) means the Section that pre- tions with FRA, and FRA’s written
pares the Board’s environmental docu- comments regarding the SIP. The pub-
ments and analyses. lic may review and comment on the
Transaction means an application by draft environmental documentation
a Class I railroad that proposes to con- within the time limits prescribed by
solidate with, merge with, or acquire SEA.
control under 49 U.S.C. 11323(a) of an- (3) SEA will independently review
other Class I railroad, or with a Class each proposed SIP. In its final environ-
II railroad where there is a proposed mental documentation, SEA will ad-
amalgamation of operations, as defined dress written comments on the pro-
by FRA’s regulations at 49 CFR 244.9. posed SIP received during the time es-
‘‘Transaction’’ also includes a pro- tablished for submitting comments on
ceeding other than those specified the draft environmental documenta-
above if the Board concludes that a SIP tion. The Board then will consider the
is necessary in its proper consideration full environmental record, including
115
§ 1106.5 49 CFR Ch. X (10–1–07 Edition)
the information concerning the SIP, in 1108.6 Arbitrators.

arriving at its decision in the case. 1108.7 Arbitration commencement proce-
(4) If the Board approves the trans- dures.
action and adopts the SIP, it will re- 1108.8 Arbitration procedures.
1108.9 Decisions.
quire compliance with the SIP as a
1108.10 Precedent.
condition to its approval. Each appli- 1108.11 Enforcement and appeals.
cant involved in the transaction then 1108.12 Additional matters.
shall coordinate with FRA in imple-
menting the approved SIP, including AUTHORITY: 49 U.S.C. 721(a).
any amendments thereto. FRA has pro- SOURCE: 62 FR 46217, Sept. 2, 1997, unless
vided in its rules at 49 CFR 244.17(g) for otherwise noted.
submitting information to the Board
during implementation of an approved § 1108.1 Definitions.
transaction that will assist the Board (a) Arbitrator means an arbitrator ap-
in exercising its continuing jurisdic- pointed pursuant to these provisions.
tion over the transaction. FRA also has (b) ICC means the Interstate Com-
agreed to advise the Board when, in its merce Commission.
view, the integration of the applicants’ (c) Interstate Commerce Act means the
operations has been safely completed. Interstate Commerce Act as amended
(c) If a SIP is required in trans- from time to time, including the
actions that would not be subject to amendments made by the ICC Termi-
environmental review under the nation Act of 1995.
Board’s environmental rules at 49 CFR (d) RSTAC means the Rail-Shipper
part 1105, the Board will develop appro- Transportation Advisory Council es-
priate case-specific SIP procedures tablished pursuant to 49 U.S.C. 726.
based on the facts and circumstances (e) STB means the Surface Transpor-
presented. tation Board.
(f) Statutory jurisdiction means the ju-
§ 1106.5 Waiver. risdiction conferred on the STB by the
The SIP requirements established by Interstate Commerce Act, including ju-
this part may be waived or modified by risdiction over rail transportation or
the Board where a railroad shows that services that have been exempted from
relief is warranted or appropriate. regulation.
§ 1106.6 Reservation of Jurisdiction. § 1108.2 Statement of purpose, organi-
The Board reserves the right to re- zation, and jurisdiction.
quire a SIP in cases other than those (a) These provisions are intended to
enumerated in this part, or to adopt provide a means for the binding, vol-
modified SIP requirements in indi- untary arbitration of certain disputes
vidual cases, if it concludes that doing subject to the statutory jurisdiction of
so is necessary in its proper consider- the STB, either between two or more
ation of the application or other re- railroads subject to the jurisdiction of
quest for authority. the STB or between any such railroad
and any other person.
PART 1107 [RESERVED] (b) These procedures shall not be
available to obtain the grant, denial,
PART 1108—ARBITRATION OF CER- stay or revocation of any license, au-
thorization (e.g., construction, aban-
TAIN DISPUTES SUBJECT TO THE donment, purchase, trackage rights,
STATUTORY JURISDICTION OF THE merger, pooling) or exemption, or to
SURFACE TRANSPORTATION prescribe for the future any conduct,
BOARD rules, or results of general, industry-
wide applicability. Nor are they avail-
Sec. able for arbitration that is conducted
1108.1 Definitions. pursuant to labor protective condi-
1108.2 Statement of purpose, organization,
and jurisdiction.
tions. These procedures are intended
1108.3 Matters subject to arbitration. for the resolution of specific disputes
between specific parties involving the
1108.4 Relief.
1108.5 Fees and costs. payment of money or involving rates
116
or practices related to rail transpor- (1) Monetary damages, to the extent

tation or service subject to the statu- available under the Interstate Com-
tory jurisdiction of the STB. merce Act, with interest at a reason-
(c) The alternative means of dispute able rate to be specified by the Arbi-
resolution provided for herein are es- trator.
tablished pursuant to the authority of (2) Specific performance of statutory
the STB to take such actions as are obligations (including the prescription
necessary and appropriate to fulfill its of reasonable rates), but for a period
jurisdictional mandate and not pursu- not to exceed 3 years from the effective
ant to the Administrative Dispute Res- date of the Arbitrator’s award.
olution Act, 5 U.S.C. 571 et seq. (b) A party may petition an Arbi-
(d) On January 1, 1996, the STB re- trator to modify or vacate an arbitral
placed the ICC. For purposes of these award in effect that directs future spe-
procedures, it is immaterial whether cific performance, based on materially
an exemption from regulation was changed circumstances or the criteria
granted by the ICC or the STB. for vacation of an award contained in 9
U.S.C. 10.
§ 1108.3 Matters subject to arbitration. (1) A petition to modify or vacate an
award in effect should be filed with the
(a) Any controversy between two or STB. The petition will be assigned to
more parties, subject to resolution by the Arbitrator that rendered the award
the STB, and subject to the limitations unless that Arbitrator is unavailable,
in § 1108.2 hereof, may be processed pur- in which event the matter will be as-
suant to the provisions of this part signed to another Arbitrator.
1108, if all necessary parties volun- (2) Any such award shall continue in
tarily subject themselves to arbitra- effect pending disposition of the re-
tion under these provisions after notice quest to modify or vacate. Any such re-
as provided herein. quest shall be handled as expeditiously
(b) Arbitration under these provi- as practicable with due regard to pro-
sions is limited to matters over which viding an opportunity for the presen-
the STB has statutory jurisdiction and tation of the parties’ views.
may include disputes arising in connec-
tion with jurisdictional transportation, § 1108.5 Fees and costs.
including service being conducted pur- (a) Fees will be utilized to defray the
suant to an exemption. An Arbitrator costs of the STB in administering this
should decline to accept, or to render a alternate dispute resolution program
decision regarding, any dispute that in accordance with 31 U.S.C. 9701. The
exceeds the STB’s statutory jurisdic- fees for filing a complaint, answer,
tion. Such Arbitrator may resolve any third party complaint, third party an-
dispute properly before him/her in the swer, appeals of arbitration decisions,
manner and to the extent provided and petitions to modify or vacate an
herein, but only to the extent of and arbitration award will be as set forth
within the limits of the STB’s statu- in 49 CFR 1002.2(f)(87). All fees are non-
tory jurisdiction. In so resolving any refundable except as specifically pro-
such dispute, the Arbitrator will not be vided and are due with the paying par-
bound by any procedural rules or regu- ty’s first filing in any proceeding.
lations adopted by the STB for the res- (b) The parties may agree among
olution of similar disputes, except as themselves who will bear the expenses
specifically provided in this part 1108; of arbitration, including compensation
provided, however, that the Arbitrator of the arbitrator. Absent an agreement,
will be guided by the Interstate Com- each party will bear its own expenses,
merce Act and by STB and ICC prece- including, without limitation, fees of
dent. experts or counsel. Absent an agree-
ment, the fees of the Arbitrator will be
§ 1108.4 Relief. paid by the party or parties losing an
(a) Subject to specification in the arbitration entirely. If no party loses
complaint, as provided in § 1108.7 here- an arbitration entirely (as determined
in, an Arbitrator may grant the fol- by the Arbitrator), the parties shall
lowing types of relief: share equally (or pro rata if more than
117
§ 1108.6 49 CFR Ch. X (10–1–07 Edition)
two parties) the fees and expenses, if mencement Procedures set forth in
any, of the Arbitrator, absent an agree- § 1108.7 hereof.
ment otherwise. (e) If, at any time during the arbitra-
tion process, a selected Arbitrator be-
§ 1108.6 Arbitrators. comes incapacitated, unwilling or un-
(a) Arbitration shall be conducted by able to fulfill his/her duties, or if both
an arbitrator (or panel of arbitrators) parties agree that the arbitrator
selected, as provided herein, from a should be replaced, a replacement Arbi-
roster of persons (other than active trator will be promptly selected under
government officials) experienced in the process set forth in paragraphs (b)
rail transportation or economic issues and (c) of this section.
similar to those capable of arising be- § 1108.7 Arbitration commencement
fore the STB. The initial roster of arbi- procedures.
trators shall be established by the
RSTAC in consultation with the Chair- (a) Each demand for arbitration shall
man of the STB, and shall contain not be commenced with a written com-
fewer than 21 names. The roster shall plaint. Because arbitration under these
thereafter be maintained by the Chair- procedures is both voluntary and bind-
ing, the complaint must set forth in de-
man of the STB, who may augment the
tail: the nature of the dispute; the stat-
roster at any time to include other eli-
utory basis of STB jurisdiction; a clear,
gible arbitrators and may remove from
separate statement of each issue as to
the roster any arbitrators who are no
which arbitration is sought; and the
longer available. The initial roster
specific relief sought. Each complaint
shall be published; thereafter the ros-
shall contain a sworn, notarized
ter shall be available to the public,
verification, by a responsible official of
upon request, at all times. For each ar-
the complaining party, that the factual
bitrator on the roster, the roster shall
allegations contained in the complaint
disclose the level of the fee (or fee
are true and accurate. Each complaint
range) charged by that arbitrator. must contain a statement that the
(b) The parties to a dispute may se- complainant is willing to arbitrate pur-
lect an arbitrator (or panel of arbitra- suant to these arbitration rules and be
tors) and submit the name(s) (and, if bound by the result thereof in accord-
not already on the roster of arbitra- ance with those rules, and must con-
tors, the qualifications) of the agreed- tain a demand that the defendants
upon person(s) in writing to the Chair- likewise agree to arbitrate and be so
man of the STB. Any person(s) so des- bound.
ignated who is not already on the ros- (b) The complaining party shall
ter, if found to be qualified, will be serve, by overnight mail or hand deliv-
added to the roster and may be used as ery, a signed and dated original of the
the arbitrator(s) for that dispute. complaint on each defendant (on a re-
(c) If the parties cannot agree upon sponsible official at his or her usual
an arbitrator (or panel of arbitrators), place of business), and an original and
then each party shall, using the roster two copies on the STB, accompanied by
of arbitrators, strike through the the filing fee prescribed under
names of any arbitrators to whom they § 1108.5(a) and set forth in 49 CFR
object, number the remaining arbitra- 1002.2(f)(87). Each complaint served on
tors on the list in order of preference, a defendant shall be accompanied by a
and submit its marked roster to the copy of this part 1108.
Chairman of the STB. The Chairman (c) Any defendant willing to enter
will then designate the arbitrator (or into arbitration under these rules
panel of arbitrators, if mutually pre- must, within 30 days of the date of a
ferred by the parties) in order of the complaint, answer the complaint in
highest combined ranking of all of the writing. The answer must contain a
parties to the arbitration. statement that the defendant is willing
(d) The process of selecting an Arbi- to arbitrate each arbitration issue set
trator pursuant to this section shall be forth in the complaint or specify which
conducted confidentially following the such issues the defendant is willing to
completion of the Arbitration Com- arbitrate. If the answer contains an
118
agreement to arbitrate some but not of any patent deficiencies, jurisdic-

all of the arbitration issues in the com- tional or otherwise, which the STB
plaint, the complainant will have 10 deems fatal to the processing of the
days from the date of the answer to ad- complaint, and will suspend the time-
vise the defendant and the STB in writ- table for processing the arbitration
ing whether the complainant is willing until further notice. If the complainant
to arbitrate on that basis. Upon the is unwilling or unable to remedy such
agreement of the parties to arbitrate, deficiencies to the satisfaction of the
these rules will be deemed incorporated STB within such time as the STB may
by reference into the arbitration agree- specify, the complaint shall be deemed
ment. to be withdrawn without prejudice.
(d) The answer of a party willing to Upon satisfaction that two or more
arbitrate shall also contain that par- parties have unconditionally agreed to
ty’s specific admissions or denials of arbitrate under these procedures, the
each factual allegation contained in STB will so notify the parties and com-
the complaint, affirmative defenses, mence procedures for the selection of
and any counterclaims or set-offs an Arbitrator.
which the defendant wishes to assert (h) An agreement to arbitrate pursu-
against the complainant. The right of a ant to these rules will be deemed a con-
defendant to advance any counter- tract to arbitrate, subject to limited
claims or set-offs, and the capacity of review by the STB pursuant to
an Arbitrator to entertain and render § 1108.11(c), for the purpose of sub-
an award with respect thereto, is sub- jecting the arbitration award to the
ject to the same jurisdictional limits provisions of 9 U.S.C. 9 (court enforce-
as govern the complaint. ment of an arbitration award), and 9
(e) A defendant’s answer must be U.S.C. 10 (vacation of an arbitration
served on the complainant, other par- award by a court on certain limited
ties, and the STB in the same manner grounds).
as the complaint.
(f) A defendant willing to enter into § 1108.8 Arbitration procedures.
arbitration under these procedures (a) The Arbitrator will establish
only if it is able to obtain cross-relief rules, including timetables, for each
against another defendant or a non- arbitration proceeding.
party may serve an answer containing (1) The evidentiary process will be
an agreement to arbitrate that is con- completed within 90 days from the
ditioned upon the willingness of any start date established by the arbi-
such third party to enter into arbitra- trator, and the arbitrator’s decision
tion as a third party defendant. Simul- will be issued within 30 days from the
taneously with the service of any such close of the record. The parties may
conditional answer, the defendant agree to vary these timetables, how-
making such answer shall serve a com- ever, subject to the approval of the ar-
plaint and demand for arbitration on bitrator. Matters handled through arbi-
the party whose presence that defend- tration under these rules are exempted
ant deems to be essential, such com- from any applicable statutory time
plaint and demand to be drawn and limits, pursuant to 49 U.S.C. 10502.
served in the same manner as provided (2) Discovery will be available only
in paragraphs (a) and (b) of this sec- upon the agreement of the parties.
tion. A defendant receiving such a com- (b) Evidence will be submitted under
plaint and demand for arbitration and oath. Evidence may be submitted in
that is willing to so arbitrate shall re- writing or orally, at the direction of
spond in the same manner as provided the Arbitrator. Hearings for the pur-
in paragraphs (c), (d), and (e) of this pose of cross-examining witnesses will
section. be permitted at the sound discretion of
(g) Upon receipt of a complaint and the Arbitrator. The Arbitrator, at his/
demand for arbitration served by a her discretion, may require additional
complainant on a defendant, or by a de- evidence.
fendant on a third-party defendant, the (c) Subject to alteration by the Arbi-
STB promptly will notify the parties trator or by agreement of the parties
serving and receiving such documents in individual proceedings, as a general
119
§ 1108.9 49 CFR Ch. X (10–1–07 Edition)
rule, where evidence is submitted in bitrator shall be binding and judicially

written form, the complaining party enforceable in law and equity in any
will proceed first, and the defendant court of appropriate jurisdiction, sub-
will proceed next. The complainant ject to a limited right of appeal to the
will then be given an opportunity to STB as provided below.
submit a reply. At the discretion of the
Arbitrator, argument may be sub- § 1108.10 Precedent.
mitted with each evidentiary filing or
Decisions rendered by arbitrators
in the form of a brief after the submis-
pursuant to these procedures shall
sion of all evidence. Page limits will be
have no precedential value.
set by each Arbitrator for all written
submissions of other than an evi- § 1108.11 Enforcement and appeals.
dentiary nature.
(d) Any written document, such as a (a) An arbitration decision rendered
common carrier rate schedule, upon pursuant to these procedures may be
which a party relies should be sub- appealed to the STB within 20 days of
mitted as part of that party’s proof, in service of such decision. Any such ap-
whole or in relevant part. The Arbi- peal shall be served by hand delivery or
trator will not be bound by formal overnight mail on the parties and on
rules of evidence, but will avoid basing the STB, together with a copy of the
a decision entirely or largely on unreli- arbitration decision. Replies to such
able proof. appeals may be filed within 20 days of
(e) Where proof submitted to an Arbi- the filing of the appeal with the Board.
trator addresses railroad costs, such An appeal or a reply under this para-
proof should be prepared in accordance graph shall not exceed 20 pages in
with the standards employed by the length. The parties shall furnish to the
STB in ascertaining the costs at issue.
STB an original and 10 copies of ap-
Discovery should be sufficient to en-
peals and replies filed pursuant to this
able parties to meet these standards.
(f) Where the Arbitrator is advised section. The filing fee for an appeal
that any party to an arbitration pro- will be as set forth in 49 CFR
ceeding wishes to keep matters relat- 1002.2(f)(87).
ing to the arbitration confidential, the (b) The filing of an appeal, as allowed
Arbitrator shall take such measures as in paragraph (a) of this § 1108.11, auto-
are reasonably necessary to ensure matically will stay an arbitration deci-
that such matters are treated confiden- sion pending disposition of the appeal.
tially by the parties or their represent- The STB will decide any such appeal
atives and are not disclosed by the Ar- within 50 days after the appeal is filed.
bitrator to non-authorized persons. If Such decision by the STB shall be
the Arbitrator regards any confidential served in accordance with normal STB
submission as being essential to his/her service procedures.
written decision, such information may (c) The STB will review, and may va-
be considered in the decision, but the cate or amend, an arbitration award, in
Arbitrator will make every effort to whole or in part, only on the grounds
omit confidential information from his/ that such award
her written decision. (1) Exceeds the STB’s statutory juris-
§ 1108.9 Decisions. diction; or
(2) Does not take its essence from the
(a) Decisions of the Arbitrator shall
Interstate Commerce Act.
be in writing and shall contain findings
of fact and conclusions. All such deci- (d) Effective arbitration decisions
sions shall be served by the Arbitrator rendered pursuant to these procedures,
by hand delivery or overnight mail on whether or not appealed to the STB,
the parties. At the same time, the arbi- may only be enforced in accordance
trator shall notify the STB, in writing, with 9 U.S.C. 9 and vacated by a court
that a decision has been rendered. in accordance with 9 U.S.C. 10, except
(b) By agreeing to arbitrate pursuant that an STB decision vacating an arbi-
to these procedures, each party agrees tration award is reviewable under the
that the decision and award of the Ar- Hobbs Act, 28 U.S.C. 2321, 2342.
120
§ 1108.12 Additional matters. § 1109.2 Appeals from arbitration deci-

sions.
Where an arbitration demand is filed
by one or more complainants against Appeals are limited to clear errors of
one or more defendants, the complain- general transportation importance, and
ants as a group and the defendants as a not issues of causation or fact. Arbitra-
group shall be entitled to exercise tion awards can be challenged on the
those rights, with respect to the selec- basis that they do not take their es-
tion of arbitrators, as are conferred on sence from the Interstate Commerce
individual arbitration parties. Act, or are not limited to the matters
the parties have referred for arbitra-
tion. Appeals are limited to 10 type-
PART 1109—USE OF ALTERNATIVE written pages. Parties will have 20 days
DISPUTE RESOLUTION IN BOARD from the service date of the decision to
PROCEEDINGS AND THOSE IN file, and opposing parties 20 days to an-
WHICH THE BOARD IS A PARTY swer. Arbitration decisions will become
effective in 30 days unless a party seeks
Sec. a stay of the decision within 10 days of
1109.1 Invoking ADR in Board proceedings. its issuance, and we grant the stay. Ap-
1109.2 Appeals from arbitration decisions. peals and stay petitions should be lim-
1109.3 Confidentiality in ADR matters. ited to extraordinary circumstances.
1109.4 Mandatory mediation in rate cases to
[57 FR 32451, July 22, 1992; 57 FR 35628, Aug.
be considered under the stand-alone cost
10, 1992]
methodology.
AUTHORITY: 5 U.S.C. 571 et seq. § 1109.3 Confidentiality in ADR Mat-
ters
SOURCE: 57 FR 32451, July 22, 1992, unless
otherwise noted. In all ADR matters involving the
Board, whether under the Administra-
§ 1109.1 Invoking ADR in Board pro- tive Dispute Resolution Act or not, the
ceedings. confidentiality provisions of that Act
Any proceeding may be held in abey- (5 U.S.C. 574) shall bind the Board and
ance for 90 days while administrative all parties and neutrals in those ADR
dispute resolution (ADR) procedures matters.
(such as arbitration and mediation) are [67 FR 36822, May 28, 2002]
pursued. (Additional 90 day periods can
be requested.) The period while any § 1109.4 Mandatory mediation in rate
proceeding is held in abeyance to fa- cases to be considered under the
cilitate ADR will not be counted to- stand-alone cost methodology.
wards the statutory deadlines. All par- (a) A shipper seeking rate relief from
ties are required to indicate their writ- a railroad or railroads in a case involv-
ten consent for ADR treatment. Re- ing the stand-alone cost methodology
quests that a proceeding be held in must engage in non-binding mediation
abeyance while ADR procedures are of its dispute with the railroad upon
pursued should be submitted to the Of- filing a formal complaint under 49 CFR
fice of the Secretary. The Secretary Part 1111.
shall promptly issue an order in re- (b) Within 10 business days after the
sponse to such requests. Unless arbitra- shipper files its formal complaint, the
tion or some other binding process in- Board will assign a mediator to the
volving a neutral has been undertaken, case. Within 5 business days of the as-
any party believing that ADR proce- signment to mediate, the mediator
dures are not yielding the intended re- shall contact the parties to discuss
sults shall inform the Secretary and all ground rules and the time and location
of any meeting. At least one principal
parties in writing, and normal agency
of each party, who has the authority to
procedures will be reactivated by the
bind that party, shall participate in
Secretary by notice served on all the the mediation and be present at any
parties. session at which the mediator requests
that the principal be present.
121
(c) The mediator will work with the other interpretation of rules or law of
parties to try to reach a settlement of the Surface Transportation Board,
all or some of their dispute or to nar- adopted under the procedures of sec-
row the issues in dispute, and reach tion 553 of title 5 of the United States
stipulations that may be incorporated Code (the Administrative Procedure
into any adjudication before the Board Act).
if mediation does not fully resolve the
dispute. If the parties reach a settle- § 1110.2 Opening of proceeding.
ment, the mediator may assist in pre- (a) The Board may open a rule-
paring a settlement agreement. making proceeding on its own motion.
(d) The entire mediation process In doing so, it may consider the rec-
shall be private and confidential. No ommendations of other agencies of the
party may use any concessions made or United States and of other persons.
information disclosed to either the me- (b) Any person may petition the
diator or the opposing party before the Board to issue, amend, or repeal a rule.
Board or in any other forum without (c) Each petition seeking the institu-
the consent of the other party. tion of a proceeding, filed under this
(e) The mediation shall be completed section must:
within 60 days of the appointment of (1) Be submitted, along with 15 copies
the mediator. The mediation may be if possible, to the Secretary, Surface
terminated prior to the end of the 60- Transportation Board, Washington, DC
day period only with the certification 20423;
of the mediator to the Board. Requests (2) Set forth the text or substance of
to extend mediation, or to re-engage it the rule or amendment proposed or
later, will be entertained on a case-by- specify the rule that the petitioner
case basis, but only if filed by all inter- wants to have repealed or modified;
ested parties. (3) Explain the interest of the peti-
(f) Absent a specific order from the tioner in the action requested; and
Board, the onset of mediation will not (4) Contain any information and ar-
affect the procedural schedule in stand- guments available to the petitioner to
alone cost rate cases, set forth at 49 support the action sought and may de-
CFR 1111.8(a). tail any environmental, energy, or
[68 FR 17313, Apr. 9, 2003]
small business considerations.
(d) In rail cases, the Board will grant
or deny a petition within 120 days of its
PART 1110—PROCEDURES GOV- receipt.
ERNING INFORMAL RULEMAKING (e) If the Board determines that a pe-
PROCEEDINGS tition contains adequate justification,
it will open a rulemaking proceeding
Sec. pursuant to § 1110.3 and will notify the
1110.1 Applicability. petitioner of its action.
1110.2 Opening of proceeding.
1110.3 Publication of notices.
(f) If the Board determines that the
1110.4 Participation. petition does not contain adequate jus-
1110.5 Consideration of comments received. tification for opening a rulemaking
1110.6 Petitions for extension of time to proceeding, the petition will be denied,
comment. with a brief statement of the grounds
1110.7 Availability of dockets. for denial, and the petitioner will be
1110.8 Adoption of final rules. notified of the Board’s action.
1110.9 Petition for waiver.
(g) If a petition under this section
1110.10 Petitions for reconsideration.
concerning a common carrier by rail-
AUTHORITY: 49 U.S.C. 721. road is granted, the Board will proceed
SOURCE: 47 FR 49556, Nov. 1, 1982, unless as soon as it is practicable. If the peti-
otherwise noted. tion is denied, the Board will publish a
statement of the reasons for the denial
§ 1110.1 Applicability. in the FEDERAL REGISTER.
This part contains general rule-
making procedures that apply to the § 1110.3 Publication of notices.
issuance, amendment, and repeal of (a) Interpretive rules, general state-
rules, general policy statement, or ments of policy, and rules relating to
122
organization, procedure, or practice present oral arguments, participate in

may be issued as final without notice informal conferences, appear at infor-
or other public rulemaking pro- mal fact-finding hearings, or partici-
ceedings. pate in any other proceedings. Informa-
(b) General rulemaking proceedings tion contained in written submissions
will be opened by the issuance of either will be given the same consideration.
a notice of intent to institute a rule-
making proceeding, an advance notice § 1110.5 Consideration of comments re-
of proposed rulemaking, or a notice of ceived.
proposed rules. The Board will publish All timely comments will be consid-
the notice in the FEDERAL REGISTER, ered before final action is taken on a
and it will invite the public to partici- rulemaking proposal. Comments which
pate in the rulemaking proceeding. No are filed late will be considered so far
notice will be issued when the Board as possible without incurring addi-
finds for good cause, that notice is im- tional expense, delay, or prejudice to
practical or unnecessary or contrary to other parties.
the public interest.
(c) Notices of proposed rulemakings § 1110.6 Petitions for extension of time
to comment.
will include:
(1) The proposed rules, if prepared; (a) Any person may petition the
(2) A discussion of why the Board for an extension of time to sub-
rulemakings are needed and what they mit comments in response to a notice
are intended to accomplish; of proposed rulemaking. The petition
(3) Identification of significant dates and one copy must be submitted at
in the proceedings, such as dates by least 10 days prior to the deadline for
which comments must be filed or on filing comments. The filing of the peti-
which the rules are proposed to take ef- tion does not automatically extend the
fect; time for the filing of petitioner’s com-
(4) Any relevant addresses; ments.
(5) The name and phone number of an (b) The Board will grant the petition
individual within the Board who can only if the petitioner shows a sub-
provide further information concerning stantive interest in the proposed rule
the proceedings; and good cause for the extension, and if
(6) Any supplementary information the extension is in the public interest.
required; and If an extension is granted, notice of it
(7) Reference to the legal authority will be published in the FEDERAL REG-
under which the rules are proposed. ISTER, and it will apply to all persons.
(d) In addition to being published in
the FEDERAL REGISTER, notices of pro- § 1110.7 Availability of dockets.
posed rulemaking and subsequent no- Dockets of pending rulemaking pro-
tices and decisions in rulemaking proceedings are maintained in the Office
ceedings, will be served on the parties of the Secretary. These dockets are
and made available to the public available for inspection by any person,
through the Office of the Secretary. To and copies may be obtained upon pay-
the extent possible, the date of service ment of the prescribed fee.
will be the same as the date of publica-
tion in the FEDERAL REGISTER. When § 1110.8 Adoption of final rules.
the service and publication dates are If, after consideration of all com-
not the same, the date of publication in ments received, final rules are adopted,
the FEDERAL REGISTER is controlling notice will be published in the FEDERAL
for the purpose of determining time pe- REGISTER.
riods set by these procedures or by no-
tices issued in individual proceedings. § 1110.9 Petition for waiver.
Any person may petition the Board
§ 1110.4 Participation. for a permanent or temporary waiver
Any person may participate in rule- of any rule. Petitions should be filed
making proceedings by submitting with the Secretary, Surface Transpor-
written information or views. In addi- tation Board, Washington, DC 20423,
tion, the Board may invite persons to and should identify the rule involved
123
§ 1110.10 49 CFR Ch. X (10–1–07 Edition)
and the arguments in favor of granting dence is to be directed at the hearing.

the waiver. In a complaint challenging the reason-
[48 FR 44827, Sept. 30, 1983] ableness of a rail rate, the complainant
should indicate whether, in its view,
§ 1110.10 Petitions for reconsideration. the reasonableness of the rate should
Any person may file a petition for re- be examined using constrained market
consideration of the Board’s decision in pricing or using the simplified stand-
a rulemaking proceeding. Petitions ards adopted pursuant to 49 U.S.C.
should be filed within 20 days of the 10701(d)(3). If the complainant seeks to
date that the final decision is published use the simplified standards, it should
in the FEDERAL REGISTER and should support this request by submitting, at
identify the interest of the petitioner, a minimum, the following information:
the specific action sought, and the ar- (1) A general history of the traffic at
guments favoring that action. issue, including how the traffic has
moved in the past, how it currently
PART 1111—COMPLAINT AND moves, and how it can and will be
INVESTIGATION PROCEDURES moved in the future. This information
should address not only the physical
Sec. movement of the traffic, but the type
1111.1 Content of formal complaints; join- and level of rates actually used. It
der. should include all carriers (rail and
1111.2 Amended and supplemental com- nonrail) that have participated in the
plaints.
1111.3 Service. transportation of this traffic or could
1111.4 Answers and cross complaints. do so.
1111.5 Motions to dismiss or to make more (2) The specific commodity descrip-
definite. tion(s) for the traffic at issue, the ship-
1111.6 Satisfaction of complaint. ping characteristics and requirements
1111.7 Investigations on the Board’s own
of the traffic, and the type of railroad
motion.
1111.8 Procedural schedule in stand-alone cars required or used for the traffic.
cost cases. (3) All origins, destinations, and ori-
1111.9 Procedural schedule to determine gin-destination (O-D) pairs involved in
whether to use simplified procedures. the complaint, by commodity type.
1111.10 Meeting to discuss procedural mat-
(4) The amount of traffic involved (by
ters.
commodity type), including total an-
AUTHORITY: 49 U.S.C. 721, 10704, and 11701. nual carloadings, average tons per car,
SOURCE: 61 FR 52711, Oct. 8, 1996, unless number of carloads per shipment, and
otherwise noted. number of carloads per week or month.
(5) Total or average revenue per car-
§ 1111.1 Content of formal complaints;
joinder. load paid to the defendant railroad(s),
by commodity type.
(a) General. A formal complaint must (6) The feasibility and anticipated
contain the correct, unabbreviated cost of preparing a stand-alone cost
names and addresses of each complain- presentation in the case.
ant and defendant. It should set forth
(7) An estimate of the other costs to
briefly and in plain language the facts
be incurred in pursuing the rate com-
upon which it is based. It should in-
plaint, including preparing necessary
clude specific reference to pertinent
statutory provisions and Board regula- jurisdictional threshold and market
tions, and should advise the Board and dominance evidence.
the defendant fully in what respects (8) The relief sought, including all
these provisions or regulations have reparations as well as the level and du-
been violated. The complaint should ration of any rate prescription.
contain a detailed statement of the re- (9) The present value of the relief
lief requested. Relief in the alternative sought.
or of several different types may be de- (10) The assumptions, calculations
manded, but the issues raised in the and any documentation necessary to
formal complaint should not be broader support the responses to the above list-
than those to which complainant’s evi- ed factors.
124
(11) For matters for which voluntary, § 1111.2 Amended and supplemental
binding arbitration is available pursu- complaints.
ant to 49 CFR part 1108, the complaint An amended or supplemental com-
shall state that arbitration was consid- plaint may be tendered for filing by a
ered, but rejected, as a means of resolv- complainant against a defendant or de-
ing the dispute. fendants named in the original com-
(b) Multiple causes of action. Two or plaint, stating a cause of action alleged
more grounds of complaint concerning to have accrued within the statutory
the same principle, subject, or state- period immediately preceding the date
ment of facts may be included in one of such tender, in favor of complainant
complaint, but should be stated and and against the defendant or defend-
numbered separately. ants. The time limits for responding to
(c) Joinder. Two or more complain- an amended or supplemental complaint
ants may join in one complaint against are computed pursuant to § § 1111.4 and
one or more defendants if their respec- 1111.5 of this part, as if the amended or
tive causes of action concern substan- supplemental complaint was an origi-
tially the same alleged violations and nal complaint.
like facts.
EFFECTIVE DATE NOTE: At 72 FR 51375,
(d) Request for access to waybill data. Sept. 7, 2007, § 1111.2 was revised, effective
Parties needing access to the Waybill Oct. 7, 2007. For the convenience of the user
Sample to prepare their case should the revised text is set forth as follows:
follow the procedures set forth at 49
§ 1111.2 Amended and supplemental com-
CFR 1244.8. plaints.
[61 FR 52711, Oct. 8, 1996, as amended at 63 FR (a) Generally. An amended or supplemental
2639, Jan. 16, 1998; 67 FR 36822, May 28, 2002] complaint may be tendered for filing by a
complainant against a defendant or defend-
EFFECTIVE DATE NOTE: At 72 FR 51375, ants named in the original complaint, stat-
Sept. 7, 2007, § 1111.1 was amended by revising ing a cause of action alleged to have accrued
paragraphs (a)(1) through (10), redesignating within the statutory period immediately pre-
paragraphs (b) through (d) as paragraphs (c) ceding the date of such tender, in favor of
through (e) respectively, and adding a new complainant and against the defendant or
paragraph (b), effective Oct. 7, 2007. For the defendants. The time limits for responding
convenience of the user, the added and re- to an amended or supplemental complaint
vised text is set forth as follows: are computed pursuant to §§ 1111.4 and 1111.5
of this part, as if the amended or supple-
§ 1111.1 Content of formal complaints; join-
der. mental complaint was an original complaint.
(b) Simplified standards. A complaint filed
(a) * * * under the simplified standards may be
(1) The carrier or region identifier. amended once before the filing of opening
(2) The type of shipment (local, received- evidence to opt for a different rate reason-
terminated, etc.). ableness methodology, among Three-Bench-
(3) The one-way distance of the shipment. mark, Simplified-SAC or Full-SAC. If so
(4) The type of car (by URCS code). amended, the procedural schedule begins
(5) The number of cars. again under the new methodology as set
(6) The car ownership (private or railroad). forth at §§ 1111.8 and 1111.9. However, only
(7) The commodity type (STCC code). one mediation period per complaint shall be
(8) The weight of the shipment (in tons per required.
car).
(9) The type of movement (individual, § 1111.3 Service.
multi-car, or unit train). A complainant is responsible for
(10) A narrative addressing whether there serving formal complaints, amended or
is any feasible transportation alternative for
supplemental complaints, and cross
the challenged movements.
(b) Disclosure with simplified standards com-
complaints on the defendant(s). Service
plaint. The complainant must provide to the shall be made by sending a copy of such
defendant all documents relied upon in for- complaint to the chief legal officer of
mulating its assessment of a feasible trans- each defendant by either confirmed
portation alternative and all documents re- facsimile and first-class mail or ex-
lied upon to determine the inputs to the press overnight courier. The cover page
URCS Phase III program. of each such facsimile and the front of
each such first-class mail or overnight
* * * * * express courier envelope shall include
125
§ 1111.4 49 CFR Ch. X (10–1–07 Edition)
the following legend: ‘‘Service of STB (c) Cross complaints. A cross com-
Complaint’’. Service of the complaint plaint alleging violations by other par-
shall be deemed completed on the date ties to the proceeding or seeking relief
on which the complaint is served by against them may be filed with the an-
confirmed facsimile or, if service is swer. An answer to a cross complaint
made by express overnight courier, on shall be filed within 20 days after the
the date such complaint is actually re- service date of the cross complaint.
ceived by the defendant. When the The party shall serve copies of an an-
complaint involves more than one de- swer to a cross complaint upon the
fendant, service of the complaint shall other parties.
be deemed completed on the date on (d) Failure to answer complaint. Aver-
which all defendants have been served. ments in a complaint are admitted
An original and ten copies of the com- when not denied in an answer to the
plaint should be filed with the Board complaint.
together with an acknowledgment of EFFECTIVE DATE NOTE: At 72 FR 51376,
service by the persons served or proof Sept. 7, 2007, § 1111.4 was revised, effective
of service in the form of a statement of Oct. 7, 2007. For the convenience of the user
the date and manner of service, of the the revised text is set forth as follows:
names of the persons served, and of the
§ 1111.4 Answers and cross complaints.
addresses to which the papers were
(a) Generally. An answer shall be filed with-
mailed or at which they were delivered,
in the time provided in paragraph (c) of this
certified by the person who made serv- section. An answer should be responsive to
ice. If complainant cannot serve the the complaint and should fully advise the
complaint, an original of each com- Board and the parties of the nature of the de-
plaint accompanied by a sufficient fense. In answering a complaint challenging
number of copies to enable the Board the reasonableness of a rail rate, the defend-
to serve one upon each defendant and ant should indicate whether it will contend
to retain 10 copies in addition to the that the Board is deprived of jurisdiction to
hear the complaint because the revenue-vari-
original should be filed with the Board.
able cost percentage generated by the traffic
[61 FR 52711, Oct. 8, 1996, as amended at 61 FR is less than 180 percent, or the traffic is sub-
58491, Nov. 15, 1996] ject to effective product or geographic com-
petition. In response to a complaint filed
§ 1111.4 Answers and cross complaints. under the simplified standards, the answer
must include the defendant’s preliminary es-
(a) Generally. An answer shall be filed timate of the variable cost of each chal-
within the time provided in paragraph lenged movement calculated using the
(b) of this section. An answer should be unadjusted figures produced by the URCS
responsive to the complaint and should Phase III program.
fully advise the Board and the parties (b) Disclosure with simplified standards an-
swer. The defendant must provide to the
of the nature of the defense. In answer- complainant all documents that it relied
ing a complaint challenging the rea- upon to determine the inputs used in the
sonableness of a rail rate, the defend- URCS Phase III program.
ant should indicate whether it will con- (c) Time for filing; copies; service. An answer
tend that the Board is deprived of ju- must be filed within 20 days after the service
risdiction to hear the complaint be- of the complaint or within such additional
cause the revenue-variable cost per- time as the Board may provide. The original
centage generated by the traffic is less and 10 copies of an answer must be filed with
the Board. The defendant must serve copies
than 180 percent, or the traffic is sub- of the answer upon the complainant and any
ject to effective product or geographic other defendants.
competition. (d) Cross complaints. A cross complaint al-
(b) Time for filing; copies; service. An leging violations by other parties to the pro-
answer must be filed within 20 days ceeding or seeking relief against them may
after the service of the complaint or be filed with the answer. An answer to a
within such additional time as the cross complaint shall be filed within 20 days
after the service date of the cross complaint.
Board may provide. The original and 10
The party shall serve copies of an answer to
copies of an answer must be filed with a cross complaint upon the other parties.
the Board. The defendant must serve (e) Failure to answer complaint. Averments
copies of the answer upon the com- in a complaint are admitted when not denied
plainant and any other defendants. in an answer to the complaint.
126
§ 1111.5 Motions to dismiss or to make cost issues. Defendant files opening evi-
more definite. dence on existence of product and geo-
graphic competition, and revenue-variable
An answer to a complaint or cross cost percentage generated by complain-
complaint may be accompanied by a ant’s traffic.
motion to dismiss the complaint or Day 180—Complainant and defendant file
cross complaint or a motion to make reply evidence to opponent’s opening evi-
the complaint or cross complaint more dence.
definite. A motion to dismiss can be Day 210—Complainant and defendant file re-
filed at anytime during a proceeding. A buttal evidence to opponent’s reply evi-
complainant or cross complainant dence.
may, within 10 days after an answer is (b) Conferences with parties. (1) The
filed, file a motion to make the answer Board will convene a technical con-
more definite. Any motion to make ference of the parties with Board staff
more definite must specify the defects prior to the filing of any evidence in a
in the particular pleading and must de- stand-alone cost rate case, for the pur-
scribe fully the additional information pose of reaching agreement on the op-
or details thought to be necessary. erating characteristics that are used in
the variable cost calculations for the
§ 1111.6 Satisfaction of complaint. movements at issue. The parties should
If a defendant satisfies a formal com- jointly propose a schedule for this
plaint, either before or after answering, technical conference.
a statement to that effect signed by (2) In addition, the Board may con-
the complainant must be filed (original vene a conference of the parties with
only need be filed), setting forth when Board staff, after discovery requests
and how the complaint has been satis- are served but before any motions to
fied. This action should be taken as ex- compel may be filed, to discuss dis-
peditiously as possible. covery matters in stand-alone cost rate
cases. The parties should jointly pro-
§ 1111.7 Investigations on the Board’s pose a schedule for this discovery con-
own motion. ference.
(a) Service of decision. A decision in- [61 FR 52711, Oct. 8, 1996; 61 FR 53996, Oct. 16,
stituting an investigation on the 1996, as amended at 63 FR 2639, Jan. 16, 1998;
Board’s own motion will be served by 68 FR 17313, Apr. 9, 2003]
the Board upon respondents.
(b) Default. If within the time period § 1111.9 Procedural schedule to deter-
stated in the decision instituting an in- mine whether to use simplified pro-
vestigation, a respondent fails to com- cedures.
ply with any requirement specified in Absent a specific order by the Board,
the decision, the respondent will be the following procedural schedule will
deemed in default and to have waived apply in determining whether to grant
any further proceedings, and the inves- a request under § 1111.1(a) to use the
tigation may be decided forthwith. simplified procedures (with the remain-
der of the procedural schedule to be de-
§ 1111.8 Procedural schedule in stand- termined on a case-by-case basis):
alone cost cases.
Day 0—Complaint filed, discovery period be-
(a) Procedural schedule. Absent a spe-
gins.
cific order by the Board, the following Day 20—Defendant’s answer to complaint
general procedural schedule will apply and opposition to use of simplified proce-
in stand-alone cost cases: dures due.
Day 0—Complaint filed, discovery period be- Day 30—Complainant’s response to use of
gins. simplified procedures due.
Day 7 or before—Conference of the parties Day 50—Board’s determination of whether
convened pursuant to § 1111.10(b). simplified procedures should be used.
Day 20—Defendant’s answer to complaint [63 FR 2639, Jan. 16, 1998]
due.
Day 75—Discovery completed. EFFECTIVE DATE NOTE: At 72 FR 51376,
Day 120—Complainant files opening evidence Sept. 7, 2007, § 1111.9 was revised, effective
on absence of intermodal and intramodal Oct. 7, 2007. For the convenience of the user
competition, variable cost, and stand-alone the revised text is set forth as follows:
127
§ 1111.10 49 CFR Ch. X (10–1–07 Edition)
§ 1111.9 Procedural schedule in cases using (5) Total trackage rights payments paid or
simplified standards. received during the Test Year associated
(a) Procedural schedule. Absent a specific with the route replicated by the SARR.
order by the Board, the following general (6) All workpapers and documentation nec-
procedural schedules will apply in cases essary to support the calculations.
using the simplified standards: (c) Conferences with parties. The Board may
(1) In cases relying upon the Simplified- convene a conference of the parties with
SAC methodology: Board staff to facilitate voluntary resolution
Day 0—Complaint filed (including complain- of discovery disputes and to address tech-
ant’s disclosure). nical issues that may arise.
(d) Complaint filed with a petition to revoke a
Day 10—Mediation begins.
class exemption. If a complaint is filed simul-
Day 20—Defendant’s answer to complaint
taneously with a petition to revoke a class
(including defendant’s initial disclosure).
exemption, the Board will take no action on
Day 30—Mediation ends; discovery begins. the complaint and the procedural schedule
Day 140—Defendant’s second disclosure. will be held in abeyance automatically until
Day 150—Discovery closes. the petition to revoke is adjudicated.
Day 220—Opening evidence.
Day 280—Reply evidence. § 1111.10 Meeting to discuss proce-
Day 310—Rebuttal evidence dural matters.
Day 320—Technical conference (market
dominance and merits).
(a) Generally. In all complaint pro-
Day 330—Final briefs. ceedings, other than those challenging
the reasonableness of a rail rate based
(2) In cases relying upon the Three-Bench-
mark method: on stand-alone cost, the parties shall
meet, or discuss by telephone, dis-
Day 0—Complaint filed (including complain-
ant’s disclosure).
covery and procedural matters within
Day 10—Mediation begins. (STB production 12 days after an answer to a complaint
of unmasked Waybill Sample.) is filed. Within 19 days after an answer
Day 20—Defendant’s answer to complaint to a complaint is filed, the parties, ei-
(including defendant’s initial disclosure). ther jointly or separately, shall file a
Day 30—Mediation ends; discovery begins. report with the Board setting forth a
Day 60—Discovery closes. proposed procedural schedule to govern
Day 90—Complainant’s opening (initial ten- future activities and deadlines in the
der of comparison group and opening evi- case.
dence on market dominance). Defendant’s (b) Stand-alone cost complaints. In
opening (initial tender of comparison
complaints challenging the reasonable-
group).
Day 95—Technical conference on comparison ness of a rail rate based on stand-alone
group. cost, the parties shall meet, or discuss
Day 120—Parties’ final tenders on compari- by telephone, discovery and procedural
son group. Defendant’s reply on market matters within 7 days after a com-
dominance. plaint is filed. The parties should in-
Day 150—Parties’ replies to final tenders. form the Board as soon as possible
Complainant’s rebuttal on market domi- thereafter whether there are unre-
nance. solved disputes that require Board
(b) Defendant’s second disclosure. In cases intervention and, if so, the nature of
using the Simplified-SAC methodology, the such disputes.
defendant must make the following disclo-
sures to the complainant by Day 170 of the [61 FR 52711, Oct. 8, 1996. Redesignated and
procedural schedule. amended at 63 FR 2639, Jan. 16, 1998]
(1) Identification of all traffic that moved EFFECTIVE DATE NOTE: At 72 FR 51376,
over the routes replicated by the SARR in Sept. 7, 2007, § 1111.10 was revised, effective
the Test Year. Oct. 7, 2007. For the convenience of the user
(2) Information about those movements, in the revised text is set forth as follows:
electronic format, aggregated by origin-des-
tination pair and shipper, showing the ori- § 1111.10 Meeting to discuss procedural mat-
gin, destination, volume, and total revenues ters.
from each movement. (a) Generally. In all complaint proceedings,
(3) Total operating and equipment cost cal- other than those challenging the reasonable-
culations for each of those movements, pro- ness of a rail rate based on stand-alone cost
vided in electronic format. or the simplified standards, the parties shall
(4) Revenue allocation for the on-SARR meet, or discuss by telephone, discovery and
portion of each cross-over movement in the procedural matters within 12 days after an
traffic group provided in electronic format. answer to a complaint is filed. Within 19
128
days after an answer to a complaint is filed, by all parties and will list the names
the parties, either jointly or separately, and addresses of all persons who at
shall file a report with the Board setting that time are on the service list in the
forth a proposed procedural schedule to gov-
ern future activities and deadlines in the
proceeding. In this part, a statement
case. responding to an opening statement is
(b) Stand-alone cost or simplified standards referred to as a ‘‘reply’’, and a state-
complaints. In complaints challenging the ment responding to a reply is referred
reasonableness of a rail rate based on stand- to as a ‘‘rebuttal’’. Replies to rebuttal
alone cost or the simplified standards, the material are not permitted. The filing
parties shall meet, or discuss by telephone, of motions or other pleadings will not
discovery and procedural matters within 7
days after the mediation period ends. The
automatically stay or delay the estab-
parties should inform the Board as soon as lished procedural schedule. Parties will
possible thereafter whether there are unre- adhere to this schedule unless the
solved disputes that require Board interven- Board issues an order modifying the
tion and, if so, the nature of such disputes. schedule.
PART 1112—MODIFIED FR 58491, Nov. 15, 1996]
PROCEDURES
§ 1112.3 Default for failure to comply
Sec. with schedule; effect of default.
1112.1 When modified procedure is used. If a party fails to comply with the
1112.2 Decisions directing modified proce-
schedule for submission of verified
dure.
1112.3 Default for failure to comply with statements, or any other requirements
schedule; effect of default. established by the modified procedure
1112.4 Petitions to intervene. decision, that party will be deemed to
1112.5 Joint pleadings. be in default and to have waived any
1112.6 Verified statements; contents. further participation in the proceeding.
1112.7 Records in other Board proceedings. Thereafter, the proceeding may be dis-
1112.8 Verification.
1112.9 Sample verification for statement of
posed of without notice to and without
fact under modified procedure. participation by parties in default.
1112.10 Requests for oral hearings and cross
examination. § 1112.4 Petitions to intervene.
1112.11 Authority of officers. (a) The Board may grant a petition
AUTHORITY: 5 U.S.C. 559; 49 U.S.C. 721. to intervene in a proceeding set for
SOURCE: 47 FR 49558, Nov. 1, 1982, unless modified procedure if intervention:
otherwise noted. (1) Will not unduly disrupt the sched-
ule for filing verified statements, ex-
§ 1112.1 When modified procedure is cept for good cause shown; and
used. (2) Would not unduly broaden the
The Board may decide that a pro- issues raised in the proceeding.
ceeding be heard under modified proce- (b) The petition to intervene shall set
dure when it appears that substantially out:
all material issues of fact can be re- (1) The petitioner’s interest in the
solved through submission of written proceeding;
statements, and efficient disposition of (2) Whether the petitioner supports
the proceeding can be accomplished or opposes the relief sought or the ac-
without oral testimony. Modified pro- tion proposed or is otherwise concerned
cedure may be ordered on the Board’s with the issues presented in the pro-
initiative, or upon approval of a re- ceeding; and
quest by any party. (3) The petitioner’s request, if any,
for relief.
FR 52712, Oct. 8, 1996] [47 FR 49558, Nov. 1, 1982, as amended at 61
FR 52712, Oct. 8, 1996]
§ 1112.2 Decisions directing modified
procedure. § 1112.5 Joint pleadings.
A decision directing that modified Parties with common interests are
procedure be used will set out the encouraged to prepare joint pleadings
schedule for filing verified statements whenever possible.
129
§ 1112.6 49 CFR Ch. X (10–1–07 Edition)
§ 1112.6 Verified statements; contents. ject matter of the desired cross exam-
ination.
A verified statement should contain
(b) Disposition. Unless material facts
all the facts upon which the witness re-
are in dispute, oral hearings will not be
lies, and to the extent that it contains
held. If held, oral hearings will nor-
arguments, they should be based only
mally be confined to material issues
on those facts. Parties filing reply and
upon which the parties disagree. The
rebuttal verified statements will be
decision setting a matter for oral hear-
considered to have admitted the truth
ing will define the scope of the hearing.
of material allegations of fact con-
tained in their opponents’ statements [61 FR 52712, Oct. 8, 1996]
unless those allegations are specifi-
cally challenged. Rebuttal statements § 1112.11 Authority of officers.
shall be confined to issues raised in the Except to the extent that they apply
reply statements to which they are di- only to the conduct of a public hearing,
rected. the officer assigned to handle a pro-
ceeding under the modified procedure
§ 1112.7 Records in other Board pro- shall have the same authority as offi-
ceedings. cers assigned to conduct oral hearings
If any portion of the record before as described in § 1113.3(a) and (b).
the Board in any proceeding other than
the proceeding at issue is offered in PART 1113—ORAL HEARING
evidence, a true copy should be pre-
sented for the record. Sec.
1113.1 Scheduling hearings; continued hear-
ings.
FR 52712, Oct. 8, 1996]
1113.2 Subpoenas.
1113.3 Authority of officers.
§ 1112.8 Verification. 1113.4 Prehearing conferences.
The original of any pleading filed 1113.5 Stipulations.
must show the signature, capacity, and 1113.6 Appearances; withdrawal or absence
from hearing.
seal, if any, of the person admin-
1113.7 Intervention; petitions.
istering the oath, and the date thereof. 1113.8 Witness examination; order of proce-
dure.
§ 1112.9 Sample verification for state- 1113.9 Prepared statements.
ment of fact under modified proce- 1113.10 Records in other Board proceedings.
dure. 1113.11 Abstracts of documents.
1113.12 Exhibits.
State of llllllllll,
1113.13 Filing evidence subsequent to hear-
County of llllllllll, ing; copies.
SS: 1113.14 Objections to rulings.
llllllllll being duly sworn, deposes 1113.15 Interlocutory appeals.
and says that he has read the foregoing 1113.16 Oral argument before the hearing of-
statement, knows the facts asserted there ficer.
are true and that the same are true as stat- 1113.17 Transcript of record.
ed. 1113.18 Briefs.
Signed llllllllll. 1113.19 Pleadings: part of the record.
Subscribed and sworn to before me this 1113.20–1113.30 [Reserved]
lllll day of llllllllll.
Notary Public of llllllllll. AUTHORITY: 5 U.S.C. 559; 49 U.S.C. 721.
My Commission expires llllllllll. SOURCE: 47 FR 49559, Nov. 1, 1982, unless
otherwise noted.
§ 1112.10 Requests for oral hearings
and cross examination. § 1113.1 Scheduling hearings; contin-
(a) Requests. Requests for oral hear- ued hearings.
ings in matters originally assigned for (a) Assignment; service and posting of
handling under modified procedure notice. In those proceedings in which an
must include the reasons why the mat- oral hearing is to be held, the Board
ter cannot be properly resolved under will assign a time and place for hear-
modified procedure. Requests for cross ing. Notice of hearings will be posted in
examination of witnesses must include the Office of the Secretary of the Board
the name of the witness and the sub- and will be served upon the parties and
130
such other persons as may be entitled time and manner of service; and return
to receive notice under the Act. such affidavit on, or with, the original
(b) Requests for changes in assignment. subpoena in accordance with the form
Requests for postponements of date of thereon. In case of failure to make
hearing will be granted only in excep- service the reasons for the failure
tional circumstances. should be stated on the original sub-
(c) Continuances. (1) A continuance poena. The written acceptance of serv-
may be granted at the discretion of the ice of a subpoena by the person subpoe-
presiding officer. naed will be sufficient without other
(2) If the presiding officer announces evidence of return. The original sub-
the time and place of a continued hear- poena bearing or accompanied by the
ing on the record, no further notice required return, affidavit, statement,
need be given. or acceptance of service, should be re-
turned forthwith to the Secretary of
FR 52712, Oct. 8, 1996] the Board, unless otherwise directed.
(e) Witness fees. A witness who is
§ 1113.2 Subpoenas. summoned and responds to the sum-
(a) Issuance. A subpoena may be mons is entitled to the same fee as is
issued upon the direction of the Board paid for like service in the courts of
on its own motion or upon request. A the United States. Such fee is to be
subpoena may be issued by the Board paid by the party at whose instance the
or by the officer presiding at a hearing testimony is taken at the time the sub-
and must be signed by the Secretary or poena is served, except that when the
a member of the Board. subpoena is issued on behalf of the
(b) Requests. (1) A request for a sub- United States or an officer or agency
poena to compel the appearance of a thereof, fees and mileage need not be
person at a hearing to give oral testi- tendered at the time of service.
mony, but not to produce documents, [47 FR 49559, Nov. 1, 1982, as amended at 61
may be made either by letter (only the FR 52712, Oct. 8, 1996]
original need be filed with the Board)
or orally upon the record at the hear- § 1113.3 Authority of officers.
ing. A showing of general relevance and (a) General. (1) The presiding officer
reasonable scope of the evidence sought has the authority to regulate the pro-
to be introduced through the subpoe- cedure in the hearing before him, and
naed person may be required. has authority to take all measures nec-
(2) A request for a subpoena to com- essary or proper for the efficient per-
pel a witness to produce documentary formance of the duties assigned him.
evidence should be made in writing by These include authority: (i) To hold
petition. The petition should specify hearings; (ii) to administer oaths and
with particularity the books, papers, or affirmations; (iii) to grant interven-
documents desired and facts expected tion; (iv) to accept any pleading; (v) to
to be proved, and should show the gen- establish special rules of procedure ap-
eral relevance and reasonable scope of propriate to the effective handling of
the evidence sought. The officer pre- the particular proceeding; (vi) to exam-
siding at a hearing may grant a request ine witnesses; (vii) to issue subpoenas
for such a subpoena made orally upon at the hearing; (viii) to dispose of re-
the record. quests for discovery; (ix) to hold con-
(c) Service. The original subpoena ferences for the settlement and sim-
should be exhibited to the person plification of issues; (x) to rule on mo-
served, should be read to him if he is tions and dispose of procedural re-
unable to read, and a copy should be quests; (xi) to make initial decisions;
delivered to him by the officer or per- (xii) to exclude any person from the
son making service. hearing for contemptuous conduct; and
(d) Return. If service of subpoena is (xiii) to take any other action author-
made by a United States marshal or his ized by this part, by the Administra-
deputy, service should be evidenced by tive Procedure Act, or by the Inter-
his return on the subpoena. If made by state Commerce Act and related acts.
any other person, such person shall (2) The presiding officer has the au-
make an affidavit stating the date, thority: (i) To terminate examination
131
§ 1113.4 49 CFR Ch. X (10–1–07 Edition)
or cross-examination of repetitious or written or oral instruction of an offi-

cumulative nature; (ii) to limit direct cer, parties or their representatives
examination to material matters; (iii) may be directed to appear before an of-
to limit cross-examination to disputed ficer at a specified time and place for a
material facts; (iv) to require that conference, prior to or during the
principal examination or cross-exam- course of a hearing, or in lieu of per-
ination be conducted by one or more sonally appearing, to submit sugges-
counsel representing similar interests tions in writing, for the purpose of for-
in proceedings where several parties mulating issues and considering:
are involved; (v) to set reasonable (1) The simplification of issues;
schedules for the presentation of wit- (2) The necessity or desirability of
nesses; (vi) and to set reasonable time amending the pleadings either for the
limits for the examination or cross-ex- purpose of clarification, amplification,
amination of witnesses. In order to en- or limitation;
force this paragraph, the officer may (3) The possibility of making admis-
require a clear statement on the record sions of certain averments of fact or
of the nature of the testimony to be stipulations concerning the use by any
given by any witness. or all parties of matters of public
(b) Motions to dismiss; amendments. (1) record, such as annual reports and the
The presiding officer shall have power like, to avoid the unnecessary intro-
to decide any motion to dismiss the duction of proof;
proceeding or other motion which in- (4) The procedure at the hearing;
volves final determination of the mer- (5) The limitation of the number of
its of the proceeding. witnesses;
(2) The presiding officer may grant (6) The propriety of prior mutual ex-
leave to amend any application or com- change between or among the parties
plaint. of prepared testimony and exhibits;
(c) Preparation of the decision by the and
prevailing party. Any proceeding in (7) Such other matters, including dis-
which an oral hearing is held and in position of requests for discovery, as
which the officer is able to announce may aid in the simplification of the
his decision either: evidence and disposition of the pro-
(1) On the record after the close of ceeding. Parties may request a pre-
the taking of testimony and the hear- hearing conference.
ing of arguments by the officer, or (b) Facts disclosed privileged. Facts
(2) By appropriate notification to the disclosed in the course of the pre-
parties after the close of hearing, may hearing conference are privileged and,
be made the subject of an initial deci- except by agreement, will not be used
sion prepared by a party or parties in against participating parties either be-
whose favor the officer decides, within fore the Board or elsewhere unless fully
a period specified by the officer, and corroborated by other evidence.
subject to such changes as the officer (c) Recordation and decision. Action
considers appropriate in the draft pre- taken at the conference, including a
pared for him. recitation of the amendments allowed
(d) Recording; media coverage. The pre- to the pleadings, the agreements made
siding officer shall have authority to by the parties as to any of the matters
permit or to refuse to permit the reconsidered, and defining the issues, will
cording of the hearing by means of live be recorded in an appropriate decision
or delayed television or radio broad- unless the parties enter into a written
cast, or the use of a tape recorder or stipulation as to such matters, or agree
other electronic or photographic equip- to a statement thereof made on the
ment by any person other than the offi- record by the officer.
cial reporter. (d) Objection to the decision; subsequent
[47 FR 49559, Nov. 1, 1982, as amended at 61 proceedings. If a decision is entered, the
FR 52712, Oct. 8, 1996] parties may, within 20 days of the date
of service, or within such lesser time as
§ 1113.4 Prehearing conferences. is set by the officer, present objections
(a) Purposes. Upon written notice by on the grounds that the decision does
the Board in any proceeding, or upon not fully or correctly embody the
132
agreements reached at the conference. that party, or if the withdrawal is

Thereafter the terms of the written without the permission of the presiding
stipulation or statement of the officer, officer, disciplining of the practitioner
as the case may be, will determine the concerned.
subsequent course of the proceedings, [47 FR 49559, Nov. 1, 1982, as amended at 61
unless modified to prevent manifest in- FR 52712, Oct. 8, 1996]
justice.
§ 1113.7 Intervention; petitions.
FR 52712, Oct. 8, 1996] (a) How requested. Intervention will
normally be granted only upon peti-
§ 1113.5 Stipulations. tion. In exceptional circumstances,
Apart from the procedure con- where the issues would not be broad-
templated by the prehearing provi- ened or the proceeding delayed, an offi-
sions, the parties may, by stipulation cer may, at his or her discretion, allow
in writing filed with the Board at any intervention upon motion made orally
stage of the proceeding, or orally made at the hearing.
at the hearing, agree upon any perti- (b) Content generally. A petition for
nent facts in the proceeding. The par- leave to intervene must set forth the
ties should agree to facts in this man- grounds for the proposed intervention,
ner whenever practicable. the position and interest of the peti-
tioner in the proceeding, and whether
[47 FR 49559, Nov. 1, 1982, as amended at 61 petitioner’s position is in support of or
FR 52712, Oct. 8, 1996] in opposition to the relief sought. If
the proceeding is by formal complaint
§ 1113.6 Appearances; withdrawal or and affirmative relief is sought by peti-
absence from hearing.
tioner, the petition should conform to
(a) Who may appear. Any individual the requirements for a formal com-
may appear for himself. Any member of plaint.
a partnership which is a party to any (c) When filed. A petition for leave to
proceeding may appear for such part- intervene in any proceeding should be
nerships upon adequate identification. filed prior to or at the time the pro-
A bona fide officer or a full-time em- ceeding is called for hearing, but not
ployee of a corporation, association, or after, except for good cause shown.
of an individual may appear for such (d) Broadening issues; filing. If the pe-
corporation, association, or individual tition seeks a broadening of the issues
by permission of the officer presiding and shows that they would not thereby
at the hearing. A party also may be be unduly broadened, and in respect
represented by a practitioner. thereof seeks affirmative relief, the pe-
(b) Withdrawal or absence from hear- tition should be filed in time to permit
ing. A practitioner who has entered his service upon and answer by the parties
appearance at the hearing shall not be in advance of the hearing.
permitted to withdraw from the hear- (e) Copies; service; replies. When a peti-
ing, or willfully be absent therefrom, tion for leave to intervene is tendered
except for good cause and, wherever at the hearing, sufficient copies of the
practicable, only with the permission petition must be provided for distribu-
of the presiding officer. If a person who tion to the parties represented at the
has entered an appearance withdraws hearing. If leave is granted at the hear-
from the hearing in a manner other ing, 10 copies of the petition must be
than that specified, the Board or the furnished for the use of the Board.
Officer may take such action as, in the When a petition for leave to intervene
interest of justice and the protection of is not tendered at the hearing, the
the lawful rights of all parties to the original and 10 copies of the petition
proceeding, the circumstances of the should be submitted to the Board to-
case may warrant, including the strik- gether with a certificate that service
ing out of all or any part of any plead- has been made by petitioner. Any reply
ing of the offending party, and includ- in opposition to a petition for leave to
ing the possible dismissal of the action intervene not tendered at the hearing
or proceeding, or any part thereof, the must be filed within 20 days after serv-
entry of an order of default against ice of the petition to intervene. At the
133
§ 1113.8 49 CFR Ch. X (10–1–07 Edition)
discretion of the Board leave to inter- the evidence contained in such state-
vene may be granted or denied before ment will be subject to the same rules
the expiration of the time allowed for as if such testimony was produced oral-
replies. ly, including the right of cross-exam-
(f) Disposition. Leave to intervene ination of the witness. The officer may
will be granted only when the peti- require that the witness testify orally
tioner addresses issues reasonably per- if, in the officer’s opinion, the memory
tinent to the issues already presented or demeanor of the witness may be of
and which do not unduly broaden them. importance.
If leave is granted the petitioner be-
comes an intervener and a party to the § 1113.10 Records in other Board pro-
proceeding. ceedings.
[47 FR 49559, Nov. 1, 1982, as amended at 53 A portion of the record before the
FR 19301, May 27, 1988; 61 FR 52712, Oct. 8, Board in another proceeding may be of-
1996] fered in evidence at an oral hearing. A
party making such an offer must pro-
§ 1113.8 Witness examination; order of vide, as an exhibit, a certified copy of
procedure. the material sought to be introduced.
Witnesses will be orally examined A hearing officer may waive the re-
under oath before the officer unless the quirement that a copy be provided,
facts are presented to the Board in the subject to such conditions as he or she
manner provided under modified proce- may impose to assure that a copy will
dure. In formal complaint, application, be available later, if needed, at no ex-
and investigation proceedings, com- pense to the Board and to assure that
plainant, applicant, and respondent, re- the interests of other parties are not
spectively, shall open and close at the prejudiced. An offer of evidence under
hearing. In the event of further hear- this section will be subject to objection
ings granted on petition, the peti- by other parties.
tioners requesting further hearing
shall open and close the proceeding. In- [47 FR 49559, Nov. 1, 1982, as amended at 61
FR 52712, Oct. 8, 1996]
stances exist in which parties other
than the respondent may open and § 1113.11 Abstracts of documents.
close in investigations where the bur-
den of proof is not upon the respond- When documents, such as freight
ent. Interveners shall follow the party bills or bills of lading, are numerous,
in whose behalf the intervention is the officer may refuse to receive all the
made. The foregoing order of presen- documents in evidence and instead
tation may be varied by the officer. admit only a limited number of rep-
resentative documents. He may in-
[47 FR 49559, Nov. 1, 1982, as amended at 61 struct, if the proffer be for the purpose
FR 52712, Oct. 8, 1996]
of proving damage, that introduction
§ 1113.9 Prepared statements. be deferred until there is opportunity
to comply with § 1133.2. If the proffer be
With the approval of the officer, a for another purpose the officer may re-
witness may read into the record, as quire the party in orderly fashion to
his testimony, statements of fact or ex- abstract the relevant data from the
pressions of opinion prepared by the documents, affording other parties rea-
witness, or written answers to inter- sonable opportunity to examine both
rogatories of counsel. A prepared state- the documents and the abstract, and
ment of a witness who is present at the
thereupon offer such abstract in evi-
hearing may be received as an exhibit,
dence in exhibit form.
provided that the statement does not
include argument. Before any such [47 FR 49559, Nov. 1, 1982, as amended at 61
statement is read or admitted in evi- FR 52713, Oct. 8, 1996]
dence, the witness shall deliver to the
officer, the reporter, and to opposing § 1113.12 Exhibits.
counsel, as may be directed by the offi- (a) Copies. Unless the officer other-
cer, a copy of such statement or of wise directs, the original and 10 copies
such interrogatories and the written of each exhibit of a documentary char-
answers thereto. The admissibility of acter should be furnished for the use of
134
the Board. The original will be deliv- original and 10 copies of such submis-
ered to the reporter, and the copy to sion should be filed with the Board.
the officer. If the hearing is before a
board, a copy of the exhibit should be FR 19301, May 27, 1988; 61 FR 52712, Oct. 8,
furnished to each member of the board, 1996]
unless the board otherwise directs. Un-
less the officer for cause directs other- § 1113.14 Objections to rulings.
wise, a reasonable number of copies It is sufficient that a party, at the
should be furnished to counsel in at- time the ruling is made or sought,
tendance at the hearing. make known to the officer on the
(b) Interchange prior to hearing. When- record the action which he desires the
ever practicable, the parties should officer to take or his objection to the
interchange copies of exhibits or other action of the officer and his grounds for
pertinent material or matter before or that objection. An objection not
at the commencement of the hearing; pressed in brief will be considered as
and the Board or presiding officer may waived. Where no brief is filed an ob-
so direct. jection will be considered as waived if
(c) When excluded how treated. When not pressed in an appeal or reply to an
exhibit has been identified, objected to, appeal, if filed, or in a separate peti-
and excluded, the officer will develop tion dealing only with that objection.
whether the party offering the exhibit
withdraws the offer, and if so, permit § 1113.15 Interlocutory appeals.
the return of the exhibit to him. If the Rulings of the presiding officer may
excluded exhibit is not withdrawn, it be appealed prior to service of the ini-
should be given an exhibit number for tial decision only if:
identification and be incorporated in (a) The ruling denies or terminates
the record. Exhibit numbers once used any person’s participation,
for identification will not be duplicated (b) The ruling grants a request for
thereafter. the inspection of documents not ordi-
narily available for public inspection,
(c) The ruling overrules an objection
FR 19301, May 27, 1988; 61 FR 52712, Oct. 8,
1996]
based on privilege, the result of which
ruling is to require the presentation of
§ 1113.13 Filing evidence subsequent testimony or documents, or
to hearing; copies. (d) The presiding officer finds that
the ruling may result in substantial ir-
Except as provided in this section or
reparable harm, substantial detriment
as expressly may be permitted in a par- to the public interest, or undue preju-
ticular instance, the Board will not re- dice to a party.
ceive in evidence or consider as part of
the record any documents, letters, or § 1113.16 Oral argument before the
other writings submitted for consider- hearing officer.
ation in connection with any pro- At the discretion of the hearing offi-
ceeding after close of the hearing, and cer and upon reasonable notice to the
may return any such documents to the parties, oral argument may be made at
sender. Before the close of a hearing the close of testimony before him as an
the officer may, at the request of a alternative to the filing of written
party or upon his own motion, or upon briefs. Such argument, which should
agreement of the parties, require that include requested findings and conclu-
a party furnish additional documen- sions, will be recorded and made a part
tary evidence that supplements the ex- of the transcript of testimony, and will
isting record, within a stated period of be available to the Board for consider-
time. Documentary evidence to be fur- ation in deciding the case. The making
nished in this way will be given an ex- of such argument will not preclude oral
hibit number at the time of filing and argument before the Board.
the parties advised accordingly. Unless [47 FR 49559, Nov. 1, 1982, as amended at 61
otherwise directed by the officer, the FR 52712, Oct. 8, 1996]
135
§ 1113.17 49 CFR Ch. X (10–1–07 Edition)
§ 1113.17 Transcript of record. script or otherwise, relied upon in sup-

port of the respective statements of
(a) Filing. After the close of the hear-
fact made throughout the brief.
ing, the complete transcript of the tes-
(c) Requested findings. Each brief
timony taken and the exhibits shall be
should include such requests for spe-
part of the record in the proceeding.
cific findings, separately stated and
(b) Corrections. A suggested correc-
numbered, as the party desires the
tion in a transcript ordinarily will be
Board to make.
considered only if offered not later
(d) Exhibit reproduction. Exhibits
than 20 days after the date each tran-
should not be reproduced in the brief,
script is filed with the Board. A copy of
but may be shown, within reasonable
the letter (original only need be filed
limits, in an appendix to the brief.
with the Board) requesting the sug-
Analysis of such exhibits should be in-
gested corrections should be served
cluded in the brief where pertinent.
upon all parties of record and with 2
copies to the official reporter. [47 FR 49559, Nov. 1, 1982, as amended at 61
(c) Objections to corrections. Parties FR 52712, Oct. 8, 1996]
disagreeing with corrections suggested
pursuant to paragraph (b) of this sec- § 1113.19 Pleadings: part of the record.
tion should file written objections in Matters of fact that are verified and
the same manner as suggested correc- filed prior to oral hearing and that are
tions are to be filed. Objections to sug- not specifically denied constitute evi-
gested corrections should be filed not dence and are part of the record. A wit-
later than 15 days after the filing with ness, who would present such evidence,
the Board of suggested corrections. If must be made available for cross-exam-
no objections are timely filed, the Sec- ination if a request is reasonably made.
retary of the Board shall make the sug- This rule does not apply to protests
gested corrections to the transcript. If against tariffs or schedules.
objections are timely filed, the officer
who presided at the hearing shall de- FR 53268, Oct. 1, 1999]
termine the merits of the suggested
correction and enter an appropriate de- § § 1113.20–1113.30 [Reserved]
cision in the proceeding.
(d) No free copies. The Board will not PART 1114—EVIDENCE; DISCOVERY
furnish free copies of the transcript to
any party to any proceeding.
Subpart A—General Rules of Evidence
FR 52712, Oct. 8, 1996] Sec.
1114.1 Admissibility.
§ 1113.18 Briefs. 1114.2 Official records.
1114.3 Admissibility of business records.
(a) When filed. In a proceeding which 1114.4 Documents in Board’s files.
has been the subject of oral hearing, 1114.5 Records in other Board proceedings.
and in which briefs are to be filed, that 1114.6 Official notice of corroborative mate-
fact will be stated by the officer on the rial.
record. The officer shall fix the time 1114.7 Exhibits.
for filing briefs. Simultaneous filing
will normally be required, and reply Subpart B—Discovery
briefs will not normally be permitted. 1114.21 Applicability; general provisions.
(b) Evidence abstract. A brief filed 1114.22 Deposition.
after a hearing may contain an ab- 1114.23 Depositions; location, officer, time,
stract of the evidence relied upon by fees, absence, disqualification.
the party filing it, preferably assem- 1114.24 Depositions; procedures.
bled by subjects, with reference to the 1114.25 Effect of errors and irregularities in
pages of the record, if written, or ex- depositions.
1114.26 Written interrogatories to parties.
hibit where the evidence appears. In 1114.27 Request for admission.
the event the party elects not to in- 1114.28 Depositions, requests for admission,
clude a separate abstract in his brief, written interrogatories, and responses
he should give specific reference to the thereto: inclusion in record.
portions of the record, whether tran- 1114.29 Supplementation of responses.
136
1114.30 Production of documents and consul general, consul, vice consul, or
records and entry upon land for inspec- consular agent or by officer in the for-
tion and other purposes.
eign service of the United States sta-
1114.31 Failure to respond to discovery.
tioned in the foreign state or country
AUTHORITY: 5 U.S.C. 559; 49 U.S.C. 721. in which the record is kept, and au-
SOURCE: 47 FR 49562, Nov. 1, 1982, unless thenticated by the seal of his office. A
otherwise noted. written statement signed by an officer
having the custody of an official record
Subpart A—General Rules of or by his deputy that after diligent
Evidence search no record or entry of a specified
tenor is found to exist in the records of
§ 1114.1 Admissibility. his office, accompanied by a certificate
Any evidence which is sufficiently re- as above provided, is admissible as evi-
liable and probative to support a deci- dence that the records of this office
sion under the provisions of the Admin- contain no such record or entry. This
istrative Procedure Act, or which section does not prevent the proof of
would be admissible under the general official records or of entry or lack of
statutes of the United States, or under entry therein or official notice thereof
the rules of evidence governing pro- by a method authorized by any applica-
ceedings in matters not involving trial ble statute or by the rules of evidence.
by jury in the courts of the United
States, will be admissible in hearings § 1114.3 Admissibility of business
before the Board. The rules of evidence records.
will be applied in any proceeding to the
Any writing or record, whether in the
end that necessary and proper evidence
form of an entry in a book or other-
will be conveniently, inexpensively,
and speedily produced, while pre- wise, made as a memorandum or record
serving the substantial rights of the of any act, transaction, occurrence, or
parties. event, will be admissible as evidence
thereof if it appears that it was made
[47 FR 49562, Nov. 1, 1982, as amended at 61 in the regular course of business, and
FR 52713, Oct. 8, 1996]
that it was the regular course of busi-
§ 1114.2 Official records. ness to make such memorandum or
record at the time such record was
An official record or an entry there-
made, or within a reasonable time
in, when admissible for any purpose,
thereafter.
may be evidenced by an official publi-
cation thereof or by a copy attested by § 1114.4 Documents in Board’s files.
the officer having the legal custody of
the record, or by a deputy, and accom- If a party offers in evidence any mat-
panied with a certificate that such offi- ter contained in a report or other docu-
cer has the custody. If the office in ment open to public inspection in the
which the record is kept is within the files of the Board, such report or other
United States or within a territory or document need not be made available
insular possession subject to the do- at the hearing.
minion of the United States, the cer-
tificate may be made by a judge of a
FR 52713, Oct. 8, 1996]
court of record of the district or polit-
ical subdivision in which the record is § 1114.5 Records in other Board pro-
kept, authenticated by the seal of the ceedings.
court, or may be made by any public
officer having a seal of office and hav- If any portion of the record before
ing official duties in the district or po- the Board in any proceeding other than
litical subdivision in which the record the proceeding at issue is offered in
is kept, authenticated by the seal of evidence, a true copy will be presented
his office. If the office in which the for the record.
record is kept is in a foreign state or
country, the certificate may be made
FR 52713, Oct. 8, 1996]

by a secretary of embassy or legation,
137
§ 1114.6 49 CFR Ch. X (10–1–07 Edition)
§ 1114.6 Official notice of corrobora- Subpart B—Discovery

tive material.
The Board or a hearing officer may § 1114.21 Applicability; general provi-
sions.
take notice of official records, records
in other Board proceedings, or other (a) When discovery is available. (1) Par-
materials which are otherwise subject ties may obtain discovery under this
to specific rules governing admissi- subpart regarding any matter, not
bility regardless of compliance with privileged, which is relevant to the
the full technical provisions of such subject matter involved in a pro-
rules, where the admissibility of the ceeding other than an informal pro-
evidence is for purposes of corrobora- ceeding. For the purpose of this sub-
tion of testimony presented or to chapter, informal proceedings are
evaluate the credibility of testimony those not required to be determined on
or allegations made in proceedings the record after hearing and include in-
where the public interest is not other- formal complaints and all proceedings
wise adequately represented by counsel assigned for initial disposition to em-
capable of fully complying with such ployee boards under § 1011.6.
rules. (2) It is not grounds for objection
that the information sought will be in-
[47 FR 49562, Nov. 1, 1982, as amended at 61 admissible as evidence if the informa-
FR 52713, Oct. 8, 1996] tion sought appears reasonably cal-
culated to lead to the discovery of ad-
§ 1114.7 Exhibits. missible evidence.
Whenever practical the sheets of each (b) How discovery is obtained. All dis-
exhibit and the lines of each sheet covery procedures may be used by par-
should be numbered. If the exhibit con- ties without filing a petition and ob-
sists of five or more sheets, the first taining prior Board approval.
sheet or title-page should be confined (c) Protective conditions. Upon motion
to a brief statement of what the ex- by any party, by the person from whom
hibit purports to show with reference discovery is sought, or by any person
by sheet and line to illustrative or typ- with a reasonable interest in the data,
ical examples contained therein. The information, or material sought to be
exhibit should bear an identifying discovered and for good cause shown,
number, letter, or short title which any order which justice requires may
will readily distinguish it from other be entered to protect a party or person
exhibits offered by the same party. It is from annoyance, embarrassment, op-
desirable that, whenever practicable, pression, or undue burden or expense,
evidence should be condensed into ta- or to prevent the raising of issues un-
bles. Whenever practicable, especially timely or inappropriate to the pro-
in proceedings in which it is likely that ceeding. Relief through a protective
many documents will be offered, all the order may include one or more of the
documents produced by a single wit- following:
ness should be assembled and bound to- (1) That the discovery not be had;
gether, suitably arranged and indexed, (2) That the discovery may be had
so that they may be identified and of- only on specified terms and conditions,
fered as one exhibit. Exhibits should including a designation of the time and
not be argumentative and should be place;
limited to statements of facts, and be (3) That the discovery may be had
relevant and material to the issue, only upon such terms and conditions as
which can better be shown in that form the Board may impose to insure finan-
than by oral testimony. cial responsibility indemnifying the
party or person against whom dis-
[47 FR 49562, Nov. 1, 1982, as amended at 61 covery is sought to cover the reason-
FR 52713, Oct. 8, 1996] able expenses incurred;
(4) That the discovery may be had
only by a method other than that se-
lected by the party seeking discovery;
138
(5) That certain matters not be in- thereof, should be appended to the ap-
quired into or that the scope of dis- propriate pleading when used to sup-
covery be limited to certain matters; port or to reply to a motion, or when
(6) That discovery be conducted with used as an evidentiary submission.
no one present except persons des-
ignated in the protective order; [47 FR 49562, Nov. 1, 1982, as amended at 61
FR 52713, Oct. 8, 1996]
(7) That a deposition after being
sealed be opened only by order of the EFFECTIVE DATE NOTE: At 72 FR 51377,
Board; Sept. 7, 2007, § 1114.21 was amended by adding
(8) That a trade secret or other con- paragraph (a)(3), effective Oct. 7, 2007. For
fidential research development or com- the convenience of the user, the added text is
mercial information not be disclosed or set forth as follows:
be disclosed only in a designated way; § 1114.21 Applicability; general provisions.
and
(a) * * *
(9) That the parties simultaneously
(3) In cases using the simplified standards
file specified documents or information Three-Benchmark method, the number of
enclosed in sealed envelopes to be discovery requests that either party can sub-
opened only upon direction or order of mit is limited as set forth in §§ 1114.22,
the Board. 1114.26, and 1114.30, absent advance author-
If the motion for a protective order is ization from the Board.
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 per- § 1114.22 Deposition.
mit discovery. A protective order under (a) Purpose. The testimony of any
this paragraph may only be sought
person, including a party, may be
after, or in conjunction with, an effort
taken by deposition upon oral exam-
by any party to obtain relief under
ination.
§ § 1114.24(a), 1114.26(a), or 1114.31.
(d) Sequence and timing of discovery. (b) Request. A party requesting to
Unless the Board upon motion, for the take a deposition and perpetuate testi-
convenience of parties and witnesses mony:
and in the interest of justice, orders (1) Should notify all parties to the
otherwise, methods of discovery may proceeding and the person sought to be
be used in any sequence and the fact deposed; and
that a party is conducting discovery, (2) Should set forth the name and ad-
whether by deposition or otherwise, dress of the witness, the place where,
should not operate to delay any party’s the time when, the name and office of
discovery. the officer before whom, and the cause
(e) Stipulations regarding discovery. or reason why such deposition will be
Unless otherwise ordered, a written taken.
stipulation entered into by all the par-
[61 FR 52713, Oct. 8, 1996]
ties and filed with the Board may:
(1) Provide that depositions be taken EFFECTIVE DATE NOTE: At 72 FR 51377,
before any person, at any time or Sept. 7, 2007, § 1114.22 was amended by adding
place, upon sufficient notice, and in paragraph (c), effective Oct. 7, 2007. For the
any manner and when so taken may be convenience of the user, the added text is set
used like other depositions; and forth as follows:
(2) Modify the procedures provided by § 1114.22 Deposition.
these rules for other methods of dis-
covery.
(f) Service of discovery materials. Un- * * * * *
less otherwise ordered by the Board, (c) Limitation under simplified standards. In
depositions, interrogatories, requests a case using the Three-Benchmark method-
for documents, requests for admissions, ology, each party is limited to one deposi-
and answers and responses thereto, tion absent advance authorization from the
shall be served on other counsel and Board.
parties, but shall not be filed with the
Board. Any such materials, or portions * * * * *
139
§ 1114.23 49 CFR Ch. X (10–1–07 Edition)
§ 1114.23 Depositions; location, officer, parties, or is a relative or employee of

time, fees, absence, disqualification. such representative or counsel or is fi-
(a) Where deposition should be taken. nancially interested in the proceeding.
Unless otherwise ordered or agreed to [47 FR 49562, Nov. 1, 1982, as amended at 61
by stipulation, depositions should be FR 52713, Oct. 8, 1996]
taken in the city or municipality
where the deponent is located. § 1114.24 Depositions; procedures.
(b) Officer before whom taken. Within (a) Examination. Examination and
the United States or within a territory cross-examination of witnesses should
or insular possession subject to the do- proceed as permitted at a hearing and
minion of the United States, deposi- should be limited to the subject matter
tions should be taken before an officer specified in the order granting dis-
authorized to administer oaths by the covery. All objections made at the
laws of the United States or of the time of the examination to the quali-
place where the examination is held. fications of the officer taking the depo-
Within a foreign country, depositions sition, or to the manner of taking it, or
may be taken before an officer or per- to the evidence presented, or to the
son designated by the Board or agreed conduct of any party, and any other ob-
upon by the parties by stipulation in jection to the proceedings, should be
writing to be filed with the Board. noted by the officer upon the deposi-
(c) Fees. A witness whose deposition tion. Evidence objected to should be
is taken pursuant to these rules and taken subject to the objections. In lieu
the officer taking same, unless he be of participating in the oral examina-
employed by the Board, shall be enti- tion, parties may serve written ques-
tled to the same fee paid for like serv- tions in a sealed envelope on the party
ice in the courts of the United States, taking the deposition, and shall trans-
which fee should be paid by the party mit them to the officer, who shall open
at whose instance the deposition is the sealed envelope, propound the ques-
taken. tions to the witness, and record the an-
(d) Failure to attend or to serve sub- swers verbatim.
poena; expenses. (1) If the party who (b) Use of depositions. At the hearings,
filed a petition for discovery fails to any part or all of a deposition, so far as
attend and proceed with the taking of admissible under the rules of evidence,
the deposition and another party at- may be used against any party who was
tends in person or by representative present or represented at the taking of
pursuant to an order of the Board the deposition or who had due notice
granting discovery the Board may thereof, in accordance with any one of
order the party who filed the petition the following provisions:
to pay to such other party the reason- (1) Any deposition may be used by
able expenses incurred by him and his any party for the purpose of contra-
representative in so attending, includ- dicting or impeaching the testimony of
ing reasonable attorney’s fees. the deponent as a witness.
(2) If the party who filed a petition (2) The deposition of a party or of
for discovery fails to serve a subpoena anyone who at the time of taking the
upon the witness and the witness be- deposition was an officer, director, or
cause of such failure does not attend, managing agent, or a person designated
and if another party attends in person to testify on behalf of a public or pri-
or by representative because he expects vate corporation, partnership, associa-
the deposition of the witness to be tion or governmental agency (other
taken, the Board may order the party than this Board, except in those in-
who filed the petition to pay to such stances where the Board itself is a
other party the reasonable expenses in- party to the proceeding) which is a
curred by him and his representative in party, may be used by an adverse party
so attending, including reasonable at- for any purpose.
torney’s fees. (3) The deposition of a witness,
(e) Disqualification for interest. No dep- whether or not a party, may be used by
osition should be taken before a person any party for any purpose if the pre-
who is a relative or employee or rep- siding officer or Board finds:
resentative or counsel of any of the (i) That the witness is dead; or
140
(ii) That the witness is at a greater made terminates the examination, it

distance than 100 miles from the place should be resumed thereafter only if so
of hearing or is out of the United ordered. Upon demand of the objecting
States, unless it appears that the ab- party or deponent, the taking of the
sence of the witness was procured by deposition should be suspended for the
the party offering the deposition; or time necessary to make a motion for
(iii) That the witness is unable to at- an order.
tend or testify because of age, illness, (e) Recordation. The officer before
infirmity, or imprisonment; or whom the deposition is to be taken
(iv) That the party offering the depo- shall observe the provisions of § 1113.6
sition has been unable to procure the respecting appearances and typo-
attendance of the witness by subpoena; graphical specifications, shall put the
or
witness under oath, and shall person-
(v) Upon application and notice, that
ally, or by someone acting under his di-
such exceptional circumstances exist
rection and in his presence, record and
as to make it desirable, in the interest
transcribe the testimony of the witness
of justice and with due regard to the
importance of presenting the testi- as required by these rules.
mony of witness orally at public hear- (f) Signing. When the testimony is
ing, to allow the deposition to be used. fully transcribed or otherwise recorded,
(4) If only part of a deposition is of- the deposition should be submitted to
fered in evidence by a party, an adverse the witness for examination and should
party may require him to introduce be read to or by him unless such exam-
any other part which ought in fairness ination and reading are waived by the
to be considered with the part intro- witness and the parties. Any changes in
duced, and any party may introduce form or substance which the witness
any other parts. Substitution of parties desires to make should be entered upon
does not affect the right to use deposi- the deposition by the officer with a
tions previously taken. statement of the reasons given by the
(c) Effect of taking or using depositions. witness for making them. The witness
A party should not be deemed to make shall then sign the deposition, unless
a person his own witness for any pur- the parties by stipulation waive the
pose by taking his deposition. The in- signing or the witness is ill or cannot
troduction in evidence of the deposi- be found or refuses to sign. If the depo-
tion or any part thereof for any pur- sition is not signed by the witness
pose other than that of contradicting within 15 days of its submission to him,
or impeaching the deponent makes the the officer shall sign it and state on
deponent the witness of the party in- the record the fact of the waiver or of
troducing the deposition, but this the illness or absence of the witness or
should not apply to the use of an ad- the fact of the refusal to sign together
verse party of a deposition under para- with the reason, if any, given therefor;
graph (b)(2) of this section. At the
and the deposition may then be used
hearing any party may rebut any rel-
fully as though signed, unless, on a mo-
evant evidence contained in a deposi-
tion to suppress, it is found that the
tion whether introduced by him or by
reasons given for refusal to sign re-
any other party.
(d) Motions to protect. At any time quire rejection of the deposition in
during the taking of the deposition, on whole or in part.
motion of any party or of the deponent (g) Attestation. The officer shall cer-
and upon a showing that the examina- tify on the deposition that the witness
tion is being conducted in bad faith or was duly sworn by him and that the
in such manner as unreasonably to deposition is a true record of the testi-
annoy, embarrass, or oppress the depo- mony given by the witness, and that
nent or party, the Board may order the the officer is: (1) Not a relative, em-
officer conducting the examination to ployee, representative or counsel of
cease forthwith from taking the deposi- any of the parties, (2) not a relative or
tion, or may limit the scope and man- employee of such representative or
ner of the taking of the deposition as counsel, and (3) not financially inter-
provided in § 1114.21(c). If the order ested in the proceeding.
141
§ 1114.25 49 CFR Ch. X (10–1–07 Edition)
(h) Return. The officer shall securely transmitted, filed, or otherwise dealt
seal the deposition in an envelope en- with by the officer under § 1114.23 and
dorsed with sufficient information to 1114.24 are waived unless a motion to
identify the proceeding and marked suppress the deposition or some part
‘‘Deposition of (here insert name of thereof is made with reasonable
witness)’’ and shall either personally promptness after such defect is, or with
deliver or promptly send the original due diligence might have been,
and one copy of all exhibits by reg- ascertained.
istered mail to the Secretary of the
Board. A deposition to be offered in § 1114.26 Written interrogatories to
evidence must reach the Board not parties.
later than 5 days before the date it is (a) Availability; procedures for use.
to be so offered. Subject to the provisions of
(i) Notice. The party taking the depo- § 1114.21(b)(2), any party may serve
sition shall give prompt notice of its upon any other party written interrog-
filing to all other parties. atories to be answered by the party
(j) Copies. Upon payment of reason- served, or if the party served is a public
able charges, the officer before whom or private corporation, partnership, as-
the deposition is taken shall furnish a sociation, or Governmental agency
copy of it to any interested party or to (other than this Board, except in those
the deponent. instances where the Board itself is a
[47 FR 49562, Nov. 1, 1982, as amended at 61 party to the proceeding), by any officer
FR 52713, Oct. 8, 1996] or agent, who shall furnish such infor-
mation as is available to the party.
§ 1114.25 Effect of errors and irreg- Each interrogatory should be answered
ularities in depositions. separately and fully in writing, unless
(a) As to disqualification of officer. Ob- it is objected to, in which event the
jection to taking a deposition because reasons for objection should be stated
of disqualification of the officer before in lieu of an answer. The answers are
whom it is to be taken is waived unless to be signed by the person making
made before the taking of the deposi- them and subscribed by an appropriate
tion begins or as soon thereafter as the verification generally in the form pre-
disqualification becomes known or scribed in § 1112.9. Objections are to be
could be discovered with reasonable signed by the representative or counsel
diligence. making them. The person upon whom
(b) As to taking of deposition. (1) Ob- the interrogatories have been served
jections to the competency of a witness shall serve a copy of the answers and
or to the competency, relevancy, or objections within the time period des-
materiality of testimony are not ignated by the party submitting the in-
waived by failure to make them before terrogatories, but not less than 15 days
or during the taking of the deposition, after the service thereof.
unless the ground of the objection is (b) Option to produce business records.
one which might have been obviated or Where the answer to an interrogatory
removed if presented at that time. may be derived or ascertained from the
(2) Errors and irregularities occur- business records of the party upon
ring at the oral examination in the whom the interrogatory has been
manner of taking the deposition, in the served or from an examination, audit,
form of the questions or answers in the or inspection of such business records
oath or affirmation, or in the conduct or from a compilation, abstract, or
of parties, and errors of any kind which summary based thereon, and the bur-
might be obviated, removed, or cured if den of deriving or ascertaining the an-
promptly presented, are waived unless swer is substantially the same for the
seasonable objection thereto is made at party serving the interrogatory as for
the taking of the deposition. the party served, it is a sufficient an-
(c) As to completion and return of depo- swer to such interrogatory to specify
sition. Errors and irregularities in the the records from which the answer may
manner in which the testimony is tran- be derived or ascertained and to afford
scribed or the deposition is prepared, to the party serving the interrogatory
signed, certified, sealed, endorsed, reasonable opportunity to examine,
142
audit, or inspect such records and to described in the request for admission.
make copies thereof, or compilation, Copies of documents should be served
abstracts, or summaries therefrom. If with the request unless they have been
information sought is contained in or are otherwise furnished or made
computer runs, punchcards, or tapes available for inspection and copying.
which also contain privileged or propri- Each matter of which an admission is
etary information or information the requested should be separately set
disclosure of which is proscribed by the forth. The matter is admitted unless,
act, it will be sufficient response under within a period designated in the re-
these rules that the person upon whom quest, not less than 15 days after serv-
the interrogatory has been served is ice thereof, the party to whom the re-
willing to make available to and per- quest is directed serves upon the party
mit an independent professional orga- requesting the admission a written an-
nization not interested in the pro- swer or objection addressed to the mat-
ceeding and paid by the party serving ter, signed by the party or his rep-
the interrogatory to extract from such resentative or counsel. If objection is
runs, punchcards, or tapes the informa- made, the reasons therefor should be
tion sought in the interrogatory that is stated. The answer should specifically
not privileged or proprietary informa- deny the matter or set forth in detail
tion or information the disclosure of the reasons why the answering party
which is proscribed by the act. cannot truthfully admit or deny the
(c) Service of interrogatories in those matter. A denial should fairly meet the
proceedings not requiring a petition. No substance of the requested admission,
written interrogatories shall be served and when good faith requires that a
within 20 days prior to the date as- party qualify his answer or deny only a
signed for commencement of hearing or part of the matter of which an admis-
the filing of opening statements of fact sion is requested, he shall specify so
and argument under the modified pro- much of it as is true and qualify or
cedure, and when the written interrog- deny the remainder. An answering
atories are to be served in a foreign party may not give lack of information
country, they shall not be served with- or knowledge as a reason for failure to
in 40 days prior to such date. admit or deny unless he states that he
has made reasonable inquiry and that
FR 52713, Oct. 8, 1996] the information known or readily ob-
tainable by him is insufficient to en-
EFFECTIVE DATE NOTE: At 72 FR 51377, able him to admit or deny. A party who
Sept. 7, 2007, § 1114.26 was amended by adding
considers that a matter of which an ad-
paragraph (d), effective Oct. 7, 2007. For the
convenience of the user, the added text is set mission has been requested presents a
forth as follows: genuine issue for hearing may not, on
that ground alone, object to the re-
§ 1114.26 Written interrogatories to parties. quest; he may, subject to the provi-
sions of § 1114.31, deny the matter or set
* * * * * forth reasons why he cannot admit or
(d) Limitation under simplified standards. In deny it.
a case using the Three-Benchmark method- (b) Effect of admission. Any matter ad-
ology, each party is limited to ten interrog- mitted under this rule is conclusively
atories (including subparts) absent advance established unless upon petition and a
authorization from the Board. showing of good cause the Board enters
an order permitting withdrawal or
§ 1114.27 Request for admission. amendment of the admission. Any ad-
(a) Availability; procedures for use. mission made by a party under this
Subject to the provisions of rule is for the purpose of the pending
§ 1114.21(b)(2), a party may serve upon proceeding only and is not an admis-
any other party a written request for sion by him for any other purpose nor
the admission, for purposes of the may it be used against him in any
pending proceeding only, of the truth other proceeding.
of any matters within the scope of (c) Service of written requests for admis-
§ 1114.21 set forth in the request, includ- sion in those proceedings not requiring a
ing the genuineness of any documents petition. No requests for admission
143
§ 1114.28 49 CFR Ch. X (10–1–07 Edition)
should be served within 20 days prior to (2) The identity of each person ex-
the date assigned for commencement of pected to be called as an expert witness
hearing or the filing of opening state- at the hearing, the subject matter on
ments of fact and argument under the which he is expected to testify, and the
modified procedure, and when requests substance of his testimony.
for admission are to be served in a for- (b) A party who knows or later learns
eign country they should not be served that his response is incorrect is under
within 40 days prior to such date. a duty seasonably to correct his re-
sponse.
(c) A duty to supplement responses
FR 52713, Oct. 8, 1996]
may be imposed by order, agreement of
§ 1114.28 Depositions, requests for ad- the parties, or at any time prior to the
mission, written interrogatories, hearing or the submission of verified
and responses thereto: inclusion in statements under the modified proce-
record. dure through new requests for sup-
plementation of prior responses.
At the oral hearing, or upon the sub-
mission of statements under the modi- § 1114.30 Production of documents and
fied procedure, depositions, requests records and entry upon land for in-
for admission and written interrog- spection and other purposes.
atories, and respective responses may (a) Scope. Any party may serve on
be offered in evidence by the party at any other party a request:
whose instance they were taken. If not (1) To produce and permit the party
offered by such party, they may be of- making the request to inspect any des-
fered in whole or in part by any other ignated documents (including writings,
party. If only part of a deposition, re- drawings, graphs, charts, photographs,
quest for admission or written inter- phonograph records, tapes, and other
rogatory, or response thereto is offered data compilations from which informa-
in evidence by a party, any other party tion can be obtained, translated, if nec-
(where the matter is being heard oral- essary, with or without the use of de-
ly) may require him to introduce all of tection devices into reasonably usable
it which is relevant to the part intro- form), or to inspect and copy, test, or
duced, and any party may introduce sample any tangible things which are
any other parts. Such depositions, rein the possession, custody, or control
quests for admission and written inter- of the party upon whom the request is
rogatories, and responses thereto served, but if the writings or data com-
should be admissible in evidence sub- pilations include privileged or propri-
ject to such objections as to com- etary information or information the
petency of the witness, or competency, disclosure of which is proscribed by the
relevancy, or materiality of the testi- Act, such writings or data compila-
mony as were noted at the time of tions need not be produced under this
their taking or are made at the time rule but may be provided pursuant to
they are offered in evidence. § 1114.26(b) of this part; or
(2) To permit, subject to appropriate
§ 1114.29 Supplementation of re-
sponses. liability releases and safety and oper-
ating considerations, entry upon des-
A party who has responded to a re- ignated land or other property in the
quest for discovery with a response possession or control of the party upon
that was complete when made is under whom the request is served for the pur-
a duty to supplement his response to pose of inspecting and measuring, sur-
include information thereafter ac- veying, photographing, testing, or sam-
quired in the following instances: pling the property or any designated
(a) A party is under a duty season- object or operation thereon.
ably to supplement his response with (b) Procedure. Any request filed pur-
respect to any question directly ad- suant to this rule should set forth the
dressed to: items to be inspected either by indi-
(1) The identity and locations of per- vidual item or by category and describe
sons having knowledge of discoverable each item and category with reason-
matters, and able particularity. The request should
144
specify a reasonable time, place, and (3) Conference with parties on motion to
manner of making the inspection and compel. Within 5 business days after the
performing the related acts. filing of a reply to a motion to compel
[61 FR 52713, Oct. 8, 1996] in a rate case to be considered under
the stand-alone cost methodology,
Board staff may convene a conference
Sept. 7, 2007, § 1114.30 was amended by adding
paragraph (c), effective Oct. 7, 2007. For the with the parties to discuss the dispute,
convenience of the user, the added text is set attempt to narrow the issues, and
forth as follows: gather any further information needed
to render a ruling.
§ 1114.30 Production of documents and
records and entry upon land for inspec- (4) Ruling on motion to compel in stand-
tion and other purposes. alone cost rate cases. Within 5 business
days after a conference with the par-
* * * * * ties convened pursuant to paragraph
(a)(3) of this section, the Secretary will
(c) Limitation under simplified standards. In
a case using the Three-Benchmark method- issue a summary ruling on the motion
ology, each party is limited to ten document to compel discovery in a stand-alone
requests (including subparts) absent advance cost rate case. If no conference is con-
authorization from the Board. vened, the Secretary will issue this
summary ruling within 10 business
§ 1114.31 Failure to respond to dis- days after the filing of the reply to the
covery. motion to compel. Appeals of a Sec-
(a) Failure to answer. If a deponent retary’s ruling will proceed under 49
fails to answer or gives an evasive an- CFR 1115.9, and the Board will attempt
swer or incomplete answer to a ques- to rule on such appeals within 20 days
tion propounded under § 1114.24(a), or a after the filing of the reply to the ap-
party fails to answer or gives evasive peal.
or incomplete answers to written inter- (b) Failure to comply with order. (1) If
rogatories served pursuant to a party or other witness refuses to be
§ 1114.26(a), the party seeking discovery sworn or refuses to answer any ques-
may apply for an order compelling an tion after being directed to do so by
answer by motion filed with the Board the Board, such refusal may subject
and served on all parties and depo- the refusing party or person to action
nents. Such motion to compel an an- by the Board under 49 U.S.C. 721(c) and
swer must be filed with the Board and
(d) to compel appearance and compli-
served on all parties and deponents.
ance with the Board’s order.
Such motion to compel an answer must
be filed with the Board within 10 days (2) If any party or an officer, direc-
after the failure to obtain a responsive tor, managing agent, or employee of a
answer upon deposition, or within 10 party or person refuses to obey an
days after expiration of the period al- order made under paragraph (a) of this
lowed for submission of answers to in- section requiring him to answer des-
terrogatories. On matters relating to a ignated questions, or an order made
deposition on oral examination, the under § 1114.30 requiring him to produce
proponent of the question may com- any document or other thing for in-
plete or adjourn the examination be- spection, copying, testing, sampling, or
fore he applies for an order. photographing or to permit it to be
(1) Reply to motion to compel generally. done, or to permit entry upon land or
Except in rate cases to be considered other property, the Board may make
under the stand-alone cost method- such orders in regard to the refusal as
ology, the time for filing a reply to a are just, and among others the fol-
motion to compel is governed by 49 lowing:
CFR 1104.13. (i) An order that the matters regard-
(2) Reply to motion to compel in standing which questions were asked, or the
alone cost rate cases. A reply to a mo- character or description of the thing or
tion to compel must be filed with the land, or the contents of the paper, or
Board within 10 days thereafter in a any other designated facts should be
rate case to be considered under the taken to be established for the pur-
stand-alone cost methodology. poses of the proceeding in accordance
145
with the claim of the party obtaining cumstances make an award of expenses
the order: unjust.
(ii) An order refusing to allow the (e) Expenses against United States. Ex-
disobedient party to support or oppose penses and attorney’s fees are not to be
designated claims or defenses, or pro- imposed upon the United States under
hibiting him from introducing in evi- this rule.
dence designated documents or things [47 FR 49562, Nov. 1, 1982, as amended at 61
or items of testimony: FR 52713, Oct. 8, 1996; 68 FR 17313, Apr. 9, 2003;
(iii) An order striking out pleadings 69 FR 58366, Sept. 30, 2004]
or parts thereof, or staying further pro-
ceedings until the order is obeyed, or
Sept. 7, 2007, § 1114.31 was amended by revis-
dismissing the proceedings or any ing paragraphs (a)(1), (a)(2), (a)(3), and (a)(4),
party thereof. effective Oct. 7, 2007. For the convenience of
(iv) In lieu of any of the foregoing or- the user, the revised text is set forth as fol-
ders, or in addition thereto, the Board lows:
shall require the party failing to obey
§ 1114.31 Failure to respond to discovery.
the order or the attorney advising that
party, or both, to pay the reasonable (a) * * *
(1) Reply to motion to compel generally. Ex-
expenses, including attorney’s fees,
cept in rate cases to be considered under the
caused by the failure, unless the Board stand-alone cost methodology or simplified
finds that the failure was substantially standards, the time for filing a reply to a
justified or that other circumstances motion to compel is governed by 49 CFR
make an award of expenses unjust. 1104.13.
(c) Expenses on refusal to admit. If a (2) Reply to motion to compel in stand-alone
party, after being served with a request cost and simplified standards rate cases. A
under § 1114.27 to admit the genuineness reply to a motion to compel must be filed
with the Board within 10 days thereafter in a
of any document or the truth of any
rate case to be considered under the stand-
matter of fact, serves a sworn denial alone cost methodology or under the sim-
thereof, and if the party requesting the plified standards.
admission thereafter proves the genu- (3) Conference with parties on motion to com-
ineness of any such document or the pel. Within 5 business days after the filing of
truth of any such matter of fact the a reply to a motion to compel in a rate case
Board may order the party making to be considered under the stand-alone cost
such denial to pay to such other party methodology or under the simplified stand-
ards, Board staff may convene a conference
the reasonable expenses incurred in
with the parties to discuss the dispute, at-
making that proof, including reason- tempt to narrow the issues, and gather any
able attorney’s fees. further information needed to render a rul-
(d) Failure of party to attend or serve ing.
answers. If a party or a person or an of- (4) Ruling on motion to compel in stand-alone
ficer, director, managing agent, or em- cost and simplified standards rate cases. Within
ployee of a party or person willfully 5 business days after a conference with the
fails to appear before the officer who is parties convened pursuant to paragraph
(a)(3) of this section, the Secretary will issue
to take his deposition, after being
a summary ruling on the motion to compel
served with a proper notice, or fails to discovery. If no conference is convened, the
serve answers to interrogatories sub- Secretary will issue this summary ruling
mitted under § 1114.26, after proper within 10 days after the filing of the reply to
service of such interrogatories, the the motion to compel. Appeals of a Sec-
Board on motion and notice may strike retary’s ruling will proceed under 49 CFR
out all or any part of any pleading of 1115.9, and the Board will attempt to rule on
that party or person, or dismiss the such appeals within 20 days after the filing of
the reply to the appeal.
proceeding or any part thereof. In lieu
of any such order or in addition there-
to, the Board shall require the party * * * * *
failing to act or the attorney advising
that party or both to pay the reason- PART 1115—APPELLATE
able expenses, including attorney’s PROCEDURES
fees, caused by the failure, unless the
Board finds that the failure was sub- Sec.
stantially justified or that other cir- 1115.1 Scope of rule.
146
1115.2 Initial decisions. individual Board Member, or employee
1115.3 Board actions other than initial deci- board.
sions. (a) An appeal of right is permitted.
1115.4 Petitions to reopen administratively
final actions.
(b) Appeals must be based on one or
1115.5 Petitions for other relief. more of the following grounds:
1115.6 Exhaustion of remedies and judicial (1) That a necessary finding of fact is
review. omitted, erroneous, or unsupported by
1115.7 Petitions for judicial review; mailing substantial evidence of record;
address. (2) That a necessary legal conclusion,
1115.8 Petitions to review arbitration deci- or finding is contrary to law, Board
sions. precedent, or policy;
1115.9 Interlocutory appeals.
(3) That an important question of
AUTHORITY: 5 U.S.C. 559; 49 U.S.C. 721. law, policy, or discretion is involved
SOURCE: 47 FR 49568, Nov. 1, 1982, unless which is without governing precedent;
otherwise noted. (4) That prejudicial procedural error
has occurred.
§ 1115.1 Scope of rule. (c) Appeals must detail the assailed
(a) These appellate procedures apply findings with supporting citations to
in cases where a hearing is required by the record and authorities.
law or Board action. They do not apply (d) Appeals and replies shall not ex-
to informal matters such as car serv- ceed 30 pages in length, including argu-
ice, temporary authority, suspension, ment, and appendices or other attach-
special permission actions, or to other ments, but excluding a table of cases
matters of an interlocutory nature. and an index of subject matter.
Abandonments and discontinuance pro- (e) Appeals must be filed within 20
ceedings instituted under 49 U.S.C. days after the service date of the deci-
10903 are governed by separate appel- sion or within any further period (not
late procedures exclusive to those pro- to exceed 20 days) the Board may au-
ceedings. (See 49 CFR part 1152) thorize. Replies must be filed within 20
(b) Requests for appellate relief may days of the date the appeal is filed.
relate either to initial decisions or to (f) The timely filing of an appeal to
Board actions other than initial deci- an initial decision will stay the effect
sions. For each category, this rule de- of the action pending determination of
scribes the types of appeal permitted, the appeal.
the requirements to be observed in fil- (g) If an appeal of an initial decision
ing an appeal, provisions for stay of the is not timely filed or the Board does
action, and the status of the action in not stay the effectiveness on its own
the absence of a stay. motion, the order set forth in the ini-
(c) Appeals from the decisions of em- tial decision shall become the action of
ployees acting under authority dele- the Board and be effective at the expi-
gated to them by the Chairman of the ration of the time for filing, unless oth-
Board pursuant to § 1011.6 will be acted erwise provided.
upon by the entire Board. Appeals [47 FR 49568, Nov. 1, 1982, as amended at 54
must be filed within 10 days of the date FR 19894, May 9, 1989; 61 FR 52714, Oct. 8,
of the action taken by the employee, 1996]
and responses to appeals must be filed
within 10 days thereafter. Such appeals § 1115.3 Board actions other than ini-
are not favored; they will be granted tial decisions.
only in exceptional circumstances to (a) A discretionary appeal of an en-
correct a clear error of judgment or to tire Board action is permitted. Such an
prevent manifest injustice. appeal should be designated a ‘‘petition
[47 FR 49568, Nov. 1, 1982, as amended at 61 for reconsideration.’’
FR 52714, Oct. 8, 1996; 69 FR 12806, Mar. 18, (b) The petition will be granted only
2004] upon a showing of one or more of the
following points:
§ 1115.2 Initial decisions. (1) The prior action will be affected
This category includes the initial de- materially because of new evidence or
cision of an administrative law judge, changed circumstances.
147
§ 1115.4 49 CFR Ch. X (10–1–07 Edition)
(2) The prior action involves material § 1115.5 Petitions for other relief.
error. (a) A party may petition for a stay of
(c) The petition must state in detail an action pending a request for judicial
the nature of and reasons for the relief review, for extension of the compliance
requested. When, in a petition filed date, or for modification of the date
under this section, a party seeks an op- the terms of the decision take effect.
portunity to introduce evidence, the The reasons for the desired relief must
evidence must be stated briefly and be stated in the petition, and the peti-
must not appear to be cumulative, and tion must be filed not less than 10 days
an explanation must be given why it prior to the date the terms of the ac-
was not previously adduced. tion take effect. No reply need be filed.
(d) The petition and any reply must If a party elects to file a reply, the
not exceed 20 pages in length. A sepa- reply must reach the Board no later
rate preface and summary of argument, than 5 days after the petition is filed.
not exceeding 3 pages, may accompany (b) When the terms of a Board action
petitions and replies and must accom- take effect on less than 15 days’ notice,
pany those that exceed 10 pages in a petition for stay pending a request
length. for judicial review must be filed prior
(e) Petitions must be filed within 20 to the institution of court action and
days after the service of the action or as close to the service date as prac-
within any further period (not to ex- ticable. No reply need be filed. Where
ceed 20 days) as the Board may author- time permits, a party may elect to file
ize. a reply.
(f) The filing of a petition will not (c) A petition or reply must not ex-
automatically stay the effect of a prior ceed 10 pages in length.
action, but the Board may stay the ef- [47 FR 49568, Nov. 1, 1982, as amended at 61
fect of the action on its own motion or FR 52714, Oct. 8, 1996]
on petition. A petition to stay may be
filed in advance of the petition for re- § 1115.6 Exhaustion of remedies and
consideration and shall be filed within judicial review.
10 days of service of the action. No These rules do not relieve the re-
reply need be filed. However, if a party quirement that a party exhaust its ad-
elects to file a reply, it must reach the ministrative remedies before going to
Board no later than 16 days after serv- court. Any action appealable as of
ice of the action. In all proceedings, right must be timely appealed. If an
the action, if not stayed, will become appeal, discretionary appeal, or peti-
effective 30 days after it is served, un- tion seeking reopening is filed under
less the Board provides for the action § 1115.2 or § 1115.3 of this part, before or
to become effective at a different date. after a petition seeking judicial review
On the day the action is served parties is filed with the courts, the Board will
may initiate judicial review. act upon the appeal or petition after
[61 FR 52714, Oct. 8, 1996, as amended at 61 FR advising the court of its pendency un-
58491, Nov. 15, 1996] less action might interfere with the
court’s jurisdiction.
§ 1115.4 Petitions to reopen adminis-
tratively final actions. [47 FR 49568, Nov. 1, 1982, as amended at 61
FR 52714, Oct. 8, 1996]
A person at any time may file a peti-
tion to reopen any administratively § 1115.7 Petitions for judicial review;
final action of the Board pursuant to mailing address.
the requirements of § 1115.3 (c) and (d) Petitions for judicial review of final
of this part. A petition to reopen must agency orders may be served on the
state in detail the respects in which Board pursuant to 28 U.S.C. 2112(a) and
the proceeding involves material error, be addressed to ‘‘General Counsel, Of-
new evidence, or substantially changed fice of the General Counsel, Surface
circumstances and must include a re- Transportation Board, Washington, DC
quest that the Board make such a de- 20423.’’
termination.
[53 FR 20854, June 7, 1988, as amended at 61
[61 FR 52714, Oct. 8, 1996] FR 52714, Oct. 8, 1996]
148
§ 1115.8 Petitions to review arbitration paragraph (b), effective Oct. 7, 2007. For the
decisions. convenience of the user, the revised text is
set forth as follows:
An appeal of right is permitted. The
appeal must be filed within 20 days of a § 1115.9 Interlocutory appeals.
final arbitration decision, unless a
later date is authorized by the Board, * * * * *
and is subject to the page limitations
(b) In stand-alone cost complaints or in
of § 1115.2(d). Standards for Board re- cases filed under the simplified standards,
view of arbitration decisions are set any interlocutory appeal of a ruling shall be
forth in Chicago and North Western filed with the Board within three (3) business
Transp. Co.—Abandonment, 3 I.C.C.2d days of the ruling. Replies to any interlocu-
729 (1987), aff’d sub nom. International tory appeal shall be filed with the Board
Brotherhood of Electrical Workers v. STB, within three (3) business days after the filing
No. 87–1629 (D.C. Cir. November 25, of any such appeal. In all other cases, inter-
locutory appeals shall be filed with the
1988). The timely filing of a petition
Board within seven (7) calendar days of the
will not automatically stay the effect ruling and replies to interlocutory appeals
of the arbitration decision. A stay may shall be filed with Board within seven (7) cal-
be requested under § 1115.5. endar days after the filing of any such appeal
[54 FR 19894, May 9, 1989, as amended at 61 as computed under 49 CFR 1104.7.
FR 52714, Oct. 8, 1996]
PART 1116—ORAL ARGUMENT
§ 1115.9 Interlocutory appeals. BEFORE THE BOARD
(a) Rulings of Board employees, in-
cluding administrative law judges, may Sec.
be appealed prior to service of the ini- 1116.1 Requests.
tial decision only if: 1116.2 Manner of presentation.
(1) The ruling denies or terminates AUTHORITY: 49 U.S.C. 721.
any person’s participation; SOURCE: 47 FR 49569, Nov. 1, 1982, unless
(2) The ruling grants a request for otherwise noted.
the inspection of documents not ordi-
narily available for public inspection; § 1116.1 Requests.
(3) The ruling overrules an objection (a) Addressee. Requests for oral argu-
based on privilege, the result of which ment should be addressed to the Sec-
ruling is to require the presentation of retary, Surface Transportation Board,
testimony or documents; or Washington, DC 20423.
(4) The ruling may result in substan- (b) Who may request? Any party may
tial irreparable harm, substantial det- submit a written request for oral argu-
riment to the public interest, or undue ment and state the reasons for the re-
prejudice to a party. quest. No replies from other parties to
(b) In stand-alone cost complaints, the request shall be made.
any interlocutory appeal of a ruling (c) When to file a request. Requests for
shall be filed with the Board within oral argument should be filed within 20
three (3) business days of the ruling. days after the date of service of the de-
Replies to any interlocutory appeal cision, order, or requirement being ap-
shall be filed with the Board within pealed, unless the Board by order pre-
three (3) business days after the filing scribes a different time period.
of any such appeal. In all other cases, (d) Granting of request. The Board will
interlocutory appeals shall be filed rule upon requests by decision, and the
with the Board within seven (7) cal- granting of requests is entirely at the
endar days of the ruling and replies to discretion of the Board.
interlocutory appeals shall be filed
with Board within seven (7) calendar § 1116.2 Manner of presentation.
days after the filing of any such appeal
Proponents of a rule or order will be
as computed under 49 CFR 1104.7.
heard first, and opponents will be heard
[61 FR 52714, Oct. 8, 1996, as amended at 61 FR second. One counsel only will usually
58491, Nov. 15, 1996] be heard for each of the opposing inter-
EFFECTIVE DATE NOTE: At 72 FR 51377, ests, unless additional presentations
Sept. 7, 2007, § 1115.9 was amended by revising are specifically authorized.
149
PART 1117—PETITIONS (FOR RELIEF) filed within 20 days after the date of
NOT OTHERWISE COVERED service of the decision.
(d) Where filed. Appeals and replies to
appeals of decisions issued by employee
AUTHORITY: 49 U.S.C. 721.
boards must be filed with the Sec-
§ 1117.1 Petitions. retary, Surface Transportation Board,
1925 K St., NW., Washington, DC 20423–
A party seeking relief not provided 0001.
for in any other rule may file a peti- (e) Decisions on appeal. An appeal
tion for such relief. The petition should
from an employee board’s initial deci-
contain (a) a short, plain statement of
sion in a matter subject to this part
the grounds upon which the Board’s ju-
risdiction is based; (b) a short plain will be reviewed by the employee
statement of the claim showing that board, which may elect to modify its
the petitioner is entitled to relief; and decision in light of new facts or argu-
(c) a demand for the relief the peti- ments presented on appeal. If the em-
tioner believes is appropriate. ployee board elects not to modify its
prior decision, the appeal will be for-
[47 FR 49569, Nov. 1, 1982] warded to the entire Board for deter-
mination. If a modified decision is
PART 1118—PROCEDURES IN IN- issued by the employee board, a further
FORMAL PROCEEDINGS BEFORE appeal lies under this part.
EMPLOYEE BOARDS
PART 1119—COMPLIANCE WITH
Sec.
1118.1 Scope.
BOARD DECISIONS
1118.2 Proceedings to be informal.
1118.3 Appeals. AUTHORITY: 49 U.S.C. 721.
AUTHORITY: 49 CFR 721.
§ 1119.1 Compliance.
otherwise noted. A defendant or respondent directed
by the Board to do or desist from doing
§ 1118.1 Scope. a particular thing must notify the
The rules in this part govern pro- Board on or before the compliance date
ceedings before employee boards. specified in the decision of the manner
of compliance. Notification should be
§ 1118.2 Proceedings to be informal. by verified affidavit showing simulta-
The proceedings in all matters gov- neous service upon all parties to the
erned by this part will be informal. No proceeding. Where a change in rates or
transcript of these proceedings will be schedules is directed, notification
made. Subpoenas will not be issued specifying the Surface Transportation
and, except when applications, peti- Board tariff or schedule numbers must
tions, or statements are required to be be given in addition to the filing of
attested, oaths will not be adminis- proper tariffs or schedules.
tered.
[47 FR 49570, Nov. 1, 1982]
§ 1118.3 Appeals.
(a) Standing to appeal. Appeals of the PART 1120—USE OF 1977–1978
decisions of the employee boards sub- STUDY OF MOTOR CARRIER PLAT-
ject to this part and replies to appeals FORM HANDLING FACTORS
may be filed by any person.
(b) Number of copies. The original and Sec.
10 copies of each pleading or paper per- 1120.1 Scope.
mitted or required to be filed under 1120.2 Purpose.
this section should be furnished for the
AUTHORITY: 49 U.S.C. 721, 13701, 13703.
use of the Board.
(c) Time for filing. Appeals in pro-
ceedings governed by this part must be
150
§ 1120.1 Scope. voke is filed. The party seeking dis-

covery may supplement its petition to
The provisions of this part apply only
revoke 45 days after the petition is
to Class I and II motor common car-
filed. Replies to the supplemental peti-
riers of general freight subject to ac-
tion are due 15 days after the supple-
counting instruction number 27 of the
mental petition is filed.
Board’s Uniform System of Accounts
(49 CFR Part 1207). § 1121.3 Content.
[47 FR 36184, Aug. 19, 1982. Redesignated at 47 (a) A party filing a petition for ex-
FR 49570, Nov. 1, 1982] emption shall provide its case-in-chief,
along with its supporting evidence,
§ 1120.2 Purpose.
workpapers, and related documents at
In any proceeding requiring the de- the time it files its petition.
velopment of platform handling times (b) A petition must comply with en-
for distribution of platform expense, vironmental or historic reporting and
carriers may use the results of the na- notice requirements of 49 CFR part
tional weight formula contained in the 1105, if applicable.
Board’s study, entitled 1977–1978 Motor (c) A party seeking revocation of an
Carrier Platform Study, Statement 2S1– exemption or a notice of exemption
79. shall provide all of its supporting infor-
[47 FR 36184, Aug. 19, 1982. Redesignated at 47 mation at the time it files its petition.
FR 49570, Nov. 1, 1982] Information later obtained through
discovery can be submitted in a supple-
mental petition pursuant to 49 CFR
PART 1121—RAIL EXEMPTION 1121.2.
PROCEDURES
§ 1121.4 Procedures.
Sec.
1121.1 Scope.
(a) Exemption proceedings are infor-
1121.2 Discovery. mal, and public comments are gen-
1121.3 Content. erally not sought during consideration
1121.4 Procedures. of exemption petition proposals, except
as provided in § 1121.4(c). However, the
AUTHORITY: 49 U.S.C. 10502 and 10704.
Board may consider during its delibera-
SOURCE: 61 FR 52714, Oct. 8, 1996, unless tion any public comments filed in re-
otherwise noted. sponse to a petition for exemption.
(b) If the Board determines that the
§ 1121.1 Scope.
criteria in 49 U.S.C. 10502 are met for
These procedures generally govern the proposed exemption, it will issue
petitions filed under 49 U.S.C. 10502 to the exemption and publish a notice of
exempt a transaction or service from 49 exemption in the FEDERAL REGISTER.
U.S.C. subtitle IV, or any provision of (c)(1) If the impact of the proposed
49 U.S.C. subtitle IV, or to revoke an individual exemption cannot be
exemption previously granted. These ascertained from the information con-
procedures also apply to notices of ex- tained in the petition or accompanying
emption. submissions, or significant adverse im-
pacts might occur if the proposed ex-
§ 1121.2 Discovery. emption were granted, the Board may,
Discovery shall follow the procedures in its discretion:
set forth at 49 CFR part 1114, subpart (i) Direct that additional information
B. Discovery may begin upon the filing be filed; or
of the petition for exemption or peti- (ii) Publish a notice in the FEDERAL
tion for revocation of an exemption. In REGISTER requesting public comments.
petitions to revoke an exemption, a (2) If a petition for a new class ex-
party must indicate in the petition emption is filed, the Board will publish
whether it is seeking discovery. If it is, a notice in the FEDERAL REGISTER re-
the party must file its discovery requesting public comments before
quests at the same time it files its peti- granting the class exemption. This re-
tion to revoke. Discovery shall be com- quirement does not pertain to indi-
pleted 30 days after the petition to re- vidual notices of exemption filed under
151
existing class exemptions. The Board PART 1130—INFORMAL

may deny a request for a class exemp- COMPLAINTS
tion without seeking public comments.
(d) Exemption petitions containing Sec.
proposals that are directly related to 1130.1 When no damages sought.
and concurrently filed with a primary 1130.2 When damages sought.
application will be considered along
AUTHORITY: 49 U.S.C. 721, 13301(f), 14709.
with that primary application.
(e) Unless otherwise specified in the § 1130.1 When no damages sought.
decision, an exemption generally will
be effective 30 days from the service (a) Form and content; copies. Informal
date of the decision granting the ex- complaint may be by letter or other
emption. Unless otherwise provided in writing and will be serially numbered
the decision, petitions to stay must be as filed. The complaint must contain
filed within 10 days of the service date, the essential elements of a formal com-
and petitions for reconsideration or pe- plaint as specified at 49 CFR 1111.1(a)
titions to reopen under 49 CFR part and may embrace supporting papers.
1115 or 49 CFR 1152.25(e) must be filed The original and one copy must be filed
within 20 days of the service date. with the Board.
(f) Petitions to revoke an exemption (b) Correspondence handling. When an
or the notice of exemption may be filed informal complaint appears susceptible
at any time. The person seeking rev- of informal adjustment, the Board will
ocation has the burden of showing that send a copy or statement of the com-
the revocation criteria of 49 U.S.C. plaint to each subject of the complaint
10502(d) have been met. in an attempt to have it satisfied by
(g) In abandonment exemptions, peti- correspondence, thereby avoiding the
tions to revoke in part to impose pub- filing of a formal complaint.
lic use conditions under 49 CFR 1152.28, (c) Discontinuance of informal pro-
or to invoke the Trails Act, 16 U.S.C. ceeding. The filing of an informal com-
1247(d), may be filed at any time prior plaint does not preclude complainant
to the consummation of the abandon- from filing a formal complaint. If a for-
ment, except that public use conditions mal complaint is filed, the informal
may not prohibit disposal of the prop- proceeding will be discontinued.
erties for any more than the statutory
limit of 180 days after the effective FR 44827, Sept. 30, 1983; 69 FR 12806, Mar. 18,
date of the decision granting the ex- 2004]
emption.
(h) In transactions for the acquisi- § 1130.2 When damages sought.
tion or operation of rail lines by Class
(a) Actual filing required. Notification
II rail carriers under 49 U.S.C. 10902,
to the Board that an informal com-
the exemption may not become effec-
plaint may or will be filed later seek-
tive until 60 days after applicant cer-
ing damages is not a filing within the
tifies to the Board that it has posted at
meaning of the statute.
the workplace of the employees on the
(b) Content. An informal complaint
affected line(s) and served a notice of
the transaction on the national offices seeking damages must be filed within
of the labor unions with employees on the statutory period, and should iden-
the affected line(s), setting forth the tify with reasonable definiteness the
types and numbers of jobs expected to involved shipments or transportation
be available, the terms of employment services. The complaint should include:
and principles of employee selection, (1) A statement that complainant
and the lines that are to be transferred. seeks to recover damages;
(2) The names of each individual
[61 FR 52714, Oct. 8, 1996, as amended at 61 FR seeking damages;
58491, Nov. 15, 1996; 62 FR 47583, Sept. 10, 1997; (3) The names and addresses of de-
64 FR 46595, Aug. 26, 1999]
fendants against which claim is made;
(4) The commodities, the rate ap-
PARTS 1122–1129 [RESERVED] plied, the date on which the charges
were paid, the names of the parties
Parts 1130–1149—Rate Procedures paying the charges, and, if different,
152
the names of the parties bearing the motor common carriers (other than
charges; household goods carriers) and shippers
(5) The period of time within which may resolve, by mutual consent, over-
or the specific dates upon which the charge and undercharge claims under
shipments were made, and the dates the provisions of 49 U.S.C. 14709. Peti-
when they were delivered or tendered tions for appropriate authority may be
for delivery; filed by either the carrier, shipper or
(6) The specific origin and destina- consignee on the Board’s tariff rec-
tion points or, where they are numer- onciliation docket by submitting a let-
ous, the territorial or rate group of the ter of intent to depart from the filed
origin and destination points and, if rate. The petitions will be deemed the
known, the routes of movement; and equivalent of an informal complaint
(7) The nature and amount of the in- and answer admitting the matters stat-
jury sustained by each claimant. ed in the petition. Petitions shall be
(c) Statement of prior claim. A com- sent to the Office of Compliance and
plaint filed under paragraph (b) of this Enforcement, Surface Transportation
section containing a claim which has Board, Washington, DC 20423. The peti-
been the subject of a previous informal tions shall contain, at a minimum, the
or formal complaint must specifically following information:
refer to the previous complaint. (i) The name(s) and address(es) of the
(d) Copies. The original of an informal payer(s) of the freight charges;
complaint seeking damages must be (ii) The name(s) of the carrier(s) in-
accompanied by a sufficient number of volved in the traffic;
copies to enable the Board to send one (iii) An estimate of the amount(s) in-
to each defendant named. volved;
(e) [Reserved] (iv) The time period when the ship-
(f) Notification to the parties; six ment(s) involved were delivered or ten-
months’ rule. If an informal complaint dered for delivery;
seeking damages (other than a con- (v) A general description of the
tested tariff reconciliation petition) point(s) of origin and destination of the
cannot be disposed of informally or is shipment(s);
denied or withdrawn by complainant, (vi) A general description of the com-
the parties affected will be so notified modity(ies) transported;
in writing by the Board. Contested tar- (vii) A statement certifying that the
iff reconciliation petitions either will carrier(s) and shipper(s) participating
be granted or denied by the entry of a in the shipment(s) or the payer(s) of
decision. Unless within six months the freight charges concur(s) with the
after the date on which a notice is intent to depart from the filed rate;
mailed or a decision is served, a party and
either files a formal complaint or re- (viii) A brief explanation of the in-
submits its informal complaint on an correct tariff provision(s) or billing
additional-fact basis, the matter in the error(s) causing the request to depart
complaint or petition will not be re- from the filed rate.
considered. The claim will be consid- (2) Public notice and protest. Tariff
ered abandoned and no complaint seek- reconciliation petitions (letters of in-
ing damages on the same cause of ac- tent) shall be served on all parties
tion will be accepted unless filed with- named in the petition by the party
in the statutory period. Any filing or that files the petition and will be made
resubmission satisfying the six available by the Board for public in-
months’ requirement will be considered spection in the Office of Compliance
filed as of the date of the original filing and Enforcement Public File, Surface
and must specifically refer to that date Transportation Board, Washington, DC
and to the Board’s file number. An 20423. Any interested person may pro-
original and 10 copies of a petition for test the granting of a petition by filing
reconsideration should be filed. a letter of objection with the Office of
(g) Tariff reconciliation proceedings for Compliance and Enforcement within 30
motor common carriers—(1) Petitions to days of Board receipt of the petition.
waive collection or permit payment. Sub- Letters of objection shall identify the
ject to Board review and approval, tariff reconciliation proceeding, shall
153
clearly state the reasons for the objec- ble, or the identification of the collec-
tion, and shall certify that a copy of tive ratemaking action publication if
the letter of objection has been served it is not contained in a tariff filed with
on all parties named in the petition. the Board; the specific items or par-
The Board may initiate an investiga- ticular provisions protested; and the ef-
tion of the petition on its own motion. fective date of the tariff or other col-
(3) Uncontested petitions. If a petition lective ratemaking action publication.
is not contested, and if the Board does Reference should also be made to the
not initiate an investigation of the pe- tariff or collective ratemaking action,
tition on its own motion, approval is and the specific provisions proposed to
deemed granted without further action be superseded. The protest should state
by the Board, effective 45 days after the grounds in support thereof, and in-
Board receipt of the petition. dicate in what respect the protested
(4) Contested petitions. If a petition is collective ratemaking action is consid-
contested or the Board initiates an in- ered to be unlawful. Such protests will
vestigation of the petition on its own be considered as addressed to the dis-
motion, 15 days will be allowed for cretion of the Board. Should a protes-
reply. The 15-day period will commence tant desire to proceed further against a
on the date of service of the objections collective ratemaking action which is
or, if the Board initiates an investiga- not suspended, or which has been sus-
tion on its own motion, on the date of pended and the suspension vacated, a
service of the decision initiating the separate later formal complaint or pe-
investigation. After the period for tition should be filed.
reply has expired, the Board will issue (b) When filed. Protests against, and
a decision approving or disapproving requests for suspension of, collective
the petition, or requesting further sub- ratemaking actions will not be consid-
missions from the parties, and then ered unless made in writing and filed
will issue a decision based on the fur- with the Board at Washington, DC. If
ther submissions. the protestant desires action by the
[47 FR 49570, Nov. 1, 1982, as amended at 50 Board before the effective date of the
FR 15901, Apr. 23, 1985; 51 FR 5713, Feb. 18, collective action, protests and requests
1986; 52 FR 26479, July 15, 1987; 53 FR 19301, for suspension shall reach the Board at
May 27, 1988; 60 FR 2544, Jan. 10, 1995; 62 FR least 12 days (except as provided in
50884, Sept. 29, 1997]
paragraph (c) of this section) before
such effective date. If the protested
PART 1132—PROTESTS REQUESTING collective ratemaking action is already
SUSPENSION AND INVESTIGA- in effect, or if the protestant does not
TION OF COLLECTIVE RATE- desire action before its effective date,
MAKING ACTIONS protests and requests for suspension
can be filed at any time.
Sec. (c) Motor carrier tariff bureau filings.
1132.1 Protests against collective rate- When motor common carrier tariff bu-
making actions. reaus take collective actions subject to
1132.2 Procedures in certain suspension the special procedures adopted in Ex
matters.
Parte No. MC–82, New Procedures in
AUTHORITY: 49 U.S.C. 721, 13301(f), and 13703. Motor Carrier Rev. Proc. 340 I.C.C. 1
SOURCE: 62 FR 50885, Sept. 29, 1997, unless (1971), and set forth at 49 CFR part 1139,
otherwise noted. protests must reach the Board at least
22 days before the effective dates of
§ 1132.1 Protests against collective those actions if protestants desire ac-
ratemaking actions. tion by the Board before such effective
(a) Content. The protested collective dates. All statements should be served
ratemaking action sought to be sus- by express mail or an equivalent expe-
pended, whether or not contained in a dited delivery service upon any party
tariff filed with the Board, should be undertaking to bear the cost. Written
identified by making reference to: The request for this expedited service must
name of the publishing carrier or col- be made no less than 5 days before the
lective ratemaking organization; the statement is due to be filed with the
identification of the tariff, if applica- Board.
154
(d) Copies; service. In connection with be governed by the rules of general ap-
proceedings involving proposals subject plicability of the Rules of Practice.
to the special procedures in Ex Parte
No. MC–82, New Procedures in Motor PART 1133—RECOVERY OF
Carrier Rev. Proc. 339 I.C.C. 324, and set DAMAGES
forth at 49 CFR part 1139, an original
and 10 copies of every protest or reply
Sec.
filed under this section should be fur-
1133.1 Freight bill filing requirement under
nished for the use of the Board. Except modified procedure.
as provided for proposals subject to the 1133.2 Statement of claimed damages based
special procedures in Ex Parte No. MC– on Board findings.
82, the original and 10 copies of each
protest, or of each reply filed under AUTHORITY: 49 U.S.C. 721.
this section, must be filed with the SOURCE: 47 FR 49575, Nov. 1, 1982, unless
Board, and one copy simultaneously otherwise noted.
must be served upon the publishing
carrier or collective ratemaking orga- § 1133.1 Freight bill filing requirement
nization, and upon other persons under modified procedure.
known by protestant to be interested. If, under modified procedure (for gen-
These pleadings should be directed to eral rules governing modified proce-
the attention of the Secretary, Surface dure, see part 1112), an award of dam-
Transportation Board. ages is sought, complainant should
(e) Reply to protest. A reply to a pro- submit the paid freight bills or prop-
test filed at least 12 days before the ef- erly certified copies with its statement
fective date of proposed collective ac- when there are not more than 10 ship-
tion provisions must reach the Board ments; if more than 10 shipments are
not later than the fourth working day involved, complainant should retain
prior to the scheduled effective date of the documents.
the protested provisions unless other-
wise provided. Replies to protests § 1133.2 Statement of claimed damages
against motor carrier rate bureau pro- based on Board findings.
posals subject to Ex Parte No. MC–82 (a) When the Board finds that dam-
procedures, to be assured of consider- ages are due, but that the amount can-
ation, must reach the Board no later not be ascertained upon the record be-
than 14 days before the scheduled effec- fore it, the complainant should imme-
tive date of the protested provisions. diately prepare a statement showing
details of the shipments on which dam-
§ 1132.2 Procedures in certain suspen- ages are claimed, in accordance with
sion matters.
the following form:
(a) A petition for reconsideration
may be filed by any interested person Claim of lll under decision of the Sur-
within 20 days after the date of service face Transportation Board in Docket No.
lll.
of a Board decision which results in an
lll Date of shipment.
order for:
lll Date of delivery or tender of deliv-
(1) Investigation and suspension of ery.
collective ratemaking actions, or lll Date charges were paid.
(2) Investigation (without suspen- lll Car (or vessel) initials.
sion) of collective ratemaking actions. lll Car (or voyage) number.
(b) Any interested person may file lll Origin.
and serve a reply to any petition for re- lll Destination.
consideration permitted under para- lll Route.
graph (a) of this section within 20 days lll Commodity.
after the filing of such petition with lll Weight.
the Board, but if the facts stated in lll Rate.
any such petition disclose a need for lll Amount.
accelerated action, such action may be lll Rate.
taken before expiration of the time al- lll Amount.
lowed for reply. In all other respects, lll Reparation on basis of Board’s deci-
such petitions and replies thereto will sion.
155
lll Charges paid by.1 will be considered to the end that steps
Claimant hereby certifies that this state- be taken to have the statement for-
ment includes claims only on shipments cov-
warded immediately. All discrepancies,
ered by the findings in the docket above de-
scribed and contains no claim for reparation duplications, or other errors in the
previously filed with the Board by or on be- statements should be adjusted by the
half of claimant or, so far as claimant parties and corrected agreed state-
knows, by or on behalf of any person, in any ments submitted to the Board. The cer-
other proceedings, except as follows: (Here tificate must be signed in ink by a gen-
indicate any exceptions, and explanation
thereof).
eral accounting officer of the carrier
llllllllllllllllllllllll and should cover all of the information
(Claimant) shown in the statement. If the carrier
By llllllllllllllllllllll which collected the charges is not a de-
(Practitioner) fendant in the case, its certificate must
llllllllllllllllllllllll be concurred in by like signature on
(Address)
llllllllllllllllllllllll behalf of a carrier defendant. State-
(Date) ments so prepared and certified shall
Total amount of reparation $lll. The be filed with the Board whereupon it
undersigned hereby certifies that this state- will consider entry of a decision award-
ment has been checked against the records of ing damages.
this company and found correct.
Date lll Concurred 2 in: lll Company [47 FR 49575, Nov. 1, 1982, as amended at 64
lll Company, Defendant Collecting Car- FR 53268, Oct. 1, 1999]
rier, Defendant 3. lll
By lll, Auditor. By lll, Auditor. PART 1135—RAILROAD COST
(b) The statement should not include RECOVERY PROCEDURES
any shipment not covered by the
Board’s findings, or any shipment on
AUTHORITY: 5 U.S.C. 553 and 49 U.S.C. 721
which complaint was not filed with the
and 10708.
Board within the statutory period. The
filing of a statement will not stop the § 1135.1 Quarterly adjustment.
running of the statute of limitations as
to shipments not covered by complaint To enable the Board to publish the
or supplemental complaint. If the ship- rail cost adjustment factor (RCAF) as
ments moved over more than one required by 49 U.S.C. 10708, the Associa-
route, a separate statement should be tion of American Railroads (AAR) shall
prepared for each route, and separately calculate and file with the Board by
numbered, except that shipments as to the fifth day of December, March, June
which the collecting carrier is in each and September of each year its forecast
instance the same may be listed in a for the next calendar quarter of the all-
single statement if grouped according inclusive index of railroad costs and
to routes. The statement, together calculate and file the RCAF unadjusted
with the paid freight bills on the ship- for changes in railroad productivity as
ments, or true copies thereof, should prescribed in Railroad Cost Recovery
then be forwarded to the carrier which Procedures, 1 I.C.C.2d 207 (1984), and any
collected the charges, for verification subsequent amendments thereto. In ad-
and certification as to its accuracy. If
dition, the AAR shall calculate the
the statement is not forwarded imme-
productivity-adjusted RCAF as pre-
diately to the collecting carrier for
scribed in Railroad Cost Recovery Proce-
certification, a letter request from de-
fendants that forwarding be expedited dures, 5 I.C.C.2d 434 (1989), and any sub-
sequent amendments thereto. The AAR
1 Here
shall submit workpapers detailing its
insert name of person paying
charges in the first instance, and state calculations. The Board will review and
whether as consignor, consignee, or in what verify the AAR submissions and make
other capacity. its RCAF publication by the twentieth
2 For concurring certificate in case col-
day of December, March, June and Sep-
lecting carrier is not a defendant. tember of each year.
3 If not a defendant, strike out the word
‘‘defendant.’’ [67 FR 55166, Aug. 28, 2002]
156
PART 1139—PROCEDURES IN annual operating revenues on the tariff

MOTOR CARRIER REVENUE PRO- affected by the proposal, or (2) a pro-
posed general adjustment with the ob-
CEEDINGS jective of restructuring the rates on a
Subpart A—Common Carriers of General wide range of traffic, involving both in-
Commodities creases and reductions in rates and
charges, where such proposal would re-
Sec. sult in a net increase of $1 million or
1139.1 Application. more in annual operating revenues, the
1139.2 Traffic study. motor common carriers of general
1139.3 Cost study. freight on whose behalf such schedules
1139.4 Revenue need.
1139.5 Affiliate data. are filed shall, concurrently with the
1139.6 Official notice. filing of those tariff schedules, file and
1139.7 Service. serve, as provided hereinafter, a
1139.8 Availability of underlying data. verified statement presenting and com-
APPENDIX I TO SUBPART A—REVENUE NEED prising the entire evidential case which
AND ALLOCATION TO TRAFFIC AT ISSUE is relied upon to support the proposed
APPENDIX II TO SUBPART A—FINANCIAL RA- general increase or rate restructuring.
TIOS (TRAFFIC AND COST STUDY CARRIER Carriers thus required to submit their
evidence when they file their schedules
Subpart B—Intercity Bus Industry
are hereby notified that special permis-
1139.20 Application. sion to file those schedules shall be
1139.21 Study carriers. conditioned upon the publishing of an
1139.22 Revenue data for study carriers. effective date at least 45 days later
1139.23 Revenue need. than the date of filing, to enable proper
1139.24 Official notice.
evaluation of the evidence presented.
1139.25 Service.
1139.26 Availability of underlying data. Data to be submitted in accordance
with § § 1139.2 through 1139.5 of this part
SCHEDULE A TO SUBPART B—CLASS I PARTICI-
PATING CARRIERS’ REVENUE DATA
represent the minimum data required
SCHEDULE B TO SUBPART B—STUDY CARRIERS’ to be filed and served, and in no way
REVENUE DATA shall be considered as limiting the type
SCHEDULE C TO SUBPART B of evidence that may be presented at
SCHEDULE D TO SUBPART B the time of filing of the schedules. If a
SCHEDULE E TO SUBPART B—STATEMENT OF formal proceeding is instituted, the
CHANGES IN FINANCIAL POSITION carriers are not precluded from updat-
SCHEDULE F TO SUBPART B—AFFILIATE REV-
ing the evidence submitted at the time
ENUE DATA FOR SERVICES RENDERED
SCHEDULE G TO SUBPART B—SELECTED STA- of filing of the schedules to reflect the
TISTICAL DATA contemporary situation.
APPENDIX I TO SUBPART B (b) The motor common carriers of
AUTHORITY: 49 U.S.C. 721, 13703.
general freight which are subject to the
provisions of this section are those
which are members of the following
Subpart A—Common Carriers of tariff publishing agencies:
General Commodities
Central and Southern Motor Freight Tariff
Association, Inc.
SOURCE: 47 FR 49577, Nov. 1, 1982, unless Central States Motor Freight Bureau, Inc.
otherwise noted. The Eastern Central Motor Carriers Associa-
tion, Inc.
§ 1139.1 Application. Middle Atlantic Conference
(a) Upon the filing by the tariff pub- Middlewest Motor Freight Bureau
lishing agencies named hereinafter on The New England Motor Rate Bureau, Inc.
behalf of their motor common carrier Pacific Inland Tariff Bureau, Inc.
members, or by such other agencies as Rocky Mountain Motor Tariff Bureau, Inc.
Southern Motor Carriers Rate Conference
the Board may by order otherwise des-
ignate, of agency tariff schedules which (c) Upon the filing of tariff schedules
contain (1) proposed general increases other than those described herein-
in rates or charges on general freight above, the carriers or their tariff pub-
where such proposal would result in an lishing agencies shall be required to
increase of $1 million or more in the comply with such procedures as the
157
§ 1139.2 49 CFR Ch. X (10–1–07 Edition)
Board may direct in the event an inves- errors for derived characteristics),
tigation is instituted. In any pro- quality control aspects involved in
ceeding involving a proposed rate re- processing and tabulating data and any
structuring which would produce addi- statistical analysis performed on the
tional net revenue of less than $1 mil- sampled data. 4
lion the carriers will be required to (d) For cost and revenue purposes,
submit only the data sought in § § 1139.2 the ‘‘carried’’ tariff basis shall be used.
and 1139.3. Nothing stated in this part ‘‘Carried’’ tariff means the issue traffic
shall relieve the carriers of their bur- handled solely by the study carriers,
den of proof imposed under the Inter- either single-line or interline. Esti-
state Commerce Act. mates of current revenues applicable to
the issue traffic should reflect all rates
§ 1139.2 Traffic study. and charges in effect no later than 45
(a) The respondents shall submit a days prior to the date of tariff filing.
traffic study for the most current 12-
month calendar year available, which § 1139.3 Cost study.
shall be referred to as the ‘‘base-cal- (a) The respondents shall submit a
endar year—actual.’’ This year shall be cost study. Highway Form B may be
the calendar year that has ended at used for this purpose. Service unit-
least 7 months prior to the published costs shall be developed for each indi-
effective date of the tariff schedules. If vidual study carrier, adjusted by size of
the effective date is less than 7 months shipment and length of haul, and shall
following the end of the preceding cal- be applied to respective individual car-
endar year, than the second preceding rier’s traffic service units as developed
calendar year shall be considered at from its traffic study. Operating ratios
the ‘‘base-calendar year—actual.’’ The shall be determined for the issue traffic
study shall include a probability sam- handled by the study carriers on the
pling of the actual traffic handled dur- ‘‘carried’’ basis by individual weight
ing identical time periods for each brackets included within the rate pro-
study carrier. posal, for: (1) The traffic study year,
(b) The study carriers shall consist of that is, the ‘‘base-calendar year—ac-
those carriers subject to the require- tual,’’ as hereinbefore defined, (2) a
ments for allocation of expenses be- ‘‘present proforma year’’ reflecting
tween line-haul and pickup and deliv- conditions prevailing on a date no later
ery services, as provided in Part 1207 of than 45 days prior to the date of the
this chapter, Instructions 27 and 9002, tariff filing, and (3) a ‘‘restated
which participate in one of the motor proforma year’’ based on conditions an-
carrier industry’s Continuous Traffic ticipated on the effective date of the
Studies, and which derive either $1 mil- proposed rates, with a separation indi-
lion or more in annual operating reve- cating projected operating ratios on
nues from this issue traffic or 1 percent two bases, namely, ‘‘based on current
or more of the total annual operating revenues,’’ and ‘‘based on proposed rev-
revenues of all carriers from the issue enues’’. Operating ratios shall also be
traffic. A list of such carriers and the shown for all other traffic not affected
appropriate revenue data shall be sub- by the rate proposal for the same
mitted to corroborate the selection of weight brackets as shown for the issue
the study carriers. ‘‘Issue traffic’’ con- traffic, but only for the period indi-
sists of those shipments on which the cated in paragraph (a)(1) of this sec-
freight rates or charges would be af- tion.
fected by the rate proposal. (b) In addition to the operating ra-
(c) Respondents shall take a sample tios, the cost study shall also be used
of the traffic handled by the study car- to develop and provide the revenue-to-
riers according to acceptable standards cost comparisons required in Appendix
of probability sampling principles and
practices, and shall explain and evalu- 4 Although not adopted by the Board, at-
ate the probability sample from the tention is called to a staff report, ‘‘Guide-
standpoint of: Purpose, sample design lines for the Presentation of the Results of
(including explanation of estimation Sample Studies,’’ February 1, 1971, available
procedure and disclosure of sampling from the Superintendent of Documents.
158
I hereto for the same time periods indi- affiliates, subject to the reporting re-
cated for the operating ratios plus a quirements of schedules 9009–A and
‘‘restated proforma year’’ based on con- 9009–B in the annual report for class I
structed revenue need. motor carriers, shall submit appro-
(c) For both the operating ratios and priate data and analyses reflecting the
the revenue-to-cost comparisons in Ap- effect on the parent carrier’s profits of
pendix I, the ‘‘each-to-each’’ costing transactions with affiliates. Such data
method, i.e., the application of each in- and analyses shall be adequately sup-
dividual study carrier’s unit-cost to its ported, and there shall be submitted
traffic service units, applies only to the such underlying data as will permit a
‘‘base calendar year—actual.’’ The ap- reconciliation of these data to the data
plication of possible labor and nonlabor supplied in the appropriate schedules of
cost increases for the purpose of updat- each carrier’s annual report.
ing the ‘‘base calendar year—actual’’
cost data may be accomplished by the [47 FR 49577, Nov. 1, 1982; 47 FR 54082, Dec. 1,
use of either individual carrier data for 1982]
each of the study carriers, or the com-
posite carrier data for those study car- § 1139.6 Official notice.
riers whose revenue from the issue The Board will take official notice of
traffic amount to 50 percent or more of all of the proponent carriers’ annual
their total system revenues for the and quarterly reports on file with the
‘‘base calendar year—actual.’’ The Board.
sample values for expenses and reve-
nues shall be expanded to full year val- § 1139.7 Service.
ues without adjustments to known an- The detailed information called for
nual report figures of any carrier. herein shall be in writing and shall be
(d) Where cost studies are developed verified by a person or persons having
through the use of computer processing knowledge thereof. The original and 10
techniques, there shall be submitted a copies of each verified statement for
manual application of the costing pro- the use of the Board shall be filed with
cedures used for one traffic and cost the Secretary, Surface Transportation
study carrier (study carrier) in order to Board, Washington, DC 20423. One copy
demonstrate the procedures by which of each statement shall be sent by
the computer program distributes the
first-class mail to each of the regional
annual report statistics, and applies
offices of the Board in the area affected
service unit-costs to each shipment. An
by the proposed increase, where it will
illustration of the application of serv-
be open to public inspection. A copy of
ice unit-costs to the applicable traffic
each statement shall be mailed by
service units generated by one single-
first-class mail to each party of record
line sample shipment and by one inter-
in the last formal proceeding con-
line sample shipment shall also be sub-
cerning a general rate increase in the
mitted. These sample shipments shall
affected area or territory. However,
be on the ‘‘Carried’’ basis.
one copy of each statement shall be
§ 1139.4 Revenue need. sent by express mail to any person un-
dertaking to bear the cost. Written re-
Traffic and cost study carrier, i.e.,
quest for this expedited service must be
the study carriers, shall submit evi-
made no less than 5 days before the
dence of the sum of money, in addition
statement is due to be filed with the
to operating expenses, including that
Board. Otherwise, the service require-
needed to attract debt and equity cap-
ital, which they require to insure fi- ments of 49 CFR 1104.12 should be ob-
nancial stability and the capacity to served. Information with respect to
render service. This evidence shall in- carrier affiliates may be served on the
clude data required by Appendix I, parties in summary form, if so desired.
parts I and II, and Appendix II. A copy of each statement shall be fur-
nished to any interested person on re-
§ 1139.5 Affiliate data. quest.
Each individual traffic and cost [47 FR 49577, Nov. 1, 1982, as amended at 53
study carrier having transactions with FR 19302, May 27, 1988]
159
§ 1139.8 49 CFR Ch. X (10–1–07 Edition)
§ 1139.8 Availability of underlying also at the hearing, but only if and to

data. the extent specifically requested in
All underlying data used in prepara- writing and required by any party for
tion of the material outlined above the purpose of cross-examination.
shall be made available in the office of Since appendix I data are to be sub-
the party serving such verified matter mitted on a combined carrier basis,
during usual office hours for inspection any underlying individual carrier data
by any party of record desiring to do used to complete appendix I should be
so, and shall be made available to the furnished to the Board for its use as
Board upon request therefor. The un- well as for the use of parties opposing
derlying data shall be made available the sought increases.
APPENDIX I TO SUBPART A OF PART 1139—REVENUE NEED AND ALLOCATION TO

TRAFFIC AT ISSUE
[Cost allocation—see part II, line 13, b Method A, b Method B; check one; provide both]
Restated proforma year 4

Base
Line cal- Present Based Based Based
Item Source 1 endar proforma on cur- on pro- on con-
No.
year— year 3 rent posed structed
actual 2 reve- reve- revenue
nues nues need 5
(1) (2) (3) (4) (5) (6) (7)
Part I. Revenue Need
1 Operating revenue ........................................ A.R. Sch. 2998, L. 3 ... $ $ $ $ $

2 Operating expenses ..................................... A.R. Sch. 2998, L. 10.
3 Lease of distinct operating unit (net) ........... A.R. Sch. 2998, Net of
Ls. 12 and 13.
4 Miscellaneous deductions less other income A.R. Sch. 2998 (L. 27
minus L. 20).
5 Interest included in miscellaneous deduc- A.R. Sch. 2998, L. 23.
tions.
6 Income taxes on ordinary income 6 .............. A.R. Sch. 2998, L. 29.
7 Extraordinary and prior period items ............ A.R. Sch. 2998, L. 34.
8 Net income or loss 7 ..................................... A.R. Sch. 2998, L. 35.
9 Sum of money above operating expenses .. Sum of Ls. 4, 6 and 8.
10 Percent owned and leased property to net A.R. Sch. 100, Col. (c) % % % % %
tangible property (3 decimals). (L. 21+L. 23)÷L. 26.
11 Sum of money related to transportation ...... (L. 9×—% in L. 10)
plus L. 3.
12 System revenue need items and projected L. 2 plus L. 11.
revenue need.
Part II. Allocation to Traffic at Issue
13 Constant costs and sum of money allocated See Method A ( )

to issue traffic. and Method B ( ),
check one; provide
both.
14 Variable expenses from traffic at issue From traffic and cost
(90% variable excluding return on invest- study.
ment)8.
15 Operating revenues from traffic at issue 8 ... From traffic study.
16 Constant costs and sum of money allocated L. 13 plus L. 14 .......... $ $ $ $ $
to issue traffic plus variable expenses.
17 Revenue to cost comparison (1 decimal) .... L. 15÷L. 16 ................. % % % % %
See Methods A and B and footnotes on following pages.
160
Surface Transportation Board, DOT Pt. 1139, Subpt. A, App. I
METHOD A—CONSTANT COSTS AND SUM OF MONEY ALLOCATED TO ISSUE TRAFFIC BASED ON TON
AND TON-MILE METHOD (SEE NOTE A)
Restated proforma year

Base
cal- Present Based Based Based
Line Source for columns 3
Item endar proforma on cur- on pro- on con-
No. and 4 year— year rent posed structed
actual reve- reve- revenue
nues nues need
(1) (2) (3) (4) (5) (6) (7)

(a) System constant costs .................................. L. (b)+L. (c) ............... $ $ $ $ $
(b) Not related to distance .............................. (See Note B).
(c) Related to distance .................................... (See Note B) ............. $ $ $ $ $
(d) Percent not related to distance (3 deci- L. (b)÷L. (a) ............... % % % % %
mals).
(e) Percent related to distance (3 decimals) ... L. (c)÷L. (a) ................ % % % % %
(f) System sum of money .................................. Appendix I, part I, L. $ $ $ $ $
11.
(g) Not related to distance .............................. L. (f)×L. (d).
(h) Related to distance .................................... L. (f)×L. (e).
(i) Total system constant costs plus sum of L. (a)+L. (f).
money.
(j) Not related to distance .............................. L. (b)+L. (g).
(k) Related to distance .................................... L. (c)+L. (h) ............... $ $ $ $ $
(l) Tons carried on issue and nonissue traffic From traffic study
combined. (see Note C).
(m) Ton-miles ....................................................... ......do.
(n) Issue traffic tons carried ................................ ......do.
(o) Issue traffic ton-miles .................................... ......do.
(p) Percent of issue traffic tons to system tons L. (n)÷L. (l) ................. % % % % %
(3 decimals).
(q) Percent of issue traffic ton-miles to system L. (o)÷L. (m) .............. % % % % %
ton-miles (3 decimals).
Constant Costs and Sum of Money Allocated To Issue Traffic
(r) Not related to distance .............................. L. (p)×L. (j) ................. $ $ $ $ $

(s) Related to distance .................................... L. (q)×L. (k).
(t) Total (enter amount in Appendix I, part II, L. (r)+L. (s) ................ $ $ $ $ $
line 13).
NOTE A: This procedure allocates constant costs and the sum of money based on the ton and ton-mile method and should be
submitted for the information of the Board. How much of the constant and sum of money costs may or should be recovered by
any specific segment of traffic rest on (1) considerations including value of service, demand, and ability to pay, and (2) consider-
ations which involve matters relating to regulatory policy.
NOTE B: Separate the amount of constant costs, including unrelated, by using Statement No. 6–68, Highway Form B, Sched-
ule A, Line III. Assign the dollars in columns (6), (7), (8), and (9) times 10 percent to line (b), and the dollars in columns (4) and
(5) times 10 percent to line (c).
NOTE C: Show tons and ton-miles on issue and nonissue traffic based on an expansion of the sample to a full year.
METHOD B—CONSTANT COSTS AND SUM OF MONEY ALLOCATED TO ISSUE TRAFFIC BASED ON
DOLLAR (EXPENSE) METHOD (SEE NOTE A)
Base
nues nues need
(1) (2) (3) (4) (5) (6) (7)

(a) System constant cost (excluding .................. Note B ....................... $ $ $ $ $
(b) System sum of money .................................. Appendix I, part I, line
II.
(c) Total system constant costs plus sum of Line (a) plus line (b).
money.
(d) Variable expenses on issue traffic ............... From traffic and cost
study; Note C-.
(e) Variable expenses on issue and nonissue From traffic and cost
traffic combined. study; Note D-.

(f) Percent relationship (3 decimals) ................. Line (d) ÷ line (e) ...... % % % % %
161
Pt. 1139, Subpt. A, App. I 49 CFR Ch. X (10–1–07 Edition)
METHOD B—CONSTANT COSTS AND SUM OF MONEY ALLOCATED TO ISSUE TRAFFIC BASED ON
DOLLAR (EXPENSE) METHOD (SEE NOTE A)—Continued
Base
nues nues need
(1) (2) (3) (4) (5) (6) (7)

(g) Constant costs and sum of money allocated Line (c) × line (f) ........ $ $ $ $ $
to issue traffic (enter amount in Appendix
I, part II, line 13).
NOTE A: This procedure allocates constant costs and the sum of money based on the dollar (expense) method and should be
submitted for the information of the Board. How much of the constant and sum of money costs may or should be recovered by
any specific segment of traffic rests on (1) considerations including value of service, demand, and ability to pay, and (2) consid-
eration which involve matters relating to regulatory policy.
NOTE B: Determine the amount of constant costs, including unrelated, by using Statement No. 6–68, Highway Form B, Sched-
ule A, Line 111, column (3) multiplied by 10 percent; insert this amount on line (a).
NOTE C: Determine the amount of variable costs, including unrelated, by using Statement No. 6–68, Highway Form B, Sched-
ule A, line 111, column (3) multiplied by 90 percent to obtain the variable portion.
NOTE D: Show variable expenses allocated to the issue traffic based on an expansion of a sample to a full year.
FOOTNOTES TO APPENDIX I:
Explanatory: The Purpose of Appendix I is twofold, namely: (1) to obtain, through part 1, Revenue Need, an indication of the
past actual, present, and restated system revenue needs of the traffic and cost study carriers, which, along with the financial
data required in appendix B, will facilitate an analysis of the financial stability of these carriers, and (2) to allocate a part of these
system revenue needs to the traffic at issue as provided for in part II, line 13. It is that portion of constant and sum of money
costs resulting from this allocation plus the related variable expenses (line 14) which produces the total costs assigned to the
issue traffic (line 16) which is then compared to the issue traffic revenues in the revenue-to-cost comparison shown on line 17.
This comparison provides some indication of how much the total issue traffic is contributing to the carriers’ overall revenue
needs; and serves as a reference point for the consideration of ratemaking factors, other than costs, which may influence the ap-
propriateness of the issue traffic’s contribution.
Appendix I data should be completed and submitted for all traffic and cost study carriers combined. However, data for the
‘‘base calendar year—actual,’’ column (3), should be developed and completed for each traffic and cost study carrier and the re-
sults combined for all such carriers. The data in part I, columns (4) through (7), which reflect an updating of revenue need data
for the ‘‘base calendar year—actual’’ to present and restated levels, should be developed on either an individual carrier basis, or
on a composite carrier basis comprised of all traffic and cost study carriers. Data in part II, line 14 columns (4) through (7), which
reflect an updating of the cost and traffic study data for the ‘‘base calendar year—actual’’ to present and restated levels, should
be developed by the use of either individual carrier data for each of the study carriers, or the composite carrier data for those
study carriers whose revenues from the issue traffic amount to 50 percent or more of their total system revenues for the ‘‘base
calendar year—actual.’’ However, for line 14, the method selected should be the same as that used to update the operating ra-
tios to present and restated levels as required in .3 Cost study. As indicated above, appendix I data should be completed and
submitted only for all traffic and cost study carriers combined. Since appendix I are to be submitted on a combined carrier basis,
any underlying individual carrier data used to complete this appendix should be furnished to the Board for its use as well as for
the use of parties opposing the sought increases. Data in columns (4) through (7) must be appropriately explained and sup-
ported. Each of the dollar figures called for in these columns shall be accompanied by an explanation of the bases or methods of
restatement, including explicit identification of all projected or assumed changes in revenues, in wage rates, in price levels of
other expenses and property items, and in productivity, as compared with the preceeding (actual) year results. Note that the time
periods referred to in appendix I, that is, ‘‘Base calendar year—actual,’’ ‘‘Present proforma year’’ and ‘‘Restated proforma year’’
are the same time periods indicated in § 1139.3, Cost study.
1 Sources in this column apply to column (3) ‘‘Base calendar year—actual.’’ Data for columns (4) through (7) should rely on
column (3) as a base in order to reflect data for the ‘‘Present proforma year’’ and the ‘‘Restated proforma year.’’ Annual report
sources apply to class I motor carriers for class II carriers use comparable sources.
2 The data in column (3) should reflect the revenue need data (part 1), and the traffic and cost study data (part II), for the traf-
fic study year. That is, the ‘‘Base calendar year—actual,’’ which should coincide with the ‘‘Base calendar year—actual’’ referred
to in the Cost study (§ 1139.3). Parts I and II should be completed for each individual study carrier—the purpose being to allo-
cate a portion of each carrier’s system revenue need to the traffic at issue as provided for in part II. The results for all study car-
riers should then be aggregated and submitted on a combined carrier basis.
3 The data in column (4) should be based on present wage, price and productivity levels and reflect conditions prevailing on a
date no later than the 45 days prior to the date of the tariff filing.
4 The data in columns (5), (6), and (7) should be based on wage, price, and productivity levels anticipated on the effective date
of the proposed rates.
5 The purpose of this column is to obtain data on what system revenue needs of the study carriers should be at a giving time.
Part I should consider the sum of money in addition to operating expenses (including that needed to attract debt and equity cap-
ital) which the carriers feel they require to insure financial stability and the capacity to render service.
6 In columns (4) through (7), show income taxes based on estimated taxable income reduced by the taxes applicable to other
income such as, for example, capital gains transactions.
7 In columns (4) through (7), determine the net income based on data shown for lines 1 though 7. In column (7), the estimate
of the net income needed should be supported by evidence that it is a just and reasonable amount.
8 Show expenses and revenues allocated to the total issue traffic based on an expansion of the sample to a full year. The
amount shown on line 14 for variable expenses should agree with that shown in Method B, line (d).
[47 FR 49579, Nov. 1, 1982; 47 FR 54081, Dec. 1, 1982]

162
APPENDIX II TO SUBPART A OF PART 1139—FINANCIAL RATIOS (TRAFFIC AND COST

STUDY CARRIER lllll)
[Complete appendix II for each traffic and cost study carrier and for all such carriers combined]
First pre-
Third pre- Second preceding cal-
Line ceding cal- ceding cal-
Item Source 1 endar year
No. endar year endar year (actual or
(actual) (actual) estimated)
(1) (2) (3) (4) (5)
1 Current assets 2 .................................................... A.R. Sch. 100, L. 18 ....... $ $ $

2 Net carrier operating property (owned)2 .............. A.R. Sch. 100, L. 21.
3 Net carrier operating property (owned plus A.R. Sch. 100, L. 21+L.
leased to others) 2. 23.
4 Net tangible property 2 .......................................... A.R. Sch. 100, L. 26.
5 Intangibles 2 .......................................................... A.R. Sch. 100, L. 32.
6 Current liabilities 2 ................................................. A.R. Sch. 101, L. 13.
7 Long-term debt 2 ................................................... A.R. Sch. 101, L. 15+L.
25.
8 Shareholders’ equity 2 ........................................... A.R. Sch. 101, L. 55.
9 Operating revenues .............................................. A.R. Sch. 2998, L. 3.
10 Depreciation plus or minus depreciation adjust- A.R. Sch. 2998, L. 6+
ment. or¥L. 7.
11 Operating expenses ............................................. A.R. Sch. 2998, L. 10.
12 Net carrier operating income ................................ A.R. Sch. 2998, L. 14.
13 Ordinary income before income taxes ................. A.R. Sch. 2998, L. 28.
14 Net income or loss ............................................... A.R. Sch. 2998, L. 35.
15 Net income or loss plus or minus depreciation 3 L. 10 Plus L. 14 .............. $ $ $
16 Percent owned and leased property to net tan- L. 3÷L. 4 ......................... % % %
gible property (3 decimals).
17 Investment in owned and leased property plus ......................................... $ $ $
working capital 4.
18 Shareholders’ equity less intangibles ................... L. 8¥L. 5 ........................ $ $ $
19 Long-term debt plus shareholders’ equity less in- L. 7+L. 18 ....................... $ $ $
tangibles.
20 Operating ratio (2 decimals) ................................. L. 11÷L. 9 ....................... % % %
21 Current ratio (2 decimals) ..................................... L. 1÷L. 6.
22 Ratio net income or loss to operating revenue (2 L. 14÷L. 9 ....................... % % %
decimals).
23 Rate of return on owned and leased operating L. 12÷L. 17 ..................... % % %
property plus working capital (2 decimals).
24 Rate of return on shareholders’ equity less intan- L. 14÷L. 18 ..................... % % %
gibles (2 decimals).
25 Capital structure ratio (2 decimals) ...................... L. 7÷L. 19 ....................... % % %
26 Throwoff to debt ratio (2 decimals) ...................... L. 15÷L. 7 ....................... % % %
27 Ratio long-term debt to shareholders’ equity less L. 7÷L. 18 ....................... % % %
intangibles (2 decimals).
1 Annual report sources refer to 1970 Motor Carrier Annual Report Form A for Class I Motor Carriers of Property. For class II
carriers use the comparable sources. For years prior to 1970 use the comparable annual report sources.
2 Show average of beginning and end of year figures.
3 If carrier shows a net income, the amount shown for depreciation should be added to it; if a net loss, then the net loss and
the amount for depreciation should be netted and the appropriate figure shown.
4 Multiply the percent on line 16 by the difference between line 1 and line 6. Add the resulting amount to line 3.
[47 FR 49580, Nov. 1, 1982; 47 FR 54081, Dec. 1, 1982]
Subpart B—Intercity Bus Industry tariff schedules which contain proposed

general increases in fares or charges
where such proposal would result in an
SOURCE: 42 FR 32541, June 27, 1977, unless
otherwise noted. Redesignated at 47 FR 49571, increase of $1 million or more in the
Nov. 1, 1982. annual operating revenues on the traf-
fic affected by the proposal, the motor
§ 1139.20 Application. common carriers of passengers on
(a) Upon the filing by the National whose behalf such schedules are filed
Bus Traffic Association, Inc., (NBTA) shall, concurrently with the filing of
on behalf of its carrier members, or by those schedules, file and serve, as pro-
such other agencies as the Board may vided hereinafter, a verified statement
by order otherwise designate, of agency presenting and comprising the entire
163
§ 1139.21 49 CFR Ch. X (10–1–07 Edition)
evidential case which is relied upon to their verified statement (justification),

support the proposed general increase. a list of all Class I motor common car-
Carriers thus required to submit their riers of passengers participating in the
evidence when they file their schedules issue traffic (services). For the above
are hereby notified that special permis- specified calendar year, the dollar
sion to file those schedules shall be amounts of total system operating rev-
conditioned upon the publishing of an enues for each such carrier shall be
effective date at least 30 days later arrayed in descending order; and, there
than the date of filing, to enable proper shall be shown the amount of annual
evaluation of the evidence presented.
operating revenues received by each
Data to be submitted in accordance
with § § 1139.21 through 1139.23 represent carrier from the total traffic at issue.
the minimum data required to be filed Also, to be shown is the percent that
and served, and in no way shall be con- each such carrier’s total issue traffic
sidered as limiting the type of evidence revenue is to its total system revenues,
that may be presented at the time of and the percent that each carrier’s
filing of the schedules. If a formal pro- total issue traffic revenue is to the
ceeding is instituted, the carriers are total issue traffic revenues for all Class
not precluded from updating the evi- I carriers indicated in the above list.
dence submitted at the time of filing of This list of carriers and the carrier’s
the schedules to reflect the current sit- applicable revenues shall be referred to
uation. as Schedule A, Class I Participating
(b) When filing tariff schedules other Carriers’ Revenue Data.
than those described hereinabove, the
carriers or their tariff publishing agen- [42 FR 40860, Aug. 12, 1977. Redesignated at 47
cies shall be required to comply with FR 49577, Nov. 1, 1982]
such procedures as the Board may di-
§ 1139.22 Revenue data for study car-
rect in the event an investigation is in- riers.
stituted. Nothing stated in this part
shall relieve the carriers of their bur- The study carriers, as identified
den of proof imposed under the Inter- above, shall submit the revenue data
state Commerce Act. called for in Schedule B herein, the
purpose of which is to determine the
[42 FR 40860, Aug. 12, 1977. Redesignated at 47
FR 49577, Nov. 1, 1982, and amended at 51 FR amount of increased revenues which
6238, Feb. 21, 1986] might be expected under the proposed
increase in fares and/or charges on the
§ 1139.21 Study carriers. issue traffic, and to evaluate the rev-
(a) For the purposes of this pro- enue aspects of the non-issue traffic,
ceeding the ‘‘study carriers’’ shall con- including that traffic subject to Sur-
sist of those Class I motor common face Transportation Board rate regula-
carriers of passengers which are mem- tion but not here at issue, and that
bers of NBTA and which, during the traffic which is intrastate in character
latest calendar year available pre- and under the jurisdiction of state pub-
ceding the filing date of the proposed lic commissions.
increase in fares and/or charges, de-
[42 FR 40860, Aug. 12, 1977, as amended at 42
rived $500,000 or more in annual oper-
FR 56333, Oct. 25, 1977. Redesignated at 47 FR
ating revenues from the issue traffic, 49577, Nov. 1, 1982; 64 FR 53268, Oct. 1, 1999]
or 1 percent or more of the total an-
nual operating revenues received by all § 1139.23 Revenue need.
Class I carriers from the issue traffic.
Issue traffic is defined as that traffic The ‘‘study carriers’’ shall submit
(services) directly affected by the pro- evidence of the sum of money, in addi-
posed increases in fares and/or charges. tion to operating expenses, including
(b) To corroborate the selection of that needed to attract debt and equity
the above study carriers, and to pro- capital, which they require to insure fi-
vide a data base for a continuing eval- nancial stability and the capability to
uation of the validity and usefulness of render service. This evidence shall in-
those carriers as a study group, re- clude data required by Schedules C
spondents shall submit, as a part of through G.
164
Surface Transportation Board, DOT Pt. 1139, Subpt. B, Sch. A
§ 1139.24 Official notice. first-class mail to each party of record

in the last formal proceeding con-
The Board will take official notice of
cerning a general increase in bus pas-
all of the proponent carriers’ annual
senger fares in the affected area or ter-
and quarterly reports on file with the ritory. Otherwise, the service require-
Board. ments of § 1130.1 shall be observed.
§ 1139.25 Service. § 1139.26 Availability of underlying
The detailed information called for data.
herein shall be in writing and shall be All underlying data used in prepara-
verified by a person or persons having tion of the material outlined above
knowledge thereof. The original and 16 shall be made available in the office of
copies of each verified statement for the party serving such verified matter
the use of the Board shall be filed with during usual office hours for inspection
the Secretary, Surface Transportation by any party of record desiring to do
Board, Washington, DC 20423. One copy so, and shall be made available to the
of each statement shall be sent first- Board upon request therefor. The un-
class mail to each of the regional of- derlying data shall be made available
fices of the Board in the area affected also at the hearing, but only if, and to
by the proposed increase, where it will the extent, specifically requested in
be open to public inspection. A copy of writing and required by any party for
each statement shall be mailed by the purpose of cross-examination.
SCHEDULE A TO SUBPART B OF PART 1139—CLASS I PARTICIPATING CARRIERS’

REVENUE DATA
[Dollars in thousands]
Percent of carrier’s issue

traffic revenue to—
Total sys- Total issue Total issue
Study code tem oper- Total sys-
Line No. and carrier annual report No. (a) Carrier (b) traffic rev- traffic reve-
(c) ating rev- tem reve-
enue (e) nues (per-
enue (d) nues, col, cent dist. of
(e)÷col. (d) col. (e) (2
(2 Dec.) (f) Dec.) (g)
1 .................................................................... .................. .................. .................. .................. .................... ....................

2 .................................................................... .................. .................. .................. .................. .................... ....................
3 .................................................................... .................. .................. .................. .................. .................... ....................
4 .................................................................... .................. .................. .................. .................. .................... ....................
5 .................................................................... .................. .................. .................. .................. .................... ....................
6 .................................................................... .................. .................. .................. .................. .................... ....................
7 .................................................................... .................. .................. .................. .................. .................... ....................
9 .................................................................... .................. .................. .................. .................. .................... ....................
10 .................................................................. .................. .................. .................. .................. .................... ....................
11 .................................................................. .................. .................. .................. .................. .................... ....................
12 .................................................................. .................. .................. .................. .................. .................... ....................
13 .................................................................. .................. .................. .................. .................. .................... ....................
14 .................................................................. .................. .................. .................. .................. .................... ....................
15 .................................................................. .................. .................. .................. .................. .................... ....................
16 .................................................................. .................. .................. .................. .................. .................... ....................
17 .................................................................. .................. .................. .................. .................. .................... ....................
18 .................................................................. .................. .................. .................. .................. .................... ....................
19 .................................................................. .................. .................. .................. .................. .................... ....................
20 .................................................................. .................. .................. .................. .................. .................... ....................
21 .................................................................. .................. .................. .................. .................. .................... ....................
22 .................................................................. .................. .................. .................. .................. .................... ....................
23 .................................................................. .................. .................. .................. .................. .................... ....................
24 .................................................................. .................. .................. .................. .................. .................... ....................
25 .................................................................. .................. .................. .................. .................. .................... ....................
EXPLANATORY—SCHEDULE A riers’’, as defined in § 1139.21 of the prescribed

procedures, and to provide a data base for
Purpose. The purpose of Schedule A is to
corroborate the selection of the ‘‘study car-
165
Pt. 1139, Subpt. B, Sch. B 49 CFR Ch. X (10–1–07 Edition)
the continuing evaluation of the validity and the proposal, in descending order of total
usefulness of the ‘‘study carrier’’ group. system operating revenues.
Calendar Year. For the purpose of this Column (c). Use the following code for this
schedule use the latest calendar year avail- column. For study carriers (as defined in
able preceding the filing date of the proposed § 1139.21) insert ‘‘S’’. For non-study carriers
increased fares and/or charges. insert ‘‘NS’’.
Column (a). The annual report number is Column (d). Use amount shown in carrier’s
that number assigned to the carrier by the Annual Report, Schedule 2998, Line 9.
Surface Transportation Board for identifica- Column (e). Issue traffic is defined as that
tion purposes. traffic (services) directly affected by the pro-
Column (b). List Class I carrier members of posed increase in fares and/or charges.
national Bus Traffic Association and other Columns (f) and (g). These columns are self-
interested Class I carriers participating in explanatory and are obtained by calculations
the tariffs of NBTA which will be affected by using columns (d) and (e).
SCHEDULE B TO SUBPART B OF PART 1139—STUDY CARRIERS’ REVENUE DATA

Issue traffic (services) Miscella-

revenue Total neous sta-
Total oper- Total issue nonissue tion and
Line No. and study carrier (a) ating rev- traffic rev- traffic rev- other oper-
enue (b) enue (d)
(C–1) (C–2) enue (e) ating reve-
nues (f)
Base year actual: 4-quarter period ending llllllllll
1 ........................................................................ .................. .................. .................. .................. .................. ..................

2 ........................................................................ .................. .................. .................. .................. .................. ..................
3 ........................................................................ .................. .................. .................. .................. .................. ..................
4 ........................................................................ .................. .................. .................. .................. .................. ..................
5 ........................................................................ .................. .................. .................. .................. .................. ..................
6 ........................................................................ .................. .................. .................. .................. .................. ..................
7 ........................................................................ .................. .................. .................. .................. .................. ..................
9 ........................................................................ .................. .................. .................. .................. .................. ..................
10 ...................................................................... .................. .................. .................. .................. .................. ..................
11 ...................................................................... .................. .................. .................. .................. .................. ..................
12 ...................................................................... .................. .................. .................. .................. .................. ..................
13 ...................................................................... .................. .................. .................. .................. .................. ..................
14 ...................................................................... .................. .................. .................. .................. .................. ..................
15 ...................................................................... .................. .................. .................. .................. .................. ..................
16 ...................................................................... .................. .................. .................. .................. .................. ..................
17 ...................................................................... .................. .................. .................. .................. .................. ..................
18 ...................................................................... .................. .................. .................. .................. .................. ..................
19 ...................................................................... .................. .................. .................. .................. .................. ..................
20 ...................................................................... .................. .................. .................. .................. .................. ..................
21 ...................................................................... .................. .................. .................. .................. .................. ..................
22 ...................................................................... .................. .................. .................. .................. .................. ..................
23 ...................................................................... .................. .................. .................. .................. .................. ..................
24 ...................................................................... .................. .................. .................. .................. .................. ..................
25 ...................................................................... .................. .................. .................. .................. .................. ..................
Total, all study carriers.
Pro forma year based on proposed revenues
1 ........................................................................ .................. .................. .................. .................. .................. ..................

2 ........................................................................ .................. .................. .................. .................. .................. ..................
3 ........................................................................ .................. .................. .................. .................. .................. ..................
4 ........................................................................ .................. .................. .................. .................. .................. ..................
5 ........................................................................ .................. .................. .................. .................. .................. ..................
6 ........................................................................ .................. .................. .................. .................. .................. ..................
7 ........................................................................ .................. .................. .................. .................. .................. ..................
9 ........................................................................ .................. .................. .................. .................. .................. ..................
10 ...................................................................... .................. .................. .................. .................. .................. ..................
11 ...................................................................... .................. .................. .................. .................. .................. ..................
12 ...................................................................... .................. .................. .................. .................. .................. ..................
13 ...................................................................... .................. .................. .................. .................. .................. ..................
14 ...................................................................... .................. .................. .................. .................. .................. ..................
15 ...................................................................... .................. .................. .................. .................. .................. ..................
16 ...................................................................... .................. .................. .................. .................. .................. ..................
17 ...................................................................... .................. .................. .................. .................. .................. ..................
18 ...................................................................... .................. .................. .................. .................. .................. ..................

19 ...................................................................... .................. .................. .................. .................. .................. ..................
166
Surface Transportation Board, DOT Pt. 1139, Subpt. B, Sch. B
Issue traffic (services) Miscella-

revenue Total neous sta-
Total oper- Total issue nonissue tion and
Line No. and study carrier (a) ating rev- traffic rev- traffic rev- other oper-
enue (b) enue (d)
(C–1) (C–2) enue (e) ating reve-
nues (f)
20 ...................................................................... .................. .................. .................. .................. .................. ..................

21 ...................................................................... .................. .................. .................. .................. .................. ..................
22 ...................................................................... .................. .................. .................. .................. .................. ..................
23 ...................................................................... .................. .................. .................. .................. .................. ..................
24 ...................................................................... .................. .................. .................. .................. .................. ..................
25 ...................................................................... .................. .................. .................. .................. .................. ..................
Pro forma year based on current revenues
1 ........................................................................ .................. .................. .................. .................. .................. ..................

2 ........................................................................ .................. .................. .................. .................. .................. ..................
3 ........................................................................ .................. .................. .................. .................. .................. ..................
4 ........................................................................ .................. .................. .................. .................. .................. ..................
5 ........................................................................ .................. .................. .................. .................. .................. ..................
6 ........................................................................ .................. .................. .................. .................. .................. ..................
7 ........................................................................ .................. .................. .................. .................. .................. ..................
9 ........................................................................ .................. .................. .................. .................. .................. ..................
10 ...................................................................... .................. .................. .................. .................. .................. ..................
11 ...................................................................... .................. .................. .................. .................. .................. ..................
12 ...................................................................... .................. .................. .................. .................. .................. ..................
13 ...................................................................... .................. .................. .................. .................. .................. ..................
14 ...................................................................... .................. .................. .................. .................. .................. ..................
15 ...................................................................... .................. .................. .................. .................. .................. ..................
16 ...................................................................... .................. .................. .................. .................. .................. ..................
17 ...................................................................... .................. .................. .................. .................. .................. ..................
18 ...................................................................... .................. .................. .................. .................. .................. ..................
19 ...................................................................... .................. .................. .................. .................. .................. ..................
20 ...................................................................... .................. .................. .................. .................. .................. ..................
21 ...................................................................... .................. .................. .................. .................. .................. ..................
22 ...................................................................... .................. .................. .................. .................. .................. ..................
23 ...................................................................... .................. .................. .................. .................. .................. ..................
24 ...................................................................... .................. .................. .................. .................. .................. ..................
25 ...................................................................... .................. .................. .................. .................. .................. ..................
EXPLANATORY—SCHEDULE B Base Year Actual. Data to be reported in

this and other schedules herein for the base
Purpose. The purpose of this schedule is to year actual shall be based on the 4-quarter
obtain—for each study carrier and by totals calendar year periods identified below:
for all study carriers—(1) total operating
revenue, (2) revenues attributable to the var- FILING MONTH OF VERIFIED STATEMENT
ious types of traffic at issue, (3) revenue at- January ....... Sept. 30, preceding year.
tributable to the total non-issue traffic, and February ..... Do.
(4) miscellaneous station and other operating March .......... Do.
revenues. These data shall be provided for April ............. Dec. 31, preceding year.
the specified study periods, namely: Base May ............. Do.
June ............ Do.
year actual, pro forma year based on current
July ............. Mar. 31, filing-month year.
revenues, and pro forma year based on pro- August ......... Do.
posed revenues. September .. Do.
The pro forma year based on proposed reve- October ....... June 30, filing-month year.
nues for the traffic at issue will be compared November ... Do.
December ... June 30, filing-month year.
to the issue traffic revenues for the pro
forma year based on current revenues and for The 4-quarter calendar year periods identi-
the base year actual to determine the fied above represent the minimum require-
amount of the proposed revenue increase ment. However, in event a proposed fare/
being sought over these two periods. In addi- charge increase is filed at a time when data
tion, the revenue data for the total issue for a more current quarter than that speci-
traffic (column (d)), will be used in Schedule fied are obtainable then that more current
C, Part III as a basis for allocating increased quarter may be used in the base year actual.
costs, i.e., the increased operating expenses For example, if an increase is filed in late
and the increased ‘‘sum of money’’ costs. March and data for the 4th quarter of the
167
Pt. 1139, Subpt. B, Sch. B 49 CFR Ch. X (10–1–07 Edition)
preceding year are obtainable, then the base Column (e). The revenues to be reported in
year actual ending December 31 may be used this column shall consist of those revenues
in lieu of the base year actual ending Sep- other than ‘‘total issue traffic revenue’’ (Col-
tember 30. umn (d)), and ‘‘miscellaneous station and
Pro forma year data. Revenue data for the other operating revenues’’ (Column (f)).
pro forma year shall be reported in two Thus, ‘‘non-issue traffic revenue’’ means
ways, namely: Based on current revenues those revenues accruing from providing the
and based on proposed revenues. Separate types of services indicated in columns (c-1),
schedules are required for each pro forma etc., but which may be ‘‘intrastate’’ in na-
year. These data do not represent a forecast ture, are ‘‘exempt’’ as provided under 49
but reflect the results of 12 months of oper- U.S.C. 10721, 10722, 10723 and 10724, or which
ation at particular rate levels. Thus, data for are otherwise not at issue in a proposed fare
the pro forma year based on current reve- and/or charge increase. Such non-issue traf-
nues should be based on a restatement of the fic may also include a commuter or mass
revenue data for the base year actual to re- transportation service, which is the trans-
flect fares and/or charges which are cur- portation of passengers generally performed
rently in effect. Similarly data for the pro within a city or town and the suburban areas
forma year based on proposed revenues contiguous thereto. However, in some in-
should reflect a restatement of the base year stances this service may also be intercity in
actual data but at levels reflecting the pro- character where the cities involved are with-
posed fares and/or charges. in relatively short distances of each other
Column (a). Insert in this column the com- and the primary purpose is the mass trans-
pany name of each ‘‘study carrier’’ as defined portation of commuter passengers to and
in § 1139.21 of the prescribed procedures. from these cities.
Column (b). Use carrier’s Annual Report, Column (f). For the purpose of this schedule
Schedule 2998, Line 9. The dollar amount in the revenues to be reported in this column
this column, for each study carrier, should shall consist of those in Account 3600, Mis-
equal the total of columns (d), (e), and (f). cellaneous Station Revenue, and in Account
Columns (c-1), (c-2), etc. As defined in 3900, Other Operating Revenue. (See 49 CFR
§ 1139.21, ‘‘issue traffic’’ means that traffic Part 1206.)
(service) affected by the proposed increase in Presentation of statement on revenue sample
fares and/or charges, and is limited to the studies. Historically, in order to separate
fares and/or charges published in schedules interstate from intrastate revenues, it has
and tariffs filed with the Surface Transpor- not been necessary for annual report pur-
tation Board. For the purpose of the proposes for each carrier to conduct studies of
posed increases filed under the prescribed its traffic operations, whether based upon
procedures of this proceeding, column (c) sampling or otherwise, however, many of the
should be subdivided into columns (c-1), (c-2), Class I carriers make such studies for mana-
etc. to show separately the revenue for each gerial purposes. In order to permit the eval-
type of traffic in issue and each column uation of such studies, and the evidence de-
should be appropriately headed. For in- rived therefrom, each study carrier, as de-
stance, a proposal to increase passenger fares fined in section 1139.21, shall submit an affi-
and express rates would call for Intercity davit explaining how its study was con-
Passenger Revenue in column (c-1), and Ex- ducted and how it appraises the reliability of
press Revenue in column (c-2). If a third the results. Carriers having studies based
basic service is included in the proposed in- upon sampling should conform with the staff
crease, column (c-3) should show revenue report entitled ‘‘Guidelines for the Presen-
from that traffic with an appropriate identi- tation of the Results of Sample Studies,’’
fication in this column heading. February 1, 1971.
Column (d). The total issue traffic revenues [42 FR 32541, June 27, 1977. Redesignated and
in this column should equal the sum of col- amended at 47 FR 49577, Nov. 1, 1982; 64 FR
umns (c-1), (c-2), etc. 53268, Oct. 1, 1999]
168
VerDate Aug<31>2005
09:32 Oct 26, 2007

SCHEDULE C TO SUBPART B OF PART 1139
Attachment 1
SCHEDULE C
Jkt 211216
PART I—CONDENSED INCOME STATEMENT

( ) Greyhound Lines, Inc. ( )Trailways combined ( ) All study carriers
PO 00000
Pro forma year
Base year- Proposed rev- Constructed Constructed

Line No. and Item (a) Source A.R. schedule 250(b) Current revenue Proposed rev-
actual (c) enue and pro- revenue need revenue need
and projected enue and future
jected expense projected ex- future expense
expense (d) expense (f)
(e) pense (g) (h)
Frm 00179
1. Passenger revenue ......................................... L. 1 ........................................... .................. .......................... .......................... .......................... .......................... ..........................
2. Special bus revenue ........................................ L. 2 ........................................... .................. .......................... .......................... .......................... .......................... ..........................
3. Baggage revenue ............................................ L. 3 ........................................... .................. .......................... .......................... .......................... .......................... ..........................
4. Mail revenue .................................................... L. 4 ........................................... .................. .......................... .......................... .......................... .......................... ..........................
Fmt 8010
5. Express revenue .............................................. L. 5 ........................................... .................. .......................... .......................... .......................... .......................... ..........................
6. Newspaper revenue ........................................ L. 6 ........................................... .................. .......................... .......................... .......................... .......................... ..........................
7. Miscellaneous station revenue ........................ L. 7 ........................................... .................. .......................... .......................... .......................... .......................... ..........................
169
8. Other operating revenue ................................. L. 8 ........................................... .................. .......................... .......................... .......................... .......................... ..........................
9. Total revenues ................................................. L. 12 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
Sfmt 8002
10. Total expenses .............................................. L. 18 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
11. Net operating revenue ................................... L. 19 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
12. Rent for lease of carrier property-debt .......... L. 20 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
13. Income from lease of carrier property-credit L. 21 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
14. Net carrier operating income ......................... L. 22 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
Y:\SGML\211216.XXX
15. Total other income ......................................... L. 33 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
16. Gross income ................................................ L. 34 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
17. Interest and amortization of debt discount Sums of lines 35, 38, and 39. .................. .......................... .......................... .......................... .......................... ..........................
Pt. 1139, Subpt. B, Sch. C

expenses and premium.
18. Total income deductions ............................... L. 42 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
19. Income (loss) from continuing operations be- L. 43 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
fore income taxes.
20. Income taxes on income from continuing op- L. 44 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
erations.
211216
21. Provision for deferred taxes .......................... L. 45 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
22. Income (loss) from continuing operations ..... L. 46 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
23. Total income (loss) from discontinued oper- L. 49 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
ations.
24. Total extraordinary items and accounting L. 56 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
changes (debit) credit.
25. Net income (loss) transferred to retained in- L. 57 ......................................... .................. .......................... .......................... .......................... .......................... ..........................
come-unappropriated.
VerDate Aug<31>2005
09:32 Oct 26, 2007

PART II—SYSTEM OPERATING EXPENSES AND SUM OF MONEY ASSIGNED TO TRANSPORTATION SERVICE
Pro-forma year
Jkt 211216

Line No. and Item (a) Source (b) Current revenue Proposed rev-
(e) pense (g) (h)
PO 00000
1. Operating expenses ‘‘Sum of money’’ items ... Pt. I, L. 10 ................................ .................. .......................... .......................... .......................... .......................... ..........................
2. Rent for, and from, lease of carrier property Pt. I, net of ls. 12 and 13 ......... .................. .......................... .......................... .......................... .......................... ..........................
(net).
3. Interest and amortization of debt discount and Pt. I, L. 17 ................................ .................. .......................... .......................... .......................... .......................... ..........................
expense and premium on debt.
4. Percent of carrier operating property to total A. R. Sch. 200 col. (b) (ls. 19 .................. .......................... .......................... .......................... .......................... ..........................
Frm 00180
tangible property. and 21)÷(L. 26) (2 dec.).

5. Interest and related expenses assigned to L. 3xl, 4, above ........................ .................. .......................... .......................... .......................... .......................... ..........................
transportation service.
6. Taxable income assigned to transportation (Pt. I, L. 14) minus (pt. II, L. 5) .................. .......................... .......................... .......................... .......................... ..........................
service.
Fmt 8010
7. Taxable income from continuing operations ... Pt. I, L. 19 ................................ .................. .......................... .......................... .......................... .......................... ..........................
8. Percent of taxable income assigned to trans- L. 6÷ L. 7, above (2 dec.) ........ .................. .......................... .......................... .......................... .......................... ..........................
portation service to taxable income from con-
tinuing operations.
170
9. Total income taxes .......................................... Pt. I, L. 20 ................................ .................. .......................... .......................... .......................... .......................... ..........................
Sfmt 8002
10. Income taxes assigned to transportation L. 8xL. 9, above ....................... .................. .......................... .......................... .......................... .......................... ..........................
service.
11. Income (loss) assigned to transportation L. 6 minus L. 10 above ............ .................. .......................... .......................... .......................... .......................... ..........................
service.
12. Total ‘‘sum of money’’ items assigned to Ls. 2, 5, 10 and 11 .................. .................. .......................... .......................... .......................... .......................... ..........................
transportation service.
Y:\SGML\211216.XXX
49 CFR Ch. X (10–1–07 Edition)

13. Operating expenses and ‘‘sum of money’’ Ls. 1 and 12, above ................. .................. .......................... .......................... .......................... .......................... ..........................
assigned to transportation service.
14. Ratio of income (loss) assigned to transpor- Pt. II, L. 11÷ Pt. I, L. 22 ........... .................. .......................... .......................... .......................... .......................... ..........................
tation to income (loss) from continuing oper-
ations (1 det.).
PART III—ALLOCATION OF INCREASED SYSTEM OPERATING EXPENSES AND SUM OF MONEY TO TRAFFIC AT ISSUE
211216
Pro-forma year

Line No. and Item (a) Source (b) Current revenue Proposed rev-
(e) pense (g) (h)
A.—Revenue distribution
1. Revenues applicable to traffic at issue ........... From revenue study ................. .................. .......................... .......................... .......................... .......................... ..........................
VerDate Aug<31>2005
09:32 Oct 26, 2007

2. System operating revenues, less miscella- Sch. C, pt. I, L. 9÷ Ls. 7 and 8 .................. .......................... .......................... .......................... .......................... ..........................
neous station revenues (3600) and other op-
erating revenues (2900).
3. Percent of total issue traffic revenues to L. 2 L. 1÷ L. 2 (percent to 2 dec.) .. .................. .......................... .......................... .......................... .......................... ..........................
revenues.
Jkt 211216
B.—Allocation to traffic at issue
4. Increased system operating expenses ............ Pt. II, line 1 .............................. .................. .......................... .......................... .......................... .......................... ..........................
5. Increased system ‘‘sum of money’’ ................. Pt. II, line 12 ............................ .................. .......................... .......................... .......................... .......................... ..........................
PO 00000
6. Total increased system operating expenses L. 4÷ L. 5, above ..................... .................. .......................... .......................... .......................... .......................... ..........................
and ‘‘sum of money’’.
7. Allocation of line 6 to traffic at issue ............... L. 3×L. 6 above ........................ .................. .......................... .......................... .......................... .......................... ..........................
8. Increased revenues on traffic at issue ............ L. 1, above ............................... .................. .......................... .......................... .......................... .......................... ..........................
9. Ratio of increased revenues to increased L. 8÷ L. 7, above (2 dec.) ........ .................. .......................... .......................... .......................... .......................... ..........................
Frm 00181
costs on traffic at issue.

Fmt 8010
171
Sfmt 8002
Y:\SGML\211216.XXX

211216
Pt. 1139, Subpt. B, Sch. D 49 CFR Ch. X (10–1–07 Edition)
EXPLANATORY—SCHEDULE C (PARTS I, II, AND lowable foreseeable future costs. Revenues
III) shall be based on the proposed fares and
Columns (d) through (h). These columns charges.
shall contain the pro forma year data. The data reported in columns (g) and (h)
The data reported in column (d) shall be shall be based on what the system revenue
the base year actual (column (c)) restated to needs of the study carriers should be at a
reflect conditions (wage, price, and produc- given time, including the constructed pro-
tivity, etc.) prevailing on or near the effec- jected and future operating expenses and the
tive date of the proposed increase. Revenues constructed ‘‘sum of money’’ above these ex-
in column (d) shall be based on fares and penses. The constructed ‘‘sum of money’’
charges which are currently in effect. should be supported by evidence that it is a
The data reported in column (e) shall also just and reasonable amount and is that need-
be the base year actual (column (c)) restated ed to attract debt and equity capital and to
to reflect conditions (wage, price, and pro- insure financial stability and the capacity to
ductivity, etc.) prevailing on or near the ef- render service. Such evidence should include
fective date of the proposed increase. Unlike an analysis of the adequacy of the carriers’
column (d), however, revenues in column (e) earnings, the carriers’ cost of debt and eq-
shall be based on the proposed fares and uity capital, the various kinds of risk at-
charges. tending their operations and the financing
The data reported in column (f) shall also thereof, and the carriers’ ongoing needs for
be the base year actual (column (c)) restated working capital, new equipment and facili-
to reflect conditions (wage, price, and pro- ties.
ductivity, etc.) prevailing on or near the ef-
fective date of the proposed increase plus al- [47 FR 53281, Nov. 24, 1982]
SCHEDULE D TO SUBPART B OF PART 1139

( ) Greyhound Lines, Inc. ( ) Trailways combined ( ) All study carriers
Calendar Calendar Base year

Line No. and Item (a) Source (b) year year actual (e)
19ll (c) 19ll (d)
PART I.—Selected financial data
Income statement data:

1 Total revenues ................................................... Sch. 2998, L. 9 ...................... .................. .................. ..................
2 Total expenses ................................................... Sch. 2998, L. 15 .................... .................. .................. ..................
3 Depreciation expense and amortization of car- Sch. 2998, L. 11 + L. 12 ....... .................. .................. ..................
rier operating property.
4 Lease of carrier property (net) ........................... Sch. 2998, L. 17 + L. 18 ....... .................. .................. ..................
5 Net carrier operating income ............................. Sch. 2998, L. 19 .................... .................. .................. ..................
6 Equity in earnings (losses) of associated com- Sch. 2998, L. 29 .................... .................. .................. ..................
panys.
7 Interest on long-term obligations ....................... Sch. 2998, L. 32 .................... .................. .................. ..................
8 Amortization of debt discount and expense and Sch. 2998, L. 35 + L. 36 ....... .................. .................. ..................
premium on debt (net).
9 Pretax income (loss) .......................................... Sch. 2998, L. 40 .................... .................. .................. ..................
10 Tax on income from continuing operations ..... Sch. 2998, L. 41 .................... .................. .................. ..................
11 Provision for deferred taxes ............................. Sch. 2998, L. 42 .................... .................. .................. ..................
12 Income (loss) from continuing operations ........ Sch. 2998, L. 43 .................... .................. .................. ..................
13 Total income (loss) from discontinued oper- Sch. 2998, L. 46 .................... .................. .................. ..................
ations.
14 Total extraordinary items and accounting Sch. 2998, L. 53 .................... .................. .................. ..................
changes—(debit) credit.
15 Net income (loss) ............................................. Sch. 2998, L. 54 .................... .................. .................. ..................
Balance sheet data:
16 Current assets .................................................. Sch. 100, L. 17, col. (b) ......... .................. .................. ..................
17 Current liabilities ............................................... Sch. 101, L. 14, col. (b) ......... .................. .................. ..................
18 Current assets 1 ................................................ Sch. 100, L. 17 ...................... .................. .................. ..................
19 Current liabilities 1 ............................................. Sch. 101, L. 14 ...................... .................. .................. ..................
20 Long-term debt due within 1 yr ........................ Sch. 101, L. 15, col. (b) ......... .................. .................. ..................
21 Long-term debt due after 1 yr .......................... Sch. 101, L. 24, col. (b) ......... .................. .................. ..................
22 Long-term debt due within 1 yr 1 ...................... Sch. 101, L. 15 ...................... .................. .................. ..................
23 Long-term debt due after 1 yr 1 ........................ Sch. 101, L. 24 ...................... .................. .................. ..................
24 Owners’ equity ................................................. Sch. 101, L. 38 + L. 41 + L. .................. .................. ..................
44—L. 45, col. (b).
25 Owners’ equity 1 ............................................... Sch. 101, L. 38 + L. 41 + L. .................. .................. ..................
44—L. 45.
26 Total intangible property 1 ................................ Sch. 100, L. 31 ...................... .................. .................. ..................
172
Surface Transportation Board, DOT Pt. 1139, Subpt. B, Sch. D
Calendar Calendar Base year

Line No. and Item (a) Source (b) year year actual (e)
19ll (c) 19ll (d)
27 Net carrier operating property (owned plus Sch. 100, L. 19 + L. 21 ......... .................. .................. ..................
leased to others) 1.
28 Investment in owned and leased property plus L. 27 + L. 18—L. 19 .............. .................. .................. ..................
working capital.
Miscellaneous and financial ratios:
29 Cash dividend appropriations .......................... Sch. 2930, L. 16 .................... .................. .................. ..................
30 Operating ratio (percent) .................................. L. 2 ÷ L. 1 .............................. .................. .................. ..................
31 Current ratio ..................................................... L. 16 ÷ L. 17 .......................... .................. .................. ..................
32 Dividend payout ratio (percent) ........................ L. 29 ÷ L. 15 .......................... .................. .................. ..................
33 Throwoff to debt ratio (percent) ....................... (L. 3 + L. 15) ÷ (L. 20 + L. .................. .................. ..................
21).
34 Capital structure ratio (percent) ....................... (L. 20 + L. 21) ÷ (L. 20 + L. .................. .................. ..................
21 + L. 24).
35 Working capital ................................................. L. 18—L. 19 ........................... .................. .................. ..................
36 Rate of return on owned and leased operating L. 5 ÷ L. 28 ............................ .................. .................. ..................
property plus working capital (percent).
37 Rate of return on owners’ equity, less intangi- L. 15 ÷ (L. 25—L. 26) ............ .................. .................. ..................
bles (percent).
38 Rate of return on total capitalization (percent) (L. 7 + L. 8 + L. 15) ÷ (L. 22 .................. .................. ..................
+ L. 23 + L. 25).
PART II. Accounts giving effect to interperiod tax allocation (deferred taxes) and impact of investment tax credit
Balance sheets accounts:

1 Deferred income tax charges ............................. Sch. 100, L. 16, col. (b) ......... .................. .................. ..................
2 Accumulated deferred income tax charges ....... Sch. 100, L. 44, col. (b) ......... .................. .................. ..................
3 Deferred income tax credits ............................... Sch. 101, L. 13, col. (b) ......... .................. .................. ..................
4 Accumulated deferred income tax credits ......... Sch. 101, L. 27, col. (b) ......... .................. .................. ..................
Income statement accounts:
5 Provision for deferred taxes ............................... Sch. 2998, L. 42 .................... .................. .................. ..................
6 Provision for deferred taxes—Extraordinary Sch. 2998, L. 50 .................... .................. .................. ..................
items.
7 Impact of investment tax credit on continuing See explanatory ..................... .................. .................. ..................
operations.
1 Show average of beginning and end-of-year figures.
EXPLANATORY—SCHEDULE D (PART I) data reported in column (c) shall be based on

Purpose. The purpose of Schedule D (Part I) the 2nd calendar year preceding the filing
is to ascertain the financial posture of Grey- year. For example, if the rate increase is
hound Lines, Inc. and all the study carrier filed on Nov. 15, 1977, column (c) should re-
carriers by an analysis of certain key finan- port data for calendar year 1975.
cial data, with a view to determining rev- Column (d). If the fare/charge increase is
enue needs. filed during the first six months of the cal-
Study Carrier Groupings. Schedule D (Part endar year, the data reported in column (d)
I) shall be prepared on the following two should be based on the 2nd calendar year pre-
bases: ceding the filing year. For example, if the
1. Greyhound Lines, Inc. rate increase is filed on May 15, 1977, column
2. Trailways Combined (study carriers, (d) should report data for calendar year 1975.
only) If the rate increase is filed during the last
3. All Study Carriers
six months of the calendar year, the data re-
Column (b). The annual report sources in
ported in column (d) shall be based on the 1st
this column refer to the 1976 Annual Report
Form MP–1. For years prior or subsequent to calendar year preceding the filing year. If,
1976, use comparable sources. for example, the fare/charge increase is filed
Column (c). If the fare/charge increase is on November 15, 1977, column (d) should re-
filed during the first six months of the cal- port data for calendar year 1976.
endar year, the data reported in column (c) Column (e). Data to be reported in this col-
shall be based on the 3rd calendar year pre- umn for the base year actual shall be based
ceding the filing year. For example, if the on the 4-quarter calendar year periods iden-
rate increase is filed on May 15, 1977, column tified below:
(c) shall report data for calendar year 1974.
If the fare/charge increase is filed during
the last six months of the calendar year, the
173
Pt. 1139, Subpt. B, Sch. E 49 CFR Ch. X (10–1–07 Edition)
Filing month EXPLANATORY—SCHEDULE D (PART II)

of verified Four-quarter calendar year period ending
statement Purpose. Schedule D (Part II) is designed to
segregate the impacts of: (1) The Board’s de-
January ....... Sept. 30, preceding year. ferred tax accounting rule change; and (2)
February ..... Do. the impact of the investment tax credit on
March .......... Do. continuing operations.
April ............ Dec. 31, preceding year. Study Carrier Groupings. The study carrier
May ............. Do. groups for Part II shall be the same as those
June ............ Do. designated for Part I.
July ............. Mar. 31, filing-month year. Column (b). The annual report sources in
August ........ Do. this column refer to the 1976 Annual Report
September .. Do. Form MP–1. For years prior or subsequent to
October ....... June 30, filing-month year. 1976, use comparable sources.
November ... Do. Columns (c), (d) and (e). The reporting peri-
December ... Do.
ods for Part II shall correspond to those in
Part I.
The 4-quarter calendar year periods identi- Investment Tax Credit Impact. This impact
fied above represent the minimum require- is: (1) The amount by which Account 8000, In-
ment. However, in event a proposed fare/ come Taxes on Income from Continuing Op-
charge increase is filed at a time when data erations, was credited for the investment tax
for a more current quarter than that speci- credit if the flow-through accounting method
fied are obtainable, the more current quarter was elected or (2) the amount by which Ac-
may be used in the base year-actual. For ex- count 8040, Provision for Deferred Taxes, was
ample, if an increase is filed in late March credited for the amortization of the invest-
and data for the 4th quarter of the preceding ment tax credit if the deferral accounting
year is obtainable, the base year-actual end- method was elected.
ing December 31, may be used in lieu of the [42 FR 32541, June 27, 1977; 42 FR 40861, Aug.
base year-actual ending September 30. 12, 1977. Redesignated at 47 FR 49577, Nov. 1,
1982]
SCHEDULE E TO SUBPART B OF PART 1139—STATEMENT OF CHANGES IN FINANCIAL

POSITION
Calendar Calendar Base year-

Line No. and item (a) Source (b) year year actual (e)
19ll (c) 19ll (d)
SOURCES OF WORKING CAPITAL

Working capital provided by operations:
1 Net income (loss) before extraordinary items .... Sch. 2998, L. 47, col. (b) ....... .................. .................. ..................
Add expenses not requiring outlay of working capital
(subtract) credits not generating working capital:
2 Loss (gain) on sale or disposal of tangible Sch. 5091, L. 7, col. (b) ......... .................. .................. ..................
property.
3 Add depreciation and amortization expense ..... Sch. 2998, Ls. 11+12+35+36, .................. .................. ..................
col. (b).
4 Net increase (decrease) in deferred income Sch. 2998, L. 42, col. (b) ....... .................. .................. ..................
taxes.
5 Net decrease (increase) in parent’s share of Sch. 2998, L. 28 .................... .................. .................. ..................
subsidiary’s undistributed income for the year.
6 Net increase (decrease) in noncurrent portion Sch. 101, L. 31, cols. (b)-(c) .................. .................. ..................
of estimated liabilities.
7 Other (specify):
8 ............................................................................... ................................................ .................. .................. ..................
9 ............................................................................... ................................................ .................. .................. ..................
10 ............................................................................. ................................................ .................. .................. ..................
11 ............................................................................. ................................................ .................. .................. ..................
12 ............................................................................. ................................................ .................. .................. ..................
13 ............................................................................. ................................................ .................. .................. ..................
14 ............................................................................. ................................................ .................. .................. ..................
15 ............................................................................. ................................................ .................. .................. ..................
16 ............................................................................. ................................................ .................. .................. ..................
17 ............................................................................. ................................................ .................. .................. ..................
18 Total working capital from operations before ................................................ .................. .................. ..................
extraordinary items.
19 Extraordinary items and accounting changes .. Sch. 2998, L. 53, col. (b) ....... .................. .................. ..................
174
Surface Transportation Board, DOT Pt. 1139, Subpt. B, Sch. E
Calendar Calendar Base year-

Line No. and item (a) Source (b) year year actual (e)
19ll (c) 19ll (d)
Add expenses not requiring outlay of working capital

(subtract) credits not generating working capital.
20 Loss (gain) on extraordinary items .................. Sch. 2998, L. 48, col. (b) ....... .................. .................. ..................
21 Net increase (decrease) in deferred income Sch. 2998, L. 50, col (b) ........ .................. .................. ..................
taxes.
22 Cumulative effect of changes in accounting Sch. 2998, L. 52, col. (b) ....... .................. .................. ..................
principles.
Other (specify):
23 ............................................................................. ................................................ .................. .................. ..................
24 ............................................................................. ................................................ .................. .................. ..................
25 ............................................................................. ................................................ .................. .................. ..................
26 ............................................................................. ................................................ .................. .................. ..................
27 ............................................................................. ................................................ .................. .................. ..................
28 Total working capital from extraordinary items ................................................ .................. .................. ..................
and accounting changes.
29 Total working capital from operations (lines 18 ................................................ .................. .................. ..................
and 28).
Working capital from sources other than operating:
30 Proceeds from issuance of long-term liabilities ................................................ .................. .................. ..................
31 Proceeds from sale/disposition of carrier oper- Sch. 1200-A, L. 9 .................. .................. .................. ..................
ating property.
32 Proceeds from sale/disposition of other tan- ................................................ .................. .................. ..................
gible property.
33 Proceeds from sale/repayment of investments Sch. 1600/1650, ls. 23+47 .... .................. .................. ..................
advances.
34 Net decrease in sinking and other special Sch. 1700, ls. 15+31+50, .................. .................. ..................
funds. cols. (d)–(j).
35 Proceeds from issue of capital stock ............... Sch. 2700A/2710A, L. 12, .................. .................. ..................
cols. (e)+(f)—(i).
Other (specify):
36 ............................................................................. ................................................ .................. .................. ..................
37 ............................................................................. ................................................ .................. .................. ..................
38 ............................................................................. ................................................ .................. .................. ..................
39 ............................................................................. ................................................ .................. .................. ..................
40 ............................................................................. ................................................ .................. .................. ..................
41 Total working capital from sources other than ................................................ .................. .................. ..................
operating.
42 Total sources of working capital (lines 29 and
41).
APPLICATION OF WORKING CAPITAL
43 Amount paid to acquire/retire long-term liabil- ................................................ .................. .................. ..................
ities.
44 Cash dividends ................................................. Sch. 2930, L. 16 .................... .................. .................. ..................
45 Purchase price of carrier operating property ... Sch. 1200, L. 11, col. (c) ....... .................. .................. ..................
46 Purchase price of other tangible property ....... ................................................ .................. .................. ..................
47 Purchase price of long-term investments and Sch. 1600/1650, ls. 23+47, .................. .................. ..................
advances. col. (e).
48 Net increase in sinking or other special funds Sch. 1700, ls. 15+31+50, .................. .................. ..................
cols. (j)–(d).
49 Purchase price of acquiring treasury stock ..... Sch. 2700B/2710B, L. 12, col. .................. .................. ..................
(c).
Other (specify):
50 ............................................................................. ................................................ .................. .................. ..................
51 ............................................................................. ................................................ .................. .................. ..................
52 ............................................................................. ................................................ .................. .................. ..................
53 ............................................................................. ................................................ .................. .................. ..................
54 ............................................................................. ................................................ .................. .................. ..................
55 Total application of working capital .................. ................................................ .................. .................. ..................
56 Net increase (decrease) in working capital ................................................ .................. .................. ..................
(line 42 less line 55).
EXPLANATORY—SCHEDULE E sources and uses of funds over the recent

past.
Purpose. Schedule E is designed to provide
Study Carrier Groupings. Schedule E shall
the Board with an indication of the carrier’s
be prepared on the following two bases:
175
Pt. 1139, Subpt. B, Sch. F 49 CFR Ch. X (10–1–07 Edition)
1. Greyhound Lines, Inc. ported in column (d) shall be based on the 1st
2. Trailways Combined (study carriers, calendar year preceding the filing year. If,
only) for example, the fare/charge increase is filed
3. All Study Carriers on November 15, 1977, column (d) should re-
‘‘Funds’’. The term ‘‘Funds’’ for the pur- port data for calendar year 1976.
pose of this schedule shall include all assets Column (e). Data to be reported in this col-
or financial resources even though a trans-
umn for the base year-actual shall be based
action may not directly affect cash or work-
on the 4-quarter calendar year periods iden-
ing capital. For example, the purchase of
property in exchange for bonds or shares of tified below:
stock would be an application of funds for in-
Filing month
vestment in property provided by the issue of verified Four-quarter calendar year period ending
of securities. statement
Sources and uses of funds should be indi-
vidually disclosed. For example, outlays for January ....... Sept. 30, preceding year.
fixed assets should not be reported net of re- February ..... Do.
tirements. March .......... Do.
Column (b). The annual report sources in April ............ Dec. 31, preceding year.
this column refer to the 1976 Annual Report May ............. Do.
Form MP–1. For years prior or subsequent to June ............ Do.
1976, use comparable sources. July ............. Mar. 31, filing-month year.
Column (c). If the fare/charge increase is August ........ Do.
filed during the first six months of the cal- September .. Do.
endar year, the data reported in column (c) October ....... June 30, filing-month year.
shall be based on the 3rd calendar year pre- November ... Do.
ceding the filing year. For example, if the December ... Do.
rate increase is filed on May 15, 1977, column
(c) shall report data for calendar year 1974. The 4-quarter calendar year periods identi-
If the fare/charge increase is filed during fied above represent the minimum require-
the last six months of the calendar year, the ment. However, in event a proposed fare/
data reported in column (c) shall be based on charge increase is filed at a time when data
the 2nd calendar year preceding the filing for a more current quarter than that speci-
year. For example, if the rate increase is fied are obtainable, the more current quarter
filed on Nov. 15, 1977, column (c) should re- may be used in the base year-actual. For ex-
port data for calendar year 1975. ample, if an increase is filed in late March
Column (d). If the fare/charge increase is and data for the 4th quarter of the preceding
filed during the first six months of the cal- year is obtainable, the base year-actual end-
endar year, the data reported in column (d) ing December 31, may be used in lieu of the
should be based on the 2nd calendar year pre- base year-actual ending September 30.
ceding the filing year. For example, if the
rate increase is filed on May 15, 1977, column [42 FR 32541, June 27, 1977; 42 FR 40861, Aug.
(d) should report data for calendar year 1975. 12, 1977. Redesignated at 47 FR 49577, Nov. 1,
If the rate increase is filed during the last 1982]
six months of the calendar year, the data re-
SCHEDULE F TO SUBPART B OF PART 1139—AFFILIATE REVENUE DATA FOR SERVICES

RENDERED
Calendar Calender Base year-

Line No. and Item (a) year year actual (d)
19ll (b) 19ll (c)
affiliate revenues for services rendered to respondents

1 Engineering .................................................................................................................... .................. .................. ..................
2 Management .................................................................................................................. .................. .................. ..................
3 Legal .............................................................................................................................. .................. .................. ..................
4 Accounting ..................................................................................................................... .................. .................. ..................
5 Financial ......................................................................................................................... .................. .................. ..................
6 Furnishing of materials and supplies ............................................................................. .................. .................. ..................
7 Leasing of land, structures, and vehicles ...................................................................... .................. .................. ..................
8 Purchase of equipment .................................................................................................. .................. .................. ..................
9 Construction ................................................................................................................... .................. .................. ..................
10 All other services ......................................................................................................... .................. .................. ..................
11 Total affiliate revenues for services rendered to respondent (lines 1 through 10) ..... .................. .................. ..................
12 Total affiliate revenues for services rendered to other than respondents .................. .................. .................. ..................
13 Total affiliate revenues (lines 11 and 12) .................................................................... .................. .................. ..................
176
Surface Transportation Board, DOT Pt. 1139, Subpt. B, Sch. G
Calendar Calender Base year-

Line No. and Item (a) year year actual (d)
19ll (b) 19ll (c)
14 Total affiliate income from operations before income taxes ....................................... .................. .................. ..................
EXPLANATORY—SCHEDULE F Column (d). Data to be reported in this col-

umn for the base year-actual shall be based
Purpose. Schedule F is designed to facili-
on the 4-quarter calendar year periods iden-
tate an assessment of the effect on the car-
tified below:
riers’ profits of transactions with affiliates.
Affiliate transactions aggregating less Filing month
than $30,000 need not be reported in this of verified Four-quarter calendar year period ending
Schedule. statement
Study Carrier Groupings. A separate Sched-
ule F shall be prepared for each of the fol- January ....... Sept. 30, preceding year.
February ..... Do.
lowing:
March .......... Do.
1. Greyhound Lines, Inc. April ............ Dec. 31, preceding year.
2. Trailways Combined (study carriers, May ............. Do.
only) June ............ Do.
3. All Study Carriers July ............. Mar. 31, filing-month year
Column (b). If the fare/charge increase is August ........ Do.
filed during the first six months of the cal- September .. Do.
endar year, the data reported in column (b) October ....... June 30, filing-month year.
shall be based on the 3rd calendar year pre- November ... Do.
ceding the filing year. If the fare/charge in- December ... Do.
crease is filed during the last six months of
the calendar year, the data reported in col- The 4-quarter calendar year periods identi-
umn (b) shall be based on the 2nd calendar fied above represent the minimum require-
year preceding the filing year. ment. However, in event a proposed fare/
Column (c). If the fare/charge increase is charge increase is filed at a time when data
filed during the first six months of the cal- for a more current quarter than that speci-
endar year, the data reported in column (c) fied are obtainable, the more current may be
shall be based on the 2nd calendar year pre- used in the base year-actual. For example, if
ceding the filing year. If the fare/charge in- an increase is filed in late March and data
crease is filed during the last six months of for the 4th quarter of the preceding year is
the calendar year, the data reported in col- obtainable then the base year-actual ending
umn (c) shall be based on the 1st calendar December 31, may be used in lieu of the base
year preceding the filing year. year-actual ending September 30.
SCHEDULE G TO SUBPART B OF PART 1139—SELECTED STATISTICAL DATA

Cols.
(h)–(l)
1972 1973 1974 1975 1976
Line No. and Item (a) Source (b) (1977)–
(c) (d) (e) (f) (g) (1981)
(h)
Operating revenues, expenses, and oper-

ating ratios:
1 Passenger revenue ...................... Sch. 2998, L. 1, col. (b) ............ ............ ............ ............ ............ ............
2 Special bus revenue ..................... Sch. 2998, L. 2, col. (b) ............ ............ ............ ............ ............ ............
3 Express revenue .......................... Sch. 2998, L. 5, col. (b) ............ ............ ............ ............ ............ ............
4 Total operating revenues ............. Sch. 2998, L. 9, col. (b) ............ ............ ............ ............ ............ ............
5 Total operating expenses ............. Sch. 2998, L. 15, col. ............ ............ ............ ............ ............ ............
(b).
6 Operating ratio .............................. Line 5÷line 4 ................. ............ ............ ............ ............ ............ ............
Carrier operating property:
7 Structures ..................................... Sch. 1200, L. 2, col. (c) ............ ............ ............ ............ ............ ............
8 Revenue equipment ..................... Sch. 1200, L. 3, col. (c) ............ ............ ............ ............ ............ ............
9 Improvements of leasehold prop- Sch. 1200, L. 8, col. (c) ............ ............ ............ ............ ............ ............
erty.
10 Total carrier operating property .. Sch. 1200, L. 11, col. ............ ............ ............ ............ ............ ............
(c).
177
Pt. 1139, Subpt. B, Sch. G 49 CFR Ch. X (10–1–07 Edition)
Cols.
(h)–(l)
1972 1973 1974 1975 1976
Line No. and Item (a) Source (b) (1977)–
(c) (d) (e) (f) (g) (1981)
(h)
Number and cost of buses:

11 Number of buses acquired ......... Sch. 1221, L. 22, col. ............ ............ ............ ............ ............ ............
(c).
12 Cost of buses acquired .............. Sch. 1221, L. 22, col. ............ ............ ............ ............ ............ ............
(d).
13 Number of buses retired ............ Sch. 1221, L. 22, col. ............ ............ ............ ............ ............ ............
(e).
14 Cost of buses retired .................. Sch. 1221, L. 22, col. (f) ............ ............ ............ ............ ............ ............
15 Average age of buses 1 .............. Sch. 1221, L. 22, col. (i) ............ ............ ............ ............ ............ ............
Employee compensation:
16 Total daily basis ......................... Sch. 9002, L. 20, col. ............ ............ ............ ............ ............ ............
(c).
17 Total hourly basis ....................... Sch. 9002, L. 21, col. ............ ............ ............ ............ ............ ............
(c).
Man-hours or days paid for:
18 Total—Daily basis ...................... Sch. 9002, L. 20, col. ............ ............ ............ ............ ............ ............
(e).
19 Total—Hourly basis .................... Sch. 9002, L. 21, col. ............ ............ ............ ............ ............ ............
(e).
Revenue bus-miles operated:
20 Intercity service (regular route) Sch. 9002, L. 1, col. (e) ............ ............ ............ ............ ............ ............
21 Charter, sightseeing and other Sch. 9002, L. 3, col. (e) ............ ............ ............ ............ ............ ............
special service.
22 Vehicle miles operated exclu- Sch. 9002, L. 4, col. (e) ............ ............ ............ ............ ............ ............
sively in baggage, mail express,
and/or newspaper service.
Revenue passengers carried:
23 Number of intercity revenue pas- Sch. 9002, L. 6, col. (b) ............ ............ ............ ............ ............ ............
sengers carried (regular route).
24 Total number of revenue pas- Sch. 9002, L. 9, col. (b) ............ ............ ............ ............ ............ ............
sengers carried.
Other Statistics:
25 Number of regulator route inter- Sch. 9002, L. 12, col. ............ ............ ............ ............ ............ ............
city passenger miles. (b).
26 Total passenger revenue ........... Sch. 9002, L. 16, col. ............ ............ ............ ............ ............ ............
(b).
27 Passenger-miles per bus mile 25÷L. 20 ........................ ............ ............ ............ ............ ............ ............
(average load).
28 Passenger-miles per passenger 25÷L. 23 ........................ ............ ............ ............ ............ ............ ............
carried-intercity service (average
journey).
1 Line No. 15: The weighted average age of buses for ‘‘All Study Carriers’’ is computed by:
(a) Calculating the average age of buses for each study carrier.
(b) Calculating the number of buses which each study carrier has on hand at the end of the year as a percentage of the total
number of buses which all study carriers as a group have on hand at the end of the year.
(c) Multiplying the average age for each study carrier by that carrier’s percentage of total buses on hand at the end of the
year.
(d) Summing the result of calculation (c) above for each study carrier. The summation gives the weighted average age of
buses for ‘‘All Study Carriers’’ taken together as a group.
EXPLANATORY—SCHEDULE G ations during all phases of the business

cycle.
Purpose. The purpose of Schedule G is to
Study Carrier Groupings. Schedule G shall
develop selected property, labor and oper-
be prepared for each of the following:
ational data for use in evaluating the influ-
1. Greyhound Lines, Inc.
ence and relationship of these data to the in-
come and other financial data contained in 2. Trailways Combined (study carriers,
Schedules C through F. This schedule re- only).
quires data commencing with the year 1972 3. All Study Carriers.
through 1976, and thereafter, adding each Column (b). The annual report sources in
calendar year’s data until a 10-year moving this column refer to the 1976 Annual Report
period is reached. A ten-year time period is Form MP–1. For years prior or subsequent to
1976, use comparable sources.
useful for analyzing the industry’s oper-
178
Surface Transportation Board, DOT Pt. 1139, Subpt. B, App. I
Columns (c) through (g). These columns were developed by the Cost Finding Section
refer to successive calendar years from 1972 of the Interstate Commerce Commission
through 1976, each ending December 31. more than thirty years ago. These cost for-
Columns (h) to (l). These columns refer to mulas have been modified and refined from
successive calendar years which become ap- time-to-time in order to adjust for changing
plicable as the time period of record is ex- operating practices and conditions, improve-
panded to the ultimate 10 year moving time ments in accounting technology or the need
period. to develop costs for particular kinds of serv-
ice or types of traffic. At a later point in
APPENDIX I TO SUBPART B OF PART 1139 time when the need arose in general revenue
Excerpt from National Bus Traffic Associa- increase cases for more detailed separations
tion’s brief (pages 18–23) in I&S M–29089 in- of the expenses of the general commodity
creased bus passenger fares and express/ carriers among types of service and types of
rates-nationwide. traffic, procedures were developed whereby a
continuing sample of traffic data could be
NBTA WILL UNDERTAKE THE DEVELOPMENT developed to tie in with unit costs produced
OF A COST ALLOCATION SYSTEM FOR MOTOR by the motor carrier cost formulas. 19 Thus,
CARRIERS OF PASSENGERS the detailed separation of traffic data devel-
At the conclusion of the hearing in this oped in the continuing traffic studies was de-
proceeding, the Administrative Law Judge signed to tie in with existing cost allocation
requested a discussion of the feasibility of formulas. More recently, a complete revision
NBTA undertaking the traffic and cost stud- of the Uniform System of Accounts for gen-
ies necessary to permit the separation of bus eral commodity motor carriers necessitated
carrier expenses by types of service. As the further modification of the cost formulas;
record in this case indicates, no such studies however, at the same time, such revisions
have ever been undertaken and there is no served to increase the amount of expenses al-
present capability on the part of either the located in the formulas on a direct basis and
Board or the carriers themselves to allocate reduced the amount of expenses which could
total operating expenses by types of carrier only be allocated by means of factors derived
service. As the testimony of Mr. Bilz reveals, from special studies or other means.
data derived from traffic studies is the At the present time, the bus industry has
source of only a few of the factors which committed itself to a review of its Uniform
must be developed to permit the identifica- System of Accounts, jointly with the Bureau
tion of cost. 18 Consequently, the develop- of Accounts of the Interstate Commerce
ment of a carefully conceived overall cost al- Commission, to determine the need for revis-
location system must be accomplished first, ing the accounts to conform more closely
and then a determination must be made of with generally accepted accounting prin-
the types and kinds of studies needed to de- ciples and, most importantly, to facilitate
velop the specific factors required for imple- cost finding and financial analysis. In the re-
mentation to the system. view and analysis of the Uniform System of
At its annual meeting held in Newton, Accounts, consideration should be given to
Massachusetts, on September 27–28, 1976, the possible benefits from a matrix approach in
members of the National Bus Traffic Asso- accumulating operating expenses, similar in
ciation considered the question of under- some respects but not necessarily as detailed
taking the analyses, planning, and studies as the approach used in redesigning the sys-
leading to the development and implementa- tem of accounts for general commodity car-
tion of a cost allocation system and agreed
riers. The separations of expenses for bus
to undertake such a program. Mr. Bilz, the
lines need not be as detailed as those made
cost analyst retained by the Association, has
for general commodity carriers since the
been request to work with appropriate car-
needs for expense segregations are not the
rier personnel and an initial meeting to out-
same. However, use of a matrix system by
line the first steps is scheduled to be held
during November of this year. In the mean- the bus lines to accumulate operating ex-
time, after consultation with Mr. Bilz, we set penses would result in the direct assignment
forth the following discussion of what will be of various categories of expense which would
involved. otherwise be included in a common pool of
In assessing the problems and complexities expense to be allocated on the basis of the
involved in formulating a procedure to de- best available data. Therefore, as a necessary
velop costs by types of service for the bus preliminary step toward the development of
lines, some parallels may be drawn with the a cost allocation system for the bus lines,
procedure which has evolved over the years
for general commodity motor carriers. Cost 19 Probability sampling of general freight
formulas for general commodity carriers motor carrier traffic did not develop until
some 20 years after the Board’s cost formulas
18 Tr. 183–186. for truck lines.
179
Pt. 1139, Subpt. B, App. I 49 CFR Ch. X (10–1–07 Edition)
the Uniform System of Accounts must be ex- further separate passenger revenue in inter-
amined for the purpose of identifying ex- city service between interstate and intra-
penses which can be directly assigned to par- state traffic. Other carriers are able to make
ticular services or operations. the latter separation of revenue on various
Basically, a cost study for the bus lines in- bases consistent with the size of their oper-
volves, first, a determination of the expenses ations. It is possible that the probability
chargeable to each of the various services sampling procedure and other bases em-
provided by the carriers. These services in- ployed by the smaller carriers may be ex-
clude regular route intercity service, involv- panded to include statistical data as well as
ing transportation of passengers, express, revenue information. The bus lines currently
baggage, newspapers and mail, local service maintain records, for the purpose of their an-
and special services including charter oper- nual reports to the Surface Transportation
ations and tours. Secondly, the need for fur- Board, of the number of bus miles operated
ther separations within these categories separately for intercity service, local service
must be explored. An all-out study would in- and special services. Such data will undoubt-
volve the allocation of expenses for regular edly come into use in allocating expenses
route service among passengers and their among services. Similarly, records of the
baggage, express traffic and all other traffic; number of passengers carried in various serv-
however, such detailed separations—which ices, maintained by the bus lines, may be
can only be made by means of specially-de- used in some of the expense allocations.
signed allocating procedures and special
However, no continuing records are main-
studies—may not be necessary, at least in
tained showing the number of passengers
the initial design of a cost allocation system
carried separately in interstate and intra-
for the bus lines. From the standpoint of cur-
state commerce nor are any separations
rent and potential use to be made of cost
made of the number of passenger miles in
study data, it is reasonable, at this point, to
each category. Such statistical separations
design a system which will separate expenses
are required regardless of the methodology
for regular route service involving passenger
followed in the cost study, that is, whether
and express traffic (including baggage) on
the separations of expenses between inter-
the one hand, and all other services on the
other. Finally, an additional separation of state and intrastate traffic are made within
the expenses for regular route service be- the framework of a cost allocation formula
tween interstate and intrastate traffic is or whether the expenses in each category are
necessary. developed on the basis of average mileage-re-
In connection with the first step, i.e., allo- lated and non-mileage unit costs developed
cation of expenses among services, although from a cost formula and applied to traffic
a number of the various categories of ex- service units developed for interstate and
pense incurred by the bus lines may be di- intrastate traffic, i.e., number of passengers
rectly allocated to various services, there and number of passenger miles.
are additional items of expense which are As noted above, expenses for each type of
jointly incurred in connection with two or traffic must be separated between those
more services and can only be separated which are related to mileage operated and
among services on the basis of appropriate those which are not related to mileage. This
allocation factors. The same problems arise brings in the problem of segregating the ter-
in the second and third steps, to an even minal activities of the carriers among serv-
greater extent, in determining the extent to ices and types of traffic. Segregation of such
which expenses assigned to a particular serv- expenses will probably require time and mo-
ice must be allocated among the various tion analyses, calculation of space utiliza-
types of traffic handled in that service and in tion factors at various representative termi-
making the further separation between nals and other special studies.
interstate and intrastate traffic. These sepa- The formulation of a cost allocation sys-
rations should be made by means of cost al- tem and the gathering of input data for the
location factors which are functionally re- system will require an extensive amount of
lated to the fullest extent possible to each work and expense on the part of the bus
item of expense. This calls for the develop- lines. If the amount of time required in de-
ment of additional allocation factors which veloping acceptable cost allocation proce-
are not presently maintained by the bus dures for general freight motor carriers is
lines. any indication, several years may be re-
At the present time, the carriers can accu- quired before a cost system for the bus lines
rately determine from their regularly main- can be formulated, applied and tested. The
tained accounting records the amount of rev- bus industry recognizes that, because of its
enue accruing from regular route operations, workload and limited staff, the Cost Finding
separately for passenger and express service, Section of the Board cannot take on the task
and from operations in connection with char- of developing a cost allocation system for
ter and special service. By means of estab- the bus lines as it did in connection with
lished probability sampling procedures, general freight motor carriers; however, it is
Greyhound and Continental Trailways can hoped that the efforts of the bus lines in this
180
regard will receive the full support and guid- (1) For investigation proceedings, the
ance of the Board’s staff so that the best pos- reparations period shall begin on the
sible results may be achieved in the shortest date the investigation is started. Thus,
possible time.
unless by coincidence, the quarterly
H. G. HOMME,
compounding periods in investigation
Secretary.
proceedings will not coincide with the
[42 FR 32541, June 27, 1977. Redesignated at 47 calendar quarters.
FR 49571, Nov. 1, 1982 and amended at 64 FR (2) For complaint proceedings, the
53268, Oct. 1, 1999] reparations period shall begin on the
date the unlawful charge is paid. How-
PART 1141—PROCEDURES TO ever, in order for the quarterly
CALCULATE INTEREST RATES compounding periods in complaint
cases to coincide with the calendar
quarters (so that only one interest rate
AUTHORITY: 49 U.S.C. 721. is in effect during each compounding
period), the first compounding period
§ 1141.1 Procedures to calculate inter- shall run from the date the unlawful
est rates.
charge is paid to the last day of the
(a) For purposes of complying with a current calendar quarter, and all subse-
Board decision in a complaint or inves- quent compounding periods shall coin-
tigation proceeding, interest rates to cide with the calendar quarters.
be computed shall be the coupon equiv- (3) For both investigation and com-
alent yield (investment rate) of mar- plaint proceedings, the annual effective
ketable securities of the United States interest rate shall be the same as the
Government having a duration of 91 annual nominal (or stated) rate. Thus,
days (3 months). The rate levels will be the nominal rate must be factored ex-
determined as follows: ponentially to the power representing
(1) For investigation proceedings, the the portion of the year covered by the
interest rate shall be the coupon equiv- interest rate. A simple multiplication
alent yield in effect on the date the of the nominal rate by the portion of
statement is filed accounting for all the year covered by the interest rate
amounts received under the new rates would not be appropriate because it
(See 49 U.S.C. 10707(d)(1)). would result in an effective rate in ex-
(2) For complaint proceedings, the in- cess of the nominal rate. Under this
terest rate shall be the coupon equiva- ‘‘exponential’’ approach, the total cu-
lent yield in effect on the first day of mulative reparations payment (includ-
the calendar quarter in which an un- ing interest) is calculated by multi-
lawful charge is paid. The interest rate plying the interest factor for each
in complaint proceedings shall be up- quarterly period (or part thereof) by
dated as of the first day of all subse- the principal amount for that period
quent calendar quarters, at the coupon plus any accumulated interest from
equivalent yields in effect on those previous periods. The ‘‘interest factor’’
days. Updating will continue until the for each period is 1.0 plus the interest
required reparation payments are rate for that period to the power rep-
made. resenting the portion of the year cov-
(3) For purposes of this section, cou- ered by the interest rate. As an exam-
pon equivalent yields shall be consid- ple, if the annual interest rate for the
ered ‘‘in effect’’ on the date the securi- quarter is 5.6 percent, then the interest
ties are issued, not on the date they factor would be 1.01368, or 1.056 to the
are auctioned. If the date the state- power of 91/365.
ment is filed (for investigation pro- [58 FR 19360, Apr. 14, 1993]
ceedings) or if the first day of the cal-
endar quarter (for complaint pro- PART 1144—INTRAMODAL RAIL
ceedings) is the same as the issue date,
then the yield on that date shall be
COMPETITION
used.
Sec.
(b) Interest in a complaint or inves- 1144.1 Negotiation.
tigation proceeding shall be com-
1144.2 Prescription.
pounded quarterly, as follows: 1144.3 General.
181
§ 1144.1 49 CFR Ch. X (10–1–07 Edition)
AUTHORITY: 49 U.S.C. 721, 10703, 10705, and lishment is necessary to remedy or pre-
11102. vent an act contrary to the competi-
SOURCE: 67 FR 61290, Sept. 30, 2002, unless tive standards of this section; and
otherwise noted. (2) That either:
(i) The complaining shipper has used
§ 1144.1 Negotiation.
or would use the through route,
(a) Timing. At least 5 days prior to through rate, or reciprocal switching
seeking the prescription of a through to meet a significant portion of its cur-
route, joint rate, or reciprocal switch- rent or future railroad transportation
ing, the party intending to initiate needs between the origin and destina-
such action must first seek to engage
tion; or
in negotiations to resolve its dispute
with the prospective defendants. (ii) The complaining carrier has used
(b) Participation. Participation or or would use the affected through
failure to participate in negotiations route, through rate, or reciprocal
does not waive a party’s right to file a switching for a significant amount of
timely request for prescription. traffic.
(c) Arbitration. The parties may use (b) Other considerations. (1) The
arbitration as part of the negotiation Board will not consider product com-
process, or in lieu of litigation before petition.
the Board. (2) If a railroad wishes to rely in any
way on geographic competition, it will
§ 1144.2 Prescription. have the burden of proving the exist-
(a) General. A through route or a ence of effective geographic competi-
through rate shall be prescribed under tion by clear and convincing evidence.
49 U.S.C. 10705, or a switching arrange- (3) When prescription of a through
ment shall be established under 49 route, a through rate, or reciprocal
U.S.C. 11102, if the Board determines: switching is necessary to remedy or
(1) That the prescription or establish- prevent an act contrary to the com-
ment is necessary to remedy or prevent
petitive standards of this section, the
an act that is contrary to the competi-
overall revenue inadequacy of the de-
tion policies of 49 U.S.C. 10101 or is oth-
fendant railroad(s) will not be a basis
erwise anticompetitive, and otherwise
satisfies the criteria of 49 U.S.C. 10705 for denying the prescription.
and 11102, as appropriate. In making its (4) Any proceeding under the terms of
determination, the Board shall take this section will be conducted and con-
into account all relevant factors, included by the Board on an expedited
cluding: basis.
(i) The revenues of the involved rail-
roads on the affected traffic via the rail § 1144.3 General.
routes in question. (a) These rules will govern the
(ii) The efficiency of the rail routes Board’s adjudication of individual
in question, including the costs of oper- cases pending on or after the effective
ating via those routes. date of these rules (October 31, 1985).
(iii) The rates or compensation (b) Discovery under these rules is
charged or sought to be charged by the governed by the Board’s general rules
railroad or railroads from which pre-
of discovery at 49 CFR part 1114.
scription or establishment is sought.
(c) Any Board determinations or find-
(iv) The revenues, following the pre-
scription, of the involved railroads for ings under this part with respect to
the traffic in question via the affected compliance or non-compliance with the
route; the costs of the involved rail- standards of § 1144.2 shall not be given
roads for that traffic via that route; any res judicata or collateral estoppel
the ratios of those revenues to those effect in any litigation involving the
costs; and all circumstances relevant same facts or controversy arising
to any difference in those ratios; pro- under the antitrust laws of the United
vided that the mere loss of revenue to States.
an affected carrier shall not be a basis
for finding that a prescription or estab-
182
PART 1146—EXPEDITED RELIEF FOR (3) Rebuttal. The party requesting re-
SERVICE EMERGENCIES lief may file rebuttal no more than
three (3) business days later.
(c) Presumption of continuing need.
AUTHORITY: 49 U.S.C. 721, 11101, and 11123. Unless otherwise indicated in the
Board’s order, a Board order issued
§ 1146.1 Prescription of alternative rail under paragraph (a) of this section
service. shall establish a rebuttable presump-
(a) General. Alternative rail service tion that the transportation emer-
will be prescribed under 49 U.S.C. gency will continue for more than 30
11123(a) if the Board determines that, days from the date of that order.
over an identified period of time, there (d)(1) Petition to terminate relief.
has been a substantial, measurable de- Should the Board prescribe alternative
terioration or other demonstrated in- rail service under paragraph (a), of this
adequacy in rail service provided by section the incumbent carrier may sub-
sequently file a petition to terminate
the incumbent carrier.
that relief. Such a petition shall con-
(b)(1) Petition for Relief. Affected ship- tain a full explanation, together with
pers or railroads may seek the relief all supporting evidence, to dem-
described in paragraph (a) of this sec- onstrate that the carrier is providing,
tion by filing an appropriate petition or is prepared to provide, adequate
containing: service. Carrier are admonished not to
(i) A full explanation, together with file such a petition prematurely.
all supporting evidence, to dem- (2) Reply. Parties must file replies to
onstrate that the standard for relief petitions to terminate filed under this
contained in paragraph (a) of this sec- subsection within five (5) business
tion is met; days.
(ii) A summary of the petitioner’s (3) Rebuttal. The incumbent carrier
discussions with the incumbent carrier may file any rebuttal no more than
of the service problems and the reasons three (3) business days later.
why the incumbent carrier is unlikely (e) Service. All pleadings under this
to restore adequate rail service con- part shall be served by hand or over-
sistent with current transportation night delivery on the Board, the other
needs within a reasonable period of parties, and the Federal Railroad Ad-
time; ministration.
(iii) A commitment from another [63 FR 71401, Dec. 28, 1998]
available railroad to provide alter-
native service that would meet current PART 1147—TEMPORARY RELIEF
transportation needs (or, if the peti- UNDER 49 U.S.C. 10705 AND
tioner is a railroad and does not have 11102 FOR SERVICE INADEQUA-
an agreement from the alternative car- CIES
rier, an explanation as to why it does
not), and an explanation of how the al-
ternative service would be provided AUTHORITY: 49 U.S.C. 721, 10705, 11101, and
11102.
safely without degrading service to the
existing customers of the alternative § 1147.1 Prescription of alternative rail
carrier and without unreasonably service.
interfering with the incumbent’s over- (a) General. Alternative rail service
all ability to provide service; and will be prescribed under 49 U.S.C.
(iv) A certification of service of the 11102(a), 11102(c) or 10705(a) if the Board
petition, by hand or by overnight deliv- determines that, over an identified pe-
ery, on the incumbent carrier, the pro- riod of time, there has been a substan-
posed alternative carrier, and the Fed- tial, measurable deterioration or other
eral Railroad Administration. demonstrated inadequacy in rail serv-
(2) Reply. The incumbent carrier ice provided by the incumbent carrier.
must file a reply to a petition under (b)(1) Petition for Relief. Affected ship-
this paragraph within five (5) business pers or railroads may seek relief de-
days. scribed in paragraph (a) of this section
183
by filing an appropriate petition con- (3) Rebuttal. The incumbent carrier

taining: may file any rebuttal no more than
(i) A full explanation, together with three (3) business days later.
all supporting evidence, to dem- (d) Service. All pleadings under this
onstrate that the standard for relief part shall be served by hand or by over-
contained in paragraph (a) of this sec- night delivery on the Board, other par-
tion is met; ties, and the Federal Railroad Adminis-
(ii) A summary of the petitioner’s tration.
discussions with the incumbent carrier [63 FR 71401, Dec. 28, 1998]
of the service problems and the reasons
why the incumbent carrier is unlikely PARTS 1148–1149 [RESERVED]
to restore adequate rail service con-
sistent with current transportation
needs within a reasonable period of
Parts 1150–1174—Licensing
time; Procedures
(iii) A commitment from another
available railroad to provide alter- Parts 1150–1159—Rail Licensing
native service that would meet current Procedures
transportation needs (or, if the peti-
tioner is a railroad and does not have PART 1150—CERTIFICATE TO CON-
an agreement from the alternative car- STRUCT, ACQUIRE, OR OPERATE
rier, an explanation as to why it does RAILROAD LINES
not), and an explanation of how the al-
ternative service would be provided Subpart A—Applications Under 49 U.S.C.
safely without degrading service to the 10901
existing customers of the alternative
Sec.
carrier and without unreasonably
1150.1 Introduction.
interfering with the incumbent’s over- 1150.2 Overview.
all ability to provide service; and 1150.3 Information about applicant(s).
(iv) A certification of service of the 1150.4 Information about the proposal.
petition, by hand or by overnight deliv- 1150.5 Operational data.
ery, on the incumbent carrier, the pro- 1150.6 Financial information.
posed alternative carrier, and the Fed- 1150.7 Environmental and energy data.
eral Railroad Administration. 1150.8 Additional support.
1150.9 Notice.
(2) Reply. The incumbent carrier
1150.10 Procedures.
must file a reply to a petition under
this paragraph within thirty (30) days. Subpart B—Designated Operators
(3) Rebuttal. The party requesting re-
lief may file rebuttal no more than fif- 1150.11 Introduction.
teen (15) days later. 1150.12 Information about the designated
operator.
(c)(1) Petition to terminate relief. 1150.13 Relevant dates.
Should the Board prescribe alternative 1150.14 Proposed service.
rail service under paragraph (a) of this 1150.15 Information about offeror.
section, the incumbent carrier may 1150.16 Procedures.
subsequently file a petition to termi-
nate that relief. Such a petition shall Subpart C—Modified Certificate of Public
contain a full explanation, together Convenience and Necessity
with all supporting evidence, to dem- 1150.21 Scope of rules.
onstrate that the carrier is providing, 1150.22 Exemptions and common carrier sta-
or is prepared to provide, adequate tus.
service to affected shippers. Carriers 1150.23 Modified certificate of public con-
are admonished not to file such a peti- venience and necessity.
tion prematurely. 1150.24 Termination of service.
(2) Reply. Parties must file replies to
Subpart D—Exempt Transactions Under 49
petitions to terminate filed under this
U.S.C. 10901
subsection within five (5) business
days. 1150.31 Scope of exemption.
184
1150.32 Procedures and relevant dates— (b) Content of the application. Applica-
transactions that involve creation of tions filed under this subpart shall in-
Class III carriers. clude the information set forth in
1150.33 Information to be contained in no-
tice—transactions that involve creation
§ § 1150.2 through 1150.9. The applicant
of Class III carriers. must also comply with the Energy and
1150.34 Caption summary—transactions Environmental Regulations at 49 CFR
that involve creation of Class III car- parts 1106 and 1105 (including con-
riers. sulting with the Board’s Section of En-
1150.35 Procedures and relevant dates— vironmental Analysis at least 6 months
transactions that involve creation of prior to filing an application, to begin
Class I or Class II carriers.
the scoping process to identify environ-
1150.36 Exempt construction of connecting
track. mental issues and outline procedures
for analysis of this aspect of the pro-
Subpart E—Exempt Transactions Under 49 posal).
U.S.C. 10902 for Class III Rail Carriers [47 FR 8199, Feb. 25, 1982, as amended at 64
1150.41 Scope of exemption. FR 53268, Oct. 1, 1999; 69 FR 58366, Sept. 30,
1150.42 Procedures and relevant dates for 2004]
small line acquisitions.
1150.43 Information to be contained in no- § 1150.2 Overview.
tice for small line acquisitions. (a) A brief narrative description of
1150.44 Caption summary. the proposal.
1150.45 Procedures and relevant dates—
(b) The full name and address of ap-
transactions under section 10902 that in-
volve creation of Class I or Class II rail plicant(s).
carriers.
§ 1150.3 Information about appli-
AUTHORITY: 49 U.S.C. 721(a), 10502, 10901, cant(s).
and 10902.
(a) The name, address, and phone
SOURCE: 47 FR 8199, Feb. 25, 1982, unless number of the representative to receive
otherwise noted. Redesignated at 47 FR 49581, correspondence concerning this appli-
Nov. 1, 1982.
cation.
(b) Facts showing that applicant is
Subpart A—Applications Under 49 either a common carrier by railroad or
U.S.C. 10901 has been organized to implement the
proposal for which approval is being
§ 1150.1 Introduction. sought.
(a) When an application is required. (c) A statement indicating whether
This subpart governs applications the rail line will be operated by appli-
under 49 U.S.C. 10901 for a certificate of cant. If not, the operator which has
public convenience and necessity au- been selected must join in the applica-
thorizing the construction, acquisition tion, and provide all information re-
or operation of railroad lines. Noncar- quired for an applicant. If the operator
riers require Board approval under sec- has not yet been selected, state who is
tion 10901 to construct, acquire or oper- being considered.
ate a rail line in interstate commerce. (d) A statement indicating whether
Existing carriers require approval applicant is affiliated by stock owner-
under section 10901 only to construct a ship or otherwise with any industry to
new rail line or operate a line owned by be served by the line. If so, provide de-
a noncarrier, since acquisition by a tails about the nature and extent of
carrier of an active rail line owned by the affiliation.
a carrier is covered by 49 U.S.C. 11323. (e) Date and place of organization,
We have exempted from these require- applicable State statutes, and a brief
ments the acquisition by a State entity description of the nature and objec-
of a rail line that has been approved for tives of the organization.
abandonment, as well as operations (f) If a corporation, submit:
over these lines. See subpart C of this (1) A list of officers, directors, and 10
part. In addition, where appropriate, principal stockholders of the corpora-
we have granted individual exemptions tion and their respective holdings. A
from these certification requirements. statement whether any of these offi-
See 49 U.S.C. 10502. cers, directors or major shareholders
185
§ 1150.4 49 CFR Ch. X (10–1–07 Edition)
control other regulated carriers. Also a roads. If alternative routes are pro-
list of entities, corporation(s) indi- posed for construction, the map should
vidual(s), or group(s) who control appli- clearly indicate each route.
cant, the extent of control, and wheth- (e) A list of the counties and cities to
er any of them control other common be served under the proposal, and
carriers. whether there is other rail service
(2) As exhibit A, any resolution of the available to them. The names of the
stockholders or directors authorizing railroads with which the line would
the proposal. connect, and the proposed connecting
(g) If a partnership or individual, sub- points; the volume of traffic estimated
mit the name and address of all general to be interchanged; and a description of
partners and their respective interests, the principal terms of agreements with
and whether any of them control other carriers covering operation, inter-
carriers. change of traffic, division of rates or
(h) If applicant is an entity other trackage rights.
than as described in paragraphs (e) or (f) The time schedule for consumma-
(f) of this section, submit name, title, tion or completion of the proposal.
and business address of principals or (g) If a new line is proposed for con-
trustee, and whether the entity construction:
trols any other common carriers. (1) The approximate area to be served
(i) If applicant is a trustee, receiver, by the line.
assignee, or a personal representative (2) The nature or type of existing and
of the real party in interest, details prospective industries (e.g., agri-
about the appointment (including sup- culture, manufacturing, mining,
porting documents, such as the court warehousing, forestry) in the area,
order authorizing the appointment and with general information about the
the filing) and about the real party in age, size, growth potential and pro-
interest. jected rail use of these industries.
(j) If applicant is an existing carrier, (3) Whether the construction will
it may satisfy the informational re- cross another rail line and the name of
quirements of paragraphs (f) through the railroad(s) owning the line(s) to be
(i) of this section by making appro- crossed. If the crossing will be accom-
priate reference to the docket number plished with the permission of the rail-
of prior applications that have been road(s), include supporting agreements.
filed within the previous three years in If a Board determination under 49
which the information has been sub- U.S.C. 10901(d)(1) will be sought, in-
mitted. clude such requests.
§ 1150.4 Information about the pro- § 1150.5 Operational data.

posal. As exhibit D, an operating plan, in-
(a) A description of the proposal and cluding traffic projection studies; a
the significant terms and conditions, schedule of the operations; information
including consideration to be paid about the crews to be used and where
(monetary or otherwise). As exhibit B, employees will be obtained; the rolling
copies of all relevant agreements. stock requirements and where it will
(b) Details about the amount of traf- be obtained; information about the op-
fic and a general description of com- erating experience and record of the
modities. proposed operator unless it is an oper-
(c) The purposes of the proposal and ating railroad; any significant change
an explanation of why the public con- in patterns of service; any associated
venience and necessity require or per- discontinuance or abandonments; and
mit the proposal. expected operating economies.
(d) As exhibit C, a map which clearly
delineates the area to be served includ- § 1150.6 Financial information.
ing origins, termini and stations, and (a) The manner in which applicant
cities, counties and States. The map proposes to finance construction or ac-
should also delineate principal high- quisition, the kind and amount of secu-
ways, rail routes and any possible rities to be issued, the approximate
interchange points with other rail- terms of their sale and total fixed
186
charges, the extent to which funds for and the reasons why it should be grant-
financing are now available, and ed. No replies will be permitted. Par-
whether any of the securities issued ties may, upon an appropriate showing,
would be underwritten by industries to demonstrate their need to examine
be served by the proposed line. Explain data which have previously been
how the fixed charges will be met. waived. In such circumstances, the
(b) As exhibit E a recent balance Board only requires that it be produced
sheet. As exhibit F, an income state- under § 1150.8 above.
ment for the latest available calendar (b) Filing procedures. The original and
year prior to filing the application. 10 copies of the application and all doc-
(c) A present value determination of uments shall be filed with the Sec-
the full costs of the proposal. If con- retary. A filing fee in the amount set
struction is proposed, the costs for forth in 49 CFR 1002.2(f)(33) is required
each year of such construction (in a to file an application. Copies of docu-
short narrative or by chart). ments shall be furnished promptly to
(d) A statement of projected net in-
interested parties upon request. The
come for 2 years, based upon traffic
application shall include a stamped
projections. Where construction is con-
self-addressed envelope to be used to
templated, the statement should rep-
notify applicant of the docket number.
resent the 2 years following completion
Additionally, if possible, telephonic
of construction.
communication of the docket number
§ 1150.7 Environmental and energy shall be made.
data. (c) Signatures. The original of the ap-
As exhibit H, information and data plication shall be signed by applicants
prepared under 49 CFR Part 1105, and (if a partnership, all general partners
the ‘‘Revision of the Nat’l. Guidelines must sign; and if a corporation, asso-
Environmental Policy Act of 1969,’’ 363 ciation, or other similar form of orga-
I.C.C. 653 (1980), and in accordance with nization, the signature should be that
‘‘Implementation of the Energy Policy of the executive officer having knowl-
and Conservation Act of 1975,’’ 49 CFR edge of the matters and designated for
Part 1106. that purpose). Applications shall be
made under oath and shall contain an
§ 1150.8 Additional support. appropriate certification (if a corpora-
Any additional facts or reasons to tion, by its secretary) showing that the
show that the public convenience and affiant is duly authorized to verify and
necessity require or permit approval of file the application. Any persons con-
this application. The Board may re- trolling an applicant shall also sign the
quire additional information to be filed application.
where appropriate. (d) Related applications. Applicant
shall file concurrently all directly re-
§ 1150.9 Notice. lated applications (e.g., to issue securi-
A summary of the proposal which ties, control motor carriers, obtain ac-
will be used to provide notice under cess to terminal operations, acquire
§ 1150.10(f). trackage rights). All such applications
will be considered with the main appli-
§ 1150.10 Procedures. cation.
(a) Waivers. Prior to filing an applica- (e) Service. As soon as the docket
tion, prospective applicants may seek number is obtained the applicant shall
an advance waiver, either on a perma- serve a conformed copy of the applica-
nent or temporary basis, of required in- tion by first-class mail upon the Gov-
formation which is unavailable or not ernor (or Executive Officer), Public
necessary or useful in analysis of the Service Board, and Department of
proposal. However, if the information Transportation of each State in which
is clearly not applicable to the indi- any part of the properties involved in
vidual proposal, a waiver is not nec- the proposed transaction is located.
essary and need not be sought. A peti- Within 2 weeks of filing, applicant
tion must specify the sections for shall submit to the Board a copy of the
which waiver or clarification is sought certificate of service indicating that
187
§ 1150.11 49 CFR Ch. X (10–1–07 Edition)
all persons so designated have been Act of 1973, as amended by the Railroad
served a copy of the application. Revitalization and Regulatory Reform
(f) Publication. Within 2 weeks of fil- Act of 1976. The designated operator
ing, applicant shall have published the (D-OP) may commence and terminate
summary of the application (prepared the service in accordance with the
under § 1150.9) in a newspaper of general terms of the agreement. When service
circulation in each county in which the is terminated the D-OP must notify all
line is located. The notice should in- shippers on the line. To obtain a D-OP
form interested parties of the date by certificate, the information in this sub-
which they must advise the Board of part must be filed with the Board. A
their interest in the proceeding. This copy of the certificate of designated
date shall be calculated as the 35th day operator shall be served on the Asso-
after the filing of the application ciation of American Railroads.
which is neither a Saturday, Sunday,
or legal holiday in the District of Co- § 1150.12 Information about the des-
lumbia. Applicant must file an affi- ignated operator.
davit of publication immediately after (a) The name and address of the D-
the publication has been completed. OP.
The Board will, as soon as practicable, (b) If a new corporation or other new
either publish the notice summary in business entity, a copy of the certifi-
the FEDERAL REGISTER or reject the ap- cate of incorporation or, if unincor-
plication if it is incomplete.
porated, the facts and official organiza-
(g) Public participation. Written com-
tional documents relating to the busi-
ments (with 10 copies) must be filed
ness entity.
within 35 days of the filing of the appli-
cation. Comments must contain the (c) The names and addresses of all of-
basis for the party’s position either in ficers and directors, with a statement
support or opposition. Applicant must from each which indicates present af-
be served with a copy of each comment. filiation, if any, with a railroad.
On the basis of the comments and the (d) Sufficient information to estab-
assessment by the Section of Environ- lish its financial responsibility for the
mental Analysis, the Board will decide proposed undertaking, unless the D-OP
if a hearing is necessary. A hearing is a common carrier by railroad. The
may be either oral or through receipt nature and extent of all liability insur-
of written statements (modified proce- ance coverage, including insurance
dure). (See 49 CFR 1112.1 et seq.) If there binder or policy number, and name of
is no opposition to the application, ad- insurer.
ditional evidence normally need not be
§ 1150.13 Relevant dates.
filed, and a decision will be reached
using the information in the applica- The exact dates of the period of oper-
tion. ation which have been agreed upon by
(h) Replies to written comments. Appli- the D-OP, the offeror of the rail service
cant’s replies will be considered by the continuation payment, and the owner
Board provided they are filed and of the line to be operated, in their lease
served within 5 days of the due date of and operating agreements.
the pleadings they address.
§ 1150.14 Proposed service.
[47 FR 8199, Feb. 25, 1982. Redesignated at 47
FR 49581, Nov. 1, 1982, and amended at 52 FR (a) A copy of all agreements between
46483, Dec. 8, 1987; 53 FR 19302, May 27, 1988; the D-OP, the offeror of the rail service
64 FR 53268, Oct. 1, 1999] continuation payment, and the owner
of the line to be operated.
Subpart B—Designated Operators (b) Any additional information which
is necessary to provide the Board with
§ 1150.11 Introduction. a description of:
A certificate of designated operator (1) The line over which service is to
will be issued to an operator providing be provided (e.g., U.S.R.A. Line); and
service pursuant to a rail service con- (2) All interline connections, includ-
tinuation agreement under section 304 ing the names of the connecting rail-
of the Regional Rail Reorganization roads.
188
§ 1150.15 Information about offeror. tificate shall be served on the Associa-

(a) The name and address of the offer- tion of American Railroads.
or of the rail service continuation pay-
§ 1150.22 Exemptions and common car-
ment. rier status.
(b) Sufficient information to estab-
lish the financial responsibility of the The acquisition by a State of a fully
offeror for the proposed undertaking, abandoned line is not subject to the ju-
or if the offeror is a State or municipal risdiction of the Surface Transpor-
corporation or authority, a statement tation Board. The acquisition by a
that it has authority to perform the State of a line approved for abandon-
service or enter into the agreement for ment and not yet fully abandoned is
subsidy. exempted from the Board’s jurisdic-
tion. If the State intends to operate
§ 1150.16 Procedures. the line itself, it will be considered a
Upon receipt of this information, the common carrier. However, when a
matter will be docketed by the prefix State acquires a rail line described
initials ‘‘D-OP.’’ Operators may begin under § 1150.21 and contracts with an
operating immediately upon the filing operator to provide service over the
of the necessary information (plus line, only the operator incurs a com-
three copies). Although the designated mon carrier obligation. The operators
operator will not be required to seek of these lines are exempted from 49
and obtain authority from the Board U.S.C. 10901 and 10903 which are the
either to commence or to terminate statutory requirements governing the
operations, the designated operator is a start up and termination of operations.
common carrier by railroad subject to Operators exempted from these re-
all other applicable provisions of 49 quirements must comply with the re-
U.S.C. Subtitle IV. However, we have quirements of this part and must apply
exempted designated operators from for a modified certificate of public con-
some aspects of regulation. See Exemp- venience and necessity. The operator is
tion of Certain Designated Operators from a common carrier and incurs all bene-
Section 11343, 361 ICC 379 (1979), as modi- fits and responsibilities under 49 U.S.C.
fied by McGinness v. I.C.C., 662 F.2d 853 subtitle IV; however, the State through
(D.C. Cir. 1981). its operational agreement or the oper-
[47 FR 8199, Feb. 25, 1982. Redesignated at 47 ator of the line may determine certain
FR 49581, Nov. 1, 1982, and amended at 64 FR preconditions, such as payment of a
53268, Oct. 1, 1999] subsidy, which must be met by shippers
to obtain service over the line. The op-
Subpart C—Modified Certificate of erator must notify the shippers on the
Public Convenience and Ne- line of any preconditions. The modified
cessity certificate will authorize service to
shippers who meet these preconditions
§ 1150.21 Scope of rules. and the operator will be required to
These special rules apply to oper- provide complete common carrier serv-
ations over abandoned rail lines, which ice under this certificate only to those
have been acquired (through purchase shippers. (See 363 ICC 132.)
or lease) by a State. The rail line must
§ 1150.23 Modified certificate of public
have fully abandoned, or approved for convenience and necessity.
abandonment by the Board or a bank-
ruptcy court. As used in these rules, (a) The operator must file a notice
the term ‘‘State’’ includes States, po- with the Board for a modified certifi-
litical subdivisions of States, and all cate of public convenience and neces-
instrumentalities through which the sity. Operations may commence imme-
State can act. An operator has the op- diately upon the filing; however, the
tion of applying for a modified certifi- Board will review the information
cate of public convenience and neces- filed, and if complete, will issue a
sity under this subpart or a common modified certificate notice.
carrier certificate under Subpart A of (b) A notice for a modified certificate
this part. A copy of the modified cer- of public convenience and necessity
189
§ 1150.24 49 CFR Ch. X (10–1–07 Edition)
shall include the following informa- of its intent to terminate the service.
tion: The notice of intent must be:
(1) The name and address of the oper- (a) Filed with the State and the
ator and, unless the operator is an ex- Board, and
isting rail carrier: (b) Mailed to all persons that have
(i) Its articles of incorporation or, if used the line within the 6 months pre-
it is unincorporated, the facts and or- ceding the date of the notice.
ganizational documents relating to its
formation; Subpart D—Exempt Transactions
(ii) The names and addresses of all of
its officers and directors and a state-
Under 49 U.S.C. 10901
ment indicating any present affiliation
each may have with a rail carrier; and SOURCE: 51 FR 2504, Jan. 17, 1986, unless
(iii) Sufficient information to estab- otherwise noted.
lish the financial responsibility of the
§ 1150.31 Scope of exemption.
operator.
(2) Information about the prior aban- (a) Except as indicated below, this
donment, including docket number, exemption applies to all acquisitions
status and date of the first decision ap- and operations under section 10901 (See
proving the abandonment. 1150.1, supra). This exemption also in-
(3) The exact dates of the period of cludes:
operation which have been agreed upon (1) Acquisition by a noncarrier of rail
by the operator and the State which property that would be operated by a
owns the line (if there is any agree- third party;
ment, it should be provided); (2) Operation by a new carrier of rail
(4) A description of the service to be property acquired by a third party;
performed including, where applicable, (3) A change in operators on the line;
a description of: and
(i) The line over which service is to (4) Acquisition of incidental trackage
be performed; rights. Incidental trackage rights in-
(ii) All interline connections includ- clude the grant of trackage rights by
ing the names of the connecting rail- the seller, or the assignment of track-
roads; age rights to operate over the line of a
(iii) The nature and extent of all li- third party that occur at the time of
ability insurance coverage, including the exempt acquisition or operation.
binder or policy number and name of This exemption does not apply when a
insurer; and class I railroad abandons a line and an-
(iv) Any preconditions which shippers other class I railroad then acquires the
must meet to receive service. line in a proposal that would result in
(5) The name and address of any sub- a major market extension as defined at
sidizers, and § 1180.3(c).
(6) Sufficient information to estab- (b) Other exemptions that may be
lish the financial responsibility of any relevant to a proposal under this sub-
subsidizers (if the subsidizer is a State, part are the exemption for control at
the information should show that it § 1180.2(d)(1) and (2), and the from secu-
has authority to enter into the agree- rities regulation at 49 CFR part 1175.
ment for subsidized operations).
(c) The service offered and the appli- § 1150.32 Procedures and relevant
cable rates, charges, and conditions dates—transactions that involve
must be described in tariffs published creation of Class III carriers.
by the operator to the Board’s rules. (a) To qualify for this exemption, ap-
plicant must file a verified notice pro-
§ 1150.24 Termination of service. viding details about the transaction,
The duration of the service may be and a brief caption summary, con-
determined in the contract between the forming to the format in § 1150.34, for
State and the operator. An operator publication in the FEDERAL REGISTER.
may not terminate service over a line (b) The exemption will be effective 30
unless it first provides 60 days’ notice days after the notice is filed. The
190
Board, through the Director of the Of- (1) The name and address of the rail-
fice of Proceedings, will publish a no- road transferring the subject property,
tice in the FEDERAL REGISTER within 16 (2) The proposed time schedule for
days of the filing. A change in opera- consummation of the transaction,
tors would follow the provisions at (3) The mile-posts of the subject
§ 1150.34, and notice must be given to property, including any branch lines,
shippers. and
(c) If the notice contains false or mis- (4) The total route miles being ac-
leading information, the exemption is quired;
void ab initio. A petition to revoke (f) A map that clearly indicates the
under 49 U.S.C. 10502(d) does not auto- area to be served, including origins,
matically stay the exemption. Stay pe- termini, stations, cities, counties, and
titions must be filed at least 7 days be- States; and
fore the exemption becomes effective. (g) A certificate that applicant’s pro-
(d) Applicant must preserve intact all jected revenues do not exceed those
sites and structures more than 50 years that would qualify it as a Class III car-
old until compliance with the require- rier.
ments of Section 106 of the National
Historic Preservation Act, 16 U.S.C. 470 [51 FR 2504, Jan. 17, 1986, as amended at 51
FR 25207, July 11, 1986; 53 FR 4626, Feb. 17,
is achieved.
1988; 53 FR 5982, Feb. 29, 1988; 56 FR 36111,
(e) If the projected annual revenue of July 31, 1991]
the carrier to be created by a trans-
action under this exemption exceeds $5 § 1150.34 Caption summary—trans-
million, applicant must, at least 60 actions that involve creation of
days before the exemption becomes ef- Class III carriers.
fective, post a notice of intent to un- The caption summary must be in the
dertake the proposed transaction at following form. The information sym-
the workplace of the employees on the bolized by numbers is identified in the
affected line(s) and serve a copy of the key below:
notice on the national offices of the
labor unions with employees on the af- SURFACE TRANSPORTATION BOARD
fected line(s), setting forth the types
and numbers of jobs expected to be Notice of Exemption
available, the terms of employment
and principles of employee selection, FINANCE DOCKET NO.
and the lines that are to be transferred,
and certify to the Board that it has (1)—EXEMPTION (2)–(3)
done so.
(1) Has filed a notice of exemption to
[51 FR 2504, Jan. 17, 1986, as amended at 53 (2) (3)’s line between (4). Comments
FR 4626, Feb. 17, 1988; 53 FR 5982, Feb. 29, must be filed with the Board and
1988; 62 FR 47584, Sept. 10, 1997; 69 FR 58366, served on (5). (6).
Sept. 30, 2004; 71 FR 62212, Oct. 24, 2006]
Key to symbols:
§ 1150.33 Information to be contained (1) Name of entity acquiring or oper-
in notice—transactions that involve ating the line, or both.
creation of Class III carriers. (2) The type of transaction, e.g., to
(a) The full name and address of the acquire, operate, or both.
applicant; (3) The transferor.
(b) The name, address, and telephone (4) Describe the line.
number of the representative of the ap- (5) Petitioners representative, ad-
plicant who should receive correspond- dress, and telephone number.
ence; (6) Cross reference to other class ex-
(c) A statement that an agreement emptions being used.
has been reached or details about when The notice is filed under § 1150.31. If
an agreement will be reached; the notice contains false or misleading
(d) The operator of the property; information, the exemption is void ab
(e) A brief summary of the proposed initio. Petitions to revoke the exemp-
transaction, including: tion under 49 U.S.C. 10502(d) may be
191
§ 1150.35 49 CFR Ch. X (10–1–07 Edition)
filed at any time. The filing of a peti- the filing of the notice of exemption.
tion to revoke will not automatically Stay petitions must be filed at least 14
stay the transaction. days before the exemption becomes ef-
fective. To be considered, stay peti-
[47 FR 8199, Feb. 25, 1982. Redesignated at 47
FR 49581, Nov. 1, 1982, as amended at 53 FR tions must be timely served on the ap-
5982, Feb. 29, 1988; 69 FR 58366, Sept. 30, 2004] plicant.
(g) Applicant must comply with
§ 1150.35 Procedures and relevant § 1150.33(g) regarding section 106 of the
dates—transactions that involve National Historic Preservation Act, 16
creation of Class I or Class II car- U.S.C. 470.
riers.
[53 FR 5982, Feb. 29, 1988, as amended at 53
(a) To qualify for this exemption, ap- FR 31341, Aug. 18, 1988; 62 FR 47584, Sept. 10,
plicant must serve a notice of intent to 1997; 69 FR 58366, Sept. 30, 2004; 71 FR 62213,
file a notice of exemption no later than Oct. 24, 2006]
14 days before the notice of exemption
is filed with the Board, and applicant § 1150.36 Exempt construction of con-
must comply with the notice require- necting track.
ment of § 1150.32(e). (a) Scope. This class exemption ap-
(b) The notice of intent must contain plies to proceedings involving the con-
all the information required in § 1150.33 struction and operation of connecting
plus: lines of railroad within existing rail
(1) A general statement of service in- rights-of-way, or on land owned by con-
tentions; and necting railroads, under 49 U.S.C. 10901
(2) A general statement of labor im- (a), (b), and (c). (See the reference to
pacts. connecting track in 49 CFR
(c) The notice of intent must be 1105.6(b)(1).) This class exemption is de-
served on: signed to expedite and facilitate con-
(1) The Governor of each State in necting track construction while en-
which track is to be sold; suring full and timely environmental
(2) The State(s) Department of Trans- review. The Surface Transportation
portation or equivalent agency; Board (Board) has found that its prior
(3) The national offices of the labor review of connecting track construc-
unions with employees on the affected tion and operation is not necessary to
line(s); and carry out the rail transportation policy
(4) Shippers representing at least 50 of 49 U.S.C. 10101; that continued regu-
percent of the volume of local traffic lation is not necessary to protect ship-
and traffic originating or terminating pers from abuse of market power; and
on the line(s) in the most recent 12 that the construction of connecting
months for which data is available (be- track would be of limited scope. See 49
ginning with the largest shipper and U.S.C. 10502. To use this class exemp-
working down). tion, a pre-filing notice, environmental
(d) Applicant must also file a verified report, historic report, and notice of
notice of exemption conforming to the exemption must be filed that complies
requirements of (b) above and of with the procedures in § 1150.36 (b) and
§ 1150.34, and certify compliance with (c), and the Board’s environmental
§ 1150.35 (a), (b), and (c), attaching a rules, codified at 49 CFR part 1105.
copy of the notice of intent. (b) Environmental requirements. The
(e) The exemption will be effective 45 environmental regulations at 49 CFR
days after the notice is filed. The part 1105 must be complied with fully.
Board, through the Director of the Of- An environmental report containing
fice of Proceedings, will publish a no- the information specified at 49 CFR
tice in the FEDERAL REGISTER within 16 1105.7(e), as well as an historic report
days of the filing. containing the information specified at
(f) If the notice contains false or mis- 49 CFR 1105.8(d), must be filed either
leading information, the exemption is before or at the same time as the no-
void ab initio. A petition to revoke tice of exemption is filed. See 49 CFR
under 49 U.S.C. 10502(d) does not auto- 1105.7(a). The entity seeking the ex-
matically stay the transaction. Stay emption authority must also serve cop-
petitions must be filed within 7 days of ies of the environmental report on the
192
agencies listed at 49 CFR 1105.7(b). Be- information contained in § 1150.36(c)(1),

cause the environmental report must the notice shall include a statement
include a certification that appropriate certifying compliance with the envi-
agencies have been consulted in its ronmental rules at 49 CFR part 1105
preparation (see 49 CFR 1105.7(c)), par- and the pre-filing notice requirements
ties should begin environmental and of 49 CFR 1150.36(c)(1).
historic consultations well before the (3) The Board, through the Director
notice of exemption is filed. Environ- of the Office of Proceedings, shall pub-
mental requirements may be waived or lish a notice in the FEDERAL REGISTER
modified where a petitioner dem- within 20 days after the notice of ex-
onstrates in writing that such action is emption is received that describes the
appropriate. See 49 CFR 1105.10(c). It is construction project and invites com-
to the advantage of parties to consult ments. SEA will then prepare an EA
with the Board’s Section of Environ- (or, if necessary, an EIS). The EA gen-
mental Analysis (SEA) at the earliest erally will be made available 15 days
possible date to begin environmental after the FEDERAL REGISTER notice. It
review. will be served on all parties and appro-
(c) Procedures and dates. (1) At least priate agencies. Others may request a
20 days prior to the filing of a notice of copy from SEA. The deadline for sub-
exemption with the Board, the party mission of comments on the EA will
seeking the exemption authority must generally be within 30 days of its avail-
notify in writing: the State Public ability (see 49 CFR 1105.10(b)). If an EIS
Service Commission, the State Depart- is prepared, the time frames and proce-
ment of Transportation (or equivalent dures set forth in 49 CFR 1105.10(a) gen-
agency), and the State Clearinghouse erally will apply.
(if there is no clearinghouse, the State (4) The Board’s environmental docu-
Environmental Protection Agency), of ment (together with any comments and
each State involved. The pre-filing no- SEA’s recommendations) shall be used
tice shall include: the name and ad- in deciding whether to allow the par-
dress of the railroad (or other entity ticular construction project to proceed
proposing to construct the line) and under the class exemption and whether
the proposed operator; a complete de- to impose appropriate mitigating con-
scription of the proposed construction ditions upon its use (including use of
and operation, including a map; an in- an environmentally preferable route).
dication that the class exemption pro- If the Board concludes that a par-
cedure is being used; and the approxi- ticular project will result in serious ad-
mate date that construction is pro- verse environmental consequences that
posed to begin. This pre-filing notice cannot be adequately mitigated, it may
shall include a certification that the deny authority to proceed with the
petitioner will comply with the Board’s construction under the class exemption
environmental regulations, codified at (the ‘‘no-build’’ alternative). Persons
49 CFR part 1105, and a statement that believing that they can show that the
those regulations generally require the need for a particular line outweighs the
Board to: adverse environmental consequences
(i) Prepare an environmental assess- can file an application for approval of
ment (EA) (or environmental impact the proposed construction under 49
statement (EIS) if necessary), U.S.C. 10901.
(ii) Make the document (EA or EIS, (5) No construction may begin until
as appropriate) available to the parties the Board has completed its environ-
(and to the public, upon request to mental review and issued a final deci-
SEA); and sion.
(iii) Accept for filing and consider- (6) Petitions to stay the effective
ation comments on the environmental date of the notice of exemption on
document as well as petitions for stay other than environmental and/or his-
and reconsideration. toric preservation grounds must be
(2) Petitioner must file a verified no- filed within 10 days of the FEDERAL
tice of exemption with the Board at REGISTER publication. Petitions to stay
least 90 days before the construction is the effective date of the notice on envi-
proposed to begin. In addition to the ronmental and/or historic preservation
193
§ 1150.41 49 CFR Ch. X (10–1–07 Edition)
grounds may be filed at any time but Board’s order will specify the duration
must be filed sufficiently in advance of of each extension of the initial stay pe-
the effective date to allow the Board to riod. In cases requiring the preparation
consider and act on the petition before of an EIS, the Board will extend the
the notice becomes effective. Petitions stay for a period sufficient to permit
for reconsideration must be filed with- compliance with the procedural guide-
in 20 days of the FEDERAL REGISTER lines established by the Board’s envi-
publication. ronmental regulations.
(7) The exemption generally will be (d) Third-Party Consultants. An envi-
effective 70 days after publication in ronmental and historic report required
the FEDERAL REGISTER, unless stayed. under 49 CFR 1105.7 and 1105.8 will not
If the notice of exemption contains be required where a petitioner engages
false or misleading information, the
a third-party consultant who is ap-
exemption is void ab initio and the
proved by SEA and acts under SEA’s
Board shall summarily reject the ex-
direction and supervision in preparing
emption notice.
the EA or EIS. In such a case, the
(8) Where significant environmental
issues have been raised or discovered third-party consultant must act on be-
during the environmental review proc- half of the Board, working under SEA’s
ess, the Board shall issue, on or before direction to collect the environmental
the effective date of the exemption, a information that is needed and to com-
final decision allowing the exemption pile it into a draft EA or EIS, which is
to become effective and imposing ap- prepared under SEA’s direction and
propriate mitigating conditions or tak- then submitted to SEA for its final re-
ing other appropriate action such as se- view and approval. See 49 CFR
lecting the ‘‘no build’’ alternative. 1105.10(d).
(9) Where there has been full environ- [61 FR 29974, June 13, 1996, as amended at 64
mental review and no significant envi- FR 53268, Oct. 1, 1999]
ronmental issues have been raised or
discovered, the Board, through the Di-
rector of the Office of Proceedings,
Subpart E—Exempt Transactions
shall issue, on or before the effective Under 49 U.S.C. 10902 for
date of the exemption, a final decision Class III Rail Carriers
consisting of a Finding of No Signifi-
cant Impact (FONSI) to show that the SOURCE: 61 FR 32355, June 24, 1996, unless
environmental record has been consid- otherwise noted.
ered (see 49 CFR 1105.10(g)).
(10) The Board, on its own motion or § 1150.41 Scope of exemption.
at the request of a party to the case, Except as indicated in paragraphs (a)
will stay the effective date of indi- through (d) of this section, this exemp-
vidual notices of exemption when an tion applies to acquisitions or oper-
informed decision on environmental ations by Class III rail carriers under
issues cannot be made prior to the date section 10902. This exemption also in-
that the exemption authority would cludes:
otherwise become effective. Stays will
(a) Acquisition by a Class III rail car-
be granted initially for a period of 60
rier of rail property that would be op-
days to permit resolution of environ-
erated by a third party;
mental issues and issuance of a final
decision. The Board expects that this (b) Operation by a Class III carrier of
60-day period will usually be sufficient rail property acquired by a third party;
for these purposes unless preparation (c) A change in operators on such a
of an EIS is required. If, however, envi- line; and
ronmental issues remain unresolved (d) Acquisition of incidental trackage
upon expiration of this 60-day period, rights. Incidental trackage rights in-
the Board, upon its own motion, or at clude the grant of trackage rights by
the request of a party to the case, will the seller, or the acquisition of track-
extend the stay, as necessary to permit age rights to operate over the line of a
completion of environmental review third party, that occurs at the time of
and issuance of a final decision. The the purchase.
194
§ 1150.42 Procedures and relevant to be transferred, and certify to the

dates for small line acquisitions. Board that it has done so.
(a) This exemption applies to the ac- [61 FR 32355, June 24, 1996, as amended at 62
quisition of rail lines with projected FR 47584, Sept. 10, 1997; 71 FR 62213, Oct. 24,
annual revenues which, together with 2006]
the acquiring carrier’s projected an-
§ 1150.43 Information to be contained
nual revenue, do not exceed the annual in notice for small line acquisitions.
revenue of a Class III railroad. To qual-
ify for this exemption, the Class III rail (a) The full name and address of the
carrier applicant must file a verified Class III rail carrier applicant;
notice providing details about the (b) The name, address, and telephone
transaction, and a brief caption sum- number of the representative of the ap-
mary, conforming to the format in plicant who should receive correspond-
§ 1150.44, for publication in the FEDERAL ence;
REGISTER. In addition to the written (c) A statement that an agreement
submission, the notice and summary has been reached or details about when
must be submitted on a 3.5-inch disk- an agreement will be reached;
ette formatted for WordPerfect 5.1. (d) The operator of the property;
(b) The exemption will be effective 30 (e) A brief summary of the proposed
transaction, including:
days after the notice is filed. The
Board, through the Director of the Of- (1) The name and address of the rail-
road transferring the subject property
fice of Proceedings, will publish a no-
to the Class III rail carrier applicant;
tice in the FEDERAL REGISTER within 16
(2) The proposed time schedule for
days of the filing. A change in opera-
consummation of the transaction;
tors must follow the provisions at
(3) The mileposts of the subject prop-
§ 1150.44, and notice must be given to
erty, including any branch lines; and
shippers.
(4) The total route miles being ac-
(c) If the notice contains false or mis-
quired;
leading information, the exemption is
(f) A map that clearly indicates the
void ab initio. A petition to revoke area to be served, including origins,
under 49 U.S.C. 10502(d) does not auto- termini, stations, cities, counties, and
matically stay the exemption. Stay pe- states; and
titions must be filed at least 7 days be- (g) A certificate that applicant’s pro-
fore the exemption becomes effective. jected revenues as a result of the trans-
(d) Applicant must preserve intact all action will not result in the creation of
sites and structures more than 50 years a Class II or Class I rail carrier so as to
old until compliance with the require- require processing under § 1150.45.
ments of section 106 of the National
Historic Preservation Act, 16 U.S.C. § 1150.44 Caption summary.
470f, is achieved. The caption summary must be in the
(e) If the projected annual revenue of following form. The information sym-
the rail lines to be acquired or oper- bolized by numbers is identified in the
ated, together with the acquiring car- key as follows:
rier’s projected annual revenue, ex-
ceeds $5 million, the applicant must, at SURFACE TRANSPORTATION BOARD
least 60 days before the exemption be-
comes effective, post a notice of appli- Notice of Exemption
cant’s intent to undertake the pro-
STB FINANCE DOCKET NO.
posed transaction at the workplace of
the employees on the affected line(s) (1)—EXEMPTION (2)–(3)
and serve a copy of the notice on the
national offices of the labor unions (1) Has filed a notice of exemption to
with employees on the affected line(s), (2) (3)’s line between (4). Comments
setting forth the types and numbers of must be filed with the Board and
jobs expected to be available, the terms served on (5). (6). Key to symbols:
of employment and principles of em- (1) Name of carrier acquiring or oper-
ployee selection, and the lines that are ating the line.
195
§ 1150.45 49 CFR Ch. X (10–1–07 Edition)
(2) The type of transaction, e.g., to ac- the written submission, the notice
quire or operate. must be submitted on a 3.5-inch disk-
(3) The transferor. ette formatted for WordPerfect 5.1.
(4) Describe the line. (e) The exemption will be effective 45
days after the notice is filed. The
(5) Petitioner’s representative, address, Board, through the Director of the Of-
and telephone number. fice of Proceedings, will publish a no-
(6) Cross reference to other class ex- tice in the FEDERAL REGISTER within 16
emptions being used. days of the filing.
The notice is filed under 49 CFR (f) If the notice contains false or mis-
1150.41. If the notice contains false or leading information, the exemption is
misleading information, the exemption void ab initio. A petition to revoke
is void ab initio. The filing of a petition under 49 U.S.C. 10502(d) does not auto-
to revoke will not automatically stay matically stay the transaction. Stay
the transaction. petitions must be filed at least 14 days
[61 FR 32355, June 24, 1996; 61 FR 36965, July before the exemption becomes effec-
15, 1996] tive. Replies will be due 7 days there-
after. To be considered, stay petitions
§ 1150.45 Procedures and relevant must be timely served on the appli-
dates—transactions under section cant.
10902 that involve creation of Class (g) Applicant must preserve intact all
I or Class II rail carriers.
sites and structures more than 50 years
(a) To qualify for this exemption, ap- old until compliance with the require-
plicant must serve a notice of intent to ments of section 106 of the National
file a notice of exemption no later than Historic Preservation Act, 16 U.S.C.
14 days before the notice of exemption 470f, is achieved.
is filed with the Board, and applicant
must comply with the notice require- [61 FR 32355, June 24, 1996, as amended at 62
FR 47584, Sept. 10, 1997; 71 FR 62213, Oct. 24,
ment of § 1150.42(e).
2006]
(b) The notice of intent must contain
all the information required in § 1150.43
plus: PART 1151—FEEDER RAILROAD
(1) A general statement of service in- DEVELOPMENT PROGRAM
tentions; and
(2) A general statement of labor im- Sec.
pacts. 1151.1 Scope.
(c) The notice of intent must be 1151.2 Procedures.
served on: 1151.3 Contents of application.
(1) The Governor of each state in 1151.4 Board determination.
which track is to be sold; AUTHORITY: 49 U.S.C. 10907.
(2) The state(s) Department of Trans-
SOURCE: 48 FR 9654, Mar. 8, 1983, unless oth-
portation or equivalent agency; erwise noted.
(3) The national offices of the labor
unions with employees on the affected § 1151.1 Scope.
line(s); and
(4) Shippers representing at least 50 This part governs applications filed
percent of the volume of local traffic under 49 U.S.C. 10907. The Board can re-
and traffic originating or terminating quire the sale of a rail line to a finan-
on the line(s) in the most recent 12 cially responsible person. A rail line is
months for which data are available eligible for a forced sale if it appears in
(beginning with the largest shipper and category 1 or 2 of the owning railroad’s
working down). system diagram map (but the railroad
(d) Applicant must also file a verified has not filed an application to abandon
notice of exemption conforming to the the line), or the public convenience and
requirements of paragraph (b) of this necessity, as defined in 49 U.S.C.
section and of § 1150.44, and certify 10907(c)(1), permit or require the sale of
compliance with paragraphs (a), (b), the line.
and (c) of this section, attaching a copy [48 FR 9654, Mar. 8, 1983, as amended at 56 FR
of the notice of intent. In addition to 37861, Aug. 9, 1991; 64 FR 53268, Oct. 1, 1999]
196
§ 1151.2 Procedures. required by § 1151.3, except as modified

(a) Service. When an application is by advance waiver.
filed, applicant must concurrently (d) Incomplete applications.
serve a copy of the application by first (1) If an applicant seeking to file an
class mail on: initial or competing application is un-
(1) The owning railroad; able to obtain required information
(2) All rail patrons who originated that is primarily or exclusively within
and/or received traffic on the line dur- the personal knowledge of the owning
ing the 12-month period preceding the carrier, the applicant may file an in-
month in which the application is filed; complete application if it files at the
(3) The designated State agency in same time a request for discovery
the State(s) where the property is lo- under 49 CFR part 1114 to obtain the
cated; needed information from the owning
(4) County governments where the carrier.
line is located; (2) The Board, through the Director
(5) The National Railroad Passenger of the Office of Proceedings, will by de-
Corporation (Amtrak) (if Amtrak oper- cision conditionally accept incomplete
ates on the line); initial or competing applications, if
(6) And the national offices of rail the Director determines that the dis-
unions with employees on the line. covery sought is necessary for the ap-
(b) Acceptance or rejection of an application and primarily or exclusively
plication. within the knowledge of the owning
(1) The Board, through the Director carrier.
of the Office of Proceedings, will accept (3) When the information sought
a complete application no later than 30 through discovery has been filed for an
days after the application is filed by initial application, FEDERAL REGISTER
publishing a notice in the FEDERAL notice under paragraph (b) of this sec-
REGISTER. An application is complete if tion will be published.
it has been properly served and con- (4) When the information sought
tains substantially all information re- through discovery has been filed for a
quired by § 1151.3, except as modified by competing application, a decision will
advance waiver. The notice will also be issued under paragraph (c) of this
announce the schedule for filing of section.
competing applications and responses. (e) Comments. Unless otherwise
(2) The Board, through the Director scheduled in the notice, verified state-
of the Office of Proceedings, will reject ments and comments addressing both
an incomplete application by serving a the initial and competing applications
decision no later than 30 days after the must be filed within 60 days after the
application is filed. The decision will initial application is accepted.
explain specifically why the applica- (f) Replies. Unless otherwise sched-
tion was incomplete. A revised applica- uled in the notice, verified replies by
tion may be submitted, incorporating applicants and other interested parties
portions of the prior application by ref- must be filed within 80 days after the
erence. initial application is accepted.
(c) Competing applications. (g) Publication. If the Board finds
(1) Unless otherwise scheduled in the that the public convenience and neces-
notice, competing applications by sity require or permit sale of the line,
other parties seeking to acquire all or the Board shall concurrently publish
any portion of the line sought in the this finding in the FEDERAL REGISTER.
initial application are due within 30 (h) Acceptance or rejection. If the
days after the initial application is ac- Board concludes that sale of the line
cepted. should be required, the applicant(s)
(2) The Board, through the Director must file a notice with the Board and
of the Office of Proceedings, will issue the owning railroad accepting or re-
a decision accepting or rejecting a jecting the Board’s determination. The
competing application no later than 15 notice must be filed within 10 days of
days after it is filed. A competing ap- the service date of the decision.
plication will be rejected if it does not (i) Selection. If two or more appli-
substantially contain the information cants timely file notices accepting the
197
§ 1151.3 49 CFR Ch. X (10–1–07 Edition)
Board’s determination, the owning cluding, but not limited to, operating
railroad must select the applicant to costs, rents, and taxes) for at least the
which it will sell the line and file no- first 3 years after acquisition of the
tice of its selection with the Board and line.
serve a copy on the applicants within (4) An estimate of the NLV and the
15 days of the service date of the Board GCV of the line and evidence in support
decision. of these estimates.
(j) Waiver. Prior to filing an initial (5) An offer to purchase the line at
or competing application, an applicant the higher of the two estimates sub-
may file a petition to waive or clarify mitted pursuant to paragraph (a)(4) of
specific portions of part 1151. A deci- this section.
sion by the Director of the Office of (6) The dates for the proposed period
Proceedings granting or denying a peti- of operation of the line covered by the
tion for waiver or clarification will be application.
issued within 30 days of the date the (7) An operating plan that identifies
petition is filed. Appeals from the Di- the proposed operator; attaches any
rector’s decision will be decided by the contract that the applicant may have
entire Board. with the proposed operator; describes
(k) Extension. Extensions of filing in detail the service that is to be pro-
dates may be granted for good cause. vided over the line, including all inter-
[56 FR 37861, Aug. 9, 1991] line connections; and demonstrates
that adequate transportation will be
§ 1151.3 Contents of application. provided over the line for at least 3
(a) The initial application and all years from the date of acquisition.
competing applications must include (8) A description of the liability in-
the following information in the form surance coverage carried by applicant
of verified statements: or any proposed operator. If trackage
(1) Identification of the line to be rights are requested, the insurance
purchased including: must be at a level sufficient to indem-
(i) The name of the owning carrier; nify the owning railroad against all
and personal and property damage that
(ii) The exact location of the line to may result from negligence on the part
be purchased including milepost des- of the operator in exercising the track-
ignations, origin and termination age rights.
points, stations located on the line, (9) Any preconditions (such as assum-
and cities, counties and States tra- ing a share of any subsidy payments)
versed by the line. that will be placed on shippers in order
(2) Identification of applicant includ- for them to receive service, and a
ing: statement that if the application is ap-
(i) The applicant’s name and address; proved, no further preconditions will be
(ii) The name, address, and phone placed on shippers without Board ap-
number of the representative to receive proval. (This Statement Will Be Bind-
correspondence concerning this appli- ing Upon Applicant if the Application
cation; is Approved.)
(iii) A description of applicant’s af- (10) The name and address of any per-
filiation with any railroad; and son(s) who will subsidize the operation
(iv) If the applicant is a corporation, of the line.
the names and addresses of its officers (11) A statement that the applicant
and directors. will seek a finding by the Board that
(3) Information sufficient to dem- the public convenience and necessity
onstrate that the applicant is a finan- permit or require acquisition, or a
cially responsible person. In this restatement that the line is currently in
gard, the applicant must demonstrate category 1 or 2 of the owning railroad’s
its ability: system diagram map.
(i) To pay the higher of the net liq- (i) If the applicant seeks a finding of
uidation value (NLV) or going concern public convenience and necessity, the
value (GCV) of the line; and application must contain detailed evi-
(ii) To cover expenses associated with dence that permits the Board to find
providing services over the line (in- that:
198
(A) The rail carrier operating the line included that the applicant agrees to
refused within a reasonable time to have its train and crew personnel take
make the necessary efforts to provide the operating rules examination of the
adequate service to shippers who trans- railroad over which the operating
port traffic over the line; rights are exercised.
(B) The transportation over the line (14) If applicant requests Board pre-
is inadequate for the majority of ship- scribed joint rates and divisions in the
pers who transport traffic over the feeder line proceeding, a description of
line; any joint rate and division agreement
(C) The sale of the line will not have that must be established. The descrip-
a significantly adverse financial effect tion must contain the following infor-
on the rail carrier operating the line; mation:
(D) The sale of the line will not have (i) The railroad(s) involved;
an adverse effect on the overall oper- (ii) The estimated revenues that will
ational performance of the rail carrier result from the division(s);
operating the line; and (iii) The total costs of operating the
(E) The sale of the line will be likely line segment purchased (including any
to result in improved railroad trans- trackage rights fees).
portation for shippers who transport (iv) Information sufficient to allow
traffic over the line. the Board to determine that the line
(ii) If the applicant seeks a finding sought to be acquired carried less than
that the line is currently in category 1 3 million gross ton-miles of traffic per
or 2 of the owning carrier’s system dia- mile in the preceding calendar year 1;
gram map, the relevant portion of the and
current map must be attached to the (v) Any other pertinent information.
application. (15) The extent to which the owning
(12) A statement detailing applicant’s railroad’s employees who normally
election of exemption from the provi- service the line will be used.
sions of Title 49, United States Code, (16) A certificate stating that the
and a statement that if the application service requirements of § 1151.2(a) have
is approved, no further exemptions will been met.
(b) Applicant must make copies of
be elected. (This Statement Will Be
the application available to interested
Binding Upon the Applicant if the Ap-
parties upon request.
plication is Approved.)
(13) A description of any trackage [48 FR 9654, Mar. 8, 1983, as amended at 56 FR
rights sought over the owning railroad 37862, Aug. 9, 1991; 64 FR 53268, Oct. 1, 1999]
that are required to allow reasonable
interchange or to move power equip- § 1151.4 Board determination.
ment or empty rolling stock between (a) The Board shall determine wheth-
noncontiguous feeder lines operated by er each applicant is a financially re-
the applicant, and an estimate of the sponsible person. To be a financially
reasonable compensation for such responsible person, the Board must find
rights, including full explanation of that:
how the estimate was reached. The de- (1) The applicant is capable of paying
scription of the trackage rights shall the constitutional minimum value of
include the following information: the line and able to assure that ade-
Milepost or other identification for quate transportation will be provided
each segment of track; the need for the over the line for at least 3 years;
trackage rights (interchange of traffic, (2) The applicant is not a class I or
movement of equipment, etc.); fre- class II railroad or an entity affiliated
quency of operations; times of oper- with a class I or class II railroad.
ation; any alternative to the use of
1 Gross ton-miles are calculated by adding
trackage rights; and any other perti-
nent data. Trackage rights that are the ton-miles of the cargo and the ton-miles
related to the tare (empty) weight of the
necessary for the interchange of traffic
freight cars used to transport the cargo in
shall be limited to the closest point to the loaded movement. In calculating the
the junction with the owning railroad’s gross ton-miles, only those related to the
line that allows the efficient inter- portion of the segment purchased shall be in-
change of traffic. A statement shall be cluded.
199
(b) If the Board finds that one or PART 1152—ABANDONMENT AND

more applicants are financially respon- DISCONTINUANCE OF RAIL LINES
sible parties, it shall determine wheth- AND RAIL TRANSPORTATION
er the involved line or line segment is
a qualified line. A line is a qualified
UNDER 49 U.S.C. 10903
line if:
Subpart A—General
(1) Either
(i) The public convenience and neces- Sec.
sity require or permit the sale of line 1152.1 Purpose and scope.
or line segment; or 1152.2 Definitions.
(ii) The line or line segment is classi-
fied in category 1 or 2 of the owning Subpart B—System Diagram
carrier’s system diagram map; and 1152.10 System diagram map.
(2) The traffic level on the line or 1152.11 Description of lines to accompany
line segment sought to be acquired was the system diagram map or information
less than 3 million gross ton-miles of to be contained in the narrative.
traffic per mile in the preceding cal- 1152.12 Filing and publication.
endar year (Note: This finding will not 1152.13 Amendment of the system diagram
be required for applications filed after map or narrative.
1152.14 Availability of data.
October 1, 1983).
1152.15 Reservation of jurisdiction.
(c) If the Board finds that one or
more financially responsible parties Subpart C—Procedures Governing Notice,
have offered to buy a qualifying line of Applications, Financial Assistance, Ac-
railroad, the Board shall set the acqui- quisition for Public Use, and Trail Use
sition cost of the line at the higher of
NLV or GCV, order the owning carrier 1152.20 Notice of intent to abandon or dis-
to sell the rail line to one of the finan- continue service.
1152.21 Form of notice.
cially responsible applicants, and re-
1152.22 Contents of application.
solve any related issues raised in the
1152.23 [Reserved]
application. If an applicant and the 1152.24 Filing and service of application.
owning railroad agree on an acquisi- 1152.25 Participation in abandonment or
tion price, that price shall be the final discontinuance proceedings.
price. 1152.26 Board determination under 49 U.S.C.
(d) If trackage rights are sought in 10903.
the application, the Board shall, based 1152.27 Financial assistance procedures.
on the evidence of record, set the ade- 1152.28 Public use procedures.
quate compensation for such rights, if 1152.29 Prospective use of rights-of-way for
the parties have not agreed. interim trail use and rail banking.
(e) If the applicant requests the
Subpart D—Standards for Determining
Board to set joint rates or divisions
Costs, Revenues, and Return on Value
and the line carried less than 3 million
gross ton-miles of traffic per mile dur- 1152.30 General.
ing the preceding calendar year, the 1152.31 Revenue and income attributable to
Board shall, pursuant to 49 U.S.C. branch lines.
10705(a), establish joint rates and divi- 1152.32 Calculation of avoidable costs.
sions based on the evidence of record in 1152.33 Apportionment rules for the assign-
ment of expenses to on-branch costs.
the proceeding. Unless specifically re-
1152.34 Return on investment.
quested to do so by the selling carrier,
1152.35 [Reserved]
the Board will not set the rate for the 1152.36 Submission of revenue and cost data.
selling railroad’s share of the joint rate 1152.37 Financial status reports.
at less than the applicable level (for
the year in which the acquisition is
made) set by 49 U.S.C. 10709(d)(2), which
limits Board maximum ratemaking ju-
risdiction to rates above certain cost/
price ratios.
200
Subpart E [Reserved] (b) Act means the ICC Termination

Act of 1995 (Pub. L. 104–88, 109 Stat.
Subpart F—Exempt Abandonments and 803), as amended.
Discontinuances of Service and Track- (c) Base year means the latest 12-
age Rights month period, ending no earlier than 6
months prior to the filing of the aban-
1152.50 Exempt abandonments and
discontinuances of service and trackage
donment or discontinuance applica-
rights. tion, for which data have been col-
lected at the branch level as prescribed
Subpart G—Special Rules Applicable to in § 1152.30(b).
Petitions for Abandonments or (d) Board means the Surface Trans-
Discontinuances of Service or Track- portation Board.
age Rights Filed Under the 49 U.S.C. (e) Branch means a segment of line
10502 Exemption Procedure for which an application for abandon-
ment or discontinuance, pursuant to 49
1152.60 Special rules. U.S.C. 10903, has been filed.
AUTHORITY: 11 U.S.C. 1170; 16 U.S.C. 1247(d) (f) Carrier means a railroad company
and 1248; 45 U.S.C. 744; and 49 U.S.C. 701 note or the trustee or trustees of a railroad
(1995) (section 204 of the ICC Termination company subject to regulation under 49
Act of 1995), 721(a), 10502, 10903–10905, and U.S.C., Subtitle IV, chapter 105.
11161. (g) Designated state agency means the
SOURCE: 61 FR 67883, Dec. 24, 1996, unless
instrumentality created by a state or
otherwise noted. designated by appropriate authority to
administer or coordinate its state rail
plan.
Subpart A—General (h) Forecast Year means the 12-month
period, beginning with the first day of
§ 1152.1 Purpose and scope.
the month in which the application is
(a) 49 U.S.C. 10903 et seq. governs filed with the Board, for which future
abandonment of rail lines and dis- revenues and costs are estimated.
continuance of rail service by common (i) Form R–1 means the railroad’s an-
carriers. Section 10903(d) provides that nual report filed with the Board in ac-
no line of railroad may be abandoned cordance with the requirements of 49
and no rail service discontinued unless U.S.C. 11145.
the Board finds that the present or fu- (j) Offeror means a shipper, a state,
ture public convenience and necessity the United States, a local or regional
require or permit the abandonment or transportation authority, or any finan-
discontinuance. cially responsible person offering rail
(b) Part 1152 contains regulations service continuation assistance under
governing abandonment of, and dis- 49 U.S.C. 10904.
continuance of service over, rail lines. (k) URCS means the Uniform Rail-
This part also sets forth procedures for road Costing System.
providing financial assistance to assure (l) Significant user means:
continued rail freight service under 49 (1) Each of the 10 rail patrons which
U.S.C. 10904, for acquiring rail lines for originated and/or received the largest
number of carloads (or each patron if
alternate public use under 49 U.S.C.
there are less than 10); and
10905, and for acquiring or using a rail
(2) Any other rail patron which origi-
right-of-way for interim trail use and
nated and/or received 50 or more car-
rail banking.
loads, on the line proposed for aban-
§ 1152.2 Definitions. donment or discontinuance, during the
12-month period preceding the month
Unless otherwise provided in the text in which notice is given of the aban-
of the regulations, the following defini- donment or discontinuance applica-
tions apply in this part: tion.
(a) Account means an account in the (m) Subsidy year means any 12-month
Board’s Uniform System of Accounts period for which a subsidy agreement
for Railroad Companies (49 CFR part has been negotiated and is in oper-
1201). ation.
201
§ 1152.10 49 CFR Ch. X (10–1–07 Edition)
Subpart B—System Diagram (4) Brown shall designate those lines

described in § 1152.10(b)(4); and
§ 1152.10 System diagram map. (5) Black or dark blue shall designate
(a) Each carrier shall prepare a dia- those lines described in § 1152.10(b)(5).
gram of its rail system on a map, desig- (d) The system diagram map shall
nating all lines in its system by the also identify, and shall be drawn to a
categories established in paragraph (b) scale sufficient to depict clearly, the
of this section. A Class III carrier shall location of:
either prepare the aforementioned map (1) All state boundary lines;
of its rail system or file only a nar- (2) Boundaries of every county in
rative description of its lines that pro- which is situated a rail line owned or
vides all of the information required in
operated by the carrier which is listed
this subpart.
in categories 1 thru 4 (§ 1152.10(b)(1)
(b) All lines in each carrier’s rail sys-
tem shall be separated into the fol- thru (4));
lowing categories: (3) Every Standard Metropolitan Sta-
(1) All lines or portions of lines which tistical Area (SMSA) any portion of
the carrier anticipates will be the sub- which is located within 5 air miles of a
ject of an abandonment or discontinu- rail line owned or operated by the car-
ance application to be filed within the rier; and
3-year period following the date upon (4) Every city outside an SMSA
which the diagram or narrative, or any which has a population of 5,000 or more
amended diagram or narrative, is filed persons (according to the latest pub-
with the Board; lished United States census reports)
(2) All lines or portions of lines which and which has any portion located
are potentially subject to abandon- within 5 air miles of a rail line owned
ment, defined as those which the car- or operated by the carrier. A series of
rier has under study and believes may interrelated maps may be used where
be the subject of a future abandonment the system serves a very large or con-
application because of either antici- gested area. An explanation of the
pated operating losses or excessive re- interrelationship must be furnished.
habilitation costs, as compared to po-
tential revenues; § 1152.11 Description of lines to accom-
(3) All lines or portions of lines for pany the system diagram map or in-
which an abandonment or discontinu- formation to be contained in the
ance application is pending before the narrative.
Board on the date upon which the dia-
Each carrier required to file a system
gram or narrative, or any amended dia-
diagram map or narrative shall list and
gram or narrative, is filed with the
Board; describe, separately by category and
(4) All lines or portions of lines which within each category by state, all lines
are being operated under the rail serv- or portions of lines identified on its
ice continuation provisions of 49 U.S.C. system diagram map or to be included
10904 (and former 49 U.S.C. 10905) on the in its narrative as falling within cat-
date upon which the diagram or nar- egories 1 thru 3 (§ 1152.10(b)(1) thru (3))
rative, or any amended diagram or nar- as follows:
rative, is filed with the Board; and (a) Carrier’s designation for each line
(5) All other lines or portions of lines (for example, the Zanesville Secondary
which the carrier owns and operates, Track);
directly or indirectly. (b) State or states in which each line
(c) The system diagram map shall be is located;
color-coded to show the 5 categories of (c) County or counties in which each
lines as follows: line is located;
(1) Red shall designate those lines de-
(d) Mileposts delineating each line or
scribed in § 1152.10(b)(1);
portion of line; and
(2) Green shall designate those lines
described in § 1152.10(b)(2); (e) Agency or terminal stations lo-
(3) Yellow shall designate those lines cated on each line or portion of line
described in § 1152.10(b)(3); with milepost designations.
202
§ 1152.12 Filing and publication. date of the filing of the initial system
(a) Each carrier required to file a sys- diagram map or narrative and each
tem diagram map or a narrative shall amended system diagram map or nar-
file with the Board three copies of a rative as required in paragraph (a) of
complete and up-dated color-coded sys- this section shall be deemed to be the
tem diagram map or narrative (identi- date upon which the Board receives the
fied by its ‘‘AB number’’) and the ac- affidavit required in this paragraph.
companying line descriptions in con- (e) The Board shall require republica-
formance with the filing and publication of the notice if it is found to be in-
tion requirements of this section. If a adequate.
revised map or narrative is filed, the
[61 FR 67883, Dec. 24, 1996 as amended at 64
line descriptions for the lines which FR 53268, Oct. 1, 1999]
were revised must be filed.
(b) The color-coded system diagram § 1152.13 Amendment of the system
map or narrative, any amendments, diagram map or narrative.
and accompanying line descriptions
shall be served upon the Governor, the (a) Each carrier shall be responsible
Public Service Commission (or equiva- for maintaining the continuing accu-
lent agency) and the designated state racy of its system diagram map and
agency of each state within which the the accompanying line descriptions or
carrier operates or owns a line of rail- narrative. Amendments may be filed at
road. any time and will be subject to all car-
(c) The carrier shall: (1) Publish in a rier filing and publication require-
newspaper of general circulation in ments of § 1152.12.
each county containing category 1 (b) By March 24, 1997, each carrier
through 3 lines or lines being revised, a shall file with the Board a revised and
notice containing: updated color-coded system diagram
(i) A black-and-white copy of the sys- map and line descriptions or narrative
tem diagram map (or a portion of the which shall be subject to the filing and
map clearly depicting its lines in that publication requirements of § 1152.12.
county); and Thereafter, each carrier shall file
(ii) A description of each line (in the amendments as line designations
case of Class III carriers only the line change and update its map or nar-
description is required); rative, as appropriate. Also, each car-
(2) Post a copy of the newspaper no- rier shall file an updated or amended
tice: map or narrative upon order of the
(i) In each agency station or terminal Board. Each new rail carrier shall com-
on each line in categories 1 through 3 ply with the requirements of this sub-
and on each line which has been re- section within 60 days after it becomes
vised; or a carrier.
(ii) If there is no agency station on
(c) The Board will reject an abandon-
the line, at any station through which
ment or discontinuance application
business for the line is received or for-
filed by a rail carrier if any part of the
warded;
application includes a line that has not
(3) Furnish, at reasonable cost, upon
been identified and described, by
request of any interested person, a
copy of its system diagram map (either amendment or otherwise, on the car-
color-coded or black-and-white) or nar- rier’s system diagram map or nar-
rative; and rative, as appropriate, as a line in cat-
(4) Notify interested persons of this egory 1 (§ 1152.10(b)(1)) for at least 60
availability through its publication in days.
the appropriate county newspaper.
§ 1152.14 Availability of data.
(d) Each carrier required to file a sys-
tem diagram map or narrative shall Each carrier shall provide to the des-
file with the Board an affidavit of serv- ignated state agency, upon request, in-
ice and publication stating the date formation concerning the net liquida-
each was accomplished. A copy of each tion value (as defined in § 1152.34(c)) of
newspaper notice published shall be at- any line placed in category 1
tached to the affidavit. The effective (§ 1152.10(b)(1)) on its system diagram
203
§ 1152.15 49 CFR Ch. X (10–1–07 Edition)
map or narrative together with a de- (viii) The U.S. Department of Inte-
scription of such a line and any appur- rior (Recreation Resources Assistance
tenant facilities and of their condition. Division, National Park Service);
(ix) The U.S. Railroad Retirement
§ 1152.15 Reservation of jurisdiction. Board;
49 U.S.C. 10903(c)(1) authorizes the (x) The National Railroad Passenger
Board, at its discretion, to provide for Corporation (‘‘Amtrak’’) (if Amtrak op-
designation of lines as ‘‘potentially erates over the involved line);
(xi) The U.S. Department of Agri-
subject to abandonment’’ under stand-
culture, Chief of the Forest Service;
ards which vary by region of the
and
United States, by railroad, or by group
(xii) The headquarters of all duly cer-
of railroads. The Board expressly re-
tified labor organizations that rep-
serves the right to adopt such varying resent employees on the affected rail
standards in the future. line.
(3) Posting. Applicant must post a
Subpart C—Procedures Governing copy of its Notice of Intent at each
Notice, Applications, Finan- agency station and terminal on the
cial Assistance, Acquisition for line to be abandoned. (If there are no
Public Use, and Trail Use agency stations on the line, the Notice
of Intent should be posted at any agen-
§ 1152.20 Notice of intent to abandon cy station through which business for
or discontinue service. the involved line is received or for-
warded.)
(a) Filing and publication requirements.
(4) Newspaper publication. Applicant
An applicant shall give Notice of In-
must publish its Notice of Intent at
tent to file an abandonment or dis-
least once during each of 3 consecutive
continuance application by complying weeks in a newspaper of general cir-
with the following procedures: culation in each county in which any
(1) Filing. Applicant must serve its part of the involved line is located.
Notice of Intent on the Board, by cer- (b) Time limits. (1) The Notice of In-
tified letter, in the format prescribed tent must be served at least 15 days,
in § 1152.21. The Notice shall be filed in but not more than 30 days, prior to the
accordance with the time requirements filing of the abandonment application;
of paragraph (b) of this section. (2) The Notice must be posted and
(2) Service. Applicant must serve, by fully published within the 30-day period
first-class mail (unless otherwise speci- prior to the filing of the application;
fied), its Notice of Intent upon: and
(i) Significant users of the line; (3) The Notice must be filed with the
(ii) The Governor (by certified mail) Board either concurrently with service
of each state directly affected by the or when the Notice is first published
abandonment or discontinuance. (For (whichever occurs first).
the purposes of this section ‘‘states di- (c) Environmental and Historic Reports.
rectly affected’’ are those in which any Applicant must also submit the Envi-
part of the line sought to be abandoned ronmental and Historic Reports de-
is located). scribed at § § 1105.7 and 1105.8 at least 20
(iii) The Public Service Commission days prior to filing an application.
(or equivalent agency) in these states; [61 FR 67883, Dec. 24, 1996, as amended at 68
(iv) The designated state agency in FR 67810, Dec. 4, 2003]
these states;
(v) The State Cooperative Extension § 1152.21 Form of notice.
Service in these states; The Notice of Intent to abandon or to
(vi) The U.S. Department of Trans- discontinue service shall be in the fol-
portation (Federal Railroad Adminis- lowing form:
tration); STB No. AB llll(Sub-No. llll)
(vii) Department of Defense (Military Notice of Intent to Abandon or to Dis-
Traffic Management Command, Trans- continue Service
portation Engineering Agency, Rail- (Name of Applicant) gives notice that on or
roads for National Defense Program); about (insert date application will be filed
204
with the Board) it intends to file with the (2) A statement describing protestant’s in-
Surface Transportation Board, Washington, terest in the proceeding including:
D.C. 20423, an application for permission for (i) A description of protestant’s use of the
the abandonment of (the discontinuance of line;
service on), a line of railroad known as (ii) If protestant does not use the line, in-
llllll extending from railroad milepost formation concerning the group or public in-
near (station name) to (the end of line or rail terest it represents; and
milepost) near (station name), which tra- (iii) If protestant’s interest is limited to
verses through United States Postal Service the retention of service over a portion of the
ZIP Codes (ZIP Codes), a distance of line, a description of the portion of the line
llllll miles, in [County(ies), State(s)]. subject to protestant’s interest (with mile-
The line includes the stations of (list all sta- post designations if available) and evidence
tions on the line in order of milepost num- showing that the applicant can operate the
ber, indicating milepost location). portion of the line profitably, including an
The reason(s) for the proposed abandon- appropriate return on its investment for
ment (or discontinuance) is (are) llllll those operations.
(explain briefly and clearly why the proposed (3) Specific reasons why protestant opposes
action is being undertaken by the applicant). the application including information re-
Based on information in our possession, the garding protestant’s reliance on the involved
line (does) (does not) contain federally grant- service [this information must be supported
ed rights-of-way. Any documentation in the by affidavits of persons with personal knowl-
railroad’s possession will be made available edge of the fact(s)].
promptly to those requesting it. (4) Any rebuttal of material submitted by
applicant.
This line of railroad has appeared on the
In addition, a commenting party or protes-
system diagram map or included in the nar-
tant may provide a statement of position
rative in category 1 since (insert date).
and evidence regarding:
The interest of railroad employees will be (i) Intent to offer financial assistance pur-
protected by (specify the appropriate condi- suant to 49 U.S.C. 10904;
tions). (ii) Environmental impact;
The application will include the appli- (iii) Impact on rural and community devel-
cant’s entire case for abandonment (or dis- opment;
continuance) (case in chief). Any interested (iv) Recommended provisions for protec-
person, after the application is filed on (in- tion of the interests of employees;
sert date), may file with the Surface Trans- (v) Suitability of the properties for other
portation Board written comments con- public purposes pursuant to 49 U.S.C. 10905;
cerning the proposed abandonment (or dis- and
continuance) or protests to it. These filings (vi) Prospective use of the right-of-way for
are due 45 days from the date of filing of the interim trail use and rail banking under 16
application. All interested persons should be U.S.C. 1247(d) and § 1152.29.
aware that following any abandonment of A protest may demonstrate that: (1) the
rail service and salvage of the line, the line protestant filed a feeder line application
may be suitable for other public use, includ- under 49 U.S.C. 10907; (2) the feeder line ap-
ing interim trail use. Any request for a pub- plication involves any portion of the rail line
lic use condition under 49 U.S.C. 10905 involved in the abandonment or discontinu-
(§ 1152.28 of the Board’s rules) and any re- ance application; (3) the feeder line applica-
quest for a trail use condition under 16 tion was filed prior to the date the abandon-
U.S.C. 1247(d) (§ 1152.29 of the Board’s rules) ment or discontinuance application was
must also be filed within 45 days from the filed; and (4) the feeder line application is
date of filing of the application. Persons who pending before the Board.
may oppose the abandonment or discontinu- Written comments and protests will be
ance but who do not wish to participate fully considered by the Board in determining what
in the process by appearing at any oral hear- disposition to make of the application. The
ings or by submitting verified statements of commenting party or protestant may par-
witnesses, containing detailed evidence, ticipate in the proceeding as its interests
should file comments. Persons interested may appear.
only in seeking public use or trail use condi- If an oral hearing is desired, the requester
tions should also file comments. Persons op- must make a request for an oral hearing and
posing the proposed abandonment or dis- provide reasons why an oral hearing is nec-
continuance that do wish to participate ac- essary. Oral hearing requests must be filed
tively and fully in the process should file a with the Board no later than 10 days after
protest. the application is filed.
Protests must contain that party’s entire Those parties filing protests to the pro-
case in opposition (case in chief) including posed abandonment (or discontinuance)
the following: should be prepared to participate actively ei-
(1) Protestant’s name, address and busi- ther in an oral hearing or through the sub-
ness. mission of their entire opposition case in the
205
§ 1152.22 49 CFR Ch. X (10–1–07 Edition)
form of verified statements and arguments An environmental assessment (EA) (or en-
at the time they file a protest. Parties seek- vironmental impact statement (EIS), if nec-
ing information concerning the filing of pro- essary) prepared by the Section of Environ-
tests should refer to § 1152.25. mental Analysis will be served upon all par-
Written comments and protests, including ties of record and upon any agencies or other
all requests for public use and trail use con- persons who commented during its prepara-
ditions, should indicate the proceeding des- tion. Any other persons who would like to
ignation STB No. AB llll (Sub-No. obtain a copy of the EA (or EIS) may contact
llll) and must be filed with the Sec- the Section of Environmental Analysis. EAs
retary, Surface Transportation Board, Wash- in these abandonment proceedings normally
ington, DC 20423, no later than (insert the will be made available within 33 days of the
date 45 days after the date applicant intends filing of the application. The deadline for
to file its application). Interested persons submission of comments on the EA will gen-
may file a written comment or protest with erally be within 30 days of its service. The
the Board to become a party to this aban- comments received will be addressed in the
donment (or discontinuance) proceeding. A Board’s decision. A supplemental EA or EIS
copy of each written comment or protest may be issued where appropriate.
shall be served upon the representative of
the applicant (insert name, address, and § 1152.22 Contents of application.
phone number). The original and 10 copies of
all comments or protests shall be filed with Applications for the abandonment of
the Board with a certificate of service. Ex- railroad lines or the discontinuance of
cept as otherwise set forth in part 1152, each rail service shall contain the following
document filed with the Board must be information, including workpapers and
served on all parties to the abandonment supporting documents, and each para-
proceeding. 49 CFR 1104.12(a). graph (a) through (j) of this section
The line sought to be abandoned (or dis- shall be attested to by a person having
continued) will be available for subsidy or
personal knowledge of the matters con-
sale for continued rail use, if the Board de-
cides to permit the abandonment (or dis- tained therein:
continuance), in accordance with applicable (a) General. (1) Exact name of appli-
laws and regulations (49 U.S.C. 10904 and 49 cant.
CFR 1152.27). No subsidy arrangement ap- (2) Whether applicant is a common
proved under 49 U.S.C. 10904 shall remain in carrier by railroad subject to 49 U.S.C.
effect for more than 1 year unless otherwise Subtitle IV, chapter 105.
mutually agreed by the parties (49 U.S.C.
10904(f)(4)(B)). Applicant will promptly pro- (3) Relief sought (abandonment of
vide upon request to each interested party line or discontinuance of service).
an estimate of the subsidy and minimum (4) Detailed map of the subject line
purchase price required to keep the line in on a sheet not larger than 8×101⁄2
operation. The carrier’s representative to inches, drawn to scale, and with the
whom inquiries may be made concerning sale scale shown thereon. The map must
or subsidy terms is (insert name and busi-
show, in clear relief, the exact location
ness address).
Persons seeking further information con-
of the rail line to be abandoned or over
cerning abandonment procedures may con- which service is to be discontinued and
tact the Surface Transportation Board or its relation to other rail lines in the
refer to the full abandonment or discontinu- area, highways, water routes, and pop-
ance regulations at 49 CFR part 1152. Ques- ulation centers.
tions concerning environmental issues may (5) Reference to inclusion of the rail
be directed to the Board’s Section of Envi- line to be abandoned or over which
ronmental Analysis.
service is to be discontinued on the
A copy of the application will be available
for public inspection on or after (insert date
carrier’s system diagram map or nar-
abandonment application is to be filed with rative, in compliance with § § 1152.10
Board) at each agency station or terminal on through 1152.13, and the date upon
the line proposed to be abandoned or discon- which such line was first listed on the
tinued [if there is no agency station on the system diagram map or included in the
line, the application shall be deposited at narrative in category 1 in accordance
any agency station through which business with § 1152.10(b)(1). A copy of the line
for the line is received or forwarded (insert description which accompanies the sys-
name, address, location, and business
hours)]. The carrier shall furnish a copy of
tem diagram map shall also be sub-
the application to any interested person pro- mitted.
posing to file a protest or comment, upon re- (6) Detailed statement of reasons for
quest. filing application.
206
(7) Name, title, and address of rep- abandoned, for the Forecast Year (as
resentative of applicant to whom cor- defined in § 1152.2(h)) in the form called
respondence should be sent. for in Exhibit 1. The carrier shall fully
(8) List of all United States Postal support and document all dollar
Service ZIP Codes that the line pro- amounts shown in the Forecast Year
posed for abandonment traverses. column including an explanation of the
(b) Condition of properties. The present rationale and key assumptions used to
physical condition of the line including determine the Forecast Year amounts.
any operating restrictions and esti- (3) The carrier shall also compute an
mate of deferred maintenance and re- ‘‘Estimated Subsidy Payment’’ for the
habilitation costs (e.g., number of ties Base Year in the form called for in Ex-
that need replacing, miles of rail that hibit 1 and an alternate payment to re-
need replacing and/or new ballast, flect:
bridge repairs or replacement needed, (i) Increases or decreases in attrib-
and estimated labor expenses necessary utable revenues and avoidable costs
to upgrade the line to minimum Fed- projected for the subsidy year; and
eral Railroad Administration class 1 (ii) An estimate, in reasonable detail,
safety standards). The bases for the es- of the cash income tax reductions, Fed-
timates shall be stated with particu- eral and state, to be realized in the
larity, and workpapers shall be filed subsidy year. The bases for the adjust-
with the application. ment, e.g., rate increase, changes in
(c) Service provided. Description of the traffic level, necessary maintenance to
service performed on the line during comply with minimum Federal Rail-
the Base Year (as defined by § 1152.2(c)), road Administration class 1 safety
including the actual: standards, shall be stated with particu-
(1) Number of trains operated and larity.
their frequency. (e) Rural and community impact. (1)
(2) Miles of track operated (include The name and population (identify
main line and all railroad-owned sid- source and date of figures) of each com-
ings). munity in which a station on the line
(3) Average number of locomotive is located.
units operated. (2) Identification of significant users,
(4) Total tonnage and carloads by as defined in § 1152.2(l), by name, ad-
each commodity group on the line. dress, principal commodity, and by
(5) Overhead or bridge traffic by car- tonnage and carloads for each of the 2
load commodity group that will not be calendar years immediately preceding
retained by the carrier. the filing of the abandonment or dis-
(6) Average crew size. continuance application, for that part
(7) Level of maintenance. of the current year for which informa-
(8) Any important changes in train tion is available, and for the Base Year.
service undertaken in the 2 calendar In addition, the total tonnage and car-
years immediately preceding the filing loads for each commodity group origi-
of the application. nating and/or terminating on the line
(9) Reasons for decline in traffic, if segment shall also be shown for the
any, in the best judgment of applicant. same time periods as those of the sig-
(d) Revenue and cost data. (1) Com- nificant users.
putation of the revenues attributable (3) General description of the alter-
and avoidable costs for the line to be nate sources of transportation service
abandoned for the Base Year (as de- (rail, motor, water, air) available, and
fined by § 1152.2(c) and to the extent the highway network in the proximate
such branch level data are available), area.
in accordance with the methodology (4) Statement of whether the prop-
prescribed in § § 1152.31 through 1152.33, erties proposed to be abandoned are ap-
as applicable, and submitted in the propriate for use for other public pur-
form called for in § 1152.36, as Exhibit 1. poses, including roads or highways,
(2) The carrier shall compute an esti- other forms of mass transportation,
mate of the future revenues attrib- conservation, energy production or
utable, avoidable costs and reasonable transmission, or recreation. If the ap-
return on the value for the line to be plicant is aware of any restriction on
207
§ 1152.22 49 CFR Ch. X (10–1–07 Edition)
the title to the property, including any verses through llllll (ZIP Codes)
reversionary interest, which would af- United States Postal Service ZIP Codes.
fect the transfer of title or the use of The line (does) (does not) contain federally
property for other than rail purposes, granted rights-of-way. Any documentation
in the railroad’s possession will be made
this shall be disclosed.
available promptly to those requesting it.
(f) Environmental impact. The appli- The applicant’s entire case for abandonment
cant shall submit information regard- (or discontinuance) (case in chief) was filed
ing the environmental impact of the with the application.
proposed abandonment or discontinu- This line of railroad has appeared on the
ance in compliance with § § 1105.7 and applicant’s system diagram map or has been
included in its narrative in category 1 since
1105.8. If certain information required (insert date).
by the environmental regulations du- The interest of railroad employees will be
plicates information required else- protected by (specify the appropriate condi-
where in the application, the environ- tions).
mental information requirements may Any interested person may file with the
be met by a specific reference to the lo- Surface Transportation Board written com-
cation of the information elsewhere in ments concerning the proposed abandonment
(or discontinuance) or protests (including
the application. the protestant’s entire opposition case),
(g) Passenger service. If passenger within 45 days after the application is filed.
service is provided on the line, the ap- All interested persons should be aware that
plicant shall state whether appropriate following any abandonment of rail service
steps have been taken for discontinu- and salvage of the line, the line may be suit-
ance pursuant to the Rail Passenger able for other public use, including interim
trail use. Any request for a public use condi-
Service Act. (45 U.S.C. 501 et seq.) tion under 49 U.S.C. 10905 (§ 1152.28 of the
(h) Additional information. The appli- Board’s rules) and any request for a trail use
cant shall submit such additional in- condition under 16 U.S.C. 1247(d) (§ 1152.29 of
formation to support its application as the Board’s rules) must be filed within 45
the Board may require. days after the application is filed. Persons
who may oppose the abandonment or dis-
(i) Draft Federal Register notice. The continuance but who do not wish to partici-
applicant shall submit a draft notice of pate fully in the process by appearing at any
its application to be published by the oral hearings or by submitting verified state-
Board. In addition to the regular num- ments of witnesses, containing detailed evi-
ber of copies that must be filed with dence should file comments. Persons inter-
the Board, the applicant must submit a ested only in seeking public use or trail use
copy of the draft notice as data con- conditions should also file comments. Per-
sons opposing the proposed abandonment or
tained on a computer diskette compat- discontinuance that do wish to participate
ible with the Board’s current word actively and fully in the process should file
processing capabilities. The Board will a protest.
publish the notice in the FEDERAL REG- In addition, a commenting party or protes-
ISTER within 20 days of the applica- tant may provide:
tion’s filing with the Board. The draft (i) An offer of financial assistance, pursu-
ant to 49 U.S.C. 10904 (due 120 days after the
notice shall be in the form set forth
application is filed or 10 days after the appli-
below: cation is granted by the Board, whichever
STB No. AB–llll (Sub-No. llll) occurs sooner);
(ii) Recommended provisions for protection
Notice of Application to Abandon or to Dis-
of the interests of employees;
continue Service
(iii) A request for a public use condition
On (insert date application was filed with under 49 U.S.C. 10905; and
the Board) (name of applicant) filed with the (iv) A statement pertaining to prospective
Surface Transportation Board, Washington, use of the right-of-way for interim trail use
D.C. 20423, an application for permission for and rail banking under 16 U.S.C. 1247(d) and
the abandonment of (the discontinuance of § 1152.29.
service on) a line of railroad known as Parties seeking information concerning
llllll extending from railroad milepost the filing of protests should refer to § 1152.25.
near (station name) to (the end of line or rail Written comments and protests, including
milepost) near (station name), a distance of all requests for public use and trail use con-
llllll miles, in [County(ies), State(s)]. ditions, must indicate the proceeding des-
The line includes the stations of (list all sta- ignation STB No. AB–ll (Sub-No. ll) and
tions on the line in order of milepost num- should be filed with the Secretary, Surface
ber, indicating milepost location) and tra- Transportation Board (Board), Washington,
208
DC 20423, no later than (insert the date 45 Verification
days after the date applicant intends to file
State of llllll ss.
its application). Interested persons may file
County of llllll
a written comment or protest with the Board
llllll (Name of affiant) makes oath
to become a party to this abandonment (or
and says that (s)he is the llllll (title of
discontinuance) proceeding. A copy of each affiant) of the llllll (name of appli-
written comment or protest shall be served cant) applicant herein; that (s)he has been
upon the representative of the applicant (in- authorized by the applicant (or as appro-
sert name, address, and phone number). The priate, a court) to verify and file with the
original and 10 copies of all comments or Surface Transportation Board the foregoing
protests shall be filed with the Board with a application in STB AB–ll (Sub-No. ll);
certificate of service. Except as otherwise that (s)he has carefully examined all of the
set forth in part 1152, every document filed statements in the application as well as the
with the Board must be served on all parties exhibits attached thereto and made a part
to the abandonment proceeding. 49 CFR thereof; that (s)he has knowledge of the facts
1104.12(a). and matters relied upon in the application;
The line sought to be abandoned (or dis- and that all representations set forth therein
continued) will be available for subsidy or are true and correct to the best of his(her)
sale for continued rail use, if the Board de- knowledge, information, and belief.
cides to permit the abandonment (or dis- (Signature)
continuance), in accordance with applicable Subscribed and sworn to before me
laws and regulations (49 U.S.C. 10904 and 49 llllll in and for the State and County
CFR 1152.27). No subsidy arrangement ap- above named, this llllll day of
proved under 49 U.S.C. 10904 shall remain in llllllllll, 19ll.
effect for more than 1 year unless otherwise
mutually agreed by the parties (49 U.S.C. My Commission expires
10904(f)(4)(B)). Applicant will promptly pro-
vide upon request to each interested party
§ 1152.23 [Reserved]
an estimate of the subsidy and minimum
purchase price required to keep the line in
§ 1152.24 Filing and service of applica-
operation. The carrier’s representative to
tion.
whom inquiries may be made concerning sale (a) An original and 10 copies of appli-
or subsidy terms is (insert name and busi- cations, typewritten or printed on
ness address). paper approximately 81⁄2 inches by 11
Persons seeking further information con- inches with 11⁄2 inch left margin, shall
cerning abandonment procedures may con- be filed with the Secretary of the Sur-
tact the Surface Transportation Board or
face Transportation Board, Wash-
refer to the full abandonment or discontinu-
ance regulations at 49 CFR part 1152. Ques- ington, DC 20423. The original shall
tions concerning environmental issues may bear the date and signature and shall
be directed to the Board’s Section of Envi- be complete in itself; the signature
ronmental Analysis. may be stamped or typed and the no-
An environmental assessment (EA) (or en- tarial seal may be omitted on the cop-
vironmental impact statement (EIS), if nec- ies. A check, money order or payment
essary) prepared by the Section of Environ- by credit card payable to the Surface
mental Analysis will be served upon all par- Transportation Board must also be
ties of record and upon any agencies or other submitted to cover the applicable filing
persons who commented during its prepara-
tion. Any other persons who would like to
fee. If the applicant carrier is in bank-
obtain a copy of the EA (or EIS) may contact ruptcy, the application shall also be
the Section of Environmental Analysis. EAs filed on the bankruptcy court.
in these abandonment proceedings normally (b) The applicant shall tender with
will be made available within 33 days of the its application an affidavit attesting to
filing of the application. The deadline for its compliance with the notice require-
submission of comments on the EA will gen- ment of § 1152.20. The affidavit shall in-
erally be within 30 days of its service. The clude the dates of service, posting, and
comments received will be addressed in the publication of the notice.
Board’s decision. A supplemental EA or EIS
may be issued where appropriate.
(c) When the application is filed with
the Board, the applicant shall serve, by
(j) Verification. The original applica- first class mail, a copy on the Gov-
tion shall be executed and verified in ernor, the Public Service Commission
the form set forth below by an officer (or equivalent agency), and the des-
of the carrier having knowledge of the ignated state agency of each state in
facts and matters relied upon. which any part of the line of railroad
209
§ 1152.25 49 CFR Ch. X (10–1–07 Edition)
sought to be abandoned or discontinued and publication under § 1152.20, unless

is situated. A copy of the application the defect causing the rejection was in
will be available for public inspection, the notice and/or publication. A revised
on or after the date the abandonment application submitted after such 60-day
application is filed with the Board, at period must be newly published and no-
each agency station or terminal on the ticed.
line proposed to be abandoned or dis- (4) The resubmission of an abandon-
continued (if there is no agency station ment or discontinuance application
on the line, the application shall be de- shall be considered a de novo filing for
posited at any agency station through the purposes of computation of the
which business for the line is received time period for filing an offer of finan-
or forwarded). A certificate of service cial assistance under 49 U.S.C. 10904,
shall be promptly filed with the Board. and for other time periods prescribed in
(d) The applicant shall promptly fur- the regulations contained in this part
nish by first class mail a copy of the (49 CFR part 1152), provided, that a re-
application to any interested person submitted application is deemed com-
proposing to file a written comment or plete and proper.
protest upon request. A certificate of (5) An applicant may seek waiver of
service shall promptly be filed with the specific regulations listed in subpart C
Board. of this part by filing a petition for
(e)(1) The Board shall reject any waiver with the Board. A decision by
abandonment or discontinuance appli- the Director of the Office of Pro-
cation which does not substantially ceedings granting or denying a waiver
conform to the regulations in this sub- petition will be issued within 30 days of
part C regarding notice, form, and con- the date the petition is filed. Appeals
tent, or which applies to a line which from the Director’s decision will be de-
has not properly been published on the
cided by the entire Board. If waiver is
carrier’s system diagram map (or in-
not obtained prior to the filing of the
cluded in a narrative in the case of a
application, the application may be
Class III carrier), in conformance with
subject to rejection under paragraphs
the regulations of subpart B of this
(e) (1) and (2) of this section.
part.
(2) Upon the filing of an abandon- (f) As provided in § 1152.29(e)(2), rail
ment or discontinuance application, carriers authorized to abandon a line
the Board will review the application under 49 U.S.C. 10903 must file with the
and determine whether it conforms Board a notice that abandonment has
with all applicable regulations. If the been consummated.
application is substantially incomplete [61 FR 67883, Dec. 24, 1996, as amended at 62
or its filing otherwise defective, the FR 34669, June 27, 1997; 64 FR 53268, Oct. 1,
Board shall reject the application for 1999]
stated reasons by order (which order
will be administratively final) within § 1152.25 Participation in abandon-
20 days from the date of filing of the ment or discontinuance pro-
application. If the Board does not re- ceedings.
ject the application, notice of the filing (a) Public participation—(1) Protests
of the application shall be published in and comments. Interested persons may
the FEDERAL REGISTER by the Board, become parties to an abandonment or
through the Director of the Office of discontinuance proceeding by filing
Proceedings, within 20 days of the fil- written comments or protests with the
ing of the application. Board. Any request for a public use
(3) If the application is rejected, a re- condition under 49 U.S.C. 10905 (§ 1152.28
vised application may be submitted, of the Board’s rules) and any request
and the Board will determine whether for a trail use condition under 16 U.S.C.
the resubmitted application conforms 1247(d) (§ 1152.29 of the Board’s rules)
with all prescribed regulations. A prop- must be included in these filings. Per-
erly revised application submitted sons who may oppose the abandonment
within 60 days of the order rejecting or discontinuance, but who do not wish
the incomplete or improper application to participate fully in the process by
need not be subjected to new notice appearing at any oral hearings or by
210
submitting verified statements of wit- (iv) Recommended provisions for pro-

nesses containing detailed evidence, tection of the interests of employees;
should file comments. Persons inter- (v) A request for a public use condi-
ested only in seeking public use or trail tion under 49 U.S.C. 10905; and
use conditions should also file com- (vi) Prospective use of the right-of-
ments. Persons opposing the proposed way for interim trail use and rail bank-
abandonment or discontinuance that ing under 16 U.S.C. 1247(d) and 49 CFR
do wish to participate actively and 1152.29.
fully in the process should file a pro- (3) Feeder line application for all or
test. Protests shall include all evidence part of the line subject to the abandon-
and argument in support of protes- ment application. In addition to the in-
tant’s position (protestant’s case in formation required in paragraphs (a)(1)
chief). Protests must contain the fol- and (2) of this section, a commenting
lowing information: party or protestant must provide infor-
(i) Protestant’s name, address and mation that:
business. (i) The protestant filed a feeder line
(ii) A statement describing protes- application under 49 U.S.C. 10907 (or
tant’s interest in the proceeding in- former 49 U.S.C. 10910);
cluding: (ii) The feeder line application in-
(A) A description of protestant’s use volves any portion of the rail line in-
of the line; volved in the abandonment or dis-
(B) If protestant does not use the continuance application;
line, information concerning the group (iii) The feeder line application was
or public interest it represents; and filed prior to the date the abandonment
(C) If protestant’s interest is limited or discontinuance application was
to the retention of service over a por- filed; and
tion of the line, a description of the (iv) The feeder line application is
portion of the line subject to protes- pending before the Board.
tant’s interest (with milepost designa- (b) Employee or employee representative
tions if available) and evidence show- participation. Employees or their rep-
ing that the applicant can operate the resentatives may file protests or com-
portion of the line profitably, including ments to an application. However, be-
an appropriate return on its invest- cause the Board will impose employee
ment for those operations. protective conditions under 49 U.S.C.
(iii) Specific reasons why protestant 10903(b)(2) if an application is granted,
opposes the application including in- employees and their representatives
formation regarding protestant’s reli- need not file comments or protests
ance on the involved service (this in- seeking this protection.
formation must be supported by affida- (c) Filing and service of written com-
vits of persons with personal knowl- ments, protests, along with evidence and
edge of the fact(s)). argument, and replies. (1) Written com-
(iv) Any rebuttal of material sub- ments and protests, as well as public
mitted by applicant. use and trail use requests, shall be filed
(v) Any request for a public use con- with the Board (the Secretary, Surface
dition under 49 U.S.C. 10905 (§ 1152.28 of Transportation Board, Washington, DC
the Board’s rules) and any request for a 20423) within 45 days of the filing with
trail use condition under 16 U.S.C. the Board of an abandonment or dis-
1247(d) (§ 1152.29 of the Board’s rules). continuance application.
(2) Additional information. In addition (2) An original and 10 copies of each
to the information required in para- written comment or protest shall be
graph (a)(1) of this section, a com- filed with the Board.
menting party or protestant may pro- (3) A copy of each written comment
vide a statement of position and a sum- or protest shall be served on applicant
mary of evidence regarding: or its representative at the time of fil-
(i) Intent to offer financial assistance ing with the Board. If the applicant
under 49 U.S.C. 10904; carrier is in bankruptcy, each com-
(ii) Environmental impact; ment or protest shall also be filed on
(iii) Impact on rural and community the Bankruptcy Court. Each filing
development; shall contain a certificate of service.
211
§ 1152.25 49 CFR Ch. X (10–1–07 Edition)
(4) Replies or rebuttal to written mony, other than applicant’s rebuttal

comments and protests shall be filed evidence, shall be received at the dis-
and served by applicants no later than cretion of the hearing officer.
60 days after the filing of the applica- (ii) In addition to that contained in
tion. An original and 10 copies of such the application, the submission of writ-
replies shall be filed with the Board. ten evidence prior to the commence-
(d) Time limits. (1) Pleadings, requests ment of the hearing shall be estab-
or other papers or documents (includ- lished by the Board.
ing any comments or protests and any (iii) Post hearing legal briefs shall be
appeal from a Board decision) required due 10 days after the close of the oral
or permitted to be filed under this part hearing, or at an earlier date if estab-
must be received for filing at the lished at the hearing by the hearing of-
Board’s Offices at Washington, DC ficer.
within the time limits, if any, for such (e) Appellate procedures—(1) Scope of
filing. The date of receipt at the Board rule. Except as specifically indicated
and not the date of deposit in the mail below, these appellate procedures are
is determinative, provided, however, to be followed in abandonment and dis-
that if such document is mailed by cer- continuance proceedings in lieu of the
tified, registered, or express mail, post- general procedures at 49 CFR 1115. Ap-
marked at least 3 days prior to the due peals of initial decisions of the Direc-
date, it will be accepted as timely filed. tor of the Office of Proceedings deter-
(2) In computing any time period pre- mining:
scribed or allowed by this part, the day (i) Whether offers of financial assist-
of the act, event, or default after which ance satisfy the standard of 49 U.S.C.
the designated period of time begins to 10904(d) for purposes of instituting ne-
run is not to be included. gotiations or, in exemption pro-
(3) Any filing under this part which ceedings, for purposes of partial rev-
falls due on a Saturday, Sunday, or a ocation and instituting negotiations;
legal holiday in the District of Colum- (ii) Whether partially to revoke or to
bia, may be filed at the Board by the reopen abandonment exemptions au-
end of the next day which is neither a thorized, respectively, under 49 U.S.C.
Saturday, Sunday, nor a holiday, ex- 10502 and 49 CFR part 1152 subpart F for
cept as indicated in paragraph (d)(4) of the purpose of imposing public use con-
this section. A half holiday shall not be ditions under the criteria in 49 CFR
considered as a holiday. 1152.28 and/or conditions limiting sal-
(4) Offers of financial assistance vage of the rail properties for environ-
made pursuant to § 1152.27(c) must be mental and historic preservation pur-
filed on or before their statutory or poses; and
regulatory due date as computed in (iii) The applicability and adminis-
paragraph (d)(2) of this section, regard- tration of the Trails Act [16 U.S.C.
less of whether that date is a Saturday, 1247(d)] in abandonment proceedings
Sunday, or a legal holiday in the Dis- under 49 U.S.C. 10903 (and abandonment
trict of Columbia. exemption proceedings), issued pursu-
(5) The Board will reject any pleading ant to delegations of authority at 49
filed after its due date unless good CFR 1011.8(c) (4) and (5), will be acted
cause is shown why the pleading is on by the entire Board as set forth at
filed late. 49 CFR 1011.2(a)(7). An original and 10
(6) Oral hearings. (i) Any oral hearing copies of all appeals, and replies to ap-
request is due 10 days after the filing of peals, under this section must be filed
the application. The Board, through with the Board.
the Director of the Office of Pro- (2) Appeals criteria. Appeals to the
ceedings, will issue a decision on any Board’s decision in abandonment or
oral hearing request within 15 days discontinuance proceedings will not be
after the filing of the application. If entertained. Those decisions are ad-
the Board decides to hold an oral hear- ministratively final upon the date they
ing, the oral hearing shall be for the are served.
primary purpose of cross examination (i) Parties seeking further adminis-
of witnesses filing verified statements trative action may file a petition to re-
in the proceeding. Any direct testi- open the proceeding under paragraph
212
(e)(4) of this section. If an abandon- discontinuance authorization. An origi-

ment or discontinuance is granted and nal and 10 copies of these petitions to
a party wishes the Board to have the vacate must be filed with the Board.
opportunity to consider a petition to (7) Petitions to stay. (i) The filing of a
reopen before the abandonment or dis- petition to reopen shall not stay the ef-
continuance authorization becomes effect of a prior action. An original and
fective, it must file its petition within 10 copies of any petitions to stay must
15 days after the administratively final be filed with the Board.
decision is served together with a re- (ii) A petition to reopen an adminis-
quest for a stay of effectiveness under tratively final action may be accom-
paragraph (e)(7) of this section. If such panied by a petition for a stay of the
a petition to reopen and stay request is effectiveness of the abandonment or
received within that 15-day period, any discontinuance. As provided in para-
replies to the petition to reopen must graph (e)(2) of this section, a petition
be filed no later than 25 days after the to reopen must be accompanied by a
date the decision is served, and any stay request if the party wishes the
reply to the stay request must reach Board to have the opportunity to con-
the Board no later than 5 days after the sider the petition to reopen before the
stay request is filed. abandonment or discontinuance au-
(ii) The Board will grant a petition to thorization becomes final.
reopen only upon a showing that the (iii) A party may petition for a stay
action would be affected materially be- of the effectiveness of abandonment or
cause of new evidence, changed cir- discontinuance authorization pending a
cumstances, or material error. request for judicial review. The reasons
(3) Form. A petition to reopen and for the desired relief shall be stated in
any reply shall not exceed 30 pages in the petition, and the petition shall be
length, including the index of subject filed not less than 15 days prior to the
matter, argument, and appendices or effective date of the abandonment au-
other attachments. thorization. No reply need be filed. If a
(4) Petitions to reopen administratively party elects to file a reply, the reply
final actions. A person may file a peti- must reach the Board no later than 5
tion to reopen any administratively days after the petition is filed.
final action of the Board. A petition to
reopen shall state in detail the respects [61 FR 67883, Dec. 24, 1996, as amended at 62
FR 34669, June 27, 1997]
in which the proceeding involves mate-
rial error, new evidence, or substan- § 1152.26 Board determination under
tially changed circumstances. An origi- 49 U.S.C. 10903.
nal and 10 copies of such petitions must
be filed with the Board. (a) The following schedule shall gov-
(5) Judicial review. (i) Parties may ern the process for Board consideration
seek judicial review of a Board action and decisions in abandonment and dis-
in an abandonment or discontinuance continuance application proceedings
proceeding on the day the action of the from the time the application is filed
Board becomes final. until the time of the Board’s decision
(ii) If a petition seeking reopening is on the merits:
filed under this section, before or after Day 0—Application filed, including appli-
a petition seeking judicial review is cant’s case in chief.
filed with the courts, the Board will Day 10—Due date for oral hearing requests.
act upon the petition after advising the Day 15—Due date for Board decision on oral
court of its pendency unless action hearing requests.
might interfere with the court’s juris- Day 20—Due date for Notice of Application
diction. to be published in the FEDERAL REGISTER.
(6) Petitions to vacate. In the event of Day 45—Due date for protests and comments,
including opposition case in chief, and for
procedural defects (such as the loss of a
public use and trail use requests.
properly filed protest, the failure of the Day 60—Due date for applicant’s reply to op-
applicant to afford the public the req- position case and for applicant’s response
uisite notice of its proposed abandon- to trail use requests.
ment, etc.), the Board will entertain Day 110—Due date for service of decision on
petitions to vacate the abandonment or the merits.
213
§ 1152.27 49 CFR Ch. X (10–1–07 Edition)
Day 120—Due date for offers of financial as- the net liquidation value of the line,
sistance, except that if an application has with supporting data reflecting avail-
been granted by decision issued sooner able real estate appraisals, assessments
than Day 110, the offer of financial assist-
of the quality and quantity of track
ance shall be due 10 days after service of
the decision granting the application. materials in a line, and removal cost
estimates (including the cost of trans-
(b) If an application for abandonment porting removed materials to point of
or discontinuance is filed by a bank- sale or point of storage for relay use),
rupt railroad, the Board shall base its and, if an offer of subsidy is con-
decision (Report to the Bankruptcy templated, an estimate of the cost of
Court) on the application and any re- rehabilitating the line to Federal Rail-
sponses to the application that are road Administration class 1 Safety
filed. In each such instance, the Board Standards (49 CFR part 213).
shall establish a reasonable period of (b) Federal Register notice—(1) Aban-
time for filing responses to the applica- donment and discontinuance applications.
tion so that public input can be in- The FEDERAL REGISTER publication,
cluded in the Board’s decision (Report) which gives notice of the filing of the
and so that the Board will be able to application 20 days after the applica-
meet a deadline imposed or requested tion is filed, will serve as notice to per-
by the Bankruptcy Court. Because sons intending to offer financial assist-
Board action on abandonment applica- ance to assure continued rail service
tions by bankrupt railroads is advisory under 49 U.S.C. 10904 and these regula-
only, no environmental filings or anal- tions as they relate to abandonment
ysis is necessary. See 49 CFR 1105.5(c). and discontinuance applications. Offers
[61 FR 67883, Dec. 24, 1996, as amended at 62 of financial assistance will be due 120
FR 34670, June 27, 1997] days after the application is filed or 10
days after a decision granting the ap-
§ 1152.27 Financial assistance proce- plication is served, whichever occurs
dures. sooner.
(a) Provision of information. An appli- (2) Exemption proceedings. (i) If a peti-
cant must provide promptly upon re- tion for individual exemption from the
quest to a party considering an offer of prior approval requirements of 49
financial assistance to continue exist- U.S.C. 10903 is filed with the Board for
ing rail service, and concurrently to abandonment or discontinuance of a
the Board, the following: line of railroad, the Board will publish
(1)(i) In an application or petition for notice of the petition in the FEDERAL
exemption proceeding, an estimate of the REGISTER within 20 days of the filing of
annual subsidy and minimum purchase the petition. The FEDERAL REGISTER
price required to keep the line or a por- publication will serve as notice to per-
tion of the line in operation; sons with a potential interest in pro-
(ii) In a class exemption proceeding, ei- viding financial assistance to assure
ther an estimate of the annual subsidy continued rail service on the line under
or the minimum purchase price, de- 49 U.S.C. 10904 and these regulations as
pending upon the type of financial as- they relate to exempt abandonments
sistance indicated in the potential and discontinuances. Offers of financial
offeror’s formal expression of intent assistance will be due 120 days after the
submitted under paragraph (c)(2)(i) of filing of the petition for exemption or
this section; 10 days after service of a Board deci-
(2) Its most recent reports on the sion granting the exemption, which-
physical condition of the involved line; ever occurs sooner.
and (ii) If a notice of exemption is filed
(3) Traffic, revenue, and other data under the class exemption, the Board
necessary to determine the amount of will publish notice of the exemption in
annual financial assistance that would the FEDERAL REGISTER within 20 days
be required to continue rail transpor- of filing. The FEDERAL REGISTER publi-
tation over that part of the railroad cation will serve as notice to persons
line. In an exemption proceeding, the with a potential interest in providing
data to be provided must at a min- financial assistance to assure contin-
imum include the carrier’s estimate of ued rail service on the line under 49
214
U.S.C. 10904 and these regulations as Board will issue a decision on petitions
they relate to exempt abandonments within 15 days after service of the deci-
and discontinuances. Offers of financial sion granting the application or peti-
assistance will be due no later than 30 tion for exemption.
days after the date of the FEDERAL (ii) Contents of offer. The offeror shall
REGISTER publication giving notice of set forth its offer in detail. The offer
the exemption. must:
(c) Submission of financial assistance (A) Identify the line, or the portion
offer—(1) Abandonment and discontinu- of the line, in question;
ance applications and petitions for exemp- (B) Demonstrate that the offeror is
tion—(i) Service and filing. An offeror financially responsible; that is, that it
must serve its offer of assistance on has or within a reasonable time will
the carrier owning and operating the have the financial resources to fulfill
line and all parties to the abandonment proposed contractual obligations; gov-
or discontinuance application or ex- ernmental entities will be presumed to
emption proceeding. The offer must be be financially responsible; and
filed concurrently with the Secretary, (C) Explain the disparity between the
Surface Transportation Board, Wash- offeror’s purchase price or subsidy if it
ington, DC 20423. is less than the carrier’s estimate
(A) An offer may be filed and served under paragraph (a)(1) of this section,
at any time after the filing of the aban- and explain how the offer of subsidy or
donment or discontinuance application purchase is calculated.
or petition for exemption. Once a deci- (2) Class exemption proceedings—(i) Ex-
sion is served granting an application pression of intent to file offer. Persons
or petition for exemption, however, the with a potential interest in providing
Board must be notified that an offer financial assistance must, no later
has previously been submitted. than 10 days after the FEDERAL REG-
(B) An offer, or notification of a pre- ISTER publication described in para-
viously filed offer, must be filed and graph (b)(2)(ii) of this section, submit
served no later than 10 days after serv- to the carrier and the Board a formal
ice of the Board decision granting the expression of their intent to file an
application or petition for exemption. offer of financial assistance, indicating
This filing and service is subject to the the type of financial assistance they
requirements of 49 CFR 1152.25 (d)(1), wish to provide (i.e., subsidy or pur-
(d)(2), and (d)(4). chase). Such submissions are subject to
(C) If, after a bona fide request, appli- the filing requirements of § 1152.25(d)(1)
cant or petitioner has failed to provide through (d)(3). Submission of a formal
a potential offeror promptly with the expression of intent under this sub-
information required under paragraph section will automatically stay the ef-
(a) of this section and if that informa- fective date of the notice of exemption
tion is not contained in the application under the class exemption for 40 days
or petition, the Board will entertain (normally, this will be 10 days beyond
petitions to toll the 10-day period for the date stated in the FEDERAL REG-
submitting offers of financial assist- ISTER publication).
ance under paragraph (c)(1) of this sec- (ii) Service and filing. An offeror must
tion. Petitions must be filed with the serve its offer of assistance on the car-
Board within 5 days after service of the rier that instituted the exempt filing
decision granting the application or pe- as well as all other parties to the pro-
tition for exemption. Petitions should ceeding. The offer must be filed concur-
include copies of the prior written re- rently with the Secretary, Surface
quest for information or an accurate Transportation Board, Washington, DC
outline of the specific information that 20423.
was orally requested. Replies to these (A) An offer may be filed and served
petitions must be filed within 10 days at any time after the filing of the no-
after service of the decision granting tice of exemption. Once a notice of ex-
the application or petition for exemp- emption is published in the FEDERAL
tion. These petitions and replies must REGISTER, however, the Board must be
be filed on or before their actual due notified that an offer has previously
date under 49 CFR 1152.25(d)(4). The been submitted.
215
§ 1152.27 49 CFR Ch. X (10–1–07 Edition)
(B) An offer, or notification of a pre- section indicating an intent to offer fi-

viously filed offer, must be filed and nancial assistance, or upon receipt by
served no later than 30 days after the the carrier of an offer of financial as-
FEDERAL REGISTER publication de- sistance, whichever occurs earlier, the
scribed in paragraph (b)(2)(ii) of this carrier must make available to that
section. This filing and service is sub- party or offeror the records, accounts,
ject to the requirements of 49 CFR appraisals, working papers, and other
1152.25 (d)(1), (d)(2), and (d)(4). documents used in preparing Exhibit 1
(C) If, after a bona fide request, appli- (§ 1152.36) or, if an exemption pro-
cant has failed to provide a potential ceeding, those documents that would
offeror promptly with the information have been used in preparing Exhibit 1
required under paragraph (a) of this had an abandonment or discontinuance
section and if that information is not application been filed, or other records,
contained in the notice of exemption, reports, and data in the possession of
the Board will entertain petitions to the carrier seeking the exemption that
toll the 30-day period for submitting of- provide comparable data. These docu-
fers of financial assistance under para- ments shall be made available during
graph (c)(2) of this section. Petitions regular business hours at a time and
must be filed with the Board within 25 place mutually agreeable to the par-
days after publication in the FEDERAL ties.
REGISTER (described in paragraph (e) Review of offers—(1) Abandonment
(b)(2)(ii) of this section). Petitions and discontinuance applications. The
should include copies of the prior writ- Board will review each offer submitted
ten request for information or an accu- to determine if a financially respon-
rate outline of the specific information sible person has offered assistance. If
that was orally requested. Replies to that criterion is met, the Board will
these petitions must be filed within 30 issue a decision postponing the effec-
days after the publication. These petitive date of the authorization for aban-
tions and replies must be filed on or be- donment or discontinuance. This deci-
fore their actual due date under 49 CFR sion will be issued within 15 days of the
1152.25(d)(4). The Board will issue a de- service of the decision granting the ap-
cision on petitions to toll the offer pe- plication (or within 5 days after the
riod within 35 days after publication. offer is filed if the time for filing has
(D) Upon receipt of a formal expres- been tolled under paragraph (c)(1)(i)(C)
sion of intent to file an offer under of this section, or within 5 days after
paragraph (c)(2)(i) of this section, the expiration of the 120 day (4 month) pe-
rail carrier applicant may advise the riod described in 49 U.S.C. 10904, if that
Board and the potential offeror that occurs first). Under the delegation of
additional time is needed to develop authority at § 1011.8, the Director of the
the information required under para- Office of Proceedings will make the ini-
graph (a) of this section. Applicant tial determination whether offers of fi-
shall expressly indicate the amount of nancial assistance satisfy the stand-
time it considers necessary (not to ex- ards of 49 U.S.C. 10904(d) for purposes of
ceed 60 days) to develop and submit the instituting negotiations. Appeals of
required information to the potential initial decisions determining whether
offeror. For the duration of the time offers of financial assistance satisfy
period so indicated by the applicant, the standards of 49 U.S.C. 10904(d) for
the 30-day period for submitting offers purposes of instituting negotiations
of financial assistance under paragraph will be acted upon by the entire Board
(c)(2) of this section shall be tolled pursuant to 49 CFR 1011.2(a)(7).
without formal Board action. (2) Exemption proceedings. The Board
(iii) Contents of offer. The offeror will review each offer submitted to de-
shall set forth its offer in detail. The termine if a financially responsible
offer must meet the requirements of person has offered assistance. If that
paragraph (c)(1)(ii) of this section. criterion is met, the Board will post-
(d) Access to documents. Upon receipt pone the effective date either of the de-
by the carrier of a written comment cision granting a petition for indi-
under § 1152.25 or a formal expression of vidual exemption or the notice of ex-
intent under paragraph (c)(2)(i) of this emption under the class exemption and
216
partially revoke the exemption or (in agree on the amount or terms of sub-
the case of a class exemption) the no- sidy or purchase, either party may re-
tice of exemption to the extent it ap- quest the Board to establish the condi-
plies to 49 U.S.C. 10904. The decision to tions and amount of compensation.
postpone and partially revoke will be This request must be filed with the
issued within 15 days of the service Board within 30 days after the offer is
date of a decision granting a petition made and served concurrently by over-
for exemption, or within 35 days of the night mail on all parties to the pro-
FEDERAL REGISTER publication de- ceeding. The request must be accom-
scribed in paragraph (b)(2)(ii) of this panied by the appropriate fee, codified
section (or within 5 days after the offer at 49 CFR 1002.2(f)(26). Replies will be
is filed if the time for filing has been due 5 days later.
tolled under paragraph (c)(1)(i)(C) or (2) If no agreement is reached within
(c)(2)(ii) (C) or (D) of this section). 30 days after the offer of purchase or
Under the delegation of authority at subsidy is made, and no request is
§ 1011.8, the Director of the Office of made to the Board to set the condi-
Proceedings will make the initial de- tions and amount of compensation
termination whether offers of financial under paragraph (g)(1) of this section,
assistance satisfy the standards of 49 the Board will serve a decision
U.S.C. 10904(d) for purposes of partial vacating the prior decision, which post-
revocation and institution of negotia- poned the effective date of the decision
tions. Appeals of initial decisions de- granting the application, the decision
termining whether offers of financial granting the exemption, or the notice
assistance satisfy the standards of 49 of exemption and, which, if applicable,
U.S.C. 10904(d) for purposes of partial partially revoked either the decision
revocation and institution of negotia- granting the exemption or (in the case
tions will be acted upon by the entire of a class exemption) the notice of ex-
Board pursuant to 49 CFR 1011.2(a)(7). emption. The Board will issue the deci-
(f) Agreement on financial assistance. sion to vacate within 10 days of the due
(1) If the carrier and a person offering date for requesting the Board to set the
financial assistance enter into a sub- conditions and amount of compensa-
sidy agreement designed to provide for tion, and the Board will make the deci-
continued rail service, the Board will sion to vacate effective on its date of
postpone the effective date of the aban- service.
donment or discontinuance. If a deci- (h) Request to establish conditions and
sion granting a petition for individual compensation for financial assistance. (1)
exemption, or a notice of exemption, If the Board is requested to establish
has been issued, the Board will post- conditions and compensation for finan-
pone the effective date of the decision cial assistance under paragraph (g)(1)
or notice of exemption. The postpone- of this section, the Board will issue a
ment will be for as long as the subsidy decision within 30 days after the re-
agreement is in effect. quest is due.
(2) If the carrier and a person offering (2) If the applicant receives multiple
to purchase a line enter into a pur- offers of financial assistance, requests
chase agreement which will result in to establish conditions and compensa-
continued rail service, the Board will tion will not be permitted before the
approve the transaction and dismiss applicant selects the offeror with
the application for abandonment or whom it wishes to transact business.
discontinuance, or the petition for ex- (See paragraph (l)(1) of this section.)
emption or notice of exemption. Board (3) A party requesting the Board to
approval is not required under 49 U.S.C. establish conditions and compensation
10901, 10902, or 11323 for the parties to for financial assistance must, within
consummate the transaction or for the the time period set forth in paragraph
purchaser to institute service and oper- (h)(4) of this section, provide its case in
ate as a railroad subject to 49 U.S.C. chief, including reasons why its esti-
10501(a). mates are correct and the other negoti-
(g) Failure to reach agreement on fi- ating party’s estimates are incorrect,
nancial assistance. (1) If the carrier and points of agreement and points of dis-
a financially responsible person fail to agreement between the negotiating
217
§ 1152.27 49 CFR Ch. X (10–1–07 Edition)
parties, and evidence substantiating partially revoked the exemption or (in

these allegations. The offeror has the the case of a class exemption) the no-
burden of proof as to all issues in dis- tice of exemption (unless other offers
pute. are being considered under paragraph
(4) The offeror must submit all evi- (l) of this section). The decision to va-
dence and information supporting the cate will be effective on its date of
terms it seeks within 30 days after the service.
offer is made. The carrier’s reply to (i) Substitution of purchasers and dis-
this evidence and support for the terms position after sale. (1) Prior to the con-
it seeks are due within 35 days after summation of a purchase under this
the offer is made. No rebuttal evidence section, an offeror may substitute its
will be permitted and evidence and incorporate affiliate as the purchaser
formation submitted after these dates under an agreement, provided the
will be rejected. Board has determined either:
(5) If requested, the Board will deter- (i) The original offeror has guaran-
mine the amount and terms of subsidy teed the financial responsibility of its
based on the avoidable cost of pro- affiliate; or
viding continued rail transportation, (ii) The affiliate has demonstrated fi-
plus a reasonable return on the value nancial responsibility in its own right.
of the line. Under 49 U.S.C. (2) Except as provided in paragraph
10904(f)(4)(B), no subsidy arrangement (i)(3) of this section, a purchaser under
approved under section 10904 shall re- this section may not:
main in effect for more than one year (i) Transfer the line or discontinue
unless mutually agreed by the parties. service over the line prior to the end of
(6) If requested, the Board will deter- the second year after consummation of
mine the price and other terms of sale. the original sale under these provi-
The Board will not set a price below sions; or
the fair market value of the line (in- (ii) Transfer the line, except to the
cluding, unless otherwise agreed upon carrier from whom the line was pur-
by the parties, all facilities on the line chased, prior to the end of the fifth
or portion necessary to provide effec- year after consummation.
tive transportation services). Fair mar- (3) Paragraph (i)(2) of this section
ket value equals constitutional min- does not preclude a purchaser under
imum value which is the greater of the this section from transferring the line
net liquidation value of the line or the to a corporate affiliate following the
going concern value of the line. The consummation of the original sale.
constitutional minimum value is com- Prior Board approval of the affiliate’s
puted without regard to labor protec- acquisition and operation, however, is
tion costs. required under 49 U.S.C. 10901, 10902, or
(7) Within 10 days of the service date 11323. A corporate affiliate acquiring a
of the Board’s decision, the offeror line under this section is prohibited
must accept or reject the Board’s from discontinuing service over the
terms and conditions with a written line or transferring the line to a party
notification to the Board and all par- that is not a corporate affiliate during
ties to the proceeding. If the offeror ac- the time periods prescribed in para-
cepts the terms and conditions set by graph (i)(2) of this section.
the Board, the Board’s decision is bind- (j) Discontinuance of subsidy. A sub-
ing on both parties. If the offeror with- sidizer may discontinue a subsidy
draws its offer or does not accept the under this section by giving 60 days no-
terms and conditions set by the Board tice of the discontinuance to the appli-
with a timely written notification, the cant and all other parties to the pro-
Board will serve, within 20 days after ceeding. Unless another financially re-
the service date of the Board decision sponsible party enters into a subsidy
setting the terms and conditions, a de- agreement as beneficial to the carrier
cision vacating the prior decision, as the discontinued subsidy agreement
which postponed the effective date of in a situation where the 1-year time
either the decision granting the appli- limit of 49 U.S.C. 10904(f)(4)(B) has not
cation or exemption or the notice of yet run, the carrier may by filing a re-
exemption, and which, if applicable, quest with the Board and serving the
218
request on all parties to the abandon- and amount of compensation, any

ment or exemption proceeding obtain a other financially responsible offeror
decision vacating the decision post- may request the Board to establish the
poning the effective date of either the conditions and amount of compensa-
decision granting the application, or tion. This request must be filed at the
petition for individual exemption, or Board within 50 days of the service
the notice of exemption. The Board date of the decision granting the appli-
will issue a decision to vacate within 10 cation or petition for exemption and
days after the filing and service of the served concurrently on all parties to
request. This decision to vacate will be the proceeding. If no other request is
effective on its service date. filed, the Board will issue a decision
(k) Default on agreement. If any party authorizing abandonment or dis-
defaults on its obligations under a fi- continuance within 60 days of the serv-
nancial assistance agreement, any ice date of the decision granting the
other party to the agreement may application or petition for exemption.
promptly inform the Board of that de- This decision will be effective on the
fault. Upon notification, the Board will date of service.
take appropriate action. (ii) Class exemption proceedings. If the
(l) Multiple offers of financial assist- carrier seeking the exemption has re-
ance. (1) If an applicant receives more ceived multiple offers of financial as-
than one offer to purchase or subsidize sistance from persons found to be fi-
the line from offerors found to be financially responsible and has selected
nancially responsible, the applicant the offeror with whom it wishes to
must select the offeror from those with transact business, the negotiating par-
whom it wishes to transact business. In ties shall complete the sale or subsidy
abandonment and discontinuance ap- agreement or request the Board to es-
plication and petition for exemption tablish the conditions and amount of
proceedings within 25 days after service compensation within 60 days after the
of the decision granting the applica- FEDERAL REGISTER publication de-
tion or petition for exemption, and in scribed in paragraph (b)(2)(ii) of this
class exemption proceedings within 45 section. A request to the Board to set
days after the FEDERAL REGISTER pub- terms and conditions must be served
lication described in paragraph concurrently on all parties to the pro-
(b)(2)(ii) of this section, the railroad ceeding. If no agreement on subsidy or
must: sale is reached within the 60-day period
(i) File a written notification of its and the Board has not been requested
selection with the Board; and to establish the conditions and amount
(ii) Serve a copy of the notification of compensation, any other financially
on all parties to the proceeding. responsible offeror may request the
(2)(i) Abandonment and discontinuance Board to establish the conditions and
applications and petitions for exemption. amount of compensation. This request
If the applicant has received multiple must be filed at the Board within 70
offers of financial assistance from per- days of the FEDERAL REGISTER publica-
sons found to be financially responsible tion described in paragraph (b)(2)(ii) of
and has selected the offeror with whom this section and served concurrently on
it wishes to transact business, the ne- all parties to the proceeding. If no
gotiating parties shall complete the other request is filed, the Board will
sale or subsidy agreement or request issue a decision vacating the decision
the Board to establish the conditions postponing the effective date of the no-
and amount of compensation within 40 tice of exemption within 80 days of the
days after the service date of the deci- FEDERAL REGISTER publication de-
sion granting the application or peti- scribed in paragraph (b)(2)(ii) of this
tion for exemption. A request to the section. The decision to vacate will be
Board to set terms and conditions must effective on the date of service.
be served concurrently on all parties to (3) If the Board has established the
the proceeding. If no agreement on sub- conditions and amount of compensa-
sidy or sale is reached within the 40- tion, and the original offer is with-
day period and the Board has not been drawn under paragraph (h)(7) of this
requested to establish the conditions section, any other offeror found to be
219
§ 1152.28 49 CFR Ch. X (10–1–07 Edition)
financially responsible may accept the notice of summary abandonment or

Board’s decision within 20 days after discontinuance will be published by the
the service date of the Board’s decision Board in the FEDERAL REGISTER within
setting terms and conditions. If the de- 20 days of filing. Paragraph (b)(2)(ii) of
cision is accepted by another such of- this section. Expressions of intent to
feror, the Board will require the appli- file an offer must be filed no later than
cant to accept the terms incorporated 10 days after the FEDERAL REGISTER
in the Board’s decision. publication. Paragraph (c)(2)(i) of this
(m) Additional time for filing. Notwith- section. An offer must be filed within
standing the deadlines previously set 30 days of the FEDERAL REGISTER publi-
forth in part 1152 for filing an offer of cation. Paragraphs (b)(2)(ii) and
financial assistance, parties that can (c)(2)(ii)(B) of this section. The Board
show that they would be materially will review offers to determine if a fi-
prejudiced by having less than the full nancially responsible person has of-
4 months for filing an offer of financial fered assistance. If this criterion is
assistance provided in 49 U.S.C. 10904(c) met, the Board will postpone the effec-
for application proceedings may seek tive date of the summary abandonment
relief under 49 CFR part 1117. (but not the discontinuance) within 35
(n) Special provisions for summary dis- days of the FEDERAL REGISTER publica-
continuance and abandonment of lines tion. Paragraph (e)(2) of this section. If
not part of the Final System Plan. (1) the carrier and financially responsible
Board authorization is not needed for
person fail to agree on the amount or
the cessation of service on a line of
terms of subsidy or purchase, either
railroad formerly in reorganization
party may request the Board to estab-
that was not included in the Final Sys-
lish the conditions and amount of the
tem Plan (Plan) under the Regional
compensation. This request must be
Rail Reorganization Act of 1973, 45
U.S.C. 701 et seq., as amended by the filed within 30 days after the offer of
Railroad Revitalization and Regu- purchase or subsidy is made, and the
latory Reform Act of 1976, if the line Board will issue a decision within 30
has been continuously subsidized since days after the request is due. Para-
the inception of the Plan. To provide graphs (g)(1) and (h)(1) of this section.
an opportunity for rail service continu- (2) Where a designated operator is
ation through offers of financial assist- being used, it shall be paid a reasonable
ance, however, the owner of the line management fee. If the parties cannot
must give not less than 60 days’ notice agree on this fee, it shall be four and
of a discontinuance, and beginning 120 one-half percent of the total annual
days after discontinuance, not less revenues attributable to the branch.
than 30 days’ notice of abandonment. [61 FR 67883, Dec. 24, 1996, as amended at 63
Designated operators need only comply FR 28290, May 22, 1998]
with the notice requirements of
§ 1150.11 of this title. In instances of § 1152.28 Public use procedures.
discontinuance by a designated oper-
(a)(1) If the Board finds that the
ator, the line owner is not obligated to
present or future public convenience
operate the line. Notice is to be sent by
and necessity require or permit aban-
the line owner to the Board, the gov-
donment or discontinuance, the Board
ernor and transportation agencies and
the government of each political sub- will determine if the involved rail
division of each state in which such properties are appropriate for use for
rail properties are located and to each other public purposes.
shipper who has used the rail service (2) A request for a public use condi-
during the previous 12 months. The tion under 49 U.S.C. 10905 must be in
Board will generally apply the OFA writing and set forth:
procedures in this section (49 CFR (i) The condition sought;
1152.27) for class exemptions to sum- (ii) The public importance of the con-
mary abandonment and discontinuance dition;
notices (except that the Board will not (iii) The period of time for which the
postpone the effective date of a sum- condition would be effective (up to the
mary discontinuance). For example, statutory maximum of 180 days); and
220
(iv) Justification for the imposition or a petition (in an exemption pro-

of the time period. A copy of the re- ceeding) indicating that it would like
quest shall be mailed to the applicant. to do so. The comment/request or peti-
(3) For applications filed under part tion must include:
1152, subpart C, a request for a public (1) A map depicting, and an accurate
use condition must be filed not more description of, the right-of-way, or por-
than 45 days after the application is tion thereof (including mileposts), pro-
filed. A decision on the public use reposed to be acquired or used;
quest will be issued by the Board or the (2) A statement indicating the user’s
Director of the Office of Proceedings willingness to assume full responsi-
prior to the effective date of the aban- bility: for managing the right-of-way;
donment. For abandonment exemp- for any legal liability arising out of the
tions under part 1152, subpart F or ex- use of the right-of-way (unless the user
emptions granted on the basis of an in- is immune from liability, in which case
dividual petition for exemption filed it need only indemnify the railroad
under 49 U.S.C. 10502, a request for a against any potential liability); and for
public use condition must be filed not the payment of all taxes assessed
more than 20 days from the date of against the right-of-way; and
publication of the notice of exemption (3) An acknowledgment that interim
in the FEDERAL REGISTER in the case of trail use is subject to the user’s con-
class exemptions under subpart F of tinuing to meet its responsibilities de-
this part, or not more than 20 days scribed in paragraph (a)(2) of this sec-
from the date of publication of notice tion, and subject to possible future re-
of the filing of the petition for indi- construction and reactivation of the
vidual exemption in the FEDERAL REG- right-of-way for rail service. The state-
ISTER.
ment must be in the following form:
(b) If the Board finds that the rail
properties are appropriate for use for Statement of Willingness To Assume Financial
other public purposes, the railroad may Responsibility
dispose of the rail properties only In order to establish interim trail use and
under the conditions described in the rail banking under 16 U.S.C. 1247(d) and 49
Board’s decision. The conditions im- CFR 1152.29, lllll (Interim Trail User) is
posed by the Board may include a pro- willing to assume full responsibility for
hibition against the disposal of the rail management of, for any legal liability aris-
assets for a period of not more than 180 ing out of the transfer or use of (unless the
days from the effective date of the de- user is immune from liability, in which case
it need only indemnify the railroad against
cision authorizing the abandonment or any potential liability), and for the payment
discontinuance, unless the properties of any and all taxes that may be levied or as-
have first been offered, on reasonable sessed against the right-of-way owned by
terms, for sale for public purposes. This lllll (Railroad) and operated by
period will run concurrently with any lllll (Railroad). The property, known as
other postponements. Jurisdiction to lllll (Name of Branch Line), extends
impose such conditions expires after from railroad milepost lllll near
180 days from the effective date of the lllll (Station Name), to railroad mile-
post lllll, near lllll (Station
decision authorizing the abandonment name), a distance of lllll miles in
or discontinuance. [County(ies), (State(s)]. The right-of-way is
part of a line of railroad proposed for aban-
§ 1152.29 Prospective use of rights-of- donment in Docket No. STB AB-lll (Sub-
way for interim trail use and rail No. lll).
banking. A map of the property depicting the right-
(a) If any state, political subdivision, of-way is attached.
or qualified private organization is in- lll (Interim Trail User) acknowledges
terested in acquiring or using a right- that use of the right-of-way is subject to the
of-way of a rail line proposed to be user’s continuing to meet its responsibilities
described above and subject to possible fu-
abandoned for interim trail use and
ture reconstruction and reactivation of the
rail banking pursuant to 16 U.S.C. right-of-way for rail service. A copy of this
1247(d), it must file a comment or oth- statement is being served on the railroad(s)
erwise include a request in its filing (in on the same date it is being served on the
a regulated abandonment proceeding) Board.
221
§ 1152.29 49 CFR Ch. X (10–1–07 Edition)
(b)(1) In abandonment application the interim trail user for that portion
proceedings under 49 U.S.C. 10903, in- of the right-of-way to be covered by the
terim trail use statements are due agreement. The CITU will: Permit the
within the 45-day protest and comment railroad to discontinue service, cancel
period following the date the abandon- any applicable tariffs, and salvage
ment application is filed. See track and material consistent with in-
§ 1152.25(c). The applicant carrier’s re- terim trail use and rail banking, as
sponse notifying the Board whether long as it is consistent with any other
and with whom it intends to negotiate Board order, 30 days after the date it is
a trail use agreement is due within 15 issued (10 days after issuance in
days after the close of the protest and NERSA proceedings); and permit the
comment period (i.e., 60 days after the railroad to fully abandon the line if no
abandonment application is filed). trail use agreement is reached 180 days
(i) In every proceeding where a Trails after it is issued, subject to appropriate
Act request is made, the Board will de- conditions, including labor protection
termine whether the Trails Act is ap- and environmental matters.
plicable. (2) The CITU will indicate that any
(ii) If the Trails Act is not applicable interim trail use is subject to future
because of failure to comply with restoration of rail service, and subject
§ 1152.29(a), or is applicable but the car- to the user continuing to meet the fi-
rier either does not intend to negotiate nancial obligations for the right-of-
an agreement, or does not timely no- way. The CITU will also provide that,
tify the Board of its intention to nego- if the user intends to terminate trail
tiate, a decision on the merits will be use, it must send the Board a copy of
issued and no Certificate of Interim the CITU and request that it be va-
Trail Use or Abandonment (CITU) will cated on a specified date. The Board
be issued. If the carrier is willing to ne- will reopen the abandonment pro-
gotiate an agreement, and the public ceeding, vacate the CITU, and issue a
convenience and necessity permit decision permitting immediate aban-
abandonment, the Board will issue a donment for the involved portion of the
CITU. right-of-way. Copies of the decision
(2) In exemption proceedings, a peti- will be sent to:
tion containing an interim trail use (i) The abandonment applicant;
statement is due within 10 days after (ii) The owner of the right-of-way;
the date the notice of exemption is and
published in the FEDERAL REGISTER in (iii) The current trail user.
the case of a class exemption and with- (3) If an application to construct and
in 20 days after publication in the FED- operate a rail line over the right-of-
ERAL REGISTER of the notice of filing of way is authorized under 49 U.S.C. 10901
a petition for exemption in the case of and 49 CFR part 1150, or exempted
a petition for exemption. When an in- under 49 U.S.C. 10502, then the CITU
terim trail use comment(s) or peti- will be vacated accordingly.
tion(s) is filed in an exemption pro- (d) Exempt abandonment proceedings.
ceeding, the railroad’s reply to the (1) If continued rail service does not
Board (indicating whether and with occur under 49 U.S.C. 10904 and § 1152.27
whom it intends to negotiate an agree- and a railroad agrees to negotiate an
ment) is due within 10 days after the interim trail use/rail banking agree-
date a petition requesting interim trail ment, then the Board will issue a No-
use is filed. tice of Interim Trail Use or Abandon-
(3) Late-filed trail use statements ment (NITU) to the railroad and to the
must be supported by a statement interim trail user for the portion of the
showing good cause for late filing. right-of-way to be covered by the
(c) Regular and NERSA abandonment agreement. The NITU will: permit the
proceedings. (1) If continued rail service railroad to discontinue service, cancel
does not occur pursuant to 49 U.S.C. any applicable tariffs, and salvage
10904 and § 1152.27, and a railroad agrees track and materials, consistent with
to negotiate an interim trail use/rail interim trail use and rail banking, as
banking agreement, then the Board long as it is consistent with any other
will issue a CITU to the railroad and to Board order, 30 days after the date it is
222
issued; and permit the railroad to fully under 49 U.S.C. 10903, or by individual
abandon the line if no agreement is or class exemption issued under 49
reached 180 days after it is issued, sub- U.S.C. 10502) shall file a notice of con-
ject to appropriate conditions, includ- summation with the Board to signify
ing labor protection and environmental that it has exercised the authority
matters. granted and fully abandoned the line
(2) The NITU will indicate that in- (e.g., discontinued operations, salvaged
terim trail use is subject to future res- the track, canceled tariffs, and intends
toration of rail service, and subject to that the property be removed from the
the user continuing to meet the finan- interstate rail network). The notice
cial obligations for the right-of-way. shall provide the name of the STB pro-
The NITU will also provide that, if the
ceeding and its docket number, a brief
user intends to terminate trail use, it
description of the line, and a statement
must send the Board a copy of the
NITU and request that it be vacated on that the railroad has consummated, or
a specific date. The Board will reopen fully exercised, the abandonment au-
the exemption proceeding, vacate the thority on a certain date. The notice
NITU, and issue a decision reinstating shall be filed within 1 year of the serv-
the exemption for that portion of the ice date of the decision permitting the
right-of-way. Copies of the decision abandonment (assuming that the rail-
will be sent to: road intends to consummate the aban-
(i) The abandonment exemption ap- donment). Notices will be deemed con-
plicant; clusive on the point of consummation
(ii) The owner of the right-of-way; if there are no legal or regulatory bar-
and riers to consummation (such as out-
(iii) The current trail user. standing conditions, including Trails
(3) If an application to construct and Act conditions). If, after 1 year from
operate a rail line over the right-of- the date of service of a decision permit-
way is authorized under 49 U.S.C. 10901 ting abandonment, consummation has
and 49 CFR part 1150, or exempted not been effected by the railroad’s fil-
under 49 U.S.C. 10502, then the NITU ing of a notice of consummation, and
will be vacated accordingly. there are no legal or regulatory bar-
(e)(1) Where late-filed trail use state- riers to consummation, the authority
ments are accepted, the Director (or to abandon will automatically expire.
designee) will telephone the railroad to
In that event, a new proceeding would
determine whether abandonment has
have to be instituted if the railroad
been consummated and, if not, whether
wants to abandon the line. Copies of
the railroad is willing to negotiate an
interim trail use agreement. The rail- the railroad’s notice of consummation
road shall confirm, in writing, its re- shall be filed with the Secretary of the
sponse, within 5 days. If abandonment Board. In addition, the notice of con-
has been consummated, the trail use summation shall be sent to the State
request will be dismissed. If abandon- Public Service Commission (or equiva-
ment has not been consummated but lent agency) of every state through
the railroad refuses to negotiate, then which the line passes. If, however, any
trail use will be denied. If abandon- legal or regulatory barrier to con-
ment has not been consummated and summation exists at the end of the 1-
the railroad is willing to negotiate, the year time period, the notice of con-
abandonment proceeding will be re- summation must be filed not later than
opened, the abandonment decision 60 days after satisfaction, expiration or
granting an application, petition for removal of the legal or regulatory bar-
exemption or notice of exemption will rier. For good cause shown, a railroad
be vacated, and an appropriate CITU or may file a request for an extension of
NITU will be issued. The effective date time to file a notice so long as it does
of the CITU or NITU will be the same so sufficiently in advance of the expira-
date as the vacated decision or notice. tion of the deadline for notifying the
(2) A railroad that receives authority Board of consummation to allow for
from the Board to abandon a line (in a
timely processing.
regulated abandonment proceeding
223
§ 1152.30 49 CFR Ch. X (10–1–07 Edition)
(f)(1) When a trail user intends to ter- the extent to which the avoidable costs
minate trail use and another person in- of providing rail service plus a reason-
tends to become a trail user by assum- able return on the value of the line ex-
ing financial responsibility for the ceed the revenues attributable to the
right-of-way, then the existing and fu- line. This subpart contains the method-
ture trail users shall file, jointly: ology for such determinations and the
(i) A copy of the extant CITU or standards necessary for application of
NITU; and those terms in the context of a par-
(ii) A Statement of Willingness to As- ticular proceeding. Such data will be
sume Financial Responsibility by the used in reaching the Board’s findings
new trail user. on the merits of an abandonment or
(2) The parties shall indicate the date discontinuance proceeding and in mak-
on which responsibility for the right- ing the necessary financial assistance
of-way is to transfer to the new trail
determinations.
user. The Board will reopen the aban-
donment or exemption proceeding, va- (2) This subpart also sets forth a
cate the existing NITU or CITU; and method by which the carrier may es-
issue an appropriate replacement NITU tablish its Forecast Year estimates and
or CITU to the new trail user. Estimated Subsidy Payment to be in-
(g) In proceedings where a timely cluded in its application (§ 1152.22(d) of
trail use statement is filed, but due to this part). Furthermore, an offeror of
either the railroad’s indication of its financial assistance may use this meth-
unwillingness to negotiate interim od to formulate a subsidy offer and/or
trail use agreement, or its failure to Proposed Subsidy Payment under 49
timely notify the Board of its willing- U.S.C. 10904 and § 1152.27 of subpart C of
ness to negotiate, a decision author- this part.
izing abandonment or an exemption no- (b) Data collection. The owning or op-
tice or decision is issued instead of a erating carrier shall establish a system
CITU or NITU, and subsequently the to collect at branch level the data nec-
railroad and trail use proponent never- essary to compute the base year data
theless determine to negotiate an in- and the final subsidy payment. The col-
terim trail use agreement under the lection and compilation of such data
Trails Act, then the railroad and trail shall be in accordance with the Branch
use proponent must file a joint plead- Line Accounting System (49 CFR part
ing requesting that an appropriate 1201).
CITU or NITU be issued. If the aban-
(c) Final payment of financial assist-
donment has not been consummated,
ance. (1) When a financial assistance
the Board will reopen the proceeding,
vacate the outstanding decision or no- agreement is concluded, the final pay-
tice (or portion thereof), and issue an ment will be adjusted to reflect the ac-
appropriate CITU or NITU that will tual revenues derived, avoidable costs
permit the parties to negotiate for a incurred, and value of the properties
period agreed to by the parties in their used in the subsidy year.
joint filing, but not to exceed 180 days, (2) Where an adjustment results in an
at the end of which, the CITU or NITU increase in the Estimated Subsidy Pay-
will convert into a decision or notice ment upon which the financial assist-
permitting abandonment. ance agreement is based, the amount of
such increase is limited to 15 percent of
FR 34670, June 27, 1997; 64 FR 53268, Oct. 1, the estimated payment. However, if the
1999] railroad notifies the subsidizer that the
estimate will be exceeded by more than
Subpart D—Standards for Deter- 15 percent in one of the Financial Sta-
mining Costs, Revenues, and tus Reports (§ 1152.37) issued during the
Return on Value first 10 months of the subsidy year or
the increase results from an expense
§ 1152.30 General. preapproved by the subsidizer, the ad-
(a) Contents of subpart. (1) 49 U.S.C. justed amount shall be included in the
10904 directs the Board to determine final payment.
224
§ 1152.31 Revenue and income attrib- Revenue account title Account No.
utable to branch lines.
Freight ........................................................ 101
The revenue attributable to the rail Switching .................................................... 104
properties is the total of the revenues Water transfers .......................................... 105
assigned to the branch in accordance Demurrage ................................................. 106
with this section, plus any subsidy pay- Incidental .................................................... 110
Joint facility-credit ...................................... 121
ments that would cease upon dis-
Joint facility-debt ........................................ 122
continuance of service on the branch, Revenues from property used in other 506, 534
for the subsidy year. The revenues as- than carrier operations, less expenses.
signed shall be derived from the fol- Miscellaneous rent income ........................ 510
lowing accounts: Miscellaneous income ................................ 519
(a) Account 101—Freight. The revenue
assigned under this account shall be § 1152.32 Calculation of avoidable
the actual revenues, including transit costs.
revenues, accruing to the railroad, de-
rived from waybills and other source This section defines: Which cost ele-
documents, for all traffic that: ments are eligible for inclusion in the
(1) Originates and terminates on the calculation of avoidable costs; the con-
branch; ditions under which certain cost ele-
(2) Originates or terminates on the ments become eligible for inclusion;
branch and is handled off the branch on and the basis of apportioning those
the system but not on another carrier; cost elements which are not assigned
and to the branch on an actual expense
(3) Originates or terminates on the basis. The avoidable costs of providing
branch and is handled on another car- freight service on a branch shall be the
rier. All traffic that is received or for- total of the costs assigned to the
warded through interchange at a point branch in accordance with this section.
on the branch, including ferry oper- The avoidable costs of providing
ations, shall be considered as origi- freight service on a branch shall be just
nating or terminating on the branch. and reasonable, and shall not exceed
The revenues of all other bridge or those necessary for an honest and effi-
overhead traffic that will not be re- cient operation. Those expenses appor-
tained by the carrier shall be attrib- tioned under this section shall be de-
uted to the branch on the ratio of miles rived from the latest Form R–1 Annual
moved on the branch to miles moved
Report for Class I railroads filed with
on the system, provided, however, that
the Board prior to the conclusion of
the parties may agree on a mutually
the subsidy year, and company records
acceptable usage charge for bridge traf-
fic in lieu of the mileage apportion- for all non-Class I railroads, and as-
ment. signed to the branch according to the
(b) Account 104—Switching; Account procedures set forth in § 1152.33 of these
105—Water transfers; Account 106—De- regulations. When the term ‘‘Actual’’
murrage; Account 110—Incidental; Ac- is specified as the basis for assigning
count 121—Joint Facility-Credit; Account an expense, it shall mean that the only
122—Joint Facility-Debt; Account 506— costs which can be assigned to the ac-
Revenues from Properties Used in Other count are those costs which are in-
Than Carrier Operations; Account 510— curred solely as a result of the continu-
Miscellaneous Rent Income; Account 519— ation of rail freight service on the
Miscellaneous Income. The revenues as- branch. The accounts in the following
signed under these accounts shall be charts, which list only the ‘‘freight-
the actual revenues accruing to the only’’ account numbers, shall include
railroad that are directly attributable the portion of common expenses that
to the branch. have been apportioned to freight serv-
(c) Chart for revenue accounts. ice.
Operating expense group and accounts Account No. Basis of assignment to on-branch costs
(a) Maintenance of way and structures:

(1) Administration: Track:
Salaries and wages ......................................... 11–13–02 Actual.
225
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)
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.
Signals
Materials .......................................................... 21–13–04 Do.
Communications
Materials .......................................................... 21–13–05 Do.
Other
Materials .......................................................... 21–13–06 Do.
(2) Repair maintenance and other roadway—run-
ning:
Materials .......................................................... 21–11–10 Do.
Repairs by others—DR .................................... 39–11–10 Do.
Repairs for others—CR ................................... 40–11–10 Do.
Roadway—switching
Materials .......................................................... 21–12–10 Do.
Tunnels and subways—running
Materials .......................................................... 21–11–11 Do.
Tunnels and subways—switching
Materials .......................................................... 21–12–11 Do.
Bridges and culverts—running
Materials .......................................................... 21–11–12 Do.
Bridges and culverts—switching
Materials .......................................................... 21–12–12 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—material ....................... 21–11–15 Do.
Other track material—switching—material ..................... 21–12–15 Do.
Ballast—running—material ............................................. 21–11–16 Do.

Ballast—switching—material .......................................... 21–12–16 Do.
226
Track laying and surfacing—running

Materials .......................................................... 21–11–17 Do.
Track laying and surfacing—switching
Materials .......................................................... 21–12–17 Do.
Road property damaged—running
Materials .......................................................... 21–11–48 Do.
Road property damaged—switching
Materials .......................................................... 21–12–48 Do.
Other Expenses ............................................... 61–12–48 Do.
Road property damaged—other
Materials .......................................................... 21–13–48 Do.
Signals and interlockers—running
Materials .......................................................... 21–11–19 Do.
Signals and interlockers—switching
Materials .......................................................... 21–12–19 Do.
Communications systems
Materials .......................................................... 21–13–20 Do.
Electric power systems
Materials .......................................................... 21–13–21 Do.
Highway grade crossings—running
Materials .......................................................... 21–11–22 Do.
Highway grade crossings—switching
Materials .......................................................... 21–12–22 Do.

227
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)

Station and office buildings
Materials .......................................................... 21–13–23 Do.
Station buildings—locomotives
Materials .......................................................... 21–13–24 Do.
Shop buildings—freight cars
Materials .......................................................... 21–13–25 Do.
Shop buildings—other equipment
Materials .......................................................... 21–13–26 Do.
Locomotive servicing facilities
Materials .......................................................... 21–13–27 Do.
Miscellaneous buildings and structures
Materials .......................................................... 21–13–28 Do.
Coal terminals
Materials .......................................................... 21–13–29 Do.
Ore terminals
Materials .......................................................... 21–13–30 Do.
TOFC/COFC terminals
Materials .......................................................... 21–13–31 Do.
Other marine terminals
Materials .......................................................... 21–13–32 Do.

228
Motor vehicle loading and distribution fa-

cilities
Materials .......................................................... 21–13–33 Do.
Facilities for other specialized service op-
erations
Materials .......................................................... 21–13–35 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.
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 as-
sign to maintenance of way 11- 11/12–10 through
17, and 48, sec. 1152.33(a)(2).
Materials .......................................................... 21–13–37 Do.
Snow removal
Materials .......................................................... 21–13–38 Do.
Purchased Services ......................................... 41–13–38 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.
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—running .................................. 33–11–00 Do.
Joint facility rent—debit—switching ............................... 33–12–00 Do.
Casualties and insurance—other
Insurance ......................................................... 53–13–00 Do.
Joint facility—debit—other ............................................. 33–13–00 Do.
Joint facility rent—credit—running ................................. 34–11–00 Do.
Joint facility rent—credit—switching .............................. 34–12–00 Do.
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.
229
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)
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—run-
ning
Materials .......................................................... 21–11–39 Do.
Dismantling retired road property—
switching
Materials .......................................................... 21–12–39 Do.
Dismantling retired road property—other
Materials .......................................................... 21–13–39 Do.
Other—running
Materials .......................................................... 21–11–99 Do.
Other—switching
Materials .......................................................... 21–12–99 Do.
Purchased Services ......................................... 41–12–99 Do.
Other Expenses ............................................... 61–12–99 Do.
Other—other
Materials .......................................................... 21–13–99 Do.
(b) Maintenance of equipment:
(1) Locomotives: Administration
Materials .......................................................... 21–21–01 Do.
Repairs and maintenance
Salaries and wages ......................................... 11–21–41 Road diesel and road electric locomotive gross ton
miles. Yard diesel and yard electric locomotive unit
hours, § 1152.33(b)(1).
Materials .......................................................... 21–21–41 Do.
Machinery repair
Materials .......................................................... 21–21–40 Do.
Equipment damaged
Materials .......................................................... 21–21–48 Do.
Equipment damaged
Fringe benefits ............................................................... 12–21–00 11–21–XX, sec. 1152.33(b)(3)(i).
Other casualties and insurance
Insurance ......................................................... 53–21–00 Do.
Lease rentals—debit ...................................................... 31–21–00 Do.

Lease rentals—credit ..................................................... 32–21–00 Do.
230
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
Materials .......................................................... 21–21–39 Do.
Other
Materials .......................................................... 21–21–99 Do.
(2) Freight cars: Administration:
Materials .......................................................... 21–22–01 Do.
Machinery repair
Materials .......................................................... 21–22–40 Do.
Equipment damage
Materials .......................................................... 21–22–48 Do.
Fringe benefits ............................................................... 12–22–00 11–22–XX, sec. 1152.33–(b)(3)(iii).
Insurance ......................................................... 53–22–00 Do.
Joint facility rent—DR .................................................... 33–22–00 Do.
Joint facility rent—CR .................................................... 34–22–00 Do.
Joint facility—DR ............................................................ 37–22–00 Do.
Joint facility—CR ............................................................ 38–22–00 Do.
Materials .......................................................... 21–22–39 Do.
Other
Materials .......................................................... 21–22–99 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.
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
Materials .......................................................... 21–23–01 Do.

231
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)

Repair and maintenance: Trucks, trailers and con-
tainers—revenue service
Materials .......................................................... 21–23–43 Do.
Floating equipment—revenue service
Materials .......................................................... 21–23–44 Do.
Computer and data processing
Materials .......................................................... 21–23–46 Do.
Machinery
Materials .......................................................... 21–23–40 Do.
Work and other non revenue equipment
Materials .......................................................... 21–23–47 Do.
Equipment damaged
Materials .......................................................... 21–23–48 Do.
Equipment damaged
Fringe benefits ............................................................... 12–23–00 11–23–XX, sec. 1152.33(b)(3)(ii).
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.
Materials .......................................................... 21–23–39 Do.
Other
Materials .......................................................... 21–23–99 Do.
(c) Transportation:
(1) Train operations: Administration:
Materials .......................................................... 21–31–01 Do.

232
Engine crews
Materials .......................................................... 21–31–56 Train hours, sec. 1152.33(c)(1)(i).
Purchased services ......................................... 41–31–56 Actual.
Train crews
Materials .......................................................... 21–31–57 Train hours, sec. 1152.33(c)(1)(i).
Dispatching trains
Materials .......................................................... 21–31–58 Do.
Operating signals and interlockers
Materials .......................................................... 21–31–59 Do.
Operating drawbridges
Materials .......................................................... 21–31–60 Do.
Highway crossing protection
Materials .......................................................... 21–31–61 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.
Locomotive fuel
Salaries and wages ......................................... 11–31–67 Diesel locomotive unit hours, Sec. 1152.33(c)(1)(ii).
Materials .......................................................... 21–31–67 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.
Servicing locomotives
Salaries and wages ......................................... 11–31–69 Locomotive unit miles, sec. 1152.33(c)(1)(iv).
Materials .......................................................... 21–31–69 Do.
Freight lost or damaged—solely related ........................ 51–31–00 Actual.
Clearing wrecks
Materials .......................................................... 21–31–63 Do.
Fringe benefits ............................................................... 12–31–00 11–31–XX, sec. 1152.33 (c)(4)(i).
Insurance ......................................................... 53–31–00 Do.
Other
Materials .......................................................... 21–31–99 Do.
(2) Yard operations: Administration:
Materials .......................................................... 21–32–01 Do.
Switch crews
233
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)
Materials .......................................................... 21–32–64 Locomotive unit hours, sec. 1152.33(c)(2)(i)

Controlling operations
Materials .......................................................... 21–32–65 Do.
Yard and terminal clerical
Materials .......................................................... 21–32–66 Do.
Operating switches, signals, retarders
and humps
Materials .......................................................... 21–32–59 Do.
Locomotive fuel
Salaries and wages ......................................... 11–32–67 Dieselloco motive unit hours, sec. 1152.33(c)(2)(ii)
Materials .......................................................... 21–32–67 Do.
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.
Servicing locomotives
Salaries and wages ......................................... 11–32–69 Locomotive unit hours, sec. 1152.33(c)(2)(i).
Materials .......................................................... 21–32–69 Do.
Freight lost or damaged—solely related ........................ 51–32–00 Actual.
Clearing wrecks
Materials .......................................................... 21–32–63 Do.
Fringe benefits ................................................. 12–32–00 11–32–XX, sec. 1152.33(c)(4)(ii).
Insurance ......................................................... 53–32–00 Do.
Other
Materials .......................................................... 21–32–99 Do.
(3) Train and yard operations common:
Cleaning car interiors
Materials .......................................................... 21–33–70 Do.
Adjusting and transferring loads
Materials .......................................................... 21–33–71 Do.
Carloading devices and grain doors
Materials .......................................................... 21–33–72 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:
Materials .......................................................... 21–34–01 Do.
Pick-up and delivery, marine line haul,
and rail substitute service

234
Materials .......................................................... 21–34–73 Do.

Loading and unloading and local marine
Materials .......................................................... 21–34–74 Do.
Protective services
Materials .......................................................... 21–34–75 Do.
Freight lost or damaged—Solely related ....................... 51–34–00 Do.
Fringe benefits ............................................................... 12–34–00 11–34–XX, sec. 1152.33(c)(4)(iv).
Casualties and insurance
Insurance ......................................................... 53–34–00 Do.
Other
Materials .......................................................... 21–34–99 Do.
(5) Administrative support operations: Administra-
tion :
Materials .......................................................... 21–35–01 Do.
Employees performing clerical and ac-
counting functions
Materials .......................................................... 21–35–76 Do.
Communication systems operation
Materials .......................................................... 21–35–77 Do.
Loss and damage claims processing
Salaries and wages ......................................... 11–35–78 Number of claims, sec. 1152.33(c)(3)(i).
Materials .......................................................... 21–35–78 Do.
Fringe benefits ............................................................... 12–35–00 11–35–XX. sec. 1152.33(c)(4)(v).
Joint facility—DR ............................................................ 37–35–00 Actual.
Casualties and insurance.
Insurance ......................................................... 53–35–00 Do.
Other
Materials .......................................................... 21–35–99 Do.
(d) General Administrative Officers—general adminis-
tration:
Materials .......................................................... 21–61–01 Do.
Accounting, auditing and finance
Materials .......................................................... 21–61–86 Do.
Management services and data proc-
essing
Materials .......................................................... 21–61–87 Do.

235
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)

Marketing:
Materials .......................................................... 21–61–88 Do.
Sales
Materials .......................................................... 21–61–89 Do.
Industrial development
Materials .......................................................... 21–61–90 Do.
Personnel and labor relations
Materials .......................................................... 21–61–91 Do.
Legal and secretarial
Materials .......................................................... 21–61–92 Do.
Public relations and advertising
Materials .......................................................... 21–61–93 Do.
Research and development
Materials .......................................................... 21–61–94 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 accounts .............................. 63–61–00 Do.
Other taxes except on corporate income or payroll ...... 65–61–00 Do.
Joint facility—DR ............................................................ 37–61–00 Do.
Other
Materials .......................................................... 21–61–99 Do.
(e) Deadheading, taxi, and hotel costs. shall not be included under other sub-
The costs assigned under this subsections of these regulations.
section shall be the actual costs in- (g) Freight car costs. For Class I rail-
curred as a result of providing service roads, the on-segment costs for time-
to the branch line for deadheading, mileage freight cars shall be calculated
taxi, and hotel costs. The amounts in- on the basis of the carrier’s average
cluded under this subsection shall not cost per day and per mile. Those
be included under other subsections of freight cars that are rented on a
these regulations. straight mileage basis are to be costed
(f) Overhead movement costs. The costs on the carrier’s average cost per mile
assigned under this subsection shall be for each type of car rented on this
the actual costs incurred in moving basis. No costs are to be included in the
over any other rail line solely to reach calculation for private line (shipper
and provide service to the branch. The owned) or other cars for which the rail-
amounts shown under this subsection road does not make payments. The cost
236
per day and per mile shall be cal- each car type specified in Ex Parte No.
culated separately for each type of car 334, supra.
specified in Ex Parte No. 334, Car Serv- (2) The total railroad car miles shall
ice Compensation—Basic Per Diem be calculated by adding the loaded car
Charges, 362 I.C.C. 884 (1980). The freight miles for the railroad owned and leased
car costs shall be separated between cars (R–1, Schedule 755) to empty car
‘‘return on value-freight cars’’ and miles for the railroad owned or leased
‘‘freight car costs other than return on cars (R–1, Schedule 755). The total car
freight cars’’. The costs assigned to a miles, loaded and empty, shall be cal-
line under this subsection are to be de- culated for each car type specified in
rived from the accounts listed below. Ex Parte No. 334, supra.
(3) The cost per car day shall be cal-
Operating expense group—Repair and main- Account No. culated for each type of time-mileage
tenance
car by adding 50 percent of total
Salaries and wages ......................................... 11–22–42
Materials .......................................................... 21–22–42
freight car repair costs for each type
Repairs by others—DR ................................... 39–22–42 (Form R–1, schedule 415, column (b)),
Repairs for others—CR ................................... 40–22–42 and 60 percent of the depreciation shall
Purchased services ......................................... 41–22–42
Other expenses ............................................... 61–22–42
be developed as follows:
Lease rentals—DR .......................................... 31–22–00 (i) The current value for each type of
Lease rentals—CR .......................................... 32–22–00 car shall be calculated by first arriving
Depreciation at the current cost per car using the
Other rents—DR ....................................... 35–22–00
Other rents—CR ....................................... 36–22–00 most recent purchase of this type by
the railroad indexed to the midpoint of
The system total of the repair and the year or a price quote from the man-
maintenance accounts, all accounts ufacturer. This unit price shall be ap-
designated XX-XX-42, and depreciation plied to the average number of this
shall be divided into time-related costs type of car owned by the carrier during
and mileage-related costs on the basis the year. The current value developed
of 50 percent time and 50 percent mile- for each car type is then multiplied by
age for repairs, and 60 percent time and the composite depreciation rate for
40 percent mileage for depreciation. that type of car as shown in the latest
Freight car costs shall not include de- annual report filed with the Board or
preciation as determined in Account company records.
No. 62–22–00. Freight car depreciation (ii) Add 100 percent of the return on
shall be calculated in the manner set investment. Return on investment
forth in paragraph (g)(3)(i) of this sec- shall be determined by multiplying the
tion. The system total receipts and current value of each type of car, de-
payments for the hire of time-mileage veloped in paragraph (g)(3)(i) of this
cars, and the basic data used in the de- section, by 1 minus the ratio of accu-
velopment of the car-day and car-mile mulated depreciation to the total
factors, shall be taken from the car- original cost investment. This will de-
rier’s latest Form R–1 and company termine the net current value for each
records. The specific steps to complete type of car. The net current value for
the calculation are as follows: each type of car shall then be multi-
(1) The total system car days by car plied by the nominal rate of return cal-
type shall be calculated by: culated in § 1152.34(d) to obtain nominal
(i) Averaging the carrier’s freight car return on investment for each type of
ownership at the beginning and end of car. The total return on investment
the year (Form R–1, schedule 710, col- shall then be calculated by deducting
umns (b) and (k); the projected holding gain (loss) for the
(ii) Multiplying the average by the forecast and/or subsidy year from the
standard active number of car days nominal return on investment for each
(346) as developed in ICC Docket No. type of car. In any instance where the
31358; holding gain is not specifically deter-
(iii) Subtracting car days on foreign mined for freight cars, the Gross Do-
lines (source: Company records); and mestic Product deflator calculated by
(iv) Adding the foreign car days on the U.S. Department of Commerce
home line (source: Company records). shall be used. The total return on in-
This procedure shall be followed for vestment for each type of car shall
237
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)
then be divided by total car-days for (h) Return on investment—locomotive

each car-type developed in paragraph (line). The return on investment shall
(g)(1) of this section. be calculated for each type of classi-
(iii) To the amounts for repairs and fication of locomotive that is actually
depreciation, add the time portion of used to provide service to the line seg-
the railroad’s payment for hire of time- ment. The return for the locomotive(s)
mileage freight cars (Form R–1, sched- used shall be calculated in accordance
ule 414, column (g)), and subtract the with the following procedure:
time portion of the railroad’s receipts (1) The current replacement cost for
for hire of time mileage freight cars each type of locomotive used to serve
(Form R–1, schedule 414, column (d)). the line segment shall be based on the
The total of these costs is divided by most recent purchase of that particular
the total car days for each type devel- type and size locomotive by the car-
oped in paragraph (g)(1) of this section. rier, indexed to the midpoint of the
(4) The cost per mile shall be cal- forecast and/or subsidy year, or on an
culated for each type of time-mileage amount quoted by the manufacturer.
car as follows. First, add: The amount must be substantiated.
(i) 50 percent of the total freight This unit cost shall be multiplied by 1
train car repair cost for each car type minus the ratio of total accumulated
(Form R–1, schedule 415, column (b)); depreciation to original total cost of
(ii) 40 percent of the total deprecia- that type of equipment owned by appli-
tion costs for each car type developed cant-carrier, as shown by company
in paragraph (g)(3)(i) of this section; records.
and (2) The current nominal cost of cap-
(iii) The mileage portion of the car- ital shall be used in the calculation of
rier’s payments for the hire of time- return on investment for locomotives
mileage freight cars (Form R–1, sched- and shall be calculated as provided in
ule 414, column (f)). § 1152.34(d).
Second, subtract the mileage portion of (3) The return on investment for each
the carrier’s receipts for hire of time- category or type of locomotive shall be
mileage freight cars (Form R–1, sched- the nominal return less the holding
ule 414, column (c)). Finally, divide the gain (loss). The nominal return is cal-
result by the total car-miles for each culated by multiplying the replace-
car-type developed in paragraph (g)(2) ment cost determined in paragraph
of this section. (h)(1) of this section by the nominal
(5) The costs per car day and per car rate of return determined in paragraph
mile developed in paragraphs (g) (3) (h)(2) of this section. The holding gain
and (4) of this section shall be applied (loss) shall be the gain (loss) projected
to the total car days and total car to occur during the forecast and/or sub-
miles for each car type accumulated on sidy year. In any instance where the
the line segment for all traffic origi- holding gain is not specifically deter-
nated and/or terminated on the seg- mined for locomotives, the Gross Do-
ment plus those freight cars that mestic Product deflator calculated by
bridge the line segment which are at- the U.S. Department of Commerce
tributed to time-mileage freight train shall be used.
cars. The on-segment costs for freight (4) The return on investment for each
cars rented on a straight mileage basis type of locomotive shall be assigned to
shall be the railroad’s total payments the line segment on a ratio of the loco-
for mileage cars (Form R–1, schedule motive unit hours on the segment to
414, column (e)) for each car type di- average locomotive unit hours per unit
vided by the total miles on which the for each type of locomotive in the sys-
charges were based. tem. This ratio will be developed as fol-
(6) For Class II and III railroads, the lows:
on-segment costs for time-mileage and (i) The carrier shall keep and main-
straight mileage freight cars shall be tain records of the number of hours
calculated in the same manner pre- that each type of locomotive incurred
scribed for Class I railroads, using the in serving the segment during the sub-
latest data available. sidy period.
238
(ii) The railroad shall develop the putations the actual statewide tax sav-
system average locomotive unit hours ings attributable to the abandonment.
per unit for each of the following types (4) Any property tax properly sub-
of locomotives; yard diesel; yard-other; stantiated under paragraphs (f)(2) or (3)
road diesel; and road-other. of this section shall be presumed to
(iii) The ratio applied to the return represent systemwide savings to the
on investment is calculated by dividing carrier. Protestants may rebut this
the hours that each type or class of lo- presumption by presenting evidence:
comotive is used to serve the segment, (i) That property taxes in those
as developed in paragraph (h)(4)(i) of states where the carrier operates that
this section, by the system average lo- are not involved in the abandonment
comotive unit hours per unit for the will increase significantly because of
applicable type developed in paragraph reassessments attributable to the
(h)(4)(ii) of this section. abandonment; or
(5) The cost assigned to the segment (ii) That a significantly higher prop-
for each type of locomotive shall be erty tax will be levied against a re-
calculated by multiplying the annual tained portion of the abandoned prop-
return on investment developed in erty. If applicant does not refute
paragraph (h)(3) of this section by the protestant’s evidence, it may claim
ratio(s) developed in paragraph (h)(4) of avoidable property taxes only if, and to
this section. the extent, it proves systemwide prop-
(i) Revenue taxes. The amount of rev- erty tax savings.
enue taxes shall be computed based on (5) In states where real property
the amounts directly paid in those taxes are assessed and levied against
states that subject the railroad to a the owner of the property but the tax
revenue tax. on rolling stock is assessed to the rail-
(j) Property taxes (Line). (1) The as- road operating the service on the basis
signed costs under this subsection shall of a formula of a statewide valuation of
be the net systemwide property tax property, the tax on rolling stock at-
savings resulting from the abandon- tributable to each line segment shall
ment, calculated as set out below, if be determined as follows:
the applicant-carrier intends subse- (i) Using ratio of the cost of equip-
quently to sell or otherwise dispose of ment (as used in the formula) to the
the abandoned properties. If the appli- total of all property costs (as used in
cant-carrier expresses an intent to dis- formula);
pose of the properties, it will be pre- (ii) Apply that ratio to the total
sumed that the properties will ulti- state assessment to determine the por-
mately be sold or otherwise disposed of tion of the assessment attributable to
after abandonment. Protestants may rolling stock;
rebut this presumption by showing (iii) Allocate the rolling stock assess-
that it would be financially beneficial ment thus determined to each line seg-
to retain ownership of the property for ment on the basis of car and loco-
investment purposes. motive unit miles on the segment to
(2) In states where a true ad valorem total car and locomotive unit miles in
tax is levied on real property (such as the state; and
track, land, buildings, and other facili- (iv) Apply the appropriate tax rate or
ties), applicant must affirm that the ad rates to the allocated assessment thus
valorem method applies and must sub- determined.
stantiate the amount of property taxes (k) Administrative costs. The costs as-
levied against the property on the line signed under this account shall be the
segment. actual costs directly attributable to
(3) In states where the ad valorem the administration of the subsidy pro-
method is not employed, applicant gram or at the option of the carrier,
must describe the applicable property one percent of the total annual reve-
tax methodology if it is claiming the nues attributed to the branch shall be
local property tax as an avoidable cost allowable to cover all costs of admin-
of operations. Additionally, it must istering the subsidy program. Either
substantiate with evidence and com- method may be used, but not both.
239
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)
(l) Casualty reserve account. The costs periods specified in § 1152.22(d) of this
assigned under this account shall be part.
any payments mutually agreed to by (2) The procedure for determining the
the person offering the subsidy and the off-branch costs shall be based upon
railroad for the purpose of holding the the URCS cost formula. This formula
subsidizer harmless from any liability shall be applied to the latest Annual
under those accounts that are used to Report Form R–1 filed by the railroad,
record any costs incurred by the rail- with two exceptions. First, the amount
road as a result of an accident. used in the formula for freight car de-
(m) Rehabilitation. (1) For abandon- preciation shall be calculated using the
ment purposes the applicant carrier procedure discussed in paragraph
shall project the amounts necessary to (g)(3)(iii) of this section applied to the
permit efficient operations over the average total car fleet of the railroad.
line segment. The carrier shall indicate Second, the return on investment in
the level of FRA class safety standard freight cars shall be computed using
to be attained with the amount of ex- the procedure set forth in paragraph
penditure. See 49 CFR part 213. Appli- (g)(3)(ii) of this section. In addition,
cant, in making its projection of reha- the application of URCS shall include
bilitation costs, shall give consider- the use of the nominal cost of capital
ation to: for all return on investment deter-
(i) The cost to attain the lowest oper- minations.
ationally feasible track level; (3) The Class I Procedure: A Class I
railroad shall calculate its off-branch
(ii) The cost to attain the rehabilita-
costs using the Class I procedure as set
tion level resulting in the lowest oper-
forth below in this paragraph.
ating and rehabilitation expenditures;
(i) The unit costs developed by apply-
or
ing URCS in the manner specified in
(iii) The cost to attain the rehabilita- paragraph (n)(2) of this section shall be
tion level resulting in the lowest loss, applied to the service characteristics of
or highest profit, from operations. each movement of traffic that is attrib-
(2) For subsidy purposes rehabilita- uted to the branch line. This applica-
tion costs shall not be included unless: tion shall result in the total off-branch
(i) The track fails to meet minimum cost associated with this traffic for
Federal Railroad Administrative class normal terminal handlings, line-haul
1 safety standards (49 CFR part 213), in mileage, and interchange events.
which case the railroad will furnish, (ii) The modified terminal cost per
with the abandonment application, a carload shall be calculated separately
detailed estimate of the costs to reha- for each type of freight car and applied
bilitate the track to the minimum to each car that is attributed to the
level; or branch line. The modified terminal
(ii) The potential subsidizer requests cost shall consist of clerical costs, two
a level of service which requires ex- days of freight car cost, and an inter-
penditures for rehabilitation. intra train switching cost (locomotive
(n) Off-branch costs. The off-branch engine minute cost only). The clerical
costs developed in this section shall be cost and inter-intra train switching
separated between ‘‘off-branch costs cost shall be calculated from unit costs
other than return on freight cars’’ and developed within the individual URCS
‘‘return on value-freight cars’’. The off- application.
branch costs shall be developed in the (A) The unit costs for the clerical
following manner: cost per carload calculation are located
(1) Terminal costs, line-haul costs, in URCS Worktable E1, Part 1: Line
interchange costs, and modified ter- 106, columns 1, 2, and 3; line 107, col-
minal costs shall be considered as the umn 1; line 108, column 1; line 109, col-
off-branch avoidable costs of providing umn 1; and line 110, column 1.
service over the remainder of the rail- (B) The inter-intra train switching
road’s system. These costs shall be cost shall be calculated by multiplying
computed by applying the variable unit the total switch engine minute cost
costs to the service units attributed to from URCS Worktable E1, Part 1, line
the branch line’s traffic for the time 111, columns 1, 2, and 3 by the total
240
minutes specified in the next sentence. tion. Costs developed through the use
The total minutes specified in this sen- of the Class II/III standard costing pro-
tence shall equal the sum of: cedure shall be given preference over
(1) The minutes per switch event costs developed through the use of the
from Worktable E2, Part 1, line 118, Class II/III simplified costing proce-
column 29; and dure. The Class II/III standard costing
(2) The product of the minutes per procedure is set forth in paragraphs
switch event from Worktable E2, Part (n)(4)(i) through (n)(4)(xiv) of this sec-
1, line 118, column 29 and the ratio of tion.
loaded to total car miles for the par- (i) The Class II or Class III railroad
ticular type of freight car being costed. shall first determine which URCS re-
(C) The freight car cost shall be the gional application will be used based
car ownership costs per car day for 2 on its geographical location. The rail-
days developed in accordance with the road’s total estimated system variable
procedures set forth in paragraph (g)(3) expenses are calculated by multiplying
of this section for the type of freight its total operating expenses by the
car being costed. ratio of variable expenses to total ex-
(iii) For a Class I railroad, the total penses; this ratio is located in Work-
costs calculated using the procedures table D8, Part 6, line 615, column 1 of
set forth in paragraphs (n)(3)(i) and the URCS printout for the appropriate
(n)(3)(ii) of this section shall constitute region. If a railroad has passenger and
the off-branch costs attributable to the freight service, the freight portion of
branch line’s traffic. the total estimated system variable ex-
(4) A Class II or Class III railroad penses shall be calculated by multi-
shall calculate its off-branch costs plying the total estimated system vari-
using any one of three different proce- able expenses, calculated as above, by
dures. The Class I Procedure: A Class II the ratio of freight related operating
or Class III railroad may calculate its expenses to total railway operating ex-
off-branch costs using the Class I pro- penses.
cedure set forth in paragraph (n)(3) of (ii) The total number of revenue car-
this section, if the necessary data are load terminal handlings, as determined
available from the railroad’s own from the railroad’s records, shall be
records. If the data necessary to com- calculated as the sum of:
plete the Class I procedure set forth in (A) Originated and terminated (local)
paragraph (n)(3) of this section are not revenue carloads multiplied by 2; plus
available from the railroad’s own (B) Interchanged and either origi-
records, the Class II or Class III rail- nated or terminated (interline) revenue
road shall calculate its off-branch costs carloads.
using either one of the following proce- (iii) The total number of revenue car-
dures based on the latest regional load interchange handlings, as deter-
URCS data and the railroad’s own mined from the railroad’s records, shall
records. The Class II/III Simplified Cost- be calculated as the sum of:
ing Procedure: A Class II or Class III (A) Bridge (interchange to inter-
railroad may calculate its off-branch change) revenue carloads multiplied by
costs using the Class I procedure set 2; plus
forth in paragraph (n)(3) of this sec- (B) Revenue carloads that are inter-
tion, with regional URCS data of the changed and either originated or termi-
Class I railroads used in lieu of indi- nated (interline).
vidual URCS data of the Class II or (iv) The system average shipment
Class III railroad. Costs developed weight per car, as determined from the
through the use of the Class II/III sim- railroad’s records, shall be calculated
plified costing procedure shall enjoy a by dividing:
rebuttable presumption of correctness. (A) Ton-miles-revenue freight by
The Class II/III Standard Costing Proce- (B) Loaded freight car miles.
dure: A Class II or Class III railroad (v) The system average loaded car
may calculate its off-branch costs miles per car, as determined from the
using the Class II/III standard costing railroad’s records, shall be calculated
procedure set forth in paragraphs by dividing:
(n)(4)(i) through (n)(4)(xiv) of this sec- (A) Revenue ton-miles by
241
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)
(B) Revenue tons. (A) The terminal expenses calculated

(vi) The railroad shall complete a by the application of the Phase III pro-
URCS Phase III ‘‘Movement Costing gram shall consist of the following:
Program’’ based on the application of (1) ‘‘Carload and Clerical Costs’’ shall
URCS data for the appropriate region. be calculated as the sum of lines 256,
The following data shall be inputs to 258, 260, 262, 264, 266, and 268.
the Phase III program application. (2) Switching expenses based on
(A) The carrier code, either ‘‘REG 4’’ ‘‘Total SEM-Industry’’ shall be cal-
or ‘‘REG 7’’, shall correspond to the ap- culated by multiplying:
propriate region. (i) The sum of lines 315, 317, and 319,
(B) The type of shipment shall be des- by
ignated as ‘‘OD’’ in order for the move- (ii) Line 311.
ment to be costed as an interline move- (3) Car mile yard cost ‘‘CM(Y)-Indus-
ment. try’’ shall be calculated by multi-
(C) The distance shall be the system plying:
average loaded car miles per car as de- (i) The sum of lines 426, 428, and 430,
veloped in paragraph (n)(4)(v) of this by
section. (ii) Line 422.
(D) The type of freight car shall be (4) Car day yard cost ‘‘CD(Y)-Indus-
identified as a Box, General Service try’’ and ‘‘CD(Y)-L&UL’’ shall be cal-
Equipped, which has an input user code culated by multiplying:
of ‘‘3’’. If all of the traffic on the (i) The sum of lines 452, 454, and 456,
branch line is transported in a single by
type of car, and it is not a Box, General (ii) The sum of lines 446 and 450.
Service Equipped, the code for that (5) The expenses for accessorial serv-
type of car may be substituted. ices for railroad owned cars shall be
(E) The number of freight cars shall calculated as the sum of:
be ‘‘1’’. (i) The product of line 422 and the
(F) The car ownership factor shall be sum of lines 464, 466, and 468; plus
designated as ‘‘R’’ for railroad owned (ii) The product of the sum of lines
cars unless all of the branch line traffic 446 and 450 and the sum of lines 476, 478,
is moved in privately owned cars, in and 480.
which case the code ‘‘P’’ for privately (B) The interchange expenses cal-
owned cars would be the input. culated by the application of the Phase
(G) The program requires a loss and III program shall consist of the fol-
damage input. The code ‘‘48’’, rep- lowing:
resenting the average of all commod- (1) Switching expenses based on
ities, shall be used. ‘‘Total SEM-Interchange’’ shall be cal-
(H) The input for shipment weight culated by multiplying
shall be the system average shipment (i) The sum of lines 315, 317, and 319,
weight per car developed in paragraph by
(n)(4)(iv) of this section. (ii) Line 312.
(I) The input for type of movement (2) Car mile cost in interchange
shall be ‘‘1’’, representing an individual ‘‘CM(Y)-Interchange’’ shall be cal-
car movement. culated by multiplying:
(vii) The ratios employed to separate (i) The sum of lines 426, 428, and 430,
the total estimated system variable ex- by
penses, as determined in paragraph (ii) Line 423.
(n)(4)(i) of this section, among ter- (3) Car day cost in interchange
minal, interchange, and line-haul oper- ‘‘CD(Y)-Interchange (L&E)’’ shall be
ations shall be based on the procedures calculated by multiplying:
outlined in this paragraph (n)(4)(vii). (i) The sum of lines 452, 454, and 456,
This separation shall reflect the vari- by
able costs resulting from the applica- (ii) Line 447.
tion of the URCS Phase III program (4) The expenses for accessorial serv-
based on the input factors specified in ices for railroad owned cars shall be
paragraph (n)(4)(vi) of this section. The calculated as the sum of:
ratios shall be calculated in the fol- (i) The product of line 423 and the
lowing manner: sum of lines 464, 466, and 468; plus.
242
(ii) The product of line 447 and the graph (n)(4)(i) of this section by the
sum of lines 476, 478, and 480. ratio for line-haul expenses as deter-
(C) The line-haul expenses resulting mined in paragraph (n)(4)(vii)(F) of this
from the application of the Phase III section.
program shall be calculated by sub- (ix) The railroad’s unit costs shall be
tracting the sum of: determined for terminal, interchange,
(1) The terminal expenses as deter- and line-haul operations as follows:
mined in paragraph (n)(4)(vii)(A) of this (A) The terminal cost per carload
section, and shall be calculated by dividing the
(2) The interchange expenses as de-
total terminal variable expenses as de-
termined in paragraph (n)(4)(vii)(B) of
termined in paragraph (n)(4)(viii)(A) of
this section, from
(3) The total variable cost excluding this section by the total number of rev-
loss and damage as calculated in the enue carload terminal handlings as de-
Phase III program at line 696. termined in paragraph (n)(4)(ii) of this
(D) The ratio for terminal expenses section.
shall be calculated by dividing the ter- (B) The interchange cost per carload
minal expenses as determined in para- shall be calculated by dividing the
graph (n)(4)(vii)(A) of this section by total interchange variable expenses as
the total variable cost excluding loss determined in paragraph (n)(4)(viii)(B)
and damage as calculated in the Phase of this section by the total number of
III program at line 696. revenue carload interchange handlings
(E) The ratio for interchange ex- as determined in paragraph (n)(4)(iii) of
penses shall be calculated by dividing this section.
the interchange expenses as deter- (C) The line-haul cost per car mile
mined in paragraph (n)(4)(vii)(B) of this shall be calculated by dividing the
section by the total variable cost ex- total line-haul variable expenses as de-
cluding loss and damage as calculated termined in paragraph (n)(4)(viii)(C) of
in the Phase III program at line 696. this section by the total system freight
(F) The ratio for line-haul expenses car miles, loaded and empty, as deter-
shall be calculated by dividing the line-
mined from the railroad’s records.
haul expenses as determined in para-
graph (n)(4)(vii)(C) of this section by (x) The modified terminal cost per
the total variable cost excluding loss carload is a composite of costs devel-
and damage as calculated in the Phase oped in the Phase III program and
III program at line 696. costs determined in accordance with
(viii) The railroad’s total estimated paragraph (g) of this section and this
system variable expenses shall be sepa- paragraph. The modified terminal cost
rated as follows: per carload shall be calculated for each
(A) The total terminal variable ex- type of car as follows:
penses shall be calculated by multi- (A) The station clerical cost per car-
plying the total estimated system vari- load shall be developed in the following
able expenses as determined in para- manner:
graph (n)(4)(i) of this section by the (1) The station clerical expense ratio
ratio for terminal expenses as deter- shall be calculated by dividing the
mined in paragraph (n)(4)(vii)(D) of this total clerical cost (the sum of lines 256,
section. 258, 260, 262, 264, 266, and 268) by the ter-
(B) The total interchange variable minal expenses as determined in para-
expenses shall be calculated by multi- graph (n)(4)(vii)(A) of this section.
plying the total estimated system vari- (2) The station clerical cost per car-
able expenses as determined in para-
load shall be calculated by multiplying
graph (n)(4)(i) of this section by the
the terminal cost per carload as deter-
ratio for interchange expenses as deter-
mined in paragraph (n)(4)(vii)(E) of this mined in paragraph (n)(4)(ix)(A) of this
section. section by the station clerical expense
(C) The total line-haul variable ex- ratio.
penses shall be calculated by multi- (B) The interchange switching cost
plying the total estimated system vari- per carload shall be developed in the
able expenses as determined in para- following manner:
243
§ 1152.32 49 CFR Ch. X (10–1–07 Edition)
(1) The total interchange switching that originated or terminated on the

expense shall be calculated by multi- branch.
plying the sum of lines 315, 317, and 319 (o) Locomotive depreciation. The depre-
by line 312. ciation cost for locomotives used on
(2) The interchange switching ratio the line shall be calculated using the
shall be calculated by dividing the following procedure:
total interchange switching expense by (1) The current replacement cost for
the interchange expenses as deter- each type of locomotive used to serve
mined in paragraph (n)(4)(vii)(B) of this the line will be based on the most re-
section. cent purchase of that particular type
(3) The interchange switching cost and size locomotive by the carrier in-
per carload shall be calculated by mul- dexed to the midpoint of the year or on
tiplying the interchange cost per car- an amount quoted by the manufac-
load as determined in paragraph turer.
(n)(4)(ix)(B) of this section by the (2) The depreciation rate that will be
interchange switching ratio. applied to the replacement cost shall
(C) The freight car cost element shall be the carrier’s component rate for
be the freight car cost per car day for each type of locomotive as reported in
2 days as developed for each car type in the latest Annual Report Form R–1
paragraph (g)(3) of this section. submitted to the Board or from the
(D) The modified terminal cost per company records. Carriers using depre-
carload shall be the total of the costs ciation rates based on company records
developed in paragraphs (n)(4)(x)(A), must explain why composite rates are
(n)(4)(x)(B), and (n)(4)(x)(C) of this sec- inappropriate; provide a detailed expla-
tion. nation of the methodology used to
(xi) The terminal costs shall be cal- compute the alternate depreciation
culated by multiplying the terminal rate; and demonstrate that these rates
cost per carload as determined in para- have been used consistently.
graph (n)(4)(ix)(A) of this section by (3) The annual depreciation cost for
the number of carloads that both: each type of locomotive shall be cal-
(A) Originated or terminated on the culated by multiplying the replace-
branch, and ment cost(s) developed in paragraph
(B) Are local to the railroad serving (o)(1) of this section by the rate from
the branch. paragraph (o)(2) of this section.
(xii) The interchange costs shall be (4) The depreciation expense for each
calculated by multiplying the inter- type of locomotive shall be assigned to
change cost per carload as determined the line on the ratio of the hours in-
in paragraph (n)(4)(ix)(B) of this sec- curred serving the line to the average
tion by the number of carloads that system locomotive unit hours in serv-
both: ice by each of the following categories
(A) Originated or terminated on the of locomotives: yard-diesel; yard-other;
branch; and road-diesel; and road-other. The ratio
(B) Are received in or forwarded for each type of locomotive used to
through interchange with other rail- serve the line shall be the same as that
roads. developed in paragraph (h)(4) of this
(xiii) The line-haul costs shall be cal- section.
culated by multiplying the line-haul (5) The depreciation shall be cal-
cost per car mile as determined in culated by multiplying the annual de-
paragraph (n)(4)(ix)(C) of this section preciation expense for each type of lo-
by the total loaded and empty car comotive developed in paragraph (o)(3)
miles generated on the railroad’s sys- of this section by the ratio(s) developed
tem off the branch by cars that origi- in paragraph (o)(4) of this section.
nated or terminated on the branch. (p) Opportunity costs. Applicant-car-
(xiv) The modified terminal costs rier may, at its discretion, present evi-
shall be calculated by multiplying the dence of its opportunity costs, if the
modified terminal cost per carload as assets engaged in the line proposed to
determined in paragraph (n)(4)(x)(D) of be abandoned could be used more prof-
this section by the number of carloads itably in some other capacity.
244
Opportunity costs may be calculated (ii) The costs of small tools shall be
in accordance with the methodology assigned to the branch on the basis of
established in § 1152.34 of this part, or the ratio that the branch amounts in
by using any other reasonable, fully ex- Accounts 11–11–10 through 11–11–17 and
plained method. Opportunity costs are 11–11–48, plus 11–12–10 through 11–12–17
not included as costs on Exhibit 1 de- and 11–12–48, bear to the railroad’s sys-
scribed at § 1152.36. These costs should tem total for the same accounts.
be submitted as a separate exhibit to (3) Fringe benefits. Fringe benefits
the application. shall be assigned to the branch sepa-
(q) Labor costs. (1) The salaries, wages rated between running, switching and
and fringe benefits of personnel exclu- other, on the ratio that the total
sively assigned to the line segment branch salary and wages bear to the
shall be deemed attributable costs of total system salaries and wages for
the segment. The salaries, wages, and each activity as follows:
fringe benefits of personnel not exclu- (i) Fringe benefits—Running, Account
sively assigned to the line segment 12–11–00, total of all 11–11–XX accounts
shall be deemed attributable costs of branch to system;
the segment to the extent they are (ii) Fringe benefits—Switching, Account
shown to be apportionable to the seg- 12–12–00, total of all 11–12–XX accounts
ment to be abandoned. branch to system; and
(2) These costs shall be deemed at- (iii) Fringe benefits—Other, Account
tributable notwithstanding any obliga- 12–13–00, total of all 11–13–XX accounts
tion of applicant to provide employee branch to system.
protection for employees after the (b) Maintenance of equipment—(1) Lo-
abandonment. comotive repairs and maintenance. All
accounts designated XX–21–41 shall be
§ 1152.33 Apportionment rules for the separated between yard and road with
assignment of expenses to on-
branch costs. a further separation between diesel and
other (electric). The costs for these ac-
The accounts specified under § 1152.32 counts for yard locomotives shall be
(a), (b), (c), and (d) as having an assign- assigned to the branch separately for
ment basis other than ‘‘Actual’’ shall diesel and electric locomotives on the
be apportioned according to the rules basis of the ratio of branch diesel and
contained in this section. electric yard locomotive unit-hours to
(a) Maintenance of way and struc- the total system diesel and electric
tures—(1) Roadway machines. All ac- yard locomotive unit-hours. The costs
counts designated XX–13–36 shall be as- for these accounts for road locomotives
signed to the branch on the basis of the shall be assigned to the branch sepa-
average repair costs, for each type of rately for diesel and electric loco-
machine, included in the daily rental motives on the basis of the ratio of
fees charged by the operating railroad branch diesel and electric locomotive
or as published by the General Man- gross ton-miles in road service to the
ager’s Association of Chicago (GMA), total system diesel and electric loco-
based on the actual number of days motive gross ton-miles in road service.
each type of machine is used on the The costs assigned under these ac-
branch. counts for specialized equipment de-
(2) Small tools and supplies. All ac- voted exclusively to branch line service
counts designated XX–13–37 shall be as- shall be the actual costs for the spe-
signed to the branch as follows: cific equipment used.
(i) The costs of supplies, consumed in (2) Locomotive depreciation. Loco-
the operation of roadway machines, motive depreciation shall be calculated
shall be assigned to the branch on the and assigned in accordance with the
basis of the average costs of supplies procedures set forth in § 1152.32(o).
per day, included in the daily rental (3) Fringe Benefits. Fringe benefits for
fees charged by the operating railroad locomotives and other equipment shall
or as published by the GMA, multiplied be assigned to the branch on the ratio
by the actual number of days that the that the total branch salary and wages
machine is used on the branch; bear to the system total salaries and
245
§ 1152.33 49 CFR Ch. X (10–1–07 Edition)
wages for each type of equipment as (2) Divide the amount in paragraph
follows: (c)(1)(i)(B)(1) of this section by the
(i) Locomotives—Account 12–21–00, total system carloads; and
total of all 11–21–XX accounts branch (3) Multiply the carload unit cost fac-
to system. tor from paragraph (c)(1)(i)(B)(2) of this
(ii) Other Equipment—Account 12–23– section by the on-branch carloads.
00, total of all 11–23–XX accounts (C) To determine the total costs as-
branch to system. signable to the branch for these ac-
(iii) Fringe benefits for freight cars counts, add the amounts developed in
shall be calculated by first estimating paragraphs (c)(1)(i)(A)(3) and
the total in Account 11–22–42, Freight (c)(1)(i)(B)(3) of this section.
car repairs—salaries and wages, that is
(ii) All accounts designated xx–31–67
included in the total on branch costs
for freight cars as determined from the shall be assigned to the branch in ac-
car-day and car-mile cost calculations cordance with the following procedure.
in § 1152.32(g) of these regulations. To The dollar amounts used in the deter-
this amount is added the branch totals mination of locomotive fuel costs shall
in the balance of all 11–22–XX accounts. be based on data contained in the most
The ratio of this total branch account recent publication issued by the Gen-
to the system total for all 11–22–XX ac- eral Managers Association (GMA) re-
counts is applied to Account 12–22–00, lating to the rental of locomotives. The
Fringe Benefits—Freight Cars. total number of locomotive unit hours
(c) Transportation—(1) Train oper- incurred by the locomotive(s) shall
ations—(i) Engine Crews-Materials. Ac- then be categorized according to the
count 21–31–56; Train Crews-Materials, applicable GMA horsepower classifica-
Account 21–31–57; Train Inspection and tion group. The fuel cost is derived
Lubrication-Salaries and Wages, Account from the Repairs and Supplies Ex-
11–31–62; and Train Inspection and Lubri- penses element of the locomotive rent-
cation-Materials, Account 21–31–62. If the al rates published by the GMA. The
branch is served by a local/way or fuel cost per locomotive unit hour shall
through train, the costs in these ac- be determined for each GMA horse-
counts shall be assigned to the branch power classification group by multi-
on the weighted ratio of the loaded plying the latest GMA fuel cost per-
freight train cars on the branch to the centage by the Repairs and Supplies
total system loaded freight train cars, Expense per hour included in each
and the loaded and empty car-miles on group. The fuel cost update ratio is de-
the branch to the total system loaded termined by using the indices for fuel
and empty car-miles. This shall be cal- from the Association of American Rail-
culated as follows: road’s (AAR’s) Railroad Cost Recovery
(A) To determine the car-mile por- Index (RCR). The indices shall be taken
tion of these accounts:
from the district to which the railroad
(1) Multiply the total amounts in
is assigned by the Board. The index for
these accounts (from the R–1 Annual
the current period is divided by the
Report, Schedule 410) by 69 percent,
which is the ratio of train-mile and index of the period representative of
running expenses; the GMA publication to develop the
(2) Divide the amount in paragraph fuel update ratio. The fuel cost per lo-
(c)(1)(i)(A)(1) of this section by the comotive unit hour developed for each
total system loaded and empty car- GMA horsepower group shall be multi-
miles; and plied by the fuel update ratio to deter-
(3) Multiply the car-mile unit cost mine the fuel cost per locomotive hour
factor from paragraph (c)(1)(i)(A)(2) of for each horsepower group. The up-
this section by the on-branch car-miles dated fuel cost per locomotive unit
(loaded and empty). hour for each applicable GMA group
(B) To determine the carload portion shall be multiplied by the number of
of these accounts: locomotive unit hours incurred in serv-
(1) Multiply the total amounts in ing the branch by locomotives of that
these accounts by 31 percent, which is GMA horsepower classification group.
the ratio of terminal expenses; The total cost developed under this
246
procedure for each horsepower classi- (i) Train Operations, Account 12–31–00,
fication shall be the locomotive fuel total of all 11–31–XX accounts branch
cost assignable to the branch line. to system.
(iii) Electric power purchased or pro- (ii) Yard Operations, Account 12–32–00,
duced for motive power—All accounts total of all 11–32–XX accounts branch
designated XX–31–68 shall be assigned to system.
to the branch on the ratio of road elec- (iii) Train and Yard Operations Com-
tric locomotive unit hours on the mon, Account 12–33–00, total of all 11–33–
branch to the total system road elec- XX accounts branch to system.
tric locomotive unit hours. (iv) Specialized Service Operations, Ac-
(iv) Servicing locomotives—All account 12–34–00, total of all 11–34–XX ac-
counts designated XX–31–69 shall be as- counts branch to system.
signed to the branch on the ratio of (v) Administrative Support, Account 12–
road locomotive unit miles on the 35–00, total of all 11–35–XX accounts
branch to the total system road loco- branch to system.
motive unit miles. (d) General administrative. (1) Fringe
Benefits, Account 12–61–00, shall be as-
(2) Yard operations—(i) Switch Crews—
signed to the branch on the ratio that
Materials, Account 21–32–64, and Serv-
the total branch salary and wages in
icing Locomotives, all accounts des-
all 11–61–XX accounts bear to the sys-
ignated XX–32–69. The costs for these
tem total salary and wages in all 11–61–
accounts shall be assigned to the
XX accounts.
branch on the ratio of yard locomotive
(2) [Reserved]
unit hours on the branch to the system
total yard locomotive unit hours. § 1152.34 Return on investment.
(ii) Locomotive fuel—All accounts des-
Return on investment for road prop-
ignated XX–32–67 shall be assigned to erty shall be computed according to
the branch on the ratio of yard diesel the procedures set forth in this section.
locomotive unit hours on the branch to (a)–(b) [Reserved]
the total system yard diesel loco- (c) Return on investment—road prop-
motive unit hours. erties. Return on investment—road
(iii) Electric power purchased or pro- properties shall be computed according
duced for motive power—All accounts to the following procedures:
designated XX–32–68 shall be assigned (1) The investment base to which the
to the branch on the ratio of yard elec- nominal return element shall apply
tric locomotive unit hours on the shall be the sum of:
branch to the total system yard elec- (i) The allowable working capital
tric locomotive unit hours. computed at 15 days on-branch cash
(3) Administrative support operations— avoidable costs (on branch avoidable
(i) Loss and damage claims processing— costs less depreciation).
All accounts designated XX–35–78 shall (ii) The amount of current income
be assigned to the branch on the ratio tax benefits resulting from abandon-
of the number of claims processed for ment of the line which would have been
loss or damage occurring on the branch applicable to the period of the subsidy
to the total number of claims processed agreement. (Conversely, if the railroad
by the railroad. would incur an income tax liability
(ii) [Reserved] from abandonment, the liability should
(4) Transportation fringe benefits. be deducted from the investment base.)
Fringe benefits shall be assigned to the This information is to be furnished by
branch separated between train oper- the railroad and subject to audit by the
ations, yard operations, train and yard person offering the subsidy.
operations common, specialized service (iii) The net liquidation value for the
operations, and administrative support highest and best use for non-rail pur-
operations. The costs for each activity poses of the rail properties on the line
shall be assigned to the branch on the to be subsidized which are used and re-
ratio that the total branch salary and quired for performance of the services
wages bear to the total system salary requested by the persons offering the
and wages for each activity shown subsidy. This value shall be determined
below. by computing the current appraised
247
§ 1152.34 49 CFR Ch. X (10–1–07 Edition)
market value of such properties for vation) usually are different from those
other than rail transportation pur- of surrounding parcels. All adjustments
poses, less all costs of dismantling and to ATF values to arrive at the right-of-
disposition of improvements necessary way values shall also be supported and
to make the remaining properties explained.
available for their highest and best use (2) [Reserved]
and complying with applicable zoning, (d) Reasonable return. A rail carrier
land use, and environmental regula- shall furnish to the Board, and to any
tions. If rehabilitation has been per- financially responsible person consid-
formed along the line during a subsidy ering making an offer of a rail service
year and rehabilitation expenses have continuation payment, a substantiated
been paid by the subsidizer under 49 statement showing its current nominal
CFR 1152.32(m)(2), the investment base cost of capital. The railroad’s nominal
shall exclude the increment to the net cost of capital shall be the current be-
liquidation value of the line caused by fore tax cost of capital, weighted to the
the rehabilitation project. For these capital structure, and adjusted for the
purposes: effects of the combined statutory Fed-
(A) In calculating the net liquidation eral and state income tax rates. This
values for the Forecast Year, no asset rate of return expressed as a percent,
on the line shall be excluded from the shall be calculated as follows:
determination of net liquidation value
(1) The railroad shall determine its
because it contributes negatively to
permanent capital structure ratio for
that value, i.e., the removal costs ex-
debt and equity capital such that the
ceed the market value after removal.
two numbers total 100 percent. This
All such assets shall be included in the
capital structure will be the actual
net liquidation value determination if
capital structure of the railroad. If this
the carrier is required by law to re-
calculation is not possible or also not
move them or if the carrier intends to
representative because the railroad is
remove them, even if it is not required
part of a conglomerate, the debt-equity
to do so. The parties shall fully support
ratio from the Board’s latest Deter-
and explain the exclusion for net liq-
uidation purposes of all assets having a mination of Adequate Railroad Reve-
negative salvage value. nues will be used. However, if the debt-
(1) In calculating the net liquidation equity ratio for the railroad industry is
value of railroad properties for the pur- used then the industry average equity
pose of determining the operating sub- and debt rate from the Board’s latest
sidy under an offer of financial assist- revenue adequacy finding must also be
ance, any asset with a negative salvage used in paragraphs (d)(2) and (d)(3) of
value shall be included at a value of this section.
zero (0). (2) The current nominal cost of debt
(2) Determination of the net liquida- shall be determined by taking the aver-
tion value of rail properties for the age of all debt instruments (including
purpose of purchasing the rail prop- bonds, equipment trust certificates, fi-
erties under an offer of financial assist- nancial lease arrangements, et cetera)
ance shall include any asset with a issued by the carrier in the most recent
negative salvage value at a value of 12-month period. The debt cost cal-
zero (0). culated by this procedure is a before-
(B) All adjustments to the appraised tax rate and is not adjusted for infla-
fair market value of right-of-way land, tion or income taxes.
including a downward adjustment to (3) The current nominal after tax
reflect an imputed real estate Board or cost of equity shall be an amount equal
selling expense, shall be fully sup- to that which a prudent investor would
ported and explained. expect to earn through investment in
(C) Parties shall fully support and ex- the market place. The current after tax
plain their use of unadjusted across- nominal cost of equity is divided by 1
the-fence (ATF) values as a surrogate minus the combined statutory Federal
for the value of railroad right-of-way and state income tax rates. This will
land, given that the physical and eco- develop the nominal cost of equity on a
nomic characteristics (grading and ele- before tax basis.
248
(4) The current nominal before-tax mined for road properties, the Gross
cost of debt is multiplied by the cur- Domestic Product deflator calculated
rent percentage of debt to total capital by the U.S. Department of Commerce
to obtain a weighted before-tax nomi- shall be used.
nal cost of current debt.
(5) The current nominal before-tax § 1152.35 [Reserved]
cost of equity is multiplied by the cur-
rent percentage of equity to total cap- § 1152.36 Submission of revenue and
ital to obtain a weighted nominal be- cost data.
fore-tax cost of current equity. The following information shall be
(6) The results of paragraphs (d)(4) submitted by applicant as Exhibit 1 to
and (d)(5) of this section are added to- an abandonment or discontinuance ap-
gether to determine the current nomi- plication (§ 1152.22(d)) and shall be de-
nal cost of capital. veloped in accordance with the meth-
(e) Holding gain (loss)-road properties. odology established in §§ 1152.31
The railroad shall determine the hold- through 1152.35, as applicable. Such in-
ing gain (loss) that is projected to formation, form and methodology shall
occur during the forecast and/or sub- also be used by an offeror of financial
sidy year. In any instance where the assistance to formulate a Proposed
holding gain is not specifically deter- Subsidy Payment (§ 1152.27).
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 consequences ................................................................ XXXX.
c. Net liquidation value ......................................................................... XXXX.
13. Nominal rate of return ................................................................................... XXXX.
14. Nominal return on value (line 12 times line 13) 3 ......................................... XXXX.
15. Holding gain (loss) ........................................................................................ XXXX.
16. Total return on value (line 14 minus 15) 3 .................................................... XXXX.
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 § 1152.32(m).
2 Omit in applications pursuant to § § 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.
249
§ 1152.37 49 CFR Ch. X (10–1–07 Edition)
§ 1152.37 Financial status reports. cant deviations from the negotiated es-
Within 30 days after the end of each timates must be explained. All data
quarter of the subsidy year, each car- shall be developed in accordance with
rier which is party to the financial as- the methodology set forth in § § 1152.31
sistance agreement shall submit to the through 1152.35. In the quarterly re-
subsidizer a Financial Status Report ports, the actual data for the year to
for each line operated under subsidy. date and a projection to the end of the
Such Financial Status Report shall be subsidy year shall be shown for each
in the form prescribed below. Signifi- 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
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] 10903, whether under this section or on

the basis of the merits of an individual
petition, the provisions of §§ 1152.27,
Subpart F—Exempt Abandon-
1152.28, and 1152.29 as they relate to ex-
ments and Discontinuances of emption proceedings shall be applica-
Service and Trackage Rights ble.
§ 1152.50 Exempt abandonments and (b) An abandonment or discontinu-
discontinuances of service and ance of service or trackage rights is ex-
trackage rights. empt if the carrier certifies that no
local traffic has moved over the line
(a)(1) A proposed abandonment or dis-
for at least 2 years and any overhead
continuance of service or trackage
traffic on the line can be rerouted over
rights over a railroad line is exempt
other lines and that no formal com-
from the provisions of 49 U.S.C. 10903 if
plaint filed by a user of rail service on
the criteria in this section are satis-
the line (or a state or local government
fied.
entity acting on behalf of such user) re-
(2) Whenever the Board determines a
garding cessation of service over the
proposed abandonment to be exempt
line either is pending with the Board or

from the requirements of 49 U.S.C.
250
any U.S. District Court or has been de- road’s possession will be made avail-
cided in favor of the complainant with- able promptly to those requesting it.’’
in the 2-year period. The complaint (2) The railroad must file a verified
must allege (if pending), or prove (if de- notice using its appropriate abandon-
cided) that the carrier has imposed an ment docket number and subnumber
illegal embargo or other unlawful im- (followed by the letter ‘‘X’’) with the
pediment to service. Board at least 50 days before the aban-
(c) The Board has found: donment or discontinuance is to be
(1) That its prior review and approval consummated. The notice shall include
of these abandonments and the proposed consummation date, the
discontinuances is not necessary to certification required in § 1152.50(b), the
carry out the rail transportation policy information required in §§ 1152.22(a) (1)
of 49 U.S.C. 10101; and through (4), (7) and (8), and (e)(4), the
(2) That these transactions are of level of labor protection, and a certifi-
limited scope and continued regulation cate that the notice requirements of
is unnecessary to protect shippers from §§ 1152.50(d)(1) and 1105.11 have been
abuse of market power. 49 U.S.C. 10502. complied with.
A notice must be filed to use this class (3) The Board, through the Director
exemption. The procedures are set out of the Office of Proceedings, shall pub-
in § 1152.50(d). This class exemption lish a notice in the FEDERAL REGISTER
does not relieve a carrier of its statu- within 20 days after the filing of the
tory obligation to protect the interests notice of exemption. The notice shall
of employees. 49 U.S.C. 10502(g) and include a statement to alert the public
10903(b)(2). This also does not preclude that following any abandonment of rail
a carrier from seeking an exemption of service and salvage of the line, the line
a specific abandonment or discontinu- may be suitable for other public use,
ance that does not fall within this including interim trail use. Petitions
class. to stay the effective date of the notice
(d) Notice of exemption. (1) At least 10 on other than environmental or his-
days prior to filing a notice of exemp- toric preservation grounds must be
tion with the Board, the railroad seek- filed within 10 days of the publication.
ing the exemption must notify in writ- Petitions to stay the effective date of
ing: the notice on environmental or historic
(i) The Public Service Commission preservation grounds may be filed at
(or equivalent agency) in the state(s) any time but must be filed sufficiently
where the line will be abandoned or the in advance of the effective date in
service or trackage rights discon- order to allow the Board to consider
tinued; and act on the petition before the no-
(ii) Department of Defense (Military tice becomes effective. Petitions for re-
Traffic Management Command, Trans- consideration, comments regarding en-
portation Engineering Agency, Rail- vironmental, energy and historic pres-
roads for National Defense Program); ervation matters, and requests for pub-
(iii) The National Park Service, lic use conditions under 49 U.S.C. 10905
Recreation Resources Assistance Divi- and 49 CFR 1152.28(a)(2) must be filed
sion; and within 20 days after publication. Re-
(iv) The U.S. Department of Agri- quests for a trail use condition under 16
culture, Chief of the Forest Service. U.S.C. 1247(d) and 49 CFR 1152.29 must
The notice shall name the railroad, be filed within 10 days after publica-
describe the line involved, including tion. The exemption will be effective 30
United States Postal Service ZIP days after publication, unless stayed. If
Codes, indicate that the exemption pro- the notice of exemption contains false
cedure is being used, and include the or misleading information, the use of
approximate date that the notice of ex- the exemption is void ab initio and the
emption will be filed with the Board. Board shall summarily reject the ex-
The notice shall include the following emption notice.
statement ‘‘Based on information in (4) In out-of-service rail line exemp-
our possession, the line (does) (does tion proceedings under 49 CFR 1152.50,
not) contain federally granted rights- the Board, on its own motion, will stay
of-way. Any documentation in the rail- the effective date of individual notices
251
§ 1152.60 49 CFR Ch. X (10–1–07 Edition)
of exemption when an informed deci- (b) Any petition filed under the 49
sion on pending environmental and his- U.S.C. 10502 exemption procedure for
toric preservation issues cannot be either the abandonment of a rail line
made prior to the date that the exemp- or the discontinuance of service or
tion authority would otherwise become trackage rights over a rail line must be
effective. accompanied by a map that meets the
(5) A notice or decision to all parties requirements of § 1152.22(a)(4) of this
will be issued if use of the exemption is part.
made subject to environmental, en- (c) A petitioner for an abandonment
ergy, historic preservation, public use exemption shall submit, with its peti-
and/or interim trail use and rail bank- tion, a draft FEDERAL REGISTER notice
ing conditions. of its petition according to the form
(6) To address whether the standard prescribed below:
labor protective conditions set forth in
Draft FEDERAL REGISTER Notice. The peti-
Oregon Short Line R. Co.—Abandon-
tioner shall submit a draft notice of its peti-
ment—Goshen, 360 I.C.C. 91 (1979), ade- tion to be published by the Board within 20
quately protect affected employees, a days of the petition’s filing with the Board.
petition for partial revocation of the The petitioner must submit a copy of the
exemption under 49 U.S.C. 10502(d) draft notice as data contained on a computer
must be filed. diskette compatible with the Board’s current
(e) Consummation notice. As provided word processing capabilities. The draft no-
in § 1152.29(e)(2), rail carriers that re- tice shall be in the form set forth below:
ceive authority to abandon a line under STB No. AB–lll (Sub-No.lll)
§ 1152.50 must file with the Board a no-
tice that abandonment has been con- Notice of Petition for Exemption To
summated. Abandon or To Discontinue Service
[61 FR 67883, Dec. 24, 1996, as amended at 62 On (insert date petition was filed with the
FR 34670, June 27, 1997] Board) (name of petitioner) filed with the
Surface Transportation Board, Washington,
D.C. 20423, a petition for exemption for the
Subpart G—Special Rules Appli- abandonment of (the discontinuance of serv-
cable to Petitions for Aban- ice on) a line of railroad known aslll, ex-
donments or Discontinuances tending from railroad milepost near (station
name) to (the end of line or rail milepost)
of Service or Trackage Rights near (station name), which traverses through
Filed Under the 49 U.S.C. lll (ZIP Codes) United States Postal Serv-
10502 Exemption Procedure ice ZIP Codes, a distance of lll miles, in
[County(ies), State(s)]. The line for which
§ 1152.60 Special rules. the abandonment (or discontinuance) exemp-
tion request was filed includes the stations
(a) This section contains special rules of (list all stations on the line in order of
applicable to any proceeding instituted milepost number, indicating milepost loca-
under the 49 U.S.C. 10502 exemption tion).
procedure for either the abandonment The line (does) (does not) contain federally
of a rail line or the discontinuance of granted rights-of-way. Any documentation
service or trackage rights over a rail in the railroad’s possession will be made
line. General rules applicable to any available promptly to those requesting it.
proceeding filed under the 49 U.S.C. The interest of railroad employees will be
protected by (specify the appropriate condi-
10502 exemption procedure may be tions).
found at 49 CFR part 1121, but the rules Any offer of financial assistance will be
in part 1152 control in case of any con- due no later than 10 days after service of a
flict with the general exemption rules. decision granting the petition for exemption.
In the case of petitions for exemption All interested persons should be aware that
for abandonment, notice of the filing of following abandonment of rail service and
the petition will be published by the salvage of the line, the line may be suitable
Board, through the Director of the Of- for other public use, including interim trail
use.
fice of Proceedings, in the FEDERAL
Any request for a public use condition and
REGISTER 20 days after the petition is any request for trail use/rail banking will be
filed. There will be no further FEDERAL due no later than 20 days after notice of the
REGISTER publication later if and when filing of the petition for exemption is pub-
a petition is granted. lished in the FEDERAL REGISTER.
252
Persons seeking further information con- 1177.4 Sample forms.
cerning abandonment procedures may con- 1177.5 Administrative procedure.
tact the Surface Transportation Board or
AUTHORITY: 49 U.S.C. 721, 11301.
refer to the full abandonment or discontinu-
ance regulations at 49 CFR part 1152. Ques- SOURCE: 46 FR 54946, Nov. 5, 1981, unless
tions concerning environmental issues may otherwise noted. Redesignated at 47 FR 49592,
be directed to the Board’s Section of Envi- Nov. 1, 1982.
ronmental Analysis.
An environmental assessment (EA) (or en- § 1177.1 Definitions and classifications
vironmental impact statement (EIS), if nec- of documents.
essary) prepared by the Section of Environ- (a) A ‘‘primary document’’ is a mort-
mental Analysis will be served upon all par-
gage (excluding those under the Ship
ties of record and upon any agencies or other
persons who commented during its prepara- Mortgage Act of 1920, as amended—46
tion. Any other persons who would like to U.S.C. et seq.), lease, equipment trust
obtain a copy of the EA (or EIS) may contact agreement, conditional sales agree-
the Section of Environmental Analysis. EAs ment, assignment of a lease or leases
in these abandonment proceedings normally which have not previously been filed,
will be made available within 60 days of the or other instrument evidencing the
filing of the petition. The deadline for sub- mortgage, lease, conditional sale, or
mission of comments on the EA will gen- bailment of one or more vessels oper-
erally be within 30 days of its service.
ated subject to Surface Transportation
(d) A petitioner for an abandonment Board jurisdiction, railroad cars, loco-
exemption must serve a copy of the pe- motives, or other rolling stock for a
tition on the persons receiving notices use related to interstate commerce.
of exemption under § 1152.50(d). The pe- (b) A ‘‘secondary document’’ is any
tition must include the following state- assignment of rights or interest, sup-
ment: ‘‘Based on information in our plement, or amendment to any primary
possession, the line (does) (does not) or other secondary document. These in-
contain federally granted right-of-way. clude releases, discharges, or satisfac-
Any documentation in petitioner’s pos- tions, either total or partial.
session will be made available prompt-
ly to those requesting it.’’ § 1177.2 To whom documents should be
submitted for recordation.
(e) As Provided in § 1152.29(e)(2), rail
carriers that receive authority to aban- Documents to be recorded shall be
don a line by individual exemption submitted in person or by mail ad-
under 49 U.S.C. 10502 must file with the dressed to the Secretary, Surface
Board a notice that abandonment has Transportation Board, Washington, DC
been consummated. 20423. All documents submitted by mail
should clearly state ‘‘Documents for
[61 FR 67883, Dec. 24, 1996, as amended at 62 Recordation’’ on the envelope.
FR 34670, June 27, 1997]
§ 1177.3 Requirements for submission.
PARTS 1155–1176 [RESERVED] In order to be accepted for recorda-
tion, an original of any primary or sec-
Parts 1177–1199—Finance ondary document must:
Procedures (a) Be in writing and executed by the
parties to the document, and acknowl-
Parts 1177–1179—Securities, Secu- edged or verified either in a form:
rity Interests and Financial Struc- (1) Authorized by the law of the
state, territory, district or possession
tures where executed for the acknowledge-
ment or verification of deeds of land; or
PART 1177—RECORDATION OF (2) Substantially as follows:
DOCUMENTS
INDIVIDUAL FORM OF ACKNOWLEDGEMENT
Sec. I, (name of signor), certify that I am the
1177.1 Definitions and classifications of doc- person described in and who executed the
uments. foregoing instrument and that I acknowledge
1177.2 To whom documents should be sub- that I executed the same as my free act and
mitted for recordation. deed. I further declare (certify, verify or
1177.3 Requirements for submission. state) under penalty of perjury (‘‘under the
253
§ 1177.3 49 CFR Ch. X (10–1–07 Edition)
laws of the United States of America’’ if exe- Signature of Notary Public
cuted outside the United States) that the My Commission expires lllllllllll
foregoing is true and correct. Executed on
(date). (b) Be accompanied by at least one
fully executed and acknowledged or
Signature.
verified counterpart, or if no counter-
or; part has been executed and acknowl-
edged by the parties, one certified true
CORPORATE FORM OF ACKNOWLEDGEMENT copy. A certified true copy of an origi-
I, (name of signor), certify that I am (title nal document is a complete and iden-
of office) of (name of corporation), that the tical copy in all respects to the origi-
seal affixed to the foregoing instrument is nal attached with:
the corporate seal of said corporation, that
(1) A certificate executed by a notary
the instrument was signed and sealed on be-
half of the corporation by authority of its public, stating that he or she has com-
Board of Directors, and that I acknowledge pared the copy with the original and
that the execution of the foregoing instru- has found the copy to be complete and
ment was the free act and deed of the cor- identical in all respects to the original
poration. I further declare (certify, verify or document; or
state) under penalty of perjury (‘‘under the (2) A certification of the filer stating
laws of the United States of America’’ if exe- that he or she has compared the copy
cuted outside the United States of America)
that the foregoing is true and correct. Exe-
with the original and found the copy to
cuted on (date). be complete and identical in all re-
Signature. spects to the original document and
that he or she declares under penalty
or; of perjury (‘‘under the laws of the
(3) Substantially as follows: United States of America’’ if executed
outside the United States) that the
INDIVIDUAL FORM OF ACKNOWLEDGEMENT foregoing is true and correct; or
(3) There may be attached to the
State of llllllllllllll
copy, affidavits, wherein the affidavit
County of lllllllllllll, ss: states that he or she has compared the
copy with the original document and
On this lllllll day of found the copy to be complete and
llllllll, 19ll, before me, personally identical in all respects to the original
appeared (name of signor), to me known to
documents.
be the person described in and who executed
the foregoing instrument and (s)he acknowl- (c) Be accompanied by the fee set
edged that (s)he executed the same as his/her forth in 49 CFR 1002.2(f)(83). However,
free act and deed. assignments which are executed prior
(SEAL) to the filing of the primary document
llllllllllllllllllllllll and which are submitted concurrently
Signature of Notary Public will be treated along with the primary
document as one for fee purposes and
My Commission expires lllllllllll
will be assessed only one fee. A lease
Corporate Form of Acknowledgement and agreement (Philadelphia Plan)
State of llllllllllllll lllll shall be similarly treated.
County of lllllllllllll, ss: lll (d) Be accompanied by a letter of
transmittal requesting the recording of
On this lllllll day of
the document. For a sample of a letter,
lllllllllll, 19ll before me per-
sonally appeared (name of signor), to me per- see § 1177.4 Documents submitted con-
sonally known, who being by me duly sworn, currently under the same recordation
says that (s)he is the (title of office) of (name number may be included in a single
of corporation), that the seal affixed to the transmittal letter. Otherwise, each
foregoing instrument is the corporate seal of document must have its own letter of
said corporation, that said instrument was transmittal. The letter should be ad-
signed and sealed on behalf of said corpora- dressed to the Secretary and include
tion by authority of its Board of Directors,
the following information:
and (s)he acknowledged that the execution of
the foregoing instrument was the free act (1) Type of Agreement. (equipment
and deed of said corporation. trust, mortgage, assignment, etc.).
(2) Whether document is a primary doc-
(SEAL)
llllllllllllllllllllllll ument or a secondary document (see
254
§ 1177.1). If the document is a secondary (9) The letter must be signed by an

document, it must contain the recorda- executive officer of one of the parties
tion number of the primary document having knowledge of the matters de-
to which it is connected, unless it is scribed in the letter, or their attorney
being filed concurrently with a pri- or representative in fact.
mary document to which a recordation
NOTE: If the document is a mortgage or
number has not yet been assigned. deed of trust which contains a ‘‘hereafter ac-
(3) A request for cross-indexing. If the quired’’ or similar clause, the following
document is an assignment, parties statement may be included in the letter of
may request the listing of the assign- transmittal in lieu of the equipment descrip-
ment in the index under the name(s) of tion above:
parties with continuing interest not in- ‘‘Included in the property covered by the
volved in this particular assignment. aforesaid mortgage (or deed of trust) are
(4) A description of the equipment cov- (here identify generally the equipment such
ered in the document—(i) For railway as ‘‘barges, tow boats, or other vessels, rail-
equipment—The type of equipment; road cars, locomotives and other rolling
whether locomotives, cars, or other stock’’) intended for use related to interstate
rolling stock; with any A.A.R. mechan- commerce, or interests therein, owned by
(name of mortgagor) at the date of said
ical designation; the number of each
mortgage or thereafter acquired by it or its
type; any identifying marks such as successors as owners of the water carriers or
the name or initials of the lessee, the lines of railway covered by the mort-
mortgagee, or vendee, and the road or gage.’’
serial number, or if more than one for When such a mortgage or deed of trust
each type of equipment, the first and is filed, it is not necessary to refile the
last inclusive numbers. document whenever additional rolling
(ii) For water carrier equipment— stock is acquired in order to perfect
Whether tow boats, barges or other the lien of the document upon the addi-
vessels; type of equipment; description tion of vessels or rolling stock.
as contained in the United States
Coast Guard certificate of enrollment; (Authority: 5 U.S.C. 553, 31 U.S.C. 9701; 49
number of each type of equipment; and U.S.C. 10321)
any identifying marks such as the [46 FR 54946, Nov. 5, 1981. Redesignated at 47
name or initial of the lessee, mort- FR 49592, Nov. 1, 1982 and amended at 52 FR
gagee, or vendee. 46484, Dec. 8, 1987; 56 FR 10520, Mar. 13, 1991;
(5) Parties to the agreement, as fol- 56 FR 12423, Mar. 25, 1991; 64 FR 53268, Oct. 1,
lows: 1999]
(i) Conditional sale-vendor, pur- § 1177.4 Sample forms.
chaser, guarantor.
(ii) Mortgage—mortgagor, mort- (a) Sample short summary for the
gagee, guarantor. Index.
(iii) Equipment Trust—vendor, trust- (1) Primary documents. [Type of docu-
ee, lessor, lessee, guarantor of lease. ment] between [name and address of
(iv) Lease—lessee, lessor, guarantor. lessor, mortgagor, bailor, etc.] and
(v) Bailment—bailor, bailee, guar- [name and address of lessee, mort-
antor. gagee, bailee, etc.] dated [date], and
(vi) Other transactions—principal covering [briefly list amount and types
debtor, trustee, guarantor, and other of equipment].
parties. (2) Secondary documents. (i) If an as-
(6) Parties to whom original docu- signment—Assignment between [name
ment should be returned. and address of assignor] and [name and
(7) The amount of the enclosed fee. address of assignee] dated [date of as-
(8) A short summary (1 or 2 sen- signment] and covering [list amount
tences) of the type of document and a and types of equipment], and connected
very brief description of the equipment to [type of document primary docu-
and identifying numbers. This sum- ment is] with Recordation No. [rec-
mary will be entered into the index as ordation number of the primary docu-
an aid to researching the encum- ment if known, at time recorded].
brances to title. (For a sample of a (ii) Other secondary documents—
summary, see § 1177.4). [Type of document] to [type of primary
255
§ 1177.5 49 CFR Ch. X (10–1–07 Edition)
document] with Recordation No. [Rec- terpart will be retained by the Board.
ordation number of the primary docu- For a secondary document, the number
ment], dated [date of amendment, sup- assigned will be the recordation num-
plement, release, etc.] and covering ber of the primary document plus the
[list amount and types of equipment]. next available letter suffix.
(b) Sample Letter of Transmittal. (b) The Board will maintain an index
for public use as required by 49 U.S.C
[Secretary’s Name] Secretary, Surface Trans-
portation Board, Washington, D.C.
11303(b). There will be an index of par-
ties to documents recorded at the
Dear Secretary: I have enclosed an original
and one copy/counterpart of the document(s)
Board in alphabetical order by the par-
described below, to be recorded pursuant to ty’s name. If requested by the letter of
Section 11301 of Title 49 of the U.S. Code. transmittal, this index will also be
This document is a [mortgage, lease, equip- amended to reflect an assignment
ment trust, supplement, etc.], a [primary or under the name of the party other than
secondary] document, dated [date]. the assignor or assignee to the docu-
(If a secondary document)—The primary ment. There will also be an index of
document to which this is connected is re- documents by number, which will list
corded under Recordation No. ll.
secondary documents referenced to the
(If an assignment)—We request that this
assignment be cross-indexed. primary ones. The indexes will contain
The names and addresses of the parties to the pertinent information furnished by
the documents are as follows: the parties in the transmittal letter.
Vendor, Lessor, Mortgagor, etc: [name and (c) The Board cannot judge the valid-
address] ity of documents, nor judge the status
Vendee, Lessee, Mortgagee, etc: [name and of encumbrances to property as re-
address]. flected by documents recorded at the
A description of the equipment covered by Board. The public is welcome to re-
the document follows: search the records or use an agent or
[Type of equipment, amount of each, AAR attorney to do so, provided that Board
designation if any, identifying marks, road rules concerning handling of the docu-
or serial numbers, etc., as outlined in ments are respected.
1177.3(d)(4).] (d) The public should note that filing
A fee of llllll is enclosed. Please re- documents with the Board is discre-
turn the original and any extra copies not tionary and encumbrances exist which
needed by the Board for recordation to are not on file with the Board.
[party to whom documents should be re-
turned].
A short summary of the document to ap- PARTS 1178–1179 [RESERVED]
pear in the index follows: [a short summary
as described in 1177.4(a).). Parts 1180–1189—Combinations
Very truly yours,
and Ownership
llllllllllllllllllllllll
[signature of an executive officer of one of
the parties, their attorney, or representative
PART 1180—RAILROAD ACQUISI-
in fact.] TION, CONTROL, MERGER, CON-
[46 FR 54946, Nov. 5, 1981 as amended at 64 FR
SOLIDATION PROJECT, TRACK-
53268, Oct. 1, 1999] AGE RIGHTS, AND LEASE PROCE-
DURES
§ 1177.5 Administrative procedure.
(a) At the time of filing of a docu- Subpart A—General Acquisition
ment with the Board for recordation, a Procedures
consecutive number will be stamped Sec.
upon the original document and upon 1180.0 Scope and purpose.
the copies or the counterparts, with 1180.1 General policy statement for merger
the date and hour of the filing. A nota- or control of at least two Class I rail-
tion acknowledging that the document roads.
has been filed pursuant to 49 U.S.C. 1180.2 Types of transactions.
1180.3 Definitions.
11303 will be made. The original docu- 1180.4 Procedures.
ment, along with the notation, will be 1180.5 [Reserved]
returned to the party named in the
1180.6 Supporting information.

transmittal letter and a copy or coun- 1180.7 Market analyses.
256
1180.8 Operational data. All applications must comply with the
1180.9 Financial information. Board’s Rules of General Applicability,
1180.10 Service assurance plans. 49 CFR parts 1100 through 1129, unless
1180.11 Transnational and other informa-
tional requirements.
otherwise specified. These regulations
may be cited as the Railroad Consoli-
Subpart B—Transfer or Operation of Lines dation Procedures.
of Railroads in Reorganization (b) Waiver. We will waive application
of the regulations contained in this
1180.20 Procedures. subpart for a consolidation involving
AUTHORITY: 5 U.S.C. 553 and 559; 11 U.S.C. The Kansas City Southern Railway
1172; 49 U.S.C. 721, 10502, 11323–11325. Company and another Class I railroad
and instead will apply the regulations
Subpart A—General Acquisition in this subpart A in effect before July
Procedures 11, 2001 and contained in the 49 CFR,
Parts 1000 to 1199, edition revised as of
October 1, 2000, unless we are shown
SOURCE: 47 FR 9844, Mar. 8, 1982, unless oth-
erwise noted. Redesignated at 47 FR 49592,
why such a waiver should not be al-
Nov. 1, 1982. lowed. Interested parties must file any
objections to this waiver within 10 days
§ 1180.0 Scope and purpose. after the applicants’ prefiling notifica-
(a) General. The regulations in this tion (see 49 CFR § 1180.4(b)(1)).
subpart set out the information to be [66 FR 32583, June 15, 2001]
filed and the procedures to be followed
in control, merger, acquisition, lease, § 1180.1 General policy statement for
trackage rights, and any other consoli- merger or control of at least two
dation transaction involving more than Class I railroads.
one railroad that is initiated under 49 (a) General. To meet the needs of the
U.S.C. 11323. Section 1180.2 separates public and the national defense, the
these transactions into four types: Surface Transportation Board (Board)
Major, significant, minor, and exempt. seeks to ensure balanced and sustain-
The informational requirements for able competition in the railroad indus-
these types of transactions differ. Be- try. The Board recognizes that the rail-
fore an application is filed, the des- road industry (including Class II and
ignation of type of transaction may be III carriers) is a network of competing
clarified or certain of the information and complementary components, which
required may be waived upon petition in turn is part of a broader transpor-
to the Board. This procedure is ex- tation infrastructure that also em-
plained in § 1180.4. The required con- braces the nation’s highways, water-
tents of an application are set out in ways, ports, and airports. The Board
§§ 1180.6 (general information sup- welcomes private-sector initiatives
porting the transaction), 1180.7 (com- that enhance the capabilities and the
petitive and market information), competitiveness of this transportation
1180.8 (operational information), 1180.9 infrastructure. Although mergers of
(financial data), 1180.10 (service assur- Class I railroads may advance our na-
ance plans), and 1180.11 (transnational tion’s economic growth and competi-
and other informational requirements). tiveness through the provision of more
A major application must contain the efficient and responsive transportation,
information required in §§ 1180.6(a), the Board does not favor consolidations
1180.6(b), 1180.7(a), 1180.7(b), 1180.8(a), that reduce the transportation alter-
1180.8(b), 1180.9, 1180.10, and 1180.11. A natives available to shippers unless
significant application must contain the there are substantial and demonstrable
information required in §§ 1180.6(a), public benefits to the transaction that
1180.6(c), 1180.7(a), 1180.7(c), and cannot otherwise be achieved. Such
1180.8(b). A minor application must con- public benefits include improved serv-
tain the information required in ice, enhanced competition, and greater
§§ 1180.6(a) and 1180.8(c). Procedures (in- economic efficiency. The Board also
cluding time limits, filing require- will look with disfavor on consolida-
ments, participation requirements, and tions under which the controlling enti-
other matters) are contained in § 1180.4. ty does not assume full responsibility
257
§ 1180.1 49 CFR Ch. X (10–1–07 Edition)
for carrying out the controlled car- can produce many of the efficiencies of
rier’s common carrier obligation to a merger while risking less potential
provide adequate service upon reason- harm to the public.
able demand. (1) Potential benefits. By eliminating
(b) Consolidation criteria. The Board’s transaction cost barriers between
consideration of the merger or control firms, increasing the productivity of
of at least two Class I railroads is gov- investment, and enabling carriers to
erned by the public interest criteria lower costs through economies of scale,
prescribed in 49 U.S.C. 11324 and the scope, and density, mergers can gen-
rail transportation policy set forth in erate important public benefits such as
49 U.S.C. 10101. In determining the pub- improved service, more competition,
lic interest, the Board must consider and greater economic efficiency. A
the various goals of effective competi- merger can strengthen a carrier’s fi-
tion, carrier safety and efficiency, ade- nances and operations. To the extent
quate service for shippers, environ- that a merged carrier continues to op-
mental safeguards, and fair working erate in a competitive environment, its
conditions for employees. The Board new efficiencies would be shared with
must ensure that any approved trans- shippers and consumers. Both the pub-
action would promote a competitive, lic and the consolidated carrier can
efficient, and reliable national rail sys- benefit if the carrier is able to increase
tem. its marketing opportunities and pro-
(c) Public interest considerations. The vide better service. A merger trans-
Board believes that mergers serve the action can also improve existing com-
public interest only when substantial petition or provide new competitive op-
and demonstrable gains in important portunities, and such enhanced com-
public benefits—such as improved serv- petition will be given substantial
ice and safety, enhanced competition, weight in our analysis. Applicants
and greater economic efficiency—out- shall make a good faith effort to cal-
weigh any anticompetitive effects, po- culate the net public benefits their pro-
tential service disruptions, or other posed merger would generate, and the
merger-related harms. Although fur- Board will carefully evaluate such evi-
ther consolidation of the few remaining dence. To ensure that applicants have
Class I carriers could result in effi- no incentive to exaggerate these pro-
ciency gains and improved service, the jected benefits to the public, the Board
Board believes additional consolidation expects applicants to propose addi-
in the industry is also likely to result tional measures that the Board might
in a number of anticompetitive effects, take if the anticipated public benefits
such as loss of geographic competition, fail to materialize in a timely manner.
that are increasingly difficult to rem- In this regard, the Board recognizes,
edy directly or proportionately. Addi- however, that applicants require the
tional consolidations could also result flexibility to adapt to changing mar-
in service disruptions during the sys- ketplace or other circumstances and
tem integration period. Accordingly, to that it is inevitable that an approved
assure a balance in favor of the public merger may not necessarily be imple-
interest, merger applications should in- mented in precisely the manner antici-
clude provisions for enhanced competi- pated in the application. Applicants
tion, and, where both carriers are fi- will be held accountable, however, if
nancially sound, the Board is prepared they do not act reasonably in light of
to use its conditioning authority as changing circumstances to achieve
necessary under 49 U.S.C. 11324(c) to promised merger benefits.
preserve and/or enhance competition. (2) Potential harm. The Board recog-
In addition, when evaluating the public nizes that consolidation can impose
interest, the Board will consider costs as well as benefits. It can reduce
whether the benefits claimed by appli- competition both directly and indi-
cants could be realized by means other rectly in particular markets, including
than the proposed consolidation. The product markets and geographic mar-
Board believes that other private-sec- kets. Consolidation can also threaten
tor initiatives, such as joint marketing essential services and the reliability of
agreements and interline partnerships, the rail network. In analyzing these
258
impacts we must consider, but are not problems can arise during the transi-
limited by, the policies embodied in tional period when merging firms inte-
the antitrust laws. grate their operations, even after appli-
(i) Reduction of competition. Although cants take extraordinary steps to avoid
in specific markets railroads operate in those disruptions. Because service dis-
a highly competitive environment with ruptions harm the public, the Board, in
vigorous intermodal competition from its determination of the public inter-
motor and water carriers, mergers can est, will weigh the likelihood of transi-
deprive shippers of effective options. tional service problems. In addition,
Intramodal competition can be reduced under paragraph (h) of this section, the
when two carriers serving the same ori- Board will require applicants to pro-
gins or destinations merge. Competi- vide a detailed service assurance plan.
tion arising from shippers’ build-out, Applicants also should explain how
transloading, plant siting, and produc- they would cooperate with other car-
tion shifting choices can be eliminated riers in overcoming serious service dis-
or reduced when two railroads serving ruptions on their lines during the tran-
overlapping areas merge. Competition sitional period and afterwards.
in product and geographic markets can (iv) Enhanced competition. To offset
also be eliminated or reduced by merg- harms that would not otherwise be
ers, including end-to-end mergers. Any mitigated, applicants should explain
railroad combination entails a risk how the transaction and conditions
that the merged carrier would acquire they propose would enhance competi-
and exploit increased market power. tion.
Applicants shall propose remedies to (d) Conditions. The Board has broad
mitigate and offset competitive harms. authority under 49 U.S.C. 11324(c) to
Applicants shall also explain how they impose conditions on consolidations,
would at a minimum preserve competi- including requiring divestiture of par-
tive and market options such as those allel tracks or the granting of trackage
involving the use of major existing rights and access to other facilities.
gateways, build-outs or build-ins, and The Board will condition the approval
the opportunity to enter into contracts of Class I combinations to mitigate or
for one segment of a movement as a offset harm to the public interest, and
means of gaining the right separately will carefully consider conditions pro-
to pursue rate relief for the remainder posed by applicants in this regard. The
of the movement. Board may impose conditions that are
(ii) Harm to essential services. The operationally feasible and produce net
Board must ensure that essential public benefits, but will not impose
freight, passenger, and commuter rail conditions that undermine or defeat
services are preserved wherever fea- beneficial transactions by creating un-
sible. An existing service is essential if reasonable operating, financial, or
there is sufficient public need for the other problems for the combined car-
service and adequate alternative trans- rier. Conditions are generally not ap-
portation is not available. The Board’s propriate to compensate parties who
focus is on the ability of the nation’s may be disadvantaged by increased
transportation infrastructure to con- competition. The Board anticipates
tinue to provide and support essential that mergers of Class I carriers would
services. Mergers should strengthen, likely create some anticompetitive ef-
not undermine, the ability of the rail fects that would be difficult to miti-
network to advance the nation’s eco- gate through appropriate conditions,
nomic growth and competitiveness, and that transitional service disrup-
both domestically and internationally. tions might temporarily negate any
The Board will consider whether pro- shipper benefits. To offset such poten-
jected shifts in traffic patterns could tial harms and improve the prospect
undermine the ability of the various that their proposal would be found to
network links (including Class II and be in the public interest, applicants
Class III rail carriers and ports) to sus- should propose conditions that would
tain essential services. not simply preserve but also enhance
(iii) Transitional service problems. Ex- competition. The Board seeks to en-
perience shows that significant service hance competition in ways that
259
§ 1180.1 49 CFR Ch. X (10–1–07 Edition)
strengthen and sustain the rail net- and rail facilities. The Board generally
work as a whole (including that por- will mitigate only those impacts that
tion of the network operated by Class would result directly from an approved
II and III carriers). transaction, and will not require miti-
(e) Employee protection. The Board is gation for existing conditions and ex-
required to provide a fair arrangement isting railroad operations.
for the protection of the rail employees (2) During the environmental review
of applicants who are affected by a con- process, railroad applicants have nego-
solidation. The Board supports early tiated agreements with affected com-
notice and consultation between man- munities, including groups of commu-
agement and the various unions, lead- nities and other entities such as state
ing to negotiated implementing agree- and local agencies. The Board encour-
ments, which the Board strongly fa- ages voluntary agreements of this na-
vors. Otherwise, the Board respects the ture because they can be extremely
sanctity of collective bargaining agree- helpful and effective in addressing spe-
ments and will look with extreme dis- cific local and regional environmental
favor on overrides of collective bar- and safety concerns, including the
gaining agreements except to the very sharing of costs associated with miti-
limited extent necessary to carry out gating merger-related environmental
an approved transaction. The Board impacts. Generally, these privately ne-
will review negotiated agreements to gotiated solutions between an appli-
ensure fair and equitable treatment of cant railroad and some or all of the
all affected employees. Absent a nego- communities along particular rail cor-
tiated agreement, the Board will pro- ridors or other appropriate entities are
vide for protection at the level man- more effective, and in some cases more
dated by law (49 U.S.C. 11326(a)), and if far-reaching, than any environmental
unusual circumstances are shown, mitigation options the Board could im-
more stringent protection will be propose unilaterally. Therefore, when such
vided to ensure that employees have a agreements are submitted to it, the
fair and equitable arrangement. Board generally will impose these ne-
(f) Environment and safety. (1) The Na- gotiated agreements as conditions to
tional Environmental Policy Act, 42 approved mergers, and these agree-
U.S.C. 4321 et seq. (NEPA), requires the ments generally will substitute for spe-
Board to take environmental consider- cific local and site-specific environ-
ations into account in railroad consoli- mental mitigation for a community
dation cases. To meet its responsibil- that otherwise would be imposed.
ities under NEPA and related environ- Moreover, to encourage and give effect
mental laws, the Board must consider to negotiated solutions whenever pos-
significant potential beneficial and ad- sible, the opportunity to negotiate
verse environmental impacts in decid- agreements will remain available
ing whether to approve a transaction throughout the oversight process to re-
as proposed, deny the proposal, or ap- place local and site-specific environ-
prove it with conditions, including ap- mental mitigation imposed by the
propriate environmental mitigation agency. The Board will require compli-
conditions addressing concerns raised ance with the terms of all negotiated
by the parties, including federal, state, agreements submitted to it during
and local government entities. The oversight by imposing appropriate en-
Board’s Section of Environmental vironmental conditions to replace the
Analysis (SEA) ensures that the agen- local and site-specific mitigation pre-
cy meets its responsibilities under viously imposed.
NEPA and the implementing regula- (3) Applicants will be required to
tions at 49 CFR part 1105 by providing work with the Federal Railroad Admin-
the Board with an independent envi- istration, on a case-by-case basis, to
ronmental review of merger proposals. formulate Safety Integration Plans
In preparing the necessary environ- (SIPs) to ensure that safe operations
mental documentation, SEA focuses on are maintained throughout the merger
the potential environmental impacts implementation process. As part of the
resulting from merger-related changes environmental review process, appli-
in activity levels on existing rail lines cants will be required to submit:
260
(i) A SIP and (2) The Board will conduct significant

(ii) Evidence about potentially post-approval operational monitoring
blocked grade crossings as a result of to help ensure that service levels after
merger-related traffic increases or a merger are reasonable and adequate.
operational changes. (3) The Board also will require appli-
(g) Oversight. As a condition to its ap- cants to establish problem resolution
proval of any major transaction, the teams and specific procedures for prob-
Board will establish a formal oversight lem resolution to ensure that any un-
process. For at least the first 5 years anticipated post-merger problems re-
following approval, applicants will be lated to service or any other transpor-
required to present evidence to the tation matters, including claims, are
Board, on no less than an annual basis, promptly addressed. These teams
to show that the merger conditions im- should include representatives of all
posed by the Board are working as inappropriate employee categories. Also,
tended, that the applicants are adher- the Board envisions the establishment
ing to the various representations they of a Service Council made up of ship-
made on the record during the course pers, railroads, passenger service rep-
of their merger proceeding, that no un- resentatives, ports, rail labor, and
foreseen harms have arisen that would other interested parties to provide an
require the Board to alter existing ongoing forum for the discussion of im-
merger conditions or impose new ones, plementation issues.
and that the merger benefit projections (4) Loss and damage claims handling.
accepted by the Board are being real- Shippers or shortlines who have freight
ized in a timely fashion. Parties will be claims under 49 CFR part 1005 during
given the opportunity to comment on merger implementation shall file such
applicants’ submissions, and applicants claims, in writing or electronically,
will be given the opportunity to reply with the merged carrier. The claimant
to the parties’ comments. During the shall provide supporting documenta-
oversight period, the Board will retain tion regarding the effect on the claim-
jurisdiction to impose any additional ant, and the specific damages (in a de-
conditions it determines are necessary terminable amount) incurred. Pursuant
to remedy or offset adverse con- to 49 CFR part 1005, the merged carrier
sequences of the underlying trans- shall acknowledge each claim within 30
action. days and successively number each
(h) Service assurance and operational claim. Within 120 days of carrier re-
monitoring. (1) The quality of service is ceipt of the claim, the merged carrier
of vital importance. Accordingly, ap- shall respond to each claim by paying,
plicants must file, with their initial ap- declining, or offering a compromise
plication and operating plan, a Service settlement. The Board will take notice
Assurance Plan identifying the precise of these claims and their disposition as
steps they would take to ensure ade- a matter of oversight. During each an-
quate service and to provide for im- nual oversight period, the merged car-
proved service. This plan must include rier shall report on claims received,
the specific information set forth at their type, and their disposition for
§ 1180.10 on how shippers, connecting each quarterly period covered by over-
railroads (including Class II and III sight. While shippers and shortlines
carriers), and ports across the new sys- may also contract with the applicants
tem would be affected and benefitted for specific remedies with respect to
by the proposed consolidation. As part claims, final adjudication of contract
of this plan, applicants will be required issues as well as unresolved claims will
to provide service benchmarks, de- remain a matter for the courts.
scribe the extent to which they have (5) Service failure claims. Applicants
entered into any arrangements with must suggest a protocol for handling
shippers and shipper groups to com- claims related to failure to provide rea-
pensate for service failures, and estab- sonable service due to merger imple-
lish contingency plans that would be mentation problems. Commitments to
available to mitigate any unantici- submit all such claims to arbitration
pated service disruption. will be favored.
261
§ 1180.2 49 CFR Ch. X (10–1–07 Edition)
(6) Alternative rail service. Where ship- address potential impacts on oper-
pers and connecting railroads require ations within the United States of op-
relief from extended periods of inad- erations or events elsewhere on their
equate service, the procedures at 49 systems. All applicants must further
CFR parts 1146 and 1147 are available provide information concerning any re-
for the Board to review the docu- strictions or preferences under foreign
mented service levels and to consider or domestic law and policies that could
shipper proposals for alternative serv- affect their commercial decisions. Ap-
ice relief when other avenues of relief plicants must also address how any
have already been explored with the ownership restrictions might affect our
merged carrier in an effort to restore public interest assessment.
adequate service. (2) The Board will consult with rel-
(i) Cumulative impacts and crossover ef- evant officials, as appropriate, to en-
fects. Because there are so few remain- sure that any conditions it imposes on
ing Class I carriers and the railroad in- an approved transaction are consistent
dustry constitutes a network of com- with the North American Free Trade
peting and complementary compo- Agreement and other pertinent inter-
nents, the Board cannot evaluate the national agreements to which the
merits of a major transaction in isola- United States is a party. In addition,
tion. The Board must also consider the the Board will cooperate with those Ca-
cumulative impacts and crossover ef- nadian and Mexican agencies charged
fects likely to occur as rival carriers with approval and oversight of a pro-
react to the proposed combination. The posed transnational railroad combina-
Board expects applicants to explain tion.
how additional Class I mergers would (l) National defense. Rail mergers
affect the eventual structure of the in- must not detract from the ability of
dustry and the public interest. Appli- the United States military to rely on
cants should generally discuss the like- rail transportation to meet the na-
ly impact of such future mergers on tion’s defense needs. Applicants must
the anticipated public benefits of their discuss and assess the national defense
own merger proposal. Applicants will ramifications of their proposed merger.
be expected to discuss whether and how (m) Public participation. To ensure a
the type or extent of any conditions fully developed record on the effects of
imposed on their proposed merger a proposed railroad consolidation, the
would have to be altered, or any new Board encourages public participation
conditions imposed, should we approve from federal, state, and local govern-
any future consolidation(s). ment departments and agencies; af-
(j) Inclusion of other carriers. The fected shippers, carriers, and rail labor;
Board will consider requiring inclusion and other interested parties.
of another carrier as a condition to ap-
proval only where there is no other [66 FR 32583, June 15, 2001]
reasonable alternative for providing es-
§ 1180.2 Types of transactions.
sential services, the facilities fit oper-
ationally into the new system, and in- Transactions proposed under 49
clusion can be accomplished without U.S.C. 11323 involving more than one
endangering the operational or finan- common carrier by railroad are of four
cial success of the new company. types: Major, significant, minor, and ex-
(k) Transnational and other informa- empt.
tional issues. (1) All applicants must (a) A major transaction is a control or
submit ‘‘full system’’ competitive anal- merger involving two or more class I
yses and operating plans—incor- railroads.
porating any operations in Canada or (b) A significant transaction is a
Mexico—from which we can determine transaction not involving the control
the competitive, service, employee, or merger of two or more class I rail-
safety, and environmental impacts of roads that is of regional or national
the prospective operations within the transportation significance as that
United States, and explain how co- phrase is used in 49 U.S.C. 11325(a)(2)
operation with the Federal Railroad and (c). A transaction not involving
Administration would be maintained to the control or merger of two or more
262
class I railroads is not significant if a (3) Transactions within a corporate

determination can be made either: family that do not result in adverse
(1) That the transaction clearly will changes in service levels, significant
not have any anticompetitive effects, operational changes, or a change in the
or competitive balance with carriers out-
(2) That any anticompetitive effects side the corporate family.
of the transaction will clearly be out- (4) Renewal of leases and any other
weighed by the transaction’s antici- matters where the Board has pre-
pated contribution to the public inter- viously authorized the transaction, and
est in meeting significant transpor- only an extension in time is involved.
tation needs. (5) Joint projects involving the relo-
A transaction not involving the con- cation of a line of railroad which does
trol or merger of two or more class I not disrupt service to shippers.
railroads is significant if neither such (6) Reincorporation in a different
determination can clearly be made. State.
(7) Acquisition of trackage rights and
(c) A minor transaction is one which
renewal of trackage rights by a rail
involves more than one railroad and
carrier over lines owned or operated by
which is not a major, significant, or ex- any other rail carrier or carriers that
empt transaction. are: (i) based on written agreements,
(d) A transaction is exempt if it is and (ii) not filed or sought in respon-
within one of the eight categories de- sive applications in rail consolidation
scribed in paragraphs (d)(1) through (8). proceedings.
The Board has found that its prior re- (8) Acquisition of temporary track-
view and approval of these transactions age rights by a rail carrier over lines
is not necessary to carry out the rail owned or operated by any other rail
transportation policy of 49 U.S.C. 10101; carrier or carriers that are: (i) based on
and is of limited scope or unnecessary written agreements, (ii) not filed or
to protect shippers from market abuse. sought in responsive applications in
See 49 U.S.C. 10502. A notice must be rail consolidation proceedings, (iii) for
filed to use one of these class exemp- overhead operations only, and (iv)
tions. The procedures are set out in scheduled to expire on a specific date
§ 1180.4(g). These class exemptions do not to exceed 1 year from the effective
not relieve a carrier of its statutory date of the exemption. If the oper-
obligation to protect the interests of ations contemplated by the exemption
employees. See 49 U.S.C. 10502(g) and will not be concluded within the 1-year
11326. The enumeration of the following period, the parties may, prior to expi-
categories of transactions as exempt ration of the period, file a request for a
does not preclude a carrier from seek- renewal of the temporary rights for an
ing an exemption of specific trans- additional period of up to 1 year, in-
actions not falling into these cat- cluding the reason(s) therefor. Rail car-
egories. riers acquiring temporary trackage
(1) Acquisition of a line of railroad rights need not seek authority from
which would not constitute a major the Board to discontinue the trackage
market extension where the Board has rights as of the expiration date speci-
found that the public convenience and fied under 49 CFR 1180.4(g)(2)(iii). All
necessity permit abandonment. transactions under these rules will be
(2) Acquisition or continuance in con- subject to applicable statutory labor
trol of a nonconnecting carrier or one protective conditions.
of its lines where (i) the railroads [47 FR 9844, Mar. 8, 1982. Redesignated at 47
would not connect with each other or FR 49592, Nov. 1, 1982, and amended at 50 FR
any railroads in their corporate family, 15751, Apr. 22, 1985; 51 FR 24669, July 8, 1986;
(ii) the acquisition or continuance in 58 FR 63104, Nov. 30, 1993; 62 FR 9716, Mar. 4,
control is not part of a series of antici- 1997; 68 FR 28140, May 23, 2003]
pated transactions that would connect
the railroads with each other or any § 1180.3 Definitions.
railroad in their corporate family, and (a) Applicant. The term applicant
(iii) the transaction does not involve a means the parties initiating a trans-
class I carrier. action, but does not include a wholly
263
§ 1180.3 49 CFR Ch. X (10–1–07 Edition)
owned direct or indirect subsidiary of of material needed to comply with

an applicant if that subsidiary is not a these regulations.
rail carrier. Parties who are considered (e) Petition for waiver. A request that
applicants, but for whom the informa- the Board either dispense with mate-
tion normally required of an applicant rial required by the regulations, or ac-
need not be submitted, are: cept material in place of that required
(1) In minor trackage rights applica- by these regulations.
tions, the transferor and (f) Primary application. A proposal for
(2) In responsive applications, a pri- approval filed under 49 U.S.C. 11323
mary applicant. which begins a new proceeding and is
(b) Applicant carriers. The term appli- not proposed either as a condition to or
cant carriers means: any applicant that as an alternative to Board approval of
is a rail carrier; any rail carrier oper- another pending application.
ating in the United States, Canada, (g) Railroad. Any common carrier by
and/or Mexico in which an applicant railroad as defined in 49 U.S.C. 10102(5)–
holds a controlling interest; and all (6).
other rail carriers involved in the (h) Responsive applications. Applica-
transaction. Because the service pro- tions filed in response to a primary ap-
vided by these commonly controlled plication are those seeking affirmative
carriers can be an important competi- relief either as a condition to or in lieu
tive aspect of the transactions that we of the approval of the primary applica-
approve, applicant carriers are subject tion. Responsive applications include
to the full range of our conditioning inconsistent applications, inclusion ap-
power. Carriers that are involved in an plications, and any other affirmative
application only by virtue of an exist- relief that requires an application, pe-
ing trackage rights agreement with ap- tition, notice, or any other filing to be
plicants are not applicant carriers. submitted to the Board (such as track-
(c) Major market extension. A major age rights, purchases, constructions,
market extension is a transaction operation, pooling, terminal oper-
which may significantly increase com- ations, abandonments, and other types
petition by extending service into a of proceedings not otherwise covered).
new market, expanding service in a For fees covering inconsistent applica-
currently served market when another tions or responsive applications not
carrier concurrently contracts its serv- otherwise covered in the Board’s fee
ice to that market as part of the same schedule, see 49 CFR 1002.2(f) (38)–(41)
transaction, or providing significantly and 1180.4(d)(4)(ii). The fees for all
more efficient and effective competi- other responsive applications are set
tive service to a market presently forth in 49 CFR 1002.2(f).
being served. Criteria which can be (i) Transferee. The transferee is:
used to determine if a railroad is pro- (1) The acquiring corporation in a
posing to provide a more competitive control proceeding,
service to a currently served area in- (2) The surviving corporation in a
clude: (1) Creating a shorter route; (2) merger,
providing enhanced service capabilities (3) The resulting corporation in a
(speed is not the only factor); (3) enter- consolidation,
ing an interchange or market gener- (4) The leasee in a lease,
ating more than 5,000 cars per year or (5) The purchaser in an acquisition,
5 percent of applicant’s traffic; (4) fil- and
ing the application as a condition of re- (6) The grantee of trackage rights in
lief to a pending proceeding; and (5) a trackage rights proceeding.
permitting a carrier to become more (j) Transferor. The transferor is:
competitive (extending its length of (1) The corporation acquired in a con-
haul) See. Burlington Northern, Inc.— trol proceeding,
Control & Merger—St. L., 354 I.C.C. 616, (2) The merging corporation in a
617 (1978). merger,
(d) Petition for clarification. A request (3) All corporations to be consoli-
that the Board clarify the applicability dated in a consolidation,
of any part of these regulations to a (4) The lessor in a lease,
particular situation or explain the type (5) The seller in an acquisition, and
264
(6) The grantor of trackage rights in (3) A prefiling notice may be amend-
a trackage rights proceeding. ed to indicate a change in the antici-
pated filing date.
[47 FR 9844, Mar. 8, 1982. Redesignated at 47
FR 49592, Nov. 1, 1982, as amended at 62 FR (4) Prefiling notification. When filing
9716, Mar. 4, 1997; 62 FR 28376, May 23, 1997; 66 the notice of intent required by para-
FR 32586, June 15, 2001] graph (b)(1) of this section, applicants
also must file:
§ 1180.4 Procedures. (i) A proposed procedural schedule. In
(a) General. (1) The original and 25 any proceeding involving either a
copies of all documents shall be filed in major transaction or a significant
major proceedings. The original and 10 transaction, the Board will publish a
copies shall be filed in significant and FEDERAL REGISTER notice soliciting
minor proceedings. comments on the proposed procedural
(2) Each party to a proceeding shall schedule, and will, after review of any
choose a unique acronym of four let- comments filed in response, issue a
ters or less for itself. It shall number procedural schedule governing the
each document filed in the proceeding course of the proceeding.
consecutively, prefixed by its acronym. (ii) A proposed draft protective order.
(3) Any document filed with the The Board will issue, in each pro-
Board (including applications, plead- ceeding in which such an order is re-
ings, etc.) shall be promptly furnished quested, an appropriate protective
to interested persons on request, unless order.
subject to a protective order. At any (iii) A statement of waybill availability
time, the Board may require the sub- for major transactions. Applicants must
mission of additional copies of any doc- indicate, as soon as practicable after
ument previously filed by any party to the issuance of a protective order, that
the proceeding. they will make their 100% traffic tapes
(b) Prefiling notification. (1) Between 3 available (subject to the terms of the
to 6 months prior to the proposed filing protective order) to any interested
of an application in a major trans- party on written request. The appli-
action, and 2 to 4 months prior to the cants may require that, if the request-
proposed filing of an application in a ing party is itself a railroad, applicants
significant transaction, applicant shall will make their 100% traffic tapes
file a notice with the Board. The notice available to that party only if it
shall: agrees, in its written request, to make
(i) Briefly describe the transaction, its own 100% traffic tapes available to
(ii) Indicate the year to be used for applicants (subject to the terms of the
the impact analysis, protective order) when it receives ac-
(iii) Indicate the approximate filing cess to applicants’ tapes.
date of the application, and (iv) Applicants may also propose the
(iv) Indicate why the transaction is use of a voting trust at this stage, or at
major or significant. a later stage, if that becomes nec-
(2) The Board will publish a notice in essary. In each proceeding involving a
the FEDERAL REGISTER within 30 days major transaction, applicants contem-
of receipt of the applicant’s notice. The plating the use of a voting trust must
publication shall contain: explain how the trust would insulate
(i) A brief description of the trans- them from an unlawful control viola-
action, tion and why their proposed use of the
(ii) The year to be used for the im- trust, in the context of their impending
pact analysis, control application, would be con-
(iii) The approximate filing date, sistent with the public interest. Fol-
(iv) A determination that the trans- lowing a brief period of public com-
action is major, significant, or minor, ment and replies by applicants, the
and Board will issue a decision determining
(v) A statement of any additional in- whether applicants may establish and
formation which must be filed with the use the trust.
application in order for the application (c) Application. (1) The fees for filing
to be considered complete. applications, petitions, or notices
265
§ 1180.4 49 CFR Ch. X (10–1–07 Edition)
under these procedures are set forth in (vii) The application shall contain a
49 CFR 1002.2. certificate of service indicating that
(2) Filing requirements. all persons designated in § 1180.4(c)(5)
(i) The original of all applications have been served with a copy of the ap-
shall be signed in ink by the applicant, plication.
if an individual; by all partners, if a (3) In a major or significant trans-
partnership; and if a corporation, asso- action, and in all responsive applica-
ciation, or other similar form of orga- tions, all of the direct testimony of ap-
nization, by its president, or such other plicants, in the form of verified state-
executive officer having knowledge of ments, shall be filed and served with
the matters therein contained and duly each application.
designated for that purpose by the ap- (4) The application and all exhibits
plicant. Applications shall be made shall be considered part of the evi-
under oath and shall contain an appro- dentiary record upon acceptance. Any
priate certification (if a corporation, portion of an application and exhibits
by its secretary) showing that the affi- will remain subject to motions to
ant is duly authorized to verify and file strike. However, no motion need be
the application. Any person controlling made to have the application and ex-
an applicant shall also sign the appli- hibits admitted to the evidentiary
cation. record. If a major or significant trans-
(ii) The application shall be filed action is designated for oral hearing
with Secretary, Surface Transpor- the presiding Administrative Law
tation Board, Washington, DC 20423. Judge shall have discretion in extraor-
(iii) Each copy of the application dinary circumstances to allow for the
shall conform in all respects to the presentation of oral or written direct
original and shall be complete in itself testimony not previously submitted
except that the signature in the copies with the application.
may be stamped or typed and the no- (5) Service. The applicant shall serve
tarial seal may be omitted. In like a conformed copy of an application
manner, where certified copies of docu- filed under these procedures by first-
ments are filed with the application, class mail upon:
conformed copies thereof, showing cer- (i) The Governor (or Executive Offi-
tification in stamped or typewritten cer), Public Service Commission, and
form, will be sufficient to accompany the Department of Transportation of
the additional copies of the applica- each State in which any part of the
tion. properties of the applicant carriers in-
(iv) All applications required to be volved in the proposed transaction is
filed with the Board or served on des- situated;
ignated persons shall include all exhib- (ii) The Secretary of the United
its, except as otherwise specifically States Department of Transportation
noted. Information from other docu- (Docket Clerk, Office of Chief Counsel,
ments may be incorporated by ref- Federal Railroad Administration,
erence in the application. However, the Room 5101, 400 Seventh Street, SW.,
documents must have been filed with Washington, DC 20590).
the Board within three years prior to (iii) The Attorney General of the
filing of the application, the informa- United States;
tion must be up to date, and applicant (iv) The Federal Trade Commission;
must be prepared to supply copies of and
this information to interested persons (v) In major or significant trans-
on specific request. actions, all persons requesting a copy
(v) The applicant shall submit such after the prefiling notice is published
additional information to support its in the FEDERAL REGISTER.
application as the Board may require. (6) Application format. (i) The appli-
(vi) Applicant shall file concurrently cation shall be in the same sequence as
all directly related applications, e.g., the information is requested in these
those seeking authority to construct or procedures, and shall be numbered to
abandon rail lines, obtain terminal op- correspond to the numbering in the
erations, acquire trackage rights, etc. procedures.
266
(ii) If any material required in the (ii) The Board shall reject an incom-
application would lend itself to being plete application by serving a decision
placed in an appendix, this should be no later than 30 days after the applica-
done. The appendix and application tion is filed with the Board. The deci-
shall be tabulated and cross-referenced sion shall explain specifically why the
in an index for ease in locating and re- application was incomplete. A revised
ferring to the information. The appen- application may be submitted, incor-
dixes shall be in the same sequence as porating portions of the prior applica-
the information required by these pro- tion by reference. The resubmission or
cedures. If certain information re- refiling of an application shall be con-
quired in the application is not appli- sidered a de novo filing for the purpose
cable, provide an explanation. The ap- of computation of the time periods,
plication should be bound, and it may provided that the resubmitted applica-
be bound in more than one volume. If tion is accepted as complete.
an application is more than one vol- (8) The application must present a
ume, the cover of each volume should prima facie case. Applicants can fail to
be in a different color. The pages in meet their burden of proof and thus not
each volume shall begin with 1, and be present a prima facie case either by (i)
sequentially numbered. disclosing facts that, even if construed
(iii) The Board’s Office of the Sec- in their most favorable light, are insuf-
retary will provide informal opinions ficient to support a finding that the
and interpretations, which are not proposal is consistent with the public
binding on the Board, regarding the interest, or by (ii) disclosing facts that
format of or information to be included affirmatively demonstrate that the
in the application. proposal is not in the public interest.
(iv) All filing, service, or other re- See Ex Parte No. 282 (Sub-No. 3A), Rail-
quirements of these procedures must be road Consolidation Procedures Expedited
Processing, 363 I.C.C. 767 (1980).
complied with when filing the applica-
(d) Responsive applications. (1) No re-
tion. Copies of the application filed
sponsive applications shall be per-
with the Board shall be marked in red
mitted to minor transactions.
‘‘Railroad Consolidation Application’’
(2) An inconsistent application will
on the transmittal envelope or pack-
be classified as a major, significant, or
age.
minor transaction as provided in
(v) The application shall conform to § 1180.2(a) through (c). The fee for an in-
the typographical specifications of consistent application will be the fee
§ 1104.2. for the type of transaction involved.
(vi) The information and data re- See 49 CFR 1002.2(f)(38) through (41).
quired of any applicant may be consoli- The fee for any other type of respon-
dated with the information and data sive application is the fee for the par-
required of the affiliated applicant car- ticular type of proceeding set forth in
riers. 49 CFR 1002.2(f).
(7) Acceptance or rejection of an ap- (3) Each responsive application filed
plication. and accepted for consideration will
(i) The Board shall accept a complete automatically be consolidated with the
application no later than 30 days after primary application for consideration.
the application is filed with the Board (e) Evidentiary proceeding. (1) The
by publishing a notice in the FEDERAL Board may order an oral public hear-
REGISTER. A complete application con- ing, a hearing by written submissions,
tains all information for all applicant or another kind of evidentiary pro-
carriers required by these procedures, ceeding. The determination will gen-
except as modified by advance waiver. erally be made on the basis of the
The publication shall indicate the ap- needs indicated by the written com-
plicable time limits for processing the ments.
application. (These are the time limits (2) The evidentiary proceeding will be
of 49 U.S.C. 11325(b) for a major trans- completed:
action, 49 U.S.C. 11325(c) for a signifi- (i) Within 1 year after the primary
cant transaction, and 49 U.S.C. 11325(d) application is accepted for a major
for a minor transaction.) transaction;
267
§ 1180.4 49 CFR Ch. X (10–1–07 Edition)
(ii) Within 180 days for a significant summated indicating the proposed con-
transaction; and summation date. Before a notice is
(iii) Within 105 days for a minor trans- filed, the railroad shall obtain a docket
action. number from the Board’s Office of the
(3) A final decision on the primary Secretary.
application and on all consolidated (i) The notice shall contain the infor-
cases will be issued: mation required in § 1180.6(a)(1)(i)–(iii),
(i) Within 90 days after the conclu- (a)(5)–(6), and (a)(7)(ii), and indicate the
sion of the evidentiary proceeding for a level of labor protection to be imposed.
major transaction; (ii) The Board shall publish a notice
(ii) Within 90 days for a significant in the FEDERAL REGISTER within 16
transaction; and days of the filing of the notice of ex-
(iii) Within 45 days for a minor trans- emption. The publication will indicate
action. the labor protection required. If the no-
(4) The Secretary of Transportation tice of exemption contains false or mis-
may propose modifications to any leading information which is brought
transaction and shall have standing to to the Board’s attention, the Board
appear before the Board in support of shall summarily revoke the exemption
any such proposed modification. for that carrier and require divestiture.
(f) Waiver or clarification. (1) Upon pe- (iii) The filing of a petition to revoke
tition of a prospective applicant, the under 49 U.S.C. 10502(d) does not stay
Board may waive or clarify a portion of the effectiveness of an exemption. Stay
these procedures. A petition to waive petitions must be filed at least 7 days
all of the procedures will not be enter- before the exemption becomes effec-
tained. tive.
(2) Except as otherwise provided in (iv) Other exemptions that may be
the procedural schedule adopted by the relevant to a proposal under this provi-
Board in any particular proceeding, pe- sion are codified at 49 CFR part 1150,
titions for waiver or clarification must subpart D, which governs transactions
be filed at least 45 days before the ap- under 49 U.S.C. 10901.
plication is filed. (2)(i) To qualify for an exemption
(3) No replies to a petition for waiver under § 1180.2(d)(7) (acquisition or re-
will be permitted, except where a pro- newal of trackage rights agreements),
ceeding involving the same parties and in addition to the notice, the railroad
a related transaction is pending before must file a caption summary suitable
us. 1 When a reply is permitted, the pe- for publication in the FEDERAL REG-
tition shall be served by first-class ISTER. The caption summary must be
mail on all parties to the pending pro- in the following form:
ceedings, with a reply due within 10
days of service. Replies to a petition SURFACE TRANSPORTATION BOARD
for clarification shall be permitted Notice of Exemption
within 10 days of the petition’s filing.
(4) A waiver or clarification granted Finance Docket No.
to any applicant in a proceeding shall (1)—Trackage Rights—(2)
apply to any other party to the pro- (2) (3) to grant (4) trackage rights to (1) be-
ceeding unless otherwise indicated. tween (5). The trackage rights will be effec-
(5) All petitions for waiver or clari- tive on (6).
fication must specify the sections for This notice is filed under § 1180.2(d)(7). Pe-
which waiver or clarification is sought titions to revoke the exemption under 49
and give the specific reasons why each U.S.C. 10502(d) may be filed at any time. The
filing of a petition to revoke will not stay
waiver or clarification is necessary.
the transaction.
(g) Notice of exemption. (1) To qualify Dated:
for an exemption under § 1180.2(d), a By the Board.
railroad must file a verified notice of James H. Bayne,
the transaction with the Board at least Secretary.
30 days before the transaction is con- The following key identifies the informa-
tion symbolized in the summary.
1 See Itel Corp.—Control-Green Bay and W. (1) Name of the tenant railroad.
R. Co., 354 I.C.C. 232, 233 (1978). (2) Name of the landlord railroad.
268
(3) If an agreement has been entered use party shall make the official notice
‘‘has agreed’’, but if an agreement has been material available. Any party is free to
reached but not entered use ‘‘will agree.’’ challenge the relevance or application
(4) Indicate whether ‘‘overhead’’ or ‘‘local’’
trackage rights are involved.
of any such data, or the weight that
(5) Describe the trackage rights. should be accorded it.
(6) State the date the trackage rights (1) Annual STB Form R–1 Reports
agreement is proposed to be consummated. submitted by rail carriers.
(ii) To qualify for an exemption (2) Quarterly Commodity Statistics
under § 1180.2(d)(8) (acquisition of tem- submitted by rail carriers.
porary trackage rights), in addition to (3) STB Monthly Labor Statistics.
the notice, the railroad must file a cap- (4) Quarterly Financial Statements
tion summary suitable for publication of Rail Carriers.
in the FEDERAL REGISTER. The caption (5) All other reports submitted to the
summary must be in the following STB under oath.
form: (6) Annual 1-percent Waybill Sample.
(7) Federal Reserve Board Production
SURFACE TRANSPORTATION BOARD
Statistics.
Notice of Exemption (8) AAR compilations of bad order ra-
tios, equipment ownership and repair
STB Finance Docket No.
statistics, and freight car order figures.
(1)—Temporary Trackage Rights—(2) [47 FR 9844, Mar. 8, 1982. Redesignated at 47
(2) (3) to grant overhead temporary track- FR 49592, Nov. 1, 1982 and amended at 49 FR
age rights to (1) between (4). The temporary 15088, Apr. 17, 1984; 50 FR 15751, Apr. 22, 1985;
trackage rights will be effective on (5). The 51 FR 4928, Feb. 10, 1986; 51 FR 25207, July 11,
authorization will expire on (6). 1986; 52 FR 46484, Dec. 8, 1987; 56 FR 36111,
This notice is filed under § 1180.2(d)(8). Pe- July 31, 1991; 56 FR 41806, Aug. 23, 1991; 58 FR
titions to revoke the exemption under 49 29362, May 20, 1993; 58 FR 63104, Nov. 30, 1993;
U.S.C. 10502(d) may be filed at any time. The 62 FR 9717, Mar. 4, 1997; 64 FR 53269, Oct. 1,
filing of a petition to revoke will not stay 1999; 66 FR 32586, June 15, 2001; 68 FR 28140,
the transaction. May 23, 2003; 71 FR 62213, Oct. 24, 2006]
Dated:
By the Board. § 1180.5 [Reserved]
[Insert name]
Secretary. § 1180.6 Supporting information.
The following key identifies the informa- (a) All applications filed under 49
tion symbolized in the summary. U.S.C. 11323 shall show in the title the
(1) Name of the tenant railroad.
(2) Name of the landlord railroad. names of the applicants and the nature
(3) If an agreement has been entered use of the proposed transaction. Beneath
‘‘has agreed,’’ but if an agreement has been the title indicate the name, title, busi-
reached but not entered use ‘‘will agree.’’ ness address, and telephone number of
(4) Describe the temporary trackage rights. the person(s) to whom correspondence
(5) State the date the temporary trackage with respect to the application should
rights agreement is proposed to be con- be addressed. The following informa-
summated.
(6) State the date the authorization will
tion shall be included in all applica-
expire (not to exceed 1 year from the date tions:
the trackage rights will become effective). (1) A description of the proposed
(3) Some transactions may be subject transaction, including appropriate ref-
to environmental review pursuant to erences to any supporting exhibits and
the Board’s environmental rules at 49 statements contained in the applica-
CFR part 1105. tion and discussing the following:
(h) Official notice. In connection with (i) A brief summary of the proposed
any application or request for relief transaction, the name of applicants,
under these procedures, the Board may their business address, telephone num-
take official notice of any or all of the ber, and the name of the counsel to
following information. These data will whom questions regarding the trans-
be presumed valid unless discredited by action can be addressed.
any party. A party relying on informa- (ii) The proposed time schedule for
tion to be noticed officially shall list consummation of the proposed trans-
the information. Upon request, the action.
269
§ 1180.6 49 CFR Ch. X (10–1–07 Edition)
(iii) The purpose sought to be accom- (4) An opinion of applicants’ counsel

plished by the proposed transaction, that the transaction meets the require-
e.g., operating economies, eliminating ments of the law and will be legally au-
excess facilities, improving service, or thorized and valid, if approved by the
improving the financial viability of the Board. This should include specific ref-
applicants. erences to any pertinent provisions of
(iv) The nature and amount of any applicants’ bylaws or charter or arti-
new securities or other financial ar- cles of incorporation. 2
rangements. (5) A list of the State(s) in which any
(2) A detailed discussion of the public part of the property of each applicant
interest justifications in support of the carrier is situated.
application, indicating how the pro- (6) Map (exhibit 1). Submit a general
or key map indicating clearly, in sepa-
posed transaction is consistent with
rate colors or otherwise, the line(s) of
the public interest, with particular re-
applicant carriers in their true rela-
gard to the relevant statutory criteria,
tions to each other, short line connec-
including
tions, other rail lines in the territory,
(i) The effect of the transaction on and the principal geographic points in
inter- and intramodal competition, in- the region traversed. If a geographi-
cluding a description of the relevant cally limited transaction is proposed, a
markets (see § 1180.7). Include a discus- map detailing the transaction should
sion of whether, as a result of the also be included. In addition to the
transaction, there is likely to be any map accompanying each application, 20
lessening of competition, creation of a unbound copies of the map shall be
monopoly, or restraint of trade in filed with the Board.
freight surface transportation in any (7) Explanation of the transaction.
region of the United States. (i) Describe the nature of the trans-
(ii) The financial consideration in- action (e.g., merger, control, purchase,
volved in the proposed transaction, and trackage rights), the significant terms
any economies, to be effected in oper- and conditions, and the consideration
ations, and any increase in traffic, rev- to be paid (monetary or otherwise).
enues, earnings available for fixed (ii) Agreement (exhibit 2). Submit a
charges, and net earnings, expected to copy of any contract or other written
result from the consummation of the instrument entered into, or proposed to
proposed transaction. be entered into, pertaining to the pro-
(iii) The effect of the increase, if any, posed transaction. 3 In addition, parties
of total fixed charges resulting from to exempt trackage rights agreements
the proposed transaction. and renewal of agreements described at
(iv) The effect of the proposed trans- § 1180.2(d)(7) must submit one copy of
action upon the adequacy of transpor- the executed agreement or renewal
tation service to the public, as meas- agreement with the notice of exemp-
ured by the continuation of essential tion, or within 10 days of the date that
transportation services by applicants the agreement is executed, whichever
and other carriers. is later.
(v) The effect of the proposed trans- (iii) If a consolidation or merger is
action upon applicant carriers’ employ- proposed, indicate: (A) The name of the
ees (by class or craft), the geographic company resulting from the consolida-
points where the impact will occur, the tion or merger; (B) the State or terri-
time frame of the impact (for at least tory under the laws of which the con-
3 years after consolidation), and wheth- solidated company is to be formed or
er any employee protection agreements
have been reached. 2 An opinion of counsel is not required in a
(vi) The effect of inclusion (or lack of control transaction for the party sought to
inclusion) in the proposed transaction be controlled, or in a responsive application
of other railroads in the territory, for the party against whom relief is sought.
3 A final signed contract or agreement need
under 49 U.S.C. 11324. not be filed with a responsive application.
(3) Any other supporting or descrip- However, a draft contract or agreement
tive statements applicants deem mate- should be submitted containing the signifi-
rial. cant terms proposed.
270
the merged company is to file its cer- in control of an applicant. These shall
tificate of amendment; (C) the capital- not be incorporated by reference, and
ization proposed for the resulting com- shall be updated with any Form S–4
pany; and (D) the amount and char- subsequently filed with the SEC during
acter of capital stock and other securi- the pendency of the proceeding.
ties to be issued. (3) Change in control (exhibit 8). If an
(iv) Court order (exhibit 3). If a trust- applicant carrier submits an annual re-
ee, receiver, assignee, or personal rep- port Form R–1, indicate any change in
resentative of the real party in interest ownership or control of that applicant
is an applicant, submit a certified copy carrier not indicated in its most recent
of the order, if any, of the court having Form R–1, and provide a list of the
jurisdiction, authorizing the con- principal six officers of that applicant
templated action. carrier and of any related applicant,
(v) State whether the property in- and also of their majority-owned rail
volved in the proposed transaction in- carrier subsidiaries. If any applicant
cludes all the property of the applicant carrier does not submit an annual re-
carriers and, if not, describe what prop- port Form R–1, list all officers of that
erty is included in the proposed trans- applicant carrier, and identify the per-
action. son(s) or entity/entities in control of
(vi) Briefly describe the principal that applicant carrier and all owners of
routes and termini of the lines in- 10% or more of the equity of that appli-
volved, the principal points of inter- cant carrier.
change on the routes, and the amount (4) Annual reports (exhibit 9). Submit:
of main-line mileage and branch line The two most recent annual reports to
mileage involved. stockholders by each applicant, or by
(vii) State whether any governmental any entity that is in control of an ap-
financial assistance is involved in the plicant, made within 2 years of the
proposed transaction and, if so, the date of filing of the application. These
form, amount, source, and application shall not be incorporated by reference,
of such financial assistance. and shall be updated with any annual
(8) Environmental data (exhibit 4). or quarterly report to stockholders
Submit information and data with re- issued during the pendency of the pro-
spect to environmental matters preceeding.
pared in accordance with 49 CFR part (5) Issues (exhibit 10). Submit a dis-
1105. In major and significant trans- cussion of any other issues relevant to
action, applicants shall, as soon as pos- the transaction.
sible, and no later than the filing of a (6) Corporate chart (exhibit 11). Submit
notice of intent, consult with the a corporate chart indicating all rela-
Board’s Section of Environmental tionships between applicant carriers
Analysis for the proper format of the and all affiliates and subsidiaries and
environmental report. also companies controlling applicant
(b) In a major transaction, submit the carriers directly, indirectly or through
following information: another entity (with each chart indi-
(1) Form 10–K (exhibit 6). Submit: The cating the percentage ownership of
most recent filing with the Securities every company on the chart by any
and Exchange Commission (SEC) under other company on the chart). For each
17 CFR 249.310 made within the year company: include a statement indi-
prior to the filing of the application by cating whether that company is a non-
each applicant or by any entity that is carrier or a carrier; and identify every
in control of an applicant. These shall officer and/or director of that company
not be incorporated by reference, and who is also an officer and/or director of
shall be updated with any Form 10–K any other company that is part of a
subsequently filed with the SEC during different corporate family that in-
the pendency of the proceeding. cludes a rail carrier. Such information
(2) Form S–4 (exhibit 7). Submit: The may be referenced through notes to the
most recent filing with the SEC under chart.
17 CFR 239.25 made within the year (7) If applicant is not a carrier, indi-
prior to the filing of the application by cate (i) the type of business in which it
each applicant or by any entity that is is engaged, (ii) the length of time so
271
§ 1180.6 49 CFR Ch. X (10–1–07 Edition)
engaged, and (iii) its present and pro- (i) Applicants must explain how they
spective activities which have or may would preserve competitive options for
have a relation to transportation sub- shippers and for Class II and III rail
ject to 49 U.S.C. Subtitle IV. carriers. At a minimum, applicants
(8) Intercorporate or financial relation- must explain how they would preserve
ships. Indicate whether there are any the use of major existing gateways, the
direct or indirect intercorporate or fi- potential for build-outs or build-ins,
nancial relationships at the time the and the opportunity to enter into con-
application is filed, not disclosed else- tracts for one segment of a movement
where in the application, through hold- as a means of gaining the right sepa-
ing companies, ownership of securities, rately to pursue rate relief for the re-
or otherwise, in which applicants or mainder of the movement.
their affiliates own or control more (ii) Applicants should explain how
than 5% of the stock of a non-affiliated the transaction and conditions they
carrier, including those relationships propose would enhance competition
in which a group affiliated with appli- and improve service.
cants owns more than 5% of the stock (11) Calculating public benefits. Appli-
of such a carrier. Indicate the nature cants must enumerate and, where pos-
and extent of any such relationships, sible, quantify the net public benefits
and, if an applicant owns securities of their merger would generate (if ap-
a carrier subject to 49 U.S.C. Subtitle proved). In making this estimate, ap-
IV, provide the carrier’s name, a de- plicants should identify the benefits
scription of securities, the par value of that would arise from service improve-
each class of securities held, and the ments, enhanced competition, cost sav-
applicant’s percentage of total owner- ings, and other merger-related public
ship. For purposes of this paragraph, interest benefits, and should discuss
‘‘affiliates’’ has the same meaning as whether the particular benefits they
‘‘affiliated companies’’ in Definition 5 are relying upon could be achieved
of the Uniform System of Accounts (49 short of merger. Applicants must also
CFR part 1201, subpart A). identify, discuss, and, where possible,
(9) Employee impact exhibit. The effect quantify the likely negative effects ap-
of the proposed transaction upon appli- proval would entail, such as losses of
cant carriers’ employees (by class or competition, potential for service dis-
craft), the geographic points where the ruption, and other merger-related
impacts would occur, the time frame of harms. In addition, applicants must
the impacts (for at least 3 years after suggest additional measures that the
consolidation), and whether any em- Board might take if it approves the ap-
ployee protection agreements have plication and the anticipated public
been reached. This information (except benefits identified by applicants fail to
with respect to employee protection materialize in a timely manner.
agreements) may be set forth in the (12) Downstream merger applications.
following format: (i) Applicants should anticipate wheth-
er additional Class I mergers are likely
EFFECTS ON APPLICANT CARRIERS’ EMPLOYEES to be proposed in response to their own
proposal and explain how, taken to-
Current Location ................................. .......... gether, these mergers, if approved,
could affect the eventual structure of
Jobs Classification .............................. ..........
the industry and the public interest.
Jobs Transferred to ............................ .......... (ii) Applicants are expected to dis-
Jobs Abolished ................................... .......... cuss whether any conditions imposed
Jobs Created ...................................... .......... on an approval of their proposed merg-
Year .................................................... .......... er would have to be altered, or any new
conditions imposed, if the Board should
(10) Conditions to mitigate and offset approve additional future rail mergers.
merger-related harms. Applicants are ex- (13) Purpose of the proposed trans-
pected to propose measures to mitigate action. The purpose sought to be ac-
and offset merger-related harms. These complished by the proposed trans-
conditions should not simply preserve, action, such as improving service, en-
but also enhance, competition. hancing competition, strengthening
272
the nation’s transportation infrastruc- the transaction (such as on a par-

ture, creating operating economies, ticular type of service offered).
and ensuring financial viability. (b) For major transactions, applicants
(c) In a significant transaction, sub- shall submit ‘‘full system’’ impact
mit the information specified in para- analyses (incorporating any operations
graphs (b)(3), (b)(5), (b)(6), (b)(7), and in Canada or Mexico) from which they
(b)(8) of this section. must demonstrate the impacts of the
transaction—both adverse and bene-
[47 FR 9844, Mar. 8, 1982. Redesignated at 47
FR 49592, Nov. 1, 1982, and amended at 50 FR
ficial—on competition within regions
15751, Apr. 22, 1985; 56 FR 41806, Aug. 3, 1991; of the United States and this nation as
57 FR 28641, June 26, 1992; 58 FR 63104, Nov. a whole (including inter- and
30, 1993; 62 FR 9717, Mar. 4, 1997; 64 FR 53269, intramodal competition, product com-
Oct. 1, 1999; 66 FR 32587, June 15, 2001] petition, and geographic competition)
and the provision of essential services
§ 1180.7 Market analyses. (including freight, passenger, and com-
(a) For major and significant trans- muter) by applicants and other net-
actions, applicants shall submit impact work links (including Class II and Class
analyses (exhibit 12) describing the im- III rail carriers and ports). Applicants’
pacts of the proposed transaction— impact analyses must at least provide
both adverse and beneficial—on inter- the following types of information:
and intramodal competition with re- (1) The anticipated effects of the
spect to freight surface transportation transaction on traffic patterns, market
in the regions affected and on the pro- concentrations, and/or transportation
vision of essential services by appli- alternatives available to the shipping
cants and other carriers. An impact public. Consistent with § 1180.6(b)(10),
analysis should include underlying these would incorporate a detailed ex-
data, a study of the implications of amination of any competition-enhanc-
those data, and a description of the re- ing aspects of the transaction and of
sulting likely effects of the proposed the specific measures proposed by ap-
transaction on the transportation al- plicants to preserve existing levels of
ternatives that would be available to competition and essential services;
the shipping public. Each aspect of the (2) Actual and projected market
analysis should specifically address shares of originated and terminated
significant impacts as they relate to traffic by railroad for each major point
the applicable statutory criteria (49 on the combined system. Applicants
U.S.C. 11324(b) or (d)), essential serv- may define points as individual sta-
ices, and competition. Applicants must tions or as larger areas (such as Bureau
identify and address relevant markets of Economic Analysis statistical areas
and issues, and provide additional in- or U.S. Department of Agriculture
formation as requested by the Board on Crop Reporting Districts) as relevant
markets and issues that warrant fur- and indicate the extent of switching
ther study. Applicants (and any other access and availability of terminal belt
party submitting analyses) must dem- railroads. Applicants should list points
onstrate both the relevance of the mar- where the number of serving railroads
kets and issues analyzed and the valid- would drop from two to one and from
ity of their methodology. All under- three to two, respectively, as a result
lying assumptions must be clearly of the proposed transaction (both be-
stated. Analyses should reflect the con- fore and after applying proposed rem-
solidated company’s marketing plan edies for competitive harm);
and existing and potential competitive (3) Actual and projected market
alternatives (inter- as well as shares of revenues and traffic volumes
intramodal). They can address: city for major interregional or corridor
pairs, interregional movements, move- flows by major commodity group. Ori-
ments through a point, or other fac- gin/destination areas should be defined
tors; a particular commodity, group of at relevant levels of aggregation for
commodities, or other commodity fac- the commodity group in question. The
tor that would be significantly affected data should be broken down by mode
by the transaction; or other effects of and (for the railroad portion) by single-
273
§ 1180.8 49 CFR Ch. X (10–1–07 Edition)
line and interline routings (showing these data on request, for example,
gateways used); electronically. Access to confidential
(4) For each major commodity group, information will be subject to protec-
an analysis of traffic flows indicating tive order. For information drawn from
patterns of geographic competition or publicly available published sources,
product competition across different detailed citations will suffice.
railroad systems, showing actual and
[66 FR 32588, June 15, 2001]
projected revenues and traffic volumes;
(5) Maps and other graphic displays § 1180.8 Operational data.
where helpful in illustrating the anal-
yses in this section; (a) Applications for major trans-
(6) An explicit delineation of the pro- actions must include a full-system op-
jected impacts of the transaction on erating plan—incorporating any pro-
the ability of various network links spective operations in Canada and Mex-
(including Class II and Class III rail ico—from which they must dem-
carriers and ports) to participate in the onstrate how the proposed transaction
competitive process and to sustain es- would affect operations within regions
sential services; and of the United States and on a nation-
(7) Supporting data for the analyses wide basis. As part of the environ-
in this section, such as the basis for mental review process, applicants shall
projections of changes in traffic pat- submit:
terns, including shipper surveys and (1) A Safety Integration Plan, pre-
econometric or other statistical anal- pared in consultation with the Federal
yses. If not made part of the applica- Railroad Administration, to ensure
tion, applicants shall make these data that safe operations would be main-
available in a repository for inspection tained throughout the merger imple-
by other parties or otherwise supply mentation process.
these data on request, for example, (2) Information on what measures
electronically. Access to confidential they plan to take to address poten-
information will be subject to protec- tially blocked crossings as a result of
tive order. For information drawn from merger-related changes in operations
publicly available published sources, or increases in rail traffic.
detailed citations will suffice. (b) For major and significant trans-
(8) If necessary, an explanation as to actions: Operating plan (exhibit 13).
how the lack of reliable and consistent Submit a summary of the proposed op-
data has limited applicants’ ability to erating plan changes, based on the im-
satisfy any of the requirements in this pact analyses, that will result from the
paragraph (b). transaction, and their anticipated tim-
(c) For significant transactions, spe- ing, allowing for any time required to
cific regulations on impact analyses complete rehabilitation, upgrading,
are not provided so that the parties yard construction, or other major oper-
will have the greatest leeway to de- ational changes following consumma-
velop the best evidence on the impacts tion of the proposed transaction. The
of each individual transaction. As a plan should make clear the gains in
general guideline, applicants shall pro- service, operating efficiencies, and
vide supporting data that may (but other benefits anticipated from the
need not) include: current and pro- merger. The plan should include:
jected traffic flows; data underlying (1) The patterns of service on the
sales forecasts or marketing goals; properties, including the proposed prin-
interchange data; market share anal- cipal routes, proposed consolidations of
ysis; and/or shipper surveys. It is impor- main-line operations, and the antici-
tant to note that these types of studies are pated traffic density and general cat-
neither limiting nor all-inclusive. The egories of traffic (including numbers of
parties must provide supporting data, trains) on all main and secondary lines
but are free to choose the type(s) and in the system. Identify all yards ex-
format. If not made part of the applica- pected to have an increase in activity
tion, applicants shall make these data greater than 20 percent. Changes in op-
available in a repository for inspection erations may be summarized in a pro
by other parties or otherwise supply forma density chart.
274
(2) If commuter or other passenger erating plan expected to be used after

services are operated over the lines of consummation of the transaction.
applicant carriers, detail any impacts Where relevant, submit information re-
anticipated on such services, including lated to the following:
delays which may be occasioned be- (1) Traffic level density on lines pro-
cause a line is scheduled to handle in- posed for joint operations.
creased traffic due to route consolida- (2) Impacts on commuter or other
tions. passenger service operated over a line
(3) The anticipated equipment re- which is to be downgraded, eliminated,
quirements of the proposed system, in- or operated on a consolidated basis.
cluding locomotives, rolling stock by (3) Operating economies, which in-
type, and maintenance-of-way equip- clude, but are not limited to, estimated
ment; plans for acquisition and retire- savings.
ment of equipment; projected improve- (4) Any anticipated discontinuances
ments in equipment utilization and or abandonments.
their relation to operating changes; [47 FR 9844, Mar. 8, 1982. Redesignated at 47
and how these will lead to the financial FR 49592, Nov. 1, 1982, as amended at 66 FR
and service benefits described in the 32589, June 15, 2001]
summary.
(4) A description of the effect of any § 1180.9 Financial information.
deferred maintenance or delayed cap- The following information shall be
ital improvements on any road or provided for major transactions, and for
equipment properties involved, the carriers shall conform to the Board’s
schedule for eliminating such deferrals, Uniform System of Accounts, 49 CFR
details of general system rehabilita- part 1201:
tion including rehabilitation relating (a) Pro forma balance sheet (exhibit
to the transaction (including proposed 16). Where the transaction involves a
yard and terminal modifications), and proceeding other than a control, a pro
how these activities will lead to the forma balance sheet statement giving
service improvements or operating effect to the proposed transaction com-
economies anticipated from the trans- mencing for the first year of the Im-
action. pact Analysis in exhibit 12. The data
(5) Density charts (exhibit 14). Gross shall be presented in columnar form
ton-mile traffic density charts shall be showing:
filed for applicant carriers containing a (1) In the first column, the balance
map geographically showing those sheet of transferee on a corporate enti-
lines handling 1 million gross ton-miles ty basis,
per mile road or more per year and re- (2) In the second column, a balance
spective densities, expressed in gross sheet of transferor, on a corporate enti-
ton-miles per year, in each direction, ty basis,
in segments of such lines between (3) In the third column, pro forma ad-
major freight yards and terminals, in- justments and eliminations; and
cluding major intramodal and inter- (4) In the fourth column, transferee’s
modal interchange points, using the balance sheet giving effect to
corporate or political subdivision name consumation of the proposed trans-
of the points shown as well as the rail- action. 4
road station name. The mileage of each
segment of line shall be provided, and 4 Where the purchase of a line or line seg-
should be shown on the chart. Data ment is involved, a procedure utilizing three
shown in the density chart shall be for columns should be followed. The first column
the latest available full calendar year should show transferee’s actual balance
preceding the filing of the application. sheet on a corporate entity basis for the lat-
At applicants’ option data may be est available 12-month period, the second col-
shown on the density chart or an ex- umn should show the adjustments neces-
sitated by the purchase, and the third is a
planatory list. compilation of the first two columns into a
(c) For minor transactions: Operating pro forma balance sheet.
plan-minor (exhibit 15). Discuss any The transferor shall file a balance sheet
significant changes in patterns or similar to the one filed by the transferee,
types of service as reflected by the op- Continued
275
§ 1180.9 49 CFR Ch. X (10–1–07 Edition)
Each adjustment and elimination shall The adjustments are to be supported by

be properly footnoted and fully ex- a statement explaining the basis used
plained. A pro forma balance sheet shall in determining the estimated changes
be submitted for the number of years fol- in revenues, expenses, and net income
lowing consummation necessary to effect appearing in the third column. Addi-
the operating plan. tionally, if the major financial advan-
(b) Pro forma income statement (ex- tages to be derived from the proposed
hibit 17). Where the transaction in- transaction will not occur within 3
volves a proceeding other than a con- years after consummation, then appli-
trol, submit a pro forma income state- cant shall furnish additional informa-
ment showing transferee’s estimate of tion to reflect the number of years
revenues, expenses, and net income for within which the financial advantages
at least each of the 3 years following will be realized. The basis for all such
consummation of the transaction. 5 The data furnished shall be fully explained
pro forma data shall be presented in co- and supported.
lumnar form, showing (c) Sources and application of funds
(1) in the first column, transferee’s (exhibit 18). Transferor’s and trans-
actual income statement on a cor- feree’s statement of sources and appli-
porate entity basis for the year indication of funds for the current year,
cated in the impact analysis in exhibit and a forecast 7 of sources and applica-
12; tion of funds for each carrier (if a
(2) in the second column, a similar in- merger or consolidation, the surviving
come statement for the transferor; or resulting corporation) for the year
(3) in the third column, forecasted ad- following consummation of the pro-
justments to the combined revenues, posed transaction, and the years nec-
expenses, and net income to reflect in- essary to effectuate the operating
creases or decreases anticipated under plan. 8 The form and content of these
the unified operations, and statements should be constructed in
(4) in the fourth column, a compila- accordance with the schedule: ‘‘State-
tion of the first three columns into a ment of Changes in Financial Posi-
pro forma income statement. 6 tion’’ required in the most recently
filed Annual Report R–1 for Class I rail-
with the second column reflecting the adjust- roads.
ments resulting from the sale. (d) Property encumbrance (exhibit
If the parent company (if any) of the trans- 19). If any of the property covered by
feree or transferor is affected, a similar bal- the application is encumbered and ap-
ance sheet shall be filed for each. plicant has agreed to assume obliga-
All adjustments to these balance sheets tion or liability in respect thereof, sub-
shall be supported in footnotes to the appro-
priate balance sheet.
mit:
5 If the operating plan requires more than 3 (1) A description of the property en-
years to be put into effect, the pro forma in- cumbered.
come statement shall be prepared for as (2) Amount of encumbrance and full
many years as necessary to implement fully description thereof, including matu-
the operating plan. rity, interest rate, and other terms and
6 Where the purchase of a line or line seg-
conditions.
ment is involved, a procedure utilizing three (3) Amount of encumbrance assumed
columns should be followed. The first column
should show transferee’s actual income
or to be assumed by applicant.
statement on a corporate entity basis for the
latest available 12-month period, the second All adjustments to these income state-
column should show the adjustment neces- ments shall be supported in footnotes to the
sitated by the purchase, and the third col- appropriate income statements.
umn is a compilation of the first two col- 7 The forecast should reflect only changes
umns into a pro forma income statement. anticipated to result from the proposed
The transferor shall file an income state- transaction. Forecasts are not required to
ment similar to the one filed by the trans- reflect general economic conditions unre-
feree, with the second column reflecting the lated to the proposed transaction.
adjustments resulting from the sale. 8 The pro forma balance sheets (exhibit 16),
If the parent company (if any) of the trans- pro forma income statements (exhibit 17), and
feror or transferee is affected, a similar sources and application of funds (exhibit 18)
statement shall be filed for each. shall cover the same years.
276
(e) The Board will incorporate by ref- (b) Coordination of freight and pas-
erence the current balance sheets and senger operations. If Amtrak or com-
income statements of Class I railroads muter services are operated over the
which are on file with the Board. Class lines of applicant carriers, applicants
II and Class III railroads, and non-car- must describe definitively how they
rier entities shall submit balance would continue to facilitate these oper-
sheets (exhibit 20) and income state- ations so as to fulfill existing perform-
ments (exhibit 21) covering a period ance agreements for those services.
ending within 6 months before the ap- Whether or not the passenger services
plication is filed. are operated over lines of applicants or
[47 FR 9844, Mar. 8, 1982. Redesignated at 47 applicants’ operations are on the lines
FR 49592, Nov. 1, 1982, and amended at 58 FR of passenger agencies, applicants must
63104, Nov. 30, 1993; 62 FR 9717, Mar. 4, 1997; 64 establish operating protocols ensuring
FR 53269, Oct. 1, 1999] effective communications with Amtrak
and/or regional rail passenger opera-
§ 1180.10 Service assurance plans. tors to minimize any potential trans-
For major transactions: Applicants action-related negative impacts.
must submit a Service Assurance Plan, (c) Yard and terminal operations. The
which, in concert with the operating operational fluidity of yards and termi-
plan requirements, identifies the pre- nals is key to the successful implemen-
cise steps to be taken by applicants to tation of a transaction and effective
ensure that projected service levels service to shippers. Applicants must
would be attainable and that key ele- describe how the operations of prin-
ments of the operating plan would im- cipal classification yards and major
prove service. The plan shall describe terminals would be changed or revised
with reasonable precision how oper- and how these revisions would affect
ating plan efficiencies would translate service to customers. As part of this
into present and future benefits for the analysis, applicants must furnish dwell
shipping public. The plan must also de- time benchmarks for each facility de-
scribe any potential area of service scribed in this paragraph, and estimate
degradation that might result due to what the expected dwell time would be
operational changes and how instances after the revised operations are imple-
of degraded service might be mitigated. mented. Also required will be a discus-
Like the Operating Plan on which it is sion of on-time performance for the
based, the Service Assurance Plan principal yards and terminals in the
must be a full-system plan encom- same terms as required for dwell time.
passing: (d) Infrastructure improvements. Appli-
(a) Integration of operations. Based on cants must identify potential infra-
the operating plan, and using appro- structure impediments (using volume/
priate benchmarks, applicants must de- capacity line and terminal forecasts),
velop a Service Assurance Plan de- formulate solutions to those impedi-
scribing how the proposed transaction ments, and develop time frames for res-
would result in improved service levels olution. Applicants must also develop a
and how and where service might be de- capital improvement plan (to support
graded. This description should be a the operating plan) for timely funding
precise route level review, but not a and completion of the improvements
shipper-by-shipper review. Nonetheless, critical to transition of operations.
the plan should be sufficient for indi- They should also describe improve-
vidual shippers to evaluate the pro- ments related to future growth, and in-
jected improvements and changes, and dicate the relationship of the improve-
respond to the potential areas of serv- ments to service delivery.
ice degradation for their customary (e) Information technology systems. Be-
traffic routings. The plan should in- cause the accurate and timely integra-
form Class II and III railroads and tion of applicants’ information systems
other connecting railroads of the oper- is vitally important to service, appli-
ational changes or changes in service cants must identify the process to be
terms that might affect their oper- used for systems integration and train-
ations, including operations involving ing of involved personnel. This must
major gateways. include identification of the principal
277
§ 1180.10 49 CFR Ch. X (10–1–07 Edition)
operations-related systems, operating lem resolution teams and describe the

areas affected, implementation sched- specific procedures to be utilized for
ules, the realtime operations data used problem resolution.
to test the systems, and pre-implemen- (j) Timetable. Applicants must iden-
tation training requirements needed to tify all major functional or system
achieve completion dates. If such sys- changes/consolidations that would
tems will not be integrated and on line occur and the time line for successful
prior to implementation of the trans- completion.
action, applicants must describe the in- (k) Benchmarking. Specific
terim systems to be used and the ade- benchmarking requirements may vary
quacy of those systems to ensure serv- with the transaction. The minimum for
ice delivery. benchmarking will be the 12 monthly
(f) Customer service. To achieve and periods immediately preceding the fil-
maintain customer confidence in the ing date of the notice of intent to file
transaction and to ensure the success- the application. Benchmarking is in-
ful integration and consolidation of extended to provide an historic monthly
isting customer service functions, ap- baseline against which actual post-
plicants must identify their plans for transaction levels of performance can
the staffing and training of personnel be measured. Benchmarking data
within or supporting the customer should be sufficiently detailed and en-
service centers. This discussion must compassing to give a meaningful pic-
include specific information on the ture of operational performance for the
planned steps to familiarize customers newly merged system. Applicants will
with any new processes and procedures report in a matrix structure giving the
that they may encounter in using the historic monthly (benchmark) data and
consolidated systems and/or changes in provide for the reporting of actual
contact locations, telephone numbers, monthly data during the monitoring
or communication mode. period. It is important that data reflect
(g) Labor. Applicants must furnish a uniformly constructed measures of his-
plan for reaching necessary labor im- toric and post-transaction operations.
plementing agreements. Applicants Minimum benchmark data include:
must also provide evidence that suffi- (1) Corridor performance benchmarking.
cient qualified employees would be Benchmarks will consist of route level
available at the proper locations to ef- performance information including
fect implementation. flow data for traffic moving on the ap-
(h) Training. Applicants must estab- plicants’ systems. These data will en-
lish a plan for providing necessary compass flows to and from major
training to employees involved with points. A major point could be a Bu-
operations, train and engine service, reau of Economic Analysis (BEA) sta-
operating rules, dispatching, payroll tistical area, or it can be a railroad-
and timekeeping, field data entry, safe- created point based on an operational
ty and hazardous material compliance, grouping of stations or interchanges,
and contractor support functions (e.g., or it could be another similar construc-
crew van service), as well as training tion. It will be necessary for applicants
for other employees in functions that to define traffic points used to estab-
would be affected by the acquisition. lish benchmarks for purposes of moni-
(i) Contingency plans for merger-related toring. A sufficient number of corridor
service disruptions. To address potential flows must be reported so as to fully
disruptions of service that could occur, represent system flows, including
applicants must establish contingency interchanges with short lines and other
plans. Those plans, based upon avail- Class I’s, and internal traffic of the re-
able resources and traffic flows and spective applicants before the trans-
density, must identify potential areas action. In addition to identifying traf-
of disruption and the risk of occur- fic flows by areas, they also must be
rence. Applicants must provide evi- identified by commodity sector (for ex-
dence that contingency plans would be ample, merchandise, intermodal, auto-
in place to promptly restore adequate motive, unit coal, unit grain etc.).
service levels. Applicants must also Data for each flow must include: traffic
provide for the establishment of prob- volume in carloads (units), miles (area
278
to area), and elapsed time in hours. (i) The application procedures in sub-
Only loaded traffic need be included. part A of this part; or,
(2) Yard and terminal benchmarking.— (ii) The procedures in part 1121 of this
(i) Terminal dwell. Terminal dwell for title for a petition to exempt the trans-
major yards will be calculated in hours action from prior approval require-
for cars handled, not including run- ments of 49 U.S.C. 11323 et seq.
through and bypass trains or mainte- (b) The Board will establish or mod-
nance of way and bad order cars. ify its existing procedures and dead-
(ii) On time originations by major yard. lines as necessary in each proceeding
On time originations are based on the to comply with appropriate orders of
departure of scheduled trains origi- the Bankruptcy Court.
nating at a particular yard.
(c) Under 11 U.S.C. 1172(c)(1), the
(3) System benchmarking. (i) Cars on
Board is required to provide affected
line.
employees with adequate protection.
(ii) Average train velocity, by train
type. The Board will impose the minimum
(iii) Locomotive fleet size and appli- levels required by 49 U.S.C. 11326, un-
cable bad order ratios. less a need is shown for greater levels
(iv) Passenger train performance for of protection.
commuter and intercity passenger (d) All applications, notices, and pe-
services. titions for exemption within the scope
of § 1180.20(a) shall advise the Board
[66 FR 32589, June 15, 2001]
that the proposed transaction involves
§ 1180.11 Transnational and other in- the transfer or operation of lines in re-
formational requirements. organization.
(a) For applicants whose systems in- [57 FR 57112, Dec. 3, 1992; 57 FR 61585, Dec. 28,
clude operations in Canada or Mexico, 1992, as amended at 62 FR 9717, Mar. 4, 1997]
applicants must explain how coopera-
tion with the Federal Railroad Admin- PART 1182—PURCHASE, MERGER,
istration would be maintained to ad- AND CONTROL OF MOTOR PAS-
dress potential impacts on operations
within the United States of operations
SENGER CARRIERS
or events elsewhere on their systems.
Sec.
(b) All applicants must assess wheth-
1182.1 Applications covered by this part.
er any restrictions or preferences under
1182.2 Content of applications.
foreign or domestic law or policies
1182.3 Filing the application.
could affect their commercial deci-
1182.4 Board review of the application.
sions, and discuss any ownership re-
1182.5 Comments.
strictions applicable to them. 1182.6 Processing an opposed application.
[66 FR 32590, June 15, 2001] 1182.7 Interim approval.
1182.8 Miscellaneous requirements.
Subpart B—Transfer or Operation 1182.9 Notices of exemption.
of Lines of Railroads in Reor- AUTHORITY: 5 U.S.C. 559; 21 U.S.C. 853a; and
ganization 49 U.S.C. 13501, 13541(a), 13902(c), and 14303.
§ 1180.20 Procedures. otherwise noted.
(a) Transactions under 11 U.S.C. 1172,
for the transfer or operation of lines of § 1182.1 Applications covered by this
bankrupt railroads under a plan of re- part.
organization are governed by the fol- The rules in this part govern applica-
lowing procedures: tions for authority under 49 U.S.C.
(1) If the buyer or operator is not a 14303 to consolidate, merge, purchase,
carrier, the Notice of Exemption proce- lease, or contract to operate the prop-
dures in subpart D of part 1150 of this erties or franchises of motor carriers of
title. passengers or to acquire control of
(2) If the buyer or operator is a car-
motor carriers of passengers. There is

rier, either:
279
§ 1182.2 49 CFR Ch. X (10–1–07 Edition)
no application form for these pro- the proposed transaction. See 49 U.S.C.
ceedings. Applicants shall file a plead- 14303(b);
ing containing the information de- (8) Certification by applicant of the
scribed in 49 CFR 1182.2. See 49 CFR current U.S. Department of Transpor-
1002.2(f) (2) and (5) for filing fees. tation safety fitness rating of each
motor passenger carrier involved in the
§ 1182.2 Content of applications.
transaction, whether that carrier is a
(a) The application must contain the party to the transaction or is affiliated
following information: with a party to the transaction;
(1) Full name, address, and author- (9) Certification by the party acquir-
ized signature of each of the parties to
ing any operating rights through the
the transaction;
transaction that it has sufficient insur-
(2) Copies or descriptions of the perti-
nent operating authorities of all of the ance coverage under 49 U.S.C. 13906 (a)
parties (NOTE: If an applicant is domi- and (d) for the service it intends to pro-
ciled in Mexico or owned or controlled vide;
by persons of that country, copies of (10) A statement indicating whether
the actual operating authorities must any party acquiring any operating
be submitted.); rights through the transaction is ei-
(3) A description of the proposed ther domiciled in Mexico or owned or
transaction; controlled by persons of that country;
(4) Identification of any motor pas- and
senger carriers affiliated with the par- (11) If the transaction involves the
ties, a brief description of their oper- transfer of operating authority to an
ations, and a summary of the intercor- individual who will hold the authority
porate structure of the corporate fam- in his or her name, that individual
ily from top to bottom; must complete the following certifi-
(5) A jurisdictional statement, under cation:
49 U.S.C. 14303(g), that the 12-month ag-
gregate gross operating revenues, in- I, lllll, certify under penalty of per-
cluding revenues of all motor carrier jury under the laws of the United States,
parties and all motor carriers control- that I have not been convicted, after Sep-
ling, controlled by, or under common tember 1, 1989, of any Federal or State of-
fense involving the distribution or possession
control with any party from all trans-
of a controlled substance, or that I have been
portation sources (whether interstate, so convicted, but I am not ineligible to re-
intrastate, foreign, regulated, or un- ceive Federal benefits, either by court order
regulated) exceeded $2 million. (NOTE: or operation of law, pursuant to 21 U.S.C.
The motor passenger carrier parties 853a.
and their motor passenger carrier af-
filiates may select a consecutive 12- (b) The application shall contain ap-
month period ending not more than 6 plicants’ entire case in support of the
months before the date of the parties’ proposed transaction, unless the Board
agreement covering the transaction. finds, on its own motion or that of a
They must, however, select the same party to the proceeding, that addi-
12-month period.) tional evidentiary submissions are re-
(6) A statement indicating whether quired to resolve the issues in a par-
the transaction will or will not signifi- ticular case.
cantly affect the quality of the human (c) Any statements submitted on be-
environment and the conservation of half of an applicant supporting the ap-
energy resources; plication shall be verified, as provided
(7) Information to demonstrate that in 49 CFR 1182.8(e). Pleadings con-
the proposed transaction is consistent sisting strictly of legal argument, how-
with the public interest, including par- ever, need not be verified.
ticularly: the effect of the proposed
(d) If an application or supplemental
transaction on the adequacy of trans-
pleading contains false or misleading
portation to the public; the total fixed
charges (e.g., interest) that result from information, the granted application is
the proposed transaction; and the in- void ab initio.
terest of carrier employees affected by
280
§ 1182.3 Filing the application. § 1182.5 Comments.

(a) Each application shall be filed (a) Comments concerning an applica-
with the Board, complying with the re- tion must be received by the Board
quirements set forth at 49 CFR 1182.8. within 45 days after notice of the appli-
(1) One copy of the application shall cation is published, as provided by 49
be delivered, by first-class mail, to the U.S.C. 14303(d). Failure to file a timely
appropriate regulatory body in each comment waives further participation
State in which intrastate operations in the proceeding. If no comments are
are affected by the transaction. filed opposing the application, the pub-
(2) If the application involves the lished tentative grant of authority will
merger or purchase of motor passenger automatically become effective at the
carriers (contemplating transfer of op- close of the comment period. A ten-
erating authorities or registrations tative grant of authority does not enti-
tle the applicant to consummate the
from one or more parties to others),
transaction before the end of the com-
one copy of the application shall be de-
ment period.
livered, by first-class mail, to:
(b) A comment shall be verified, as
Chief, Lic. & Ins. Div., U.S.D.O.T. Office of provided in 49 CFR 1182.8(e), and shall
Motor Carriers-HIA 30, 400 Virginia Ave., contain all information upon which the
SW., Ste. 600, Washington, DC 20004 commenter intends to rely, including
(b) In their application, the parties the grounds for any opposition to the
shall certify that they have delivered transaction and the commenter’s inter-
copies of the application as provided in est in the proceeding.
paragraph (a) of this section. (c) The docket number of the applica-
tion must be conspicuously placed at
§ 1182.4 Board review of the applica- the top of the first page of the com-
tion. ment.
(d) A copy of the comment shall be
(a) All applications will be reviewed
delivered concurrently to applicants’
for completeness. Applicants will be
representative(s).
given an opportunity to correct minor
errors or omissions. Incomplete appli- § 1182.6 Processing an opposed appli-
cations may be rejected, or, if omis- cation.
sions are corrected, the filing date of
(a) If timely comments are submitted
the application, for purposes of calcu-
in opposition to an application, the
lating the procedural schedule and tentative grant of authority is void.
statutory deadlines, will be deemed to
(b) Applicants may file a reply to op-
be the date on which the complete in- posing comments, within 60 days after
formation is filed with the Board. the date the application was published.
(b) If the application is accepted, a (1) The reply may include a request
summary of the application will be for an expedited decision on the issues
published in the FEDERAL REGISTER raised by the comments. Otherwise, the
(within 30 days, as provided by 49 reply may not contain any new evi-
U.S.C. 14303(c)), to give notice to the dence, but shall only rebut or further
public, in the form of a tentative grant explain matters previously raised.
of authority. (2) The reply shall be verified, as pro-
(c) If the published notice does not vided in 49 CFR 1182.8(e), unless it con-
properly describe the transaction for sists strictly of legal argument.
which approval is sought, applicants (3) Applicants’ reply must be served
shall inform the Board within 10 days on each commenter in such manner
after the publication date. that it is received no later than the
(d) A copy of the application will be date it is due to be filed with the
available for inspection at the Board’s Board.
offices in Washington, DC. Interested (4) Opposing commenters may reply
persons may obtain a copy of the appli- to a request for an expedited decision,
cation from the applicants’ representa- within 70 days after notice of the appli-
tive, as specified in the published no- cation was published.
tice. (c) The Board may:
281
§ 1182.7 49 CFR Ch. X (10–1–07 Edition)
(1) Dispense with further proceedings tion of or injury to motor passenger

and make a final determination based carrier properties sought to be ac-
on the record as developed; or quired under 49 U.S.C. 14303, the proc-
(2) Issue a procedural schedule speci- essing of such requests is intended to
fying the dates by which: applicants promote expeditious decisions regard-
may submit additional evidence in sup- ing interim approval. The Board has no
port of the application, in response to obligation to give public notice of re-
the comment(s) in opposition; and the quests for interim approval, and such
opposing commenter(s) may reply. requests are decided without hearing or
(d) Further processing of an opposed other formal proceeding.
application will be handled on a case- (1) If a request for interim approval is
by-case basis, as appropriate to the included in the application, the Board’s
particular issues raised in the com- decision with regard to interim ap-
ments filed in opposition to the appli- proval will be served in conjunction
cation. Evidentiary proceedings must with the notice accepting the applica-
be concluded within 240 days after pub- tion.
lication of the notice of the applica- (2) If an application is rejected, the
tion. request for interim approval will be de-
nied.
§ 1182.7 Interim approval. (3) If an application is denied, after
(a) A party may request interim ap- comments in opposition are submitted,
proval of the operation of the prop- any interim approval will terminate 30
erties sought to be acquired through days after service of the decision deny-
the proposed transaction, for a period ing the application.
of not more than 180 days pending de- (e) A petition to reconsider a grant of
termination of the application. This re- interim approval may be filed only by
quest may be included in the applica- a person who has filed a comment in
tion or may be submitted separately opposition to the application.
after the application is filed (e.g., once (1) A petition to reconsider a grant of
a comment opposing the application interim approval must be in writing
has been filed). An additional filing fee and shall state the specific grounds
is required, whether the request for in- upon which the commenter relies in op-
terim approval is included in the appli- posing interim approval. The petition
cation or is submitted separately at a shall certify that a copy has been
later time. See 49 CFR 1002.2(f)(5) for served on applicants’ representative.
the additional filing fee. (2) The original and 10 copies of the
(b) A request for interim approval of petition to reconsider a grant of in-
the operation of the properties sought terim approval shall be filed with the
to be acquired in the application must Board, and one copy of the petition
show that failure to grant interim ap- shall be served on applicants’ rep-
proval may result in destruction of or resentative(s).
injury to those properties or substan- (f) The Board may act on a petition
tially interfere with their future use- to reconsider a grant of interim ap-
fulness in providing adequate and con- proval either separately or in connec-
tinuous service to the public. tion with the final decision on the ap-
(c) If a request for interim approval plication.
is submitted after the application is
filed, it must be served on each person § 1182.8 Miscellaneous requirements.
who files or has filed a comment in re- (a) If applicants wish to withdraw an
sponse to the published notice of the application, they shall jointly request
application. Service must be simulta- dismissal in writing.
neous upon those commenters who are (b) An original and 10 copies of all ap-
known when the request for interim plications, pleadings, and other mate-
approval is submitted; otherwise, serv- rial filed under this part must be filed
ice must be within 5 days after the with the Board.
comment is received by applicants or (c) All pleadings (including motions
their representative. and replies) submitted under this part
(d) Because the basis for requesting shall be served on all other parties,
interim approval is to prevent destruc- concurrently and by the same (or more
282
expeditious) means with which they The notice shall contain a brief sum-
are filed with the Board. mary of the proposed transaction, the
(d) Each pleading shall contain a cer- name of the applicants, their business
tificate of service stating that the address and telephone number, and the
pleading has been served in accordance name of counsel to whom questions
with paragraph (c) of this section. would be addressed. The notice shall
(e) All applications and pleadings describe the purpose of the transaction
containing statements of fact (i.e., ex- and give the proposed consummation
cept motions to strike, replies thereto,
date for the transaction, which must be
and other pleadings that consist only
at least 7 days after the filing of the
of legal argument) must be verified by
the person offering the statement, in notice. The notice shall describe any
the following manner: contracts or agreements that have
been entered into, or will be entered
I, [Name and Title of Witness], verify under into, concerning the transaction, and
penalty of perjury, under the laws of the
United States of America, that all informa-
shall indicate the impact, if any, that
tion supplied in connection with this appli- the transaction would have on employ-
cation is true and correct. Further, I certify ees.
that I am qualified and authorized to file (c) The Board shall publish notice of
this application or pleading. I know that the exemption in the FEDERAL REG-
willful misstatements or omissions of mate-
ISTER within 30 days from the filing of
rial facts constitute Federal criminal viola-
tions punishable under 18 U.S.C. 1001 by im- the verified notice of exemption. If the
prisonment up to five years and fines up to notice contains false or misleading in-
$10,000 for each offense. Additionally, these formation, the Board shall summarily
misstatements are punishable as perjury revoke the exemption and require di-
under 18 U.S.C. 1621, which provides for fines
vestiture. Petitions to revoke the ex-
up to $2,000 or imprisonment up to five years
for each offense. emption under 49 U.S.C. 13541(d) may
[Signature and Date] be filed at any time and will be granted
upon a finding that the application of
(f) If completion of a transaction re- 49 U.S.C. 14303 to the person, class, or
quires the transfer of operating au- transportation is necessary to carry
thorities or registrations from one or out the transportation policy of 49
more parties to others, the parties U.S.C. 13101.
shall comply with relevant procedures
of the Office of Motor Carriers of the [65 FR 8281, Feb. 17, 2000]
U.S. Department of Transportation,
and comply with ministerial require- PART 1184—MOTOR CARRIER
ments of relevant State procedures. POOLING OPERATIONS
§ 1182.9 Notices of exemption.
Sec.
(a) A transaction within a motor pas- 1184.1 Scope and purpose.
senger corporate family is exempt from 1184.2 Contents of a pooling application.
49 U.S.C. 14303 if it does not result in 1184.3 Processing pooling applications.
adverse changes in service levels, sig-
nificant operational changes, or a AUTHORITY: 49 U.S.C. 721, 14302.
change in the competitive balance with SOURCE: 46 FR 21181, Apr. 9, 1981, unless
motor passenger carriers outside the otherwise noted. Redesignated at 47 FR 49595,
corporate family. The Board has found Nov. 1, 1982.
that its prior review and approval of
these transactions is not necessary to § 1184.1 Scope and purpose.
carry out the transportation policy of This statement of policy on motor
49 U.S.C. 13101; regulation is not nec- carrier pooling applications imple-
essary to protect shippers from abuse ments section 20 of the Motor Carrier
of market power; and an exemption is
Act of 1980 [Pub. L. No. 96–296, 94 Stat.
in the public interest. See 49 U.S.C.
793]. The Act’s provisions are now con-
13541(a).
tained at 49 U.S.C. 14302.
(b) To qualify for a class exemption,
a party must file a verified notice of [46 FR 21181, Apr. 9, 1981, as amended at 64
the exempt transaction with the Board. FR 53269, Oct. 1, 1999]
283
§ 1184.2 49 CFR Ch. X (10–1–07 Edition)
§ 1184.2 Contents of a pooling applica- the best of applicant’s knowledge and

tion. belief, true and complete.
A pooling application filed under 49 As appendices, applicants must submit:
U.S.C. 14302 should include the fol- (1) A copy of the pooling agreement; (2)
lowing information: a copy of the specific operating author-
(a) An identification of all the car- ity of each carrier which is the subject
riers who are parties to the pooling of the pooling agreement; and (3) a cap-
agreement; tion summary (for FEDERAL REGISTER
(b) A general description of the trans- publication) of the pooling transaction
action; sought to be approved.
(c) A specific description of the oper-
ating authorities sought to be pooled; [46 FR 21181, Apr. 9, 1981. Redesignated and
(d) The basis to establish that the amended at 47 FR 49595, Nov. 1, 1982; 64 FR
agreement is a genuine pooling ar- 53269, Oct. 1, 1999]
rangement (as opposed to a lease or
§ 1184.3 Processing pooling applica-
interline arrangement); tions.
(e) A description of what applicants
consider to be the relevant transpor- After the pooling application is re-
tation markets affected by the pro- ceived (not less than 50 days before the
posed agreement; effective date specified in the pooling
(f) The competitive routing and serv- agreement), the Board will either re-
ice alternatives that would remain if ject it or determine initially whether
the agreement is approved, to the best the pooling agreement is of major
of applicant’s knowledge; transportation importance and wheth-
(g) If there is a lessening of such al- er there is a substantial likelihood that
ternatives, an estimate of the public the pooling agreement will unduly re-
benefits that will accrue from ap- strain competition. If neither of these
proval, or new competition that will two factors is present, the application
arise, which would offset such less- will be granted without further hear-
ening; ing. Where either factor is found to
(h) A narrative assessment of how exist, the application will be published
the pooling arrangement will affect in the FEDERAL REGISTER using the
present and future competition in the caption summary filed with the appli-
area, including a description of the pro-
cation, and a hearing will be scheduled
jected volume of traffic, the revenues,
(normally to receive written verified
and the commodities which will be sub-
statements) to consider the issues fur-
ject to the pooling agreement;
(i) Certification that rates set for ther. In this second phase of the pro-
traffic moving under the agreement do ceeding, the Board will consider wheth-
not violate the restrictions on collec- er the pooling agreement would be in
tive ratemaking contained in 49 U.S.C. the interest of better service to the
Subtitle IV and Board regulations; public or of economy of operation and
(j) A narrative statement as to the whether it will unduly restrain com-
relative transportation importance of petition.
the pooling agreement as it would af-
fect the public and the national trans- PART 1185—INTERLOCKING
portation system; OFFICERS
(k) If any known non-pooling carriers
authorized to transport the subject Sec.
traffic are not included in the pooling 1185.1 Definitions and scope of regulations.
arrangement explain why, and explain 1185.2 Contents of application.
whether inclusion would enhance or re- 1185.3 Procedures.
strain competition; 1185.4 General authority.
(l) A statement of the energy and en- 1185.5 Common control.
vironmental effects of the agreement, 1185.6 Jointly used terminal properties.
if any; and
(m) Certification by applicant, or its AUTHORITY: 49 U.S.C. 721, 10502, and 11328.
representatives, that the representa- SOURCE: 62 FR 2042, Jan. 15, 1997, unless
tions made in the application are, to otherwise noted.
284
§ 1185.1 Definitions and scope of regu- (2) A specification of every carrier of

lations. which the applicant holds stock, bonds,
(a) This part addresses the require- or notes, individually, as trustee, or
ment of 49 U.S.C. 11328 authorization of otherwise; and the amount of, and ac-
the Surface Transportation Board curate description of, such securities of
(STB) needed for a person to hold the each carrier for which the applicant
position of officer or director of more seeks authority to act. (Whenever it is
than one rail carrier, except where contemplated that the applicant will
only Class III carriers are involved. represent on the board of directors of
STB authorization is not needed for in- any carrier securities other than those
dividuals seeking to hold the positions owned by the applicant, the application
of officers or directors only of Class III shall describe such securities, state the
railroads. 49 U.S.C. 11328(b). character of representation, the name
(b) When a person is an officer of a of the beneficial owner or owners, and
Class I railroad and seeks to become an the general nature of the business con-
officer of another Class I railroad, an ducted by such owner or owners.)
application under 49 U.S.C. 11328(a) (or (3) Each and every position with any
petition for individual exemption carrier:
under 49 U.S.C. 10502) must be filed. All (i) Which is held by the applicant at
other ‘‘interlocking directorates’’ have the time of the application; and
been exempted as a class from the prior (ii) Which the applicant seeks au-
approval requirements of 49 U.S.C. thority to hold, together with the date
11328(a), pursuant to 49 U.S.C. 10502 and and manner of his or her election or ap-
former 49 U.S.C. 10505. For such inter- pointment thereto and, if the applicant
locking directorates exempted as a
has entered upon the performance of
class, no filing with the STB is nec-
his duties in any such position, the na-
essary to invoke the exemption.
ture of the duties so performed and the
(c) An interlocking directorate exists
date when he first entered upon their
whenever an individual holds the posi-
tion of officer or director of one rail performance. (A decision authorizing a
carrier and assumes the position of of- person to hold the position of director
ficer or director of another rail carrier. of a carrier will be construed as suffi-
This provision applies to any person cient to authorize that person to serve
who performs duties, or any of the du- also as chairman of its board of direc-
ties, ordinarily performed by a directors or as a member or chairman of any
tor, president, vice president, sec- committee or committees of such
retary, treasurer, general counsel, gen- board; and, therefore, when authority
eral solicitor, general attorney, comp- is sought to hold the position of direc-
troller, general auditor, general man- tor, the applicant need not request au-
ager, freight traffic manager, passenger thority to serve in any of such other
traffic manager, chief engineer, general capacities.)
superintendent, general land and tax (4) As to each carrier covered by the
agent or chief purchasing agent. requested authorization, whether it is
(d) For purposes of this part, a rail an operating carrier, a lessor company,
carrier means a person providing com- or any other corporation organized for
mon carrier railroad transportation for the purpose of engaging in rail trans-
compensation (except a street, subur- portation. (If any such carrier neither
ban, or interurban electric railway not operates nor owns any railroad pro-
operating as part of the general system viding transportation that is subject to
of rail transportation), and a corpora- 49 U.S.C. 10501, the application shall in-
tion organized to provide such trans- clude a copy of such carrier’s charter
portation. or certificate or articles of incorpora-
tion, with amendments to date or, if al-
§ 1185.2 Contents of application. ready filed with the former Interstate
(a) Each application shall state the Commerce Commission (ICC) or with
following: the STB, a reference thereto, with any
(1) The full name, occupation, busi- intervening amendments.)
ness address, place of residence, and (5) A full statement of pertinent facts
post office address of the applicant. relative to any carrier involved which
285
§ 1185.3 49 CFR Ch. X (10–1–07 Edition)
does not make annual reports to the may apply for general authority on be-
STB. half of an individual who has already
(6) Full information as to the rela- received authority to act as an inter-
tionship—operating, financial, com- locking officer. However, a carrier may
petitive, or otherwise—existing be- not apply for general authority for an
tween the carriers covered by the re- individual who holds a position with
quested authorization. another railroad which is not an affil-
(7) Every corporation—industrial, fi- iate or subsidiary of the carrier or
nancial, or miscellaneous—of which the whose properties are not used or oper-
applicant is an officer or director, and ated by the carrier, either separately
the general character of the business or jointly with other carriers.
conducted by such corporation.
(8) The reasons, fully, why the grant- § 1185.5 Common control.
ing of the authority sought will not af- It shall not be necessary for any per-
fect adversely either public or private son to secure authorization to hold the
interests. position of officer or director of two or
(9) Whether or not any other applica- more carriers if such carriers are oper-
tion for authority has been made in be- ated under common control or manage-
half of the applicant and, if so, the date ment either:
and docket number thereof, by whom (a) Pursuant to approval and author-
made, and the action thereon, if any. ity of the ICC granted under former 49
(b) When application has been made U.S.C. 11343–44 or by the STB granted
on behalf of any person, a subsequent under 49 U.S.C. 11323–24; or
application by that person need not re- (b) Pursuant to an exemption author-
peat any statement contained in the ized by the ICC under former 49 U.S.C.
previous application but may incor- 10505 or by the STB under 49 U.S.C.
porate the same by appropriate ref- 10502; or
erence.
(c) Pursuant to a controlling, con-
§ 1185.3 Procedures. trolled, or common control relation-
ship which has existed between such
The original application or petition carriers since before June 16, 1933.
shall be signed by the individual appli-
cant or petitioner and shall be verified [62 FR 2042, Jan. 15, 1997, as amended at 69
under oath. Petitions and applications FR 58366, Sept. 30, 2004]
should comply with the STB’s general
rules of practice set forth at 49 CFR § 1185.6 Jointly used terminal prop-
erties.
part 1104. Applications or petitions
may be made by persons on their own Any person holding the position of
behalf. officer or director of a carrier is re-
lieved from the provisions of this part
§ 1185.4 General authority. to the extent that he or she may also
Any person who holds or seeks spe- hold a directorship and any other posi-
cific authority to hold positions with a tion to which that person may be elect-
carrier may also request general au- ed or appointed with a terminal rail-
thority to act as an interlocking offi- road the properties of which are oper-
cer for all affiliated or subsidiary com- ated or used by the carrier jointly with
panies or properties used or operated other carriers.
by that carrier, either separately or
jointly, with other carriers. A carrier PARTS 1187–1199 [RESERVED]
286
FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabet-
ical list of agencies publishing in the CFR are included in the CFR Index and
Finding Aids volume to the Code of Federal Regulations which is published sepa-
rately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
287
Table of CFR Titles and Chapters
(Revised as of October 1, 2007)
Title 1—General Provisions
I Administrative Committee of the Federal Register (Parts 1—49)

II Office of the Federal Register (Parts 50—299)
IV Miscellaneous Agencies (Parts 400—500)
Title 2—Grants and Agreements
SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR

GRANTS AND AGREEMENTS
I Office of Management and Budget Governmentwide Guidance for
Grants and Agreements (Parts 100—199)
II Office of Management and Budget Circulars and Guidance (200—
299)
SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND
AGREEMENTS
III Department of Health and Human Services (Parts 300—399)
VI Department of State (Parts 600—699)
VIII Department of Veterans Affairs (Parts 800—899)
IX Department of Energy (Parts 900—999)
XI Department of Defense (Parts 1100—1199)
XIV Department of the Interior (Parts 1400—1499)
XV Environmental Protection Agency (Parts 1500—1599)
XVIII National Aeronautics and Space Administration (Parts 1880—
1899)
XXII Corporation for National and Community Service (Parts 2200—
2299)
XXV National Science Foundation (Parts 2500—2599)
XXVI National Archives and Records Administration (Parts 2600—2699)
XXVII Small Business Administration (Parts 2700—2799)
XXVIII Department of Justice (Parts 2800—2899)
XXXII National Endowment for the Arts (Parts 3200—3299)
XXXIII National Endowment for the Humanities (Parts 3300—3399)
XXXV Export-Import Bank of the United States (Parts 3500—3599)
XXXVII Peace Corps (Parts 3700—3799)
Title 3—The President

I Executive Office of the President (Parts 100—199)
289
Title 4—Accounts
Chap.
I Government Accountability Office (Parts 1—99)
Title 5—Administrative Personnel
I Office of Personnel Management (Parts 1—1199)

II Merit Systems Protection Board (Parts 1200—1299)
III Office of Management and Budget (Parts 1300—1399)
V The International Organizations Employees Loyalty Board
(Parts 1500—1599)
VI Federal Retirement Thrift Investment Board (Parts 1600—1699)
VIII Office of Special Counsel (Parts 1800—1899)
IX Appalachian Regional Commission (Parts 1900—1999)
XI Armed Forces Retirement Home (Parts 2100—2199)
XIV Federal Labor Relations Authority, General Counsel of the Fed-
eral Labor Relations Authority and Federal Service Impasses
Panel (Parts 2400—2499)
XV Office of Administration, Executive Office of the President
(Parts 2500—2599)
XVI Office of Government Ethics (Parts 2600—2699)
XXI Department of the Treasury (Parts 3100—3199)
XXII Federal Deposit Insurance Corporation (Parts 3200—3299)
XXIII Department of Energy (Parts 3300—3399)
XXIV Federal Energy Regulatory Commission (Parts 3400—3499)
XXV Department of the Interior (Parts 3500—3599)
XXVI Department of Defense (Parts 3600—3699)
XXVIII Department of Justice (Parts 3800—3899)
XXIX Federal Communications Commission (Parts 3900—3999)
XXX Farm Credit System Insurance Corporation (Parts 4000—4099)
XXXI Farm Credit Administration (Parts 4100—4199)
XXXIII Overseas Private Investment Corporation (Parts 4300—4399)
XXXV Office of Personnel Management (Parts 4500—4599)
XL Interstate Commerce Commission (Parts 5000—5099)
XLI Commodity Futures Trading Commission (Parts 5100—5199)
XLII Department of Labor (Parts 5200—5299)
XLIII National Science Foundation (Parts 5300—5399)
XLV Department of Health and Human Services (Parts 5500—5599)
XLVI Postal Rate Commission (Parts 5600—5699)
XLVII Federal Trade Commission (Parts 5700—5799)
XLVIII Nuclear Regulatory Commission (Parts 5800—5899)
L Department of Transportation (Parts 6000—6099)
LII Export-Import Bank of the United States (Parts 6200—6299)
LIII Department of Education (Parts 6300—6399)
LIV Environmental Protection Agency (Parts 6400—6499)
LV National Endowment for the Arts (Parts 6500—6599)
LVI National Endowment for the Humanities (Parts 6600—6699)
LVII General Services Administration (Parts 6700—6799)
290
Title 5—Administrative Personnel—Continued
Chap.
LVIII Board of Governors of the Federal Reserve System (Parts 6800—

6899)
LIX National Aeronautics and Space Administration (Parts 6900—
6999)
LX United States Postal Service (Parts 7000—7099)
LXI National Labor Relations Board (Parts 7100—7199)
LXII Equal Employment Opportunity Commission (Parts 7200—7299)
LXIII Inter-American Foundation (Parts 7300—7399)
LXIV Merit Systems Protection Board (Parts 7400—7499)
LXV Department of Housing and Urban Development (Parts 7500—
7599)
LXVI National Archives and Records Administration (Parts 7600—7699)
LXVII Institute of Museum and Library Services (Parts 7700—7799)
LXIX Tennessee Valley Authority (Parts 7900—7999)
LXXI Consumer Product Safety Commission (Parts 8100—8199)
LXXIII Department of Agriculture (Parts 8300—8399)
LXXIV Federal Mine Safety and Health Review Commission (Parts
8400—8499)
LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699)
LXXVII Office of Management and Budget (Parts 8700—8799)
XCVII Department of Homeland Security Human Resources Manage-
ment System (Department of Homeland Security--Office of
Personnel Management) (Parts 9700—9799)
XCIX Department of Defense Human Resources Management and
Labor Relations Systems (Department of Defense--Office of
Personnel Management) (Parts 9900—9999)
Title 6—Domestic Security
I Department of Homeland Security, Office of the Secretary

(Parts 0—99)
X Privacy and Civil Liberties Oversight Board (Parts 1000—1099)
Title 7—Agriculture
SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS

0—26)
SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE
I Agricultural Marketing Service (Standards, Inspections, Mar-
keting Practices), Department of Agriculture (Parts 27—209)
II Food and Nutrition Service, Department of Agriculture (Parts
210—299)
III Animal and Plant Health Inspection Service, Department of Ag-
riculture (Parts 300—399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400—499)
V Agricultural Research Service, Department of Agriculture
(Parts 500—599)
291
Title 7—Agriculture—Continued
Chap.
VI Natural Resources Conservation Service, Department of Agri-

culture (Parts 600—699)
VII Farm Service Agency, Department of Agriculture (Parts 700—
799)
VIII Grain Inspection, Packers and Stockyards Administration (Fed-
eral Grain Inspection Service), Department of Agriculture
(Parts 800—899)
IX Agricultural Marketing Service (Marketing Agreements and Or-
ders; Fruits, Vegetables, Nuts), Department of Agriculture
(Parts 900—999)
X Agricultural Marketing Service (Marketing Agreements and Or-
ders; Milk), Department of Agriculture (Parts 1000—1199)
XI Agricultural Marketing Service (Marketing Agreements and Or-
ders; Miscellaneous Commodities), Department of Agriculture
(Parts 1200—1299)
XIV Commodity Credit Corporation, Department of Agriculture
(Parts 1400—1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500—1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600—
1699)
XVII Rural Utilities Service, Department of Agriculture (Parts 1700—
1799)
XVIII Rural Housing Service, Rural Business-Cooperative Service,
Rural Utilities Service, and Farm Service Agency, Depart-
ment of Agriculture (Parts 1800—2099)
XX Local Television Loan Guarantee Board (Parts 2200—2299)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600—2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700—2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800—
2899)
XXIX Office of Energy Policy and New Uses, Department of Agri-
XXX Office of the Chief Financial Officer, Department of Agriculture
(Parts 3000—3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100—3199)
XXXII Office of Procurement and Property Management, Department
of Agriculture (Parts 3200—3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300—3399)
XXXIV Cooperative State Research, Education, and Extension Service,
Department of Agriculture (Parts 3400—3499)
XXXV Rural Housing Service, Department of Agriculture (Parts 3500—
3599)
XXXVI National Agricultural Statistics Service, Department of Agri-
XXXVII Economic Research Service, Department of Agriculture (Parts
3700—3799)
292
Title 7—Agriculture—Continued
Chap.
XXXVIII World Agricultural Outlook Board, Department of Agriculture

(Parts 3800—3899)
XLI [Reserved]
XLII Rural Business-Cooperative Service and Rural Utilities Service,
Department of Agriculture (Parts 4200—4299)
Title 8—Aliens and Nationality
I Department of Homeland Security (Immigration and Naturaliza-

tion) (Parts 1—499)
V Executive Office for Immigration Review, Department of Justice
(Parts 1000—1399)
Title 9—Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of Ag-

riculture (Parts 1—199)
II Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs), Department of Agri-
III Food Safety and Inspection Service, Department of Agriculture
(Parts 300—599)
Title 10—Energy
I Nuclear Regulatory Commission (Parts 0—199)

II Department of Energy (Parts 200—699)
III Department of Energy (Parts 700—999)
X Department of Energy (General Provisions) (Parts 1000—1099)
XIII Nuclear Waste Technical Review Board (Parts 1303—1399)
XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799)
XVIII Northeast Interstate Low-Level Radioactive Waste Commission
(Parts 1800—1899)
Title 11—Federal Elections
I Federal Election Commission (Parts 1—9099)
Title 12—Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts

1—199)
II Federal Reserve System (Parts 200—299)
III Federal Deposit Insurance Corporation (Parts 300—399)
IV Export-Import Bank of the United States (Parts 400—499)
V Office of Thrift Supervision, Department of the Treasury (Parts
500—599)
VI Farm Credit Administration (Parts 600—699)
293
Title 12—Banks and Banking—Continued
Chap.
VII National Credit Union Administration (Parts 700—799)

VIII Federal Financing Bank (Parts 800—899)
IX Federal Housing Finance Board (Parts 900—999)
XI Federal Financial Institutions Examination Council (Parts
1100—1199)
XIV Farm Credit System Insurance Corporation (Parts 1400—1499)
XV Department of the Treasury (Parts 1500—1599)
XVII Office of Federal Housing Enterprise Oversight, Department of
Housing and Urban Development (Parts 1700—1799)
XVIII Community Development Financial Institutions Fund, Depart-
ment of the Treasury (Parts 1800—1899)
Title 13—Business Credit and Assistance
I Small Business Administration (Parts 1—199)

III Economic Development Administration, Department of Com-
merce (Parts 300—399)
IV Emergency Steel Guarantee Loan Board, Department of Com-
V Emergency Oil and Gas Guaranteed Loan Board, Department of
Commerce (Parts 500—599)
Title 14—Aeronautics and Space
I Federal Aviation Administration, Department of Transportation

(Parts 1—199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200—399)
III Commercial Space Transportation, Federal Aviation Adminis-
tration, Department of Transportation (Parts 400—499)
V National Aeronautics and Space Administration (Parts 1200—
1299)
VI Air Transportation System Stabilization (Parts 1300—1399)
Title 15—Commerce and Foreign Trade
SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0—

29)
SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN
TRADE
I Bureau of the Census, Department of Commerce (Parts 30—199)
II National Institute of Standards and Technology, Department of
III International Trade Administration, Department of Commerce
(Parts 300—399)
IV Foreign-Trade Zones Board, Department of Commerce (Parts
400—499)
VII Bureau of Industry and Security, Department of Commerce
(Parts 700—799)
294
Title 15—Commerce and Foreign Trade—Continued
Chap.
VIII Bureau of Economic Analysis, Department of Commerce (Parts

800—899)
IX National Oceanic and Atmospheric Administration, Department
of Commerce (Parts 900—999)
XI Technology Administration, Department of Commerce (Parts
1100—1199)
XIII East-West Foreign Trade Board (Parts 1300—1399)
XIV Minority Business Development Agency (Parts 1400—1499)
SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE-
MENTS
XX Office of the United States Trade Representative (Parts 2000—
2099)
SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS
AND INFORMATION
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300—2399)
Title 16—Commercial Practices
I Federal Trade Commission (Parts 0—999)

II Consumer Product Safety Commission (Parts 1000—1799)
Title 17—Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1—199)

II Securities and Exchange Commission (Parts 200—399)
IV Department of the Treasury (Parts 400—499)
Title 18—Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy

(Parts 1—399)
III Delaware River Basin Commission (Parts 400—499)
VI Water Resources Council (Parts 700—799)
VIII Susquehanna River Basin Commission (Parts 800—899)
XIII Tennessee Valley Authority (Parts 1300—1399)
Title 19—Customs Duties
I Bureau of Customs and Border Protection, Department of Home-

land Security; Department of the Treasury (Parts 0—199)
II United States International Trade Commission (Parts 200—299)
III International Trade Administration, Department of Commerce
(Parts 300—399)
IV Bureau of Immigration and Customs Enforcement, Department
of Homeland Security (Parts 400—599)
295
Title 20—Employees’ Benefits
Chap.
I Office of Workers’ Compensation Programs, Department of

Labor (Parts 1—199)
II Railroad Retirement Board (Parts 200—399)
III Social Security Administration (Parts 400—499)
IV Employees Compensation Appeals Board, Department of Labor
(Parts 500—599)
V Employment and Training Administration, Department of Labor
(Parts 600—699)
VI Employment Standards Administration, Department of Labor
(Parts 700—799)
VII Benefits Review Board, Department of Labor (Parts 800—899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900—999)
IX Office of the Assistant Secretary for Veterans’ Employment and
Training, Department of Labor (Parts 1000—1099)
Title 21—Food and Drugs
I Food and Drug Administration, Department of Health and

Human Services (Parts 1—1299)
II Drug Enforcement Administration, Department of Justice (Parts
1300—1399)
III Office of National Drug Control Policy (Parts 1400—1499)
Title 22—Foreign Relations
I Department of State (Parts 1—199)

II Agency for International Development (Parts 200—299)
III Peace Corps (Parts 300—399)
IV International Joint Commission, United States and Canada
(Parts 400—499)
V Broadcasting Board of Governors (Parts 500—599)
VII Overseas Private Investment Corporation (Parts 700—799)
IX Foreign Service Grievance Board (Parts 900—999)
X Inter-American Foundation (Parts 1000—1099)
XI International Boundary and Water Commission, United States
and Mexico, United States Section (Parts 1100—1199)
XII United States International Development Cooperation Agency
(Parts 1200—1299)
XIII Millenium Challenge Corporation (Parts 1300—1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations
Authority; and the Foreign Service Impasse Disputes Panel
(Parts 1400—1499)
XV African Development Foundation (Parts 1500—1599)
XVI Japan-United States Friendship Commission (Parts 1600—1699)
XVII United States Institute of Peace (Parts 1700—1799)
296
Title 23—Highways
Chap.
I Federal Highway Administration, Department of Transportation

(Parts 1—999)
II National Highway Traffic Safety Administration and Federal
Highway Administration, Department of Transportation
(Parts 1200—1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300—1399)
Title 24—Housing and Urban Development
SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT (PARTS 0—99)
SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE-
VELOPMENT
I Office of Assistant Secretary for Equal Opportunity, Department
of Housing and Urban Development (Parts 100—199)
II Office of Assistant Secretary for Housing-Federal Housing Com-
missioner, Department of Housing and Urban Development
(Parts 200—299)
III Government National Mortgage Association, Department of
Housing and Urban Development (Parts 300—399)
IV Office of Housing and Office of Multifamily Housing Assistance
Restructuring, Department of Housing and Urban Develop-
ment (Parts 400—499)
V Office of Assistant Secretary for Community Planning and De-
velopment, Department of Housing and Urban Development
(Parts 500—599)
VI Office of Assistant Secretary for Community Planning and De-
velopment, Department of Housing and Urban Development
(Parts 600—699) [Reserved]
VII Office of the Secretary, Department of Housing and Urban Devel-
opment (Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700—799)
VIII Office of the Assistant Secretary for Housing—Federal Housing
Commissioner, Department of Housing and Urban Develop-
ment (Section 8 Housing Assistance Programs, Section 202 Di-
rect Loan Program, Section 202 Supportive Housing for the El-
derly Program and Section 811 Supportive Housing for Persons
With Disabilities Program) (Parts 800—899)
IX Office of Assistant Secretary for Public and Indian Housing, De-
partment of Housing and Urban Development (Parts 900—1699)
X Office of Assistant Secretary for Housing—Federal Housing
ment (Interstate Land Sales Registration Program) (Parts
1700—1799)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000—2099)
XX Office of Assistant Secretary for Housing—Federal Housing
ment (Parts 3200—3899)
XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)
297
Title 25—Indians
Chap.
I Bureau of Indian Affairs, Department of the Interior (Parts 1—

299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300—399)
III National Indian Gaming Commission, Department of the Inte-
rior (Parts 500—599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700—799)
V Bureau of Indian Affairs, Department of the Interior, and Indian
Health Service, Department of Health and Human Services
(Part 900)
VI Office of the Assistant Secretary-Indian Affairs, Department of
the Interior (Parts 1000—1199)
VII Office of the Special Trustee for American Indians, Department
of the Interior (Parts 1200—1299)
Title 26—Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1—

899)
Title 27—Alcohol, Tobacco Products and Firearms
I Alcohol and Tobacco Tax and Trade Bureau, Department of the

Treasury (Parts 1—399)
II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart-
ment of Justice (Parts 400—699)
Title 28—Judicial Administration
I Department of Justice (Parts 0—299)

III Federal Prison Industries, Inc., Department of Justice (Parts
300—399)
V Bureau of Prisons, Department of Justice (Parts 500—599)
VI Offices of Independent Counsel, Department of Justice (Parts
600—699)
VII Office of Independent Counsel (Parts 700—799)
VIII Court Services and Offender Supervision Agency for the District
of Columbia (Parts 800—899)
IX National Crime Prevention and Privacy Compact Council (Parts
900—999)
XI Department of Justice and Department of State (Parts 1100—
1199)
Title 29—Labor
SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99)

SUBTITLE B—REGULATIONS RELATING TO LABOR
I National Labor Relations Board (Parts 100—199)
298
Title 29—Labor—Continued
Chap.
II Office of Labor-Management Standards, Department of Labor

(Parts 200—299)
III National Railroad Adjustment Board (Parts 300—399)
IV Office of Labor-Management Standards, Department of Labor
(Parts 400—499)
V Wage and Hour Division, Department of Labor (Parts 500—899)
IX Construction Industry Collective Bargaining Commission (Parts
900—999)
X National Mediation Board (Parts 1200—1299)
XII Federal Mediation and Conciliation Service (Parts 1400—1499)
XIV Equal Employment Opportunity Commission (Parts 1600—1699)
XVII Occupational Safety and Health Administration, Department of
XX Occupational Safety and Health Review Commission (Parts
2200—2499)
XXV Employee Benefits Security Administration, Department of
XXVII Federal Mine Safety and Health Review Commission (Parts
2700—2799)
XL Pension Benefit Guaranty Corporation (Parts 4000—4999)
Title 30—Mineral Resources
I Mine Safety and Health Administration, Department of Labor

(Parts 1—199)
II Minerals Management Service, Department of the Interior
(Parts 200—299)
III Board of Surface Mining and Reclamation Appeals, Department
of the Interior (Parts 300—399)
IV Geological Survey, Department of the Interior (Parts 400—499)
VII Office of Surface Mining Reclamation and Enforcement, Depart-
ment of the Interior (Parts 700—999)
Title 31—Money and Finance: Treasury
SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS

0—50)
SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE
I Monetary Offices, Department of the Treasury (Parts 51—199)
II Fiscal Service, Department of the Treasury (Parts 200—399)
IV Secret Service, Department of the Treasury (Parts 400—499)
V Office of Foreign Assets Control, Department of the Treasury
(Parts 500—599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600—699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700—799)
VIII Office of International Investment, Department of the Treasury
(Parts 800—899)
299
Title 31—Money and Finance: Treasury—Continued
Chap.
IX Federal Claims Collection Standards (Department of the Treas-

ury—Department of Justice) (Parts 900—999)
Title 32—National Defense
SUBTITLE A—DEPARTMENT OF DEFENSE

I Office of the Secretary of Defense (Parts 1—399)
V Department of the Army (Parts 400—699)
VI Department of the Navy (Parts 700—799)
VII Department of the Air Force (Parts 800—1099)
SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE-
FENSE
XII Defense Logistics Agency (Parts 1200—1299)
XVI Selective Service System (Parts 1600—1699)
XVII Office of the Director of National Intelligence (Parts 1700—1799)
XVIII National Counterintelligence Center (Parts 1800—1899)
XIX Central Intelligence Agency (Parts 1900—1999)
XX Information Security Oversight Office, National Archives and
Records Administration (Parts 2000—2099)
XXI National Security Council (Parts 2100—2199)
XXIV Office of Science and Technology Policy (Parts 2400—2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700—2799)
XXVIII Office of the Vice President of the United States (Parts 2800—
2899)
Title 33—Navigation and Navigable Waters
I Coast Guard, Department of Homeland Security (Parts 1—199)

II Corps of Engineers, Department of the Army (Parts 200—399)
IV Saint Lawrence Seaway Development Corporation, Department
of Transportation (Parts 400—499)
Title 34—Education
SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU-

CATION (PARTS 1—99)
SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT
OF EDUCATION
I Office for Civil Rights, Department of Education (Parts 100—199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200—299)
III Office of Special Education and Rehabilitative Services, Depart-
ment of Education (Parts 300—399)
IV Office of Vocational and Adult Education, Department of Edu-
cation (Parts 400—499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500—599)
300
Title 34—Education—Continued
Chap.
VI Office of Postsecondary Education, Department of Education

(Parts 600—699)
XI National Institute for Literacy (Parts 1100—1199)
SUBTITLE C—REGULATIONS RELATING TO EDUCATION
XII National Council on Disability (Parts 1200—1299)
Title 35 [Reserved]
Title 36—Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1—199)

II Forest Service, Department of Agriculture (Parts 200—299)
III Corps of Engineers, Department of the Army (Parts 300—399)
IV American Battle Monuments Commission (Parts 400—499)
V Smithsonian Institution (Parts 500—599)
VII Library of Congress (Parts 700—799)
VIII Advisory Council on Historic Preservation (Parts 800—899)
IX Pennsylvania Avenue Development Corporation (Parts 900—999)
X Presidio Trust (Parts 1000—1099)
XI Architectural and Transportation Barriers Compliance Board
(Parts 1100—1199)
XII National Archives and Records Administration (Parts 1200—1299)
XV Oklahoma City National Memorial Trust (Parts 1500—1599)
XVI Morris K. Udall Scholarship and Excellence in National Environ-
mental Policy Foundation (Parts 1600—1699)
Title 37—Patents, Trademarks, and Copyrights
I United States Patent and Trademark Office, Department of

II Copyright Office, Library of Congress (Parts 200—299)
III Copyright Royalty Board, Library of Congress (Parts 301—399)
IV Assistant Secretary for Technology Policy, Department of Com-
V Under Secretary for Technology, Department of Commerce
(Parts 500—599)
Title 38—Pensions, Bonuses, and Veterans’ Relief
I Department of Veterans Affairs (Parts 0—99)
Title 39—Postal Service
I United States Postal Service (Parts 1—999)

III Postal Rate Commission (Parts 3000—3099)
301
Title 40—Protection of Environment
Chap.
I Environmental Protection Agency (Parts 1—1099)

IV Environmental Protection Agency and Department of Justice
(Parts 1400—1499)
V Council on Environmental Quality (Parts 1500—1599)
VI Chemical Safety and Hazard Investigation Board (Parts 1600—
1699)
VII Environmental Protection Agency and Department of Defense;
Uniform National Discharge Standards for Vessels of the
Armed Forces (Parts 1700—1799)
Title 41—Public Contracts and Property Management
SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS

50 Public Contracts, Department of Labor (Parts 50–1—50–999)
51 Committee for Purchase From People Who Are Blind or Severely
Disabled (Parts 51–1—51–99)
60 Office of Federal Contract Compliance Programs, Equal Employ-
ment Opportunity, Department of Labor (Parts 60–1—60–999)
61 Office of the Assistant Secretary for Veterans’ Employment and
Training Service, Department of Labor (Parts 61–1—61–999)
SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS
SYSTEM
101 Federal Property Management Regulations (Parts 101–1—101–99)
102 Federal Management Regulation (Parts 102–1—102–299)
105 General Services Administration (Parts 105–1—105–999)
109 Department of Energy Property Management Regulations (Parts
109–1—109–99)
114 Department of the Interior (Parts 114–1—114–99)
115 Environmental Protection Agency (Parts 115–1—115–99)
128 Department of Justice (Parts 128–1—128–99)
SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE-
MENT [RESERVED]
SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT
REGULATIONS SYSTEM
201 Federal Information Resources Management Regulation (Parts
201–1—201–99) [Reserved]
SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM
300 General (Parts 300–1—300–99)
301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99)
302 Relocation Allowances (Parts 302–1—302–99)
303 Payment of Expenses Connected with the Death of Certain Em-
ployees (Part 303–1—303–99)
304 Payment of Travel Expenses from a Non-Federal Source (Parts
304–1—304–99)
302
Title 42—Public Health
Chap.
I Public Health Service, Department of Health and Human Serv-

ices (Parts 1—199)
IV Centers for Medicare & Medicaid Services, Department of Health
and Human Services (Parts 400—499)
V Office of Inspector General-Health Care, Department of Health
Title 43—Public Lands: Interior
SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS

1—199)
SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS
I Bureau of Reclamation, Department of the Interior (Parts 200—
499)
II Bureau of Land Management, Department of the Interior (Parts
1000—9999)
III Utah Reclamation Mitigation and Conservation Commission
(Parts 10000—10010)
Title 44—Emergency Management and Assistance
I Federal Emergency Management Agency, Department of Home-

land Security (Parts 0—399)
IV Department of Commerce and Department of Transportation
(Parts 400—499)
Title 45—Public Welfare
SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES

(PARTS 1—199)
SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE
II Office of Family Assistance (Assistance Programs), Administra-
tion for Children and Families, Department of Health and
Human Services (Parts 200—299)
III Office of Child Support Enforcement (Child Support Enforce-
ment Program), Administration for Children and Families,
Department of Health and Human Services (Parts 300—399)
IV Office of Refugee Resettlement, Administration for Children and
Families, Department of Health and Human Services (Parts
400—499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500—599)
VI National Science Foundation (Parts 600—699)
VII Commission on Civil Rights (Parts 700—799)
VIII Office of Personnel Management (Parts 800—899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts
1000—1099)
XI National Foundation on the Arts and the Humanities (Parts
1100—1199)
303
Title 45—Public Welfare—Continued
Chap.
XII Corporation for National and Community Service (Parts 1200—

1299)
XIII Office of Human Development Services, Department of Health
XVI Legal Services Corporation (Parts 1600—1699)
XVII National Commission on Libraries and Information Science
(Parts 1700—1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899)
XXI Commission on Fine Arts (Parts 2100—2199)
XXIII Arctic Research Commission (Part 2301)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400—
2499)
XXV Corporation for National and Community Service (Parts 2500—
2599)
Title 46—Shipping
I Coast Guard, Department of Homeland Security (Parts 1—199)

II Maritime Administration, Department of Transportation (Parts
200—399)
III Coast Guard (Great Lakes Pilotage), Department of Homeland
Security (Parts 400—499)
IV Federal Maritime Commission (Parts 500—599)
Title 47—Telecommunication
I Federal Communications Commission (Parts 0—199)

II Office of Science and Technology Policy and National Security
Council (Parts 200—299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300—399)
Title 48—Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1—99)

2 Defense Acquisition Regulations System, Department of Defense
(Parts 200—299)
3 Department of Health and Human Services (Parts 300—399)
4 Department of Agriculture (Parts 400—499)
5 General Services Administration (Parts 500—599)
6 Department of State (Parts 600—699)
7 United States Agency for International Development (Parts
700—799)
8 Department of Veterans Affairs (Parts 800—899)
9 Department of Energy (Parts 900—999)
10 Department of the Treasury (Parts 1000—1099)
12 Department of Transportation (Parts 1200—1299)
13 Department of Commerce (Parts 1300—1399)
304
Title 48—Federal Acquisition Regulations System—Continued
Chap.
14 Department of the Interior (Parts 1400—1499)

15 Environmental Protection Agency (Parts 1500—1599)
16 Office of Personnel Management, Federal Employees Health
Benefits Acquisition Regulation (Parts 1600—1699)
17 Office of Personnel Management (Parts 1700—1799)
18 National Aeronautics and Space Administration (Parts 1800—
1899)
19 Broadcasting Board of Governors (Parts 1900—1999)
20 Nuclear Regulatory Commission (Parts 2000—2099)
21 Office of Personnel Management, Federal Employees’ Group Life
Insurance Federal Acquisition Regulation (Parts 2100—2199)
23 Social Security Administration (Parts 2300—2399)
24 Department of Housing and Urban Development (Parts 2400—
2499)
25 National Science Foundation (Parts 2500—2599)
28 Department of Justice (Parts 2800—2899)
29 Department of Labor (Parts 2900—2999)
30 Department of Homeland Security, Homeland Security Acquisi-
tion Regulation (HSAR) (Parts 3000—3099)
34 Department of Education Acquisition Regulation (Parts 3400—
3499)
35 [Reserved]
44 Federal Emergency Management Agency (Parts 4400—4499)
51 Department of the Army Acquisition Regulations (Parts 5100—
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200—
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300—5399)
54 Defense Logistics Agency, Department of Defense (Parts 5400—
5499)
57 African Development Foundation (Parts 5700—5799)
61 General Services Administration Board of Contract Appeals
(Parts 6100—6199)
63 Department of Transportation Board of Contract Appeals (Parts
6300—6399)
99 Cost Accounting Standards Board, Office of Federal Procure-
ment Policy, Office of Management and Budget (Parts 9900—
9999)
Title 49—Transportation
SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION

(PARTS 1—99)
SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION
I Pipeline and Hazardous Materials Safety Administration, De-
partment of Transportation (Parts 100—199)
II Federal Railroad Administration, Department of Transportation
(Parts 200—299)
305
Title 49—Transportation—Continued
Chap.
III Federal Motor Carrier Safety Administration, Department of

IV Coast Guard, Department of Homeland Security (Parts 400—499)
V National Highway Traffic Safety Administration, Department of
VI Federal Transit Administration, Department of Transportation
(Parts 600—699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts
700—799)
VIII National Transportation Safety Board (Parts 800—999)
X Surface Transportation Board, Department of Transportation
(Parts 1000—1399)
XI Research and Innovative Technology Administration, Depart-
ment of Transportation [Reserved]
XII Transportation Security Administration, Department of Home-
land Security (Parts 1500—1699)
Title 50—Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Inte-

rior (Parts 1—199)
II National Marine Fisheries Service, National Oceanic and Atmos-
pheric Administration, Department of Commerce (Parts 200—
299)
III International Fishing and Related Activities (Parts 300—399)
IV Joint Regulations (United States Fish and Wildlife Service, De-
partment of the Interior and National Marine Fisheries Serv-
ice, National Oceanic and Atmospheric Administration, De-
partment of Commerce); Endangered Species Committee Reg-
ulations (Parts 400—499)
V Marine Mammal Commission (Parts 500—599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts
600—699)
CFR Index and Finding Aids
Subject/Agency Index
List of Agency Prepared Indexes
Parallel Tables of Statutory Authorities and Rules
List of CFR Titles, Chapters, Subchapters, and Parts
306
(Revised as of October 1, 2007)
CFR Title, Subtitle or

Agency Chapter
Administrative Committee of the Federal Register 1, I
Advanced Research Projects Agency 32, I
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV
Federal Acquisition Regulation 48, 57
Agency for International Development, United States 22, II
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agriculture Department 5, LXXIII
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Animal and Plant Health Inspection Service 7, III; 9, I
Chief Financial Officer, Office of 7, XXX
Commodity Credit Corporation 7, XIV
Cooperative State Research, Education, and Extension 7, XXXIV
Service
Economic Research Service 7, XXXVII
Energy, Office of 2, IX; 7, XXIX
Environmental Quality, Office of 7, XXXI
Farm Service Agency 7, VII, XVIII
Federal Crop Insurance Corporation 7, IV
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Forest Service 36, II
Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Natural Resources Conservation Service 7, VI
Operations, Office of 7, XXVIII
Procurement and Property Management, Office of 7, XXXII
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII
Secretary of Agriculture, Office of 7, Subtitle A
Transportation, Office of 7, XXXIII
World Agricultural Outlook Board 7, XXXVIII
Air Force Department 32, VII
Federal Acquisition Regulation Supplement 48, 53
Air Transportation Stabilization Board 14, VI
Alcohol and Tobacco Tax and Trade Bureau 27, I
Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
American Indians, Office of the Special Trustee 25, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
307
Agency Chapter
Architectural and Transportation Barriers Compliance Board 36, XI
Arctic Research Commission 45, XXIII
Armed Forces Retirement Home 5, XI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind or Severely Disabled, Committee for Purchase From 41, 51
People Who Are
Broadcasting Board of Governors 22, V
Census Bureau 15, I
Centers for Medicare & Medicaid Services 42, IV
Central Intelligence Agency 32, XIX
Chief Financial Officer, Office of 7, XXX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Civil Rights, Commission on 45, VII
Civil Rights, Office for 34, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Commerce Department 44, IV
Census Bureau 15, I
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Emergency Management and Assistance 44, IV
Fishery Conservation and Management 50, VI
Foreign-Trade Zones Board 15, IV
Industry and Security, Bureau of 15, VII
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV, VI
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI
National Telecommunications and Information 15, XXIII; 47, III
Administration
National Weather Service 15, IX
Patent and Trademark Office, United States 37, I
Productivity, Technology and Innovation, Assistant 37, IV
Secretary for
Secretary of Commerce, Office of 15, Subtitle A
Technology, Under Secretary for 37, V
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Commercial Space Transportation 14, III
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 5, XLI; 17, I
Community Planning and Development, Office of Assistant 24, V, VI
Secretary for
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 5, LXXI; 16, II
Cooperative State Research, Education, and Extension 7, XXXIV
Service
Copyright Office 37, II
Copyright Royalty Board 37, III
Corporation for National and Community Service 2, XXII; 45, XII, XXV
Cost Accounting Standards Board 48, 99
Council on Environmental Quality 40, V
Court Services and Offender Supervision Agency for the 28, VIII
District of Columbia
Customs and Border Protection Bureau 19, I
Defense Contract Audit Agency 32, I
Defense Department 5, XXVI; 32, Subtitle A;
40, VII
308
Agency Chapter
Advanced Research Projects Agency 32, I
Air Force Department 32, VII
Army Department 32, V; 33, II; 36, III, 48,
51
Defense Acquisition Regulations System 48, II
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, I, XII; 48, 54
National Imagery and Mapping Agency 32, I
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 2, XI; 32, I
Defense Contract Audit Agency 32, I
Defense Intelligence Agency 32, I
Defense Logistics Agency 32, XII; 48, 54
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
District of Columbia, Court Services and Offender Supervision 28, VIII
Agency for the
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Economic Research Service 7, XXXVII
Education, Department of 5, LIII
Bilingual Education and Minority Languages Affairs, Office 34, V
of
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Emergency Oil and Gas Guaranteed Loan Board 13, V
Emergency Steel Guarantee Loan Board 13, IV
Employee Benefits Security Administration 29, XXV
Employees’ Compensation Appeals Board 20, IV
Employees Loyalty Board 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 5, XXIII; 10, II, III, X
Federal Energy Regulatory Commission 5, XXIV; 18, I
Property Management Regulations 41, 109
Energy, Office of 7, XXIX
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 2, XV; 5, LIV; 40, I, IV,
VII
Environmental Quality, Office of 7, XXXI
Equal Employment Opportunity Commission 5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Environmental Quality, Council on 40, V
Management and Budget, Office of 5, III, LXXVII; 14, VI;
48, 99
National Drug Control Policy, Office of 21, III
National Security Council 32, XXI; 47, 2
Presidential Documents 3
309
Agency Chapter
Science and Technology Policy, Office of 32, XXIV; 47, II
Trade Representative, Office of the United States 15, XX
Export-Import Bank of the United States 2, XXXV; 5, LII; 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 5, XXXI; 12, VI
Farm Credit System Insurance Corporation 5, XXX; 12, XIV
Farm Service Agency 7, VII, XVIII
Federal Aviation Administration 14, I
Federal Claims Collection Standards 31, IX
Federal Communications Commission 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 5, XXII; 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I
Federal Employees Group Life Insurance Federal Acquisition 48, 21
Regulation
Federal Employees Health Benefits Acquisition Regulation 48, 16
Federal Energy Regulatory Commission 5, XXIV; 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Highway Administration 23, I, II
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Enterprise Oversight Office 12, XVII
Federal Housing Finance Board 12, IX
Federal Labor Relations Authority, and General Counsel of 5, XIV; 22, XIV
the Federal Labor Relations Authority
Federal Law Enforcement Training Center 31, VII
Federal Management Regulation 41, 102
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration 49, III
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Board of Governors 5, LVIII
Federal Retirement Thrift Investment Board 5, VI, LXXVI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 5, XLVII; 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Fine Arts, Commission on 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of the United States 45, V
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Services Administration 5, LVII; 41, 105
Contract Appeals, Board of 48, 61
310
Agency Chapter
Federal Management Regulation 41, 102
Federal Property Management Regulations 41, 101
Federal Travel Regulation System 41, Subtitle F
General 41, 300
Payment From a Non-Federal Source for Travel Expenses 41, 304
Payment of Expenses Connected With the Death of Certain 41, 303
Employees
Relocation Allowances 41, 302
Temporary Duty (TDY) Travel Allowances 41, 301
Geological Survey 30, IV
Government Accountability Office 4, I
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 2, III; 5, XLV; 45,
Subtitle A, 2, III
Centers for Medicare & Medicaid Services 42, IV
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Defense Acquisition Regulations System 48, 2
Family Assistance, Office of 45, II
Food and Drug Administration 21, I
Human Development Services, Office of 45, XIII
Indian Health Service 25, V; 42, I
Inspector General (Health Care), Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Homeland Security, Department of 6, I
Coast Guard 33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage) 46, III
Federal Emergency Management Agency 44, I
Immigration and Customs Enforcement Bureau 19, IV
Immigration and Naturalization 8, I
Transportation Security Administration 49, XII
Housing and Urban Development, Department of 5, LXV; 24, Subtitle B
Community Planning and Development, Office of Assistant 24, V, VI
Secretary for
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Housing Enterprise Oversight, Office of 12, XVII
Government National Mortgage Association 24, III
Housing—Federal Housing Commissioner, Office of 24, II, VIII, X, XX
Assistant Secretary for
Housing, Office of, and Multifamily Housing Assistance 24, IV
Restructuring, Office of
Inspector General, Office of 24, XII
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle A, VII
Housing—Federal Housing Commissioner, Office of Assistant 24, II, VIII, X, XX
Secretary for
Housing, Office of, and Multifamily Housing Assistance 24, IV
Restructuring, Office of
Human Development Services, Office of 45, XIII
Immigration and Customs Enforcement Bureau 19, IV
Immigration and Naturalization 8, I
Immigration Review, Executive Office for 8, V
Independent Counsel, Office of 28, VII
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant Secretary 25, VI
Indian Arts and Crafts Board 25, II
Indian Health Service 25, V; 42, I
Industry and Security, Bureau of 15, VII
Information Resources Management, Office of 7, XXVII
311
Agency Chapter
Information Security Oversight Office, National Archives and 32, XX
Records Administration
Inspector General
Agriculture Department 7, XXVI
Health and Human Services Department 42, V
Housing and Urban Development Department 24, XII
Institute of Peace, United States 22, XVII
Inter-American Foundation 5, LXIII; 22, X
Interior Department
American Indians, Office of the Special Trustee 25, VII
Endangered Species Committee 50, IV
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I, V
Indian Affairs, Office of the Assistant Secretary 25, VI
Indian Arts and Crafts Board 25, II
Land Management, Bureau of 43, II
Minerals Management Service 30, II
National Indian Gaming Commission 25, III
National Park Service 36, I
Reclamation, Bureau of 43, I
Secretary of the Interior, Office of 2, XIV; 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
Internal Revenue Service 26, I
International Boundary and Water Commission, United States 22, XI
and Mexico, United States Section
International Development, United States Agency for 22, II
International Development Cooperation Agency, United 22, XII
States
International Fishing and Related Activities 50, III
International Investment, Office of 31, VIII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 5, XL
James Madison Memorial Fellowship Foundation 45, XXIV
Japan–United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 2, XXVII; 5, XXVIII; 28,
I, XI; 40, IV
Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II
Drug Enforcement Administration 21, II
Federal Claims Collection Standards 31, IX
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United 45, V
States
Immigration Review, Executive Office for 8, V
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department 5, XLII
Benefits Review Board 20, VII
Employee Benefits Security Administration 29, XXV
Employees’ Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Standards, Office of 29, II, IV
Mine Safety and Health Administration 30, I
312
Agency Chapter
Occupational Safety and Health Administration 29, XVII
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX
Wage and Hour Division 29, V
Workers’ Compensation Programs, Office of 20, I
Labor-Management Standards, Office of 29, II, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Copyright Royalty Board 37, III
Local Television Loan Guarantee Board 7, XX
Management and Budget, Office of 5, III, LXXVII; 14, VI;
48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II, LXIV
Micronesian Status Negotiations, Office for 32, XXVII
Millenium Challenge Corporation 22, XIII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Morris K. Udall Scholarship and Excellence in National 36, XVI
Environmental Policy Foundation
National Aeronautics and Space Administration 2, XVIII; 5, LIX; 14, V
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National and Community Service, Corporation for 45, XII, XXV
National Archives and Records Administration 2, XXVI; 5, LXVI; 36,
XII
Information Security Oversight Office 32, XX
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Council on Disability 34, XII
National Counterintelligence Center 32, XVIII
National Credit Union Administration 12, VII
National Crime Prevention and Privacy Compact Council 28, IX
National Drug Control Policy, Office of 21, III
National Endowment for the Arts 2, XXXII
National Endowment for the Humanities 2, XXXIII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Imagery and Mapping Agency 32, I
National Indian Gaming Commission 25, III
National Institute for Literacy 34, XI
National Institute of Standards and Technology 15, II
National Intelligence, Office of Director of 32, XVII
National Labor Relations Board 5, LXI; 29, I
National Marine Fisheries Service 50, II, IV, VI
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III, IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 2, XXV; 5, XLIII; 45, VI
National Security Council 32, XXI
National Security Council and Office of Science and 47, II
Technology Policy
National Telecommunications and Information 15, XXIII; 47, III
Administration
313
Agency Chapter
National Transportation Safety Board 49, VIII
National Weather Service 15, IX
Natural Resources Conservation Service 7, VI
Navajo and Hopi Indian Relocation, Office of 25, IV
Navy Department 32, VI
Neighborhood Reinvestment Corporation 24, XXV
Northeast Interstate Low-Level Radioactive Waste 10, XVIII
Commission
Nuclear Regulatory Commission 5, XLVIII; 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Offices of Independent Counsel 28, VI
Oklahoma City National Memorial Trust 36, XV
Operations Office 7, XXVIII
Overseas Private Investment Corporation 5, XXXIII; 22, VII
Patent and Trademark Office, United States 37, I
Payment From a Non-Federal Source for Travel Expenses 41, 304
Payment of Expenses Connected With the Death of Certain 41, 303
Employees
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension Benefit Guaranty Corporation 29, XL
Personnel Management, Office of 5, I, XXXV; 45, VIII
Federal Employees Group Life Insurance Federal 48, 21
Acquisition Regulation
Federal Employees Health Benefits Acquisition Regulation 48, 16
Pipeline and Hazardous Materials Safety Administration 49, I
Postal Regulatory Commission 5, XLVI; 39, III
Postal Service, United States 5, LX; 39, I
Postsecondary Education, Office of 34, VI
President’s Commission on White House Fellowships 1, IV
Presidential Documents 3
Presidio Trust 36, X
Prisons, Bureau of 28, V
Privacy and Civil Liberties Oversight Board 6, X
Procurement and Property Management, Office of 7, XXXII
Productivity, Technology and Innovation, Assistant 37, IV
Secretary
Public Contracts, Department of Labor 41, 50
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation, Bureau of 43, I
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Innovative Technology Administration 49, XI
Rural Business-Cooperative Service 7, XVIII, XLII
Rural Development Administration 7, XLII
Rural Housing Service 7, XVIII, XXXV
Rural Telephone Bank 7, XVI
Rural Utilities Service 7, XVII, XVIII, XLII
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National 47, II
Security Council
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 2, XXVII; 13, I
Smithsonian Institution 36, V
Social Security Administration 20, III; 48, 23
Soldiers’ and Airmen’s Home, United States 5, XI
Special Counsel, Office of 5, VIII
314
Agency Chapter
Special Education and Rehabilitative Services, Office of 34, III
State Department 2, VI; 22, I; 28, XI
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
Surface Transportation Board 49, X
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Technology Policy, Assistant Secretary for 37, IV
Technology, Under Secretary for 37, V
Tennessee Valley Authority 5, LXIX; 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 5, L
Contract Appeals, Board of 48, 63
Emergency Management and Assistance 44, IV
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II
Federal Motor Carrier Safety Administration 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Pipeline and Hazardous Materials Safety Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Surface Transportation Board 49, X
Transportation Statistics Bureau 49, XI
Transportation, Office of 7, XXXIII
Transportation Security Administration 49, XII
Transportation Statistics Bureau 49, XI
Travel Allowances, Temporary Duty (TDY) 41, 301
Treasury Department 5, XXI; 12, XV; 17, IV;
31, IX
Alcohol and Tobacco Tax and Trade Bureau 27, I
Community Development Financial Institutions Fund 12, XVIII
Comptroller of the Currency 12, I
Engraving and Printing, Bureau of 31, VI
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
International Investment, Office of 31, VIII
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision, Office of 12, V
Truman, Harry S. Scholarship Foundation 45, XVIII
United States and Canada, International Joint Commission 22, IV
United States and Mexico, International Boundary and Water 22, XI
Commission, United States Section
Utah Reclamation Mitigation and Conservation Commission 43, III
Veterans Affairs Department 2, VIII; 38, I
Veterans’ Employment and Training Service, Office of the 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers’ Compensation Programs, Office of 20, I
World Agricultural Outlook Board 7, XXXVIII
315
All changes in this volume of the Code of Federal Regulations that
were made by documents published in the FEDERAL REGISTER since Jan-
uary 1, 2001, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to FEDERAL REGISTER
pages. The user should consult the entries for chapters and parts as well
as sections for revisions.
For the period before January 1, 2001, see the ‘‘List of CFR Sections
Affected, 1949–1963, 1964–1972, 1973–1985, and 1986–2000’’ published in 11 sep-
arate volumes.
2001 49 CFR—Continued 67 FR
Page
49 CFR 66 FR
Chapter X—Continued
Page
1111.1 (a)(11) added ........................ 36822
Chapter X
1135.1 Revised ............................... 55166
1002.1 (b), (c), (e)(1) and (f)(6) table
1137.2 Removed .............................. 5551
revised ..................................... 10830
1144 Revised ................................. 61290
1002.2 (f) revised ............................ 10830
1180.0 Revised ............................... 32583
1180.1 Revised ............................... 32583 2003
1180.3 (a) and (b) revised ................ 32586 49 CFR 68 FR
1180.4 (a)(1), (d), (e)(2), (3) and Page
(f)(2) revised; (a)(4) removed;
(b)(4) and (c)(6)(vi) added ........... 32586 Chapter X
1180.6 (b)(1) through (4), (6) and (8) 1002.1 (b), (c) and (e)(1) revised;
revised; (b)(9) through (13) (f)(6) table amended .................. 50981
added........................................ 32587 1002.2 (f) revised ............................ 50981
1180.7 Revised ............................... 32588 1011 Authority citation re-
1180.8 (a) and (b) redesignated as vised .......................................... 8726
(b) and (c); new (a) added............ 32589 1011.4 (a)(9) added ........................... 8726
1180.10 Added ................................ 32589 1011.7 (c)(5) added ........................... 8726
1180.11 Added ................................ 32590 1109.4 Added ................................. 17313
1111.8 Existing text designated as
2002 (a); new (a) heading and (b)
49 CFR 67 FR added........................................ 17313
Page 1114.31 (a) revised.......................... 17313
Chapter X 1137 Removed ............................... 51919
1002 Policy statement................... 65046 1152.20 (a)(2)(xi) removed;
1002.1 (a) through (d), (e)(1) and (a)(2)(xii) and (xiii) redesig-
(f)(6) table revised ..................... 10333 nated as new (a)(2)(xi) and (xii);
1002.2 (f) revised ............................ 10333 (a)(2)(ii) and new (xii) re-
1011 Revised ................................. 60167 vised......................................... 67810
1104 Authority citation re- 1180.2 (d) introductory text
vised .......................................... 5514 amended; (d)(8) added................ 28140
1104.2 Revised ................................ 5514 1180.4 (g)(2)(iii) and (iv) added ....... 28140
1104.3 Revised ................................ 5515
1104.15 Amended............................. 5515
1106 Added .................................... 11607
1109.3 Revised ............................... 36822
317
49 CFR (10–1–07 Edition)
2004 49 CFR—Continued 69 FR
Page
49 CFR 69 FR Chapter X—Continued
Page
1185 Authority citation re-
Chapter X vised......................................... 58366
1002 Authority citation re- 1185.5 (a) and (b) amended.............. 58366
vised......................................... 16173
1002.1 (e) through (h) redesig- 2005
nated as (f) through (i); new
(f)(2) removed; new (f)(3) redes- 49 CFR 70 FR
Page
ignated as (f)(2); new (e) added;
new (g)(7), (8) and (h) re- Chapter X
vised......................................... 16173 1002.1 (b), (c), (f)(1) and (g)(6) table
(a) through (d) and (f)(1) revised; revised ..................................... 17336
(g)(6) table and (7) revised; eff. 1002.2 (f) revised ............................ 17336
10–31–04 .....................................58855
1002.2 (a)(1), (b) and (g)(1)(ii) 2006
amended; (f)(78)(ii), (100)(ii),
(v), (vi), (vii), (101)(ii), (iv) and 49 CFR 71 FR
Page
(v) removed; (f)(2), (27), (56)(ii),
(iii), (61), (78)(i), (100)(iii), (iv), Chapter X
(101)(iii) and (iv) redesignated 1002.1 (a), (b), (d), (f)(1), (g)(6)
as (f)(2)(i), (27)(i), (56)(iii), (iv), table and (7) revised .................. 13939
(61)(i), (78), (100)(ii), (iii), 1002.2 (f) revised ............................ 13939
(101)(ii) and (iii); (a)(2), 1150.32 (b) and (c) amended ............ 62212
(f)(27)(i), (47), (48), (60), (61), (62) 1150.35 (e) and (f) amended ............. 62213
and (86) revised; (f)(2)(ii), (iii), 1150.42 (b) and (c) amended ............ 62213
(12)(iv), (27)(ii), (38)(vii), 1150.45 (e) and (f) amended ............. 62213
(39)(vii), (40)(vii), (41)(vii), 1180.4 (g)(1) introductory text and
(56)(ii), (v), (63), (64), (88) and (ii) amended; (g)(2)(ii) and (iv)
(101)(iv) added ........................... 16174 removed;; (g)(1)(iii) and (2)(iii)
(f) table amended .........................52208 redesignated as (g)(1)(iv) and
(f) revised; eff. 10–31–04..................58856 (2)(ii); new (g)(1)(iii) added ........ 62213
1039 Authority citation re-
vised......................................... 58365 2007
1039.10 Amended ........................... 58365
(Regulations published from January 1,
1039.20 Amended ........................... 58365
2007, through October 1, 2007)
1101.2 (e)(5) amended..................... 58365
1104.1 Heading revised; (e) 49 CFR 72 FR
added........................................ 18498 Page
1104.2 (a) amended ........................ 18499 Subtitle B
1104.3 (a), (b) introductory text Chapter X
and (1) amended ........................ 18499 1002.1 (b), (c), (f)(1) and (g)(6) table
1104.6 Amended............................. 18499 revised ..................................... 17033
1104.12 (a) revised.......................... 18499 1002.2 (f) revised ............................ 17033
1105 Authority citation re- (f)(56)(ii) through (v) revised;
vised......................................... 58365 (f)(56)(vi) added; eff. 10–7–07........51375
1105.7 (e)(5)(i)(C) and (ii)(C) 1111.1 (a)(1) through (10) revised;
amended................................... 58366 (b), (c) and (d) redesignated as
1105.12 Appendix amended ............ 58366 (c), (d) and (e); new (b) added;
1114.31 (a) revised.......................... 58366 eff. 10–7–07................................. 51375
1115.1 (c) amended......................... 12806 1111.2 Revised; eff. 10–7–07 ............. 51375
1130.1 (a) amended......................... 12806 1111.4 Revised; eff. 10–7–07 ............. 51376
1150 Authority citation re- 1111.9 Revised; eff. 10–7–07 ............. 51376
vised......................................... 58366 1111.10 Revised; eff. 10–7–07 ............ 51376
1150.1 (a) amended......................... 58366 1114.21 (a)(3) added; eff. 10–7–07 ...... 51377
1150.32 (c) amended ....................... 58366 1114.22 (c) added; eff. 10–7–07 .......... 51377
1150.34 Amended ........................... 58366 1114.26 (d) added; eff. 10–7–07 .......... 51377
1150.35 (f) amended........................ 58366 1114.30 (c) added; eff. 10–7–07 .......... 51377
318
49 CFR—Continued 72 FR 49 CFR—Continued 72 FR
Page Page
Chapter X—Continued Chapter X—Continued
1114.31 (a)(1) through (4) revised; 1115.9 (b) revised; eff. 10–7–07.......... 51377
eff. 10–7–07................................. 51377
Æ
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49

Parts 1000 to 1199

Containing a codification of documents

A Special Edition of the Federal Register

Legal Status and Use of Seals and Logos

Use of ISBN Prefix

U.S. GOVERNMENT PRINTING OFFICE

U.S. Superintendent of Documents • Washington, DC 20402–0001

Phone: toll-free (866) 512-1800; DC area (202) 512-1800

Subtitle B—Other Regulations Relating to Transportation (Contin-

Chapter X—Surface Transportation Board, Department of Trans-

Table of CFR Titles and Chapters ....................................................... 287

Alphabetical List of Agencies Appearing in the CFR ......................... 305

List of CFR Sections Affected ............................................................. 315

To cite the regulations in

semination Services, U.S. Government Printing Office. Phone 202-512-1530, or 888-

Title 49—TRANSPORTATION is composed of nine volumes. The parts in these vol-

Redesignation tables for chapter III—Federal Motor Carrier Safety Administra-

SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION

CHAPTER X—Surface Transportation Board, Department of

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

1021 Administrative collection of enforcement claims ... 69

1033 Car service ............................................................... 70

PARTS 1090–1099—INTERMODAL TRANSPORTATION

1090 Practices of carriers involved in the intermodal

PARTS 1100–1129—RULES OF GENERAL APPLICABILITY

1100 General provisions .................................................. 87

1121 Rail exemption procedures ...................................... 151

1130 Informal complaints ................................................ 152

PARTS 1150–1159—RAIL LICENSING PROCEDURES

1150 Certificate to construct, acquire, or operate rail-

PARTS 1177–1179—SECURITIES, SECURITY INTERESTS, AND FINANCIAL

1177 Recordation of documents ....................................... 253

1180 Railroad acquisition, control, merger, consolida-

Parts 1000–1019—General by the agency and are not published in

terpretations that have been adopted dressed to the Freedom of Information

information over a submitter’s objec- the time of submission or within a rea-

mitter had an opportunity to do so at access to agency records stored off-site

ducting scientific research the results termined to be exempt from disclosure.

(11) Interest charges will be assessed an understanding of government oper-

disclosure is ‘‘likely to contribute’’ to and on GPO Access.

and is handled through the rulemaking to the Secretary.

(1) An application for the pooling or division of traffic .................................................................................. $3,700.

PART III: Rail Abandonment or Discontinuance of Transportation Services Proceedings

viously in separate ownership. 49 U.S.C. 11324:

Type of proceeding Fee

(ii) Significant transaction ................................................................................................................ 255,000.

PART V: Formal Proceedings

(56) A formal complaint alleging unlawful rates or practices of carriers:

Type of proceeding Fee

PART VI: Informal Proceedings

PART VII: Services

filing, until the check is made good;

effective 30 days after publication. costs.

(4) Publication costs shall be ad- particular shippers or their representa-

§ 1004.1 Gifts, donations, and hospi- § 1005.1 Applicability of regulations.

ices or anything of substantial value to company, motor carrier, water carrier,

section. and assign thereto a successive claim

whatsoever and the terms thereof, or vehicle of household goods as defined

[37 FR 4258, Mar. 1, 1972, as amended at 46 FR § 1005.7 Weight as a measure of loss.

contain personal information con- vided by section 8 of Title 13 of the