Assessment of Mediation and Arbitration Procedures, 19591-19596 [2012-7836]
Download as PDF
<![CDATA[
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules
be one obvious way to measure any effect
that requiring EOBRs might have on driver
harassment (Id. at 588–89).
sroberts on DSK5SPTVN1PROD with PROPOSALS
As a result of the vacatur, carriers
relying on electronic devices to monitor
HOS compliance are currently governed
by the Agency’s previous rules
regarding the use of automatic on-board
recording devices (49 CFR 395.15). The
requirements set forth in 49 CFR 395.15
were not affected by the Seventh
Circuit’s decision regarding the
technical specifications set out in 49
CFR 395.16 in the EOBR 1 Final Rule.
II. Meeting Participation and
Information FMCSA Seeks From the
Public
The listening session is open to the
public. Speakers’ remarks will be
limited to five minutes each. The public
may submit material to the FMCSA staff
at the session for inclusion in the public
docket, FMCSA–2010–0167. FMCSA
will docket the transcription of the
listening session that will be prepared
by an official court reporter.
FMCSA tasked the MCSAC with
addressing harassment through Task
12–01, titled, ‘‘Measures to Ensure
Electronic On-Board Recorders (EOBRs)
Are Not Used to Harass Commercial
Motor Vehicle (CMV) Operators’’.
MCSAC held public meetings on this
task on February 7–8, 2012, and based
on its deliberations, submitted a report
to the FMCSA Administrator on
February 8, 2012. This report is
available for review at https://
mcsac.fmcsa.dot.gov/meeting.htm and
in the public docket, FMCSA–2010–
0167. The questions posed to MCSAC
will be used as a template for public
comment and discussion at the listening
session.
The comments sought from the
questions below may be submitted in
written form at the session and
summarized verbally, if desired:
1. In terms of motor carriers’ and
enforcement officials’ monitoring or
review of drivers’ records of duty status
(RODS), what would constitute driver
harassment? Would that definition
change based on whether the system for
recording HOS is paper or electronically
based? If so, how? As a starting point,
the Agency is interested in potential
forms of harassment, including but not
limited to those that are: (1) Not
prohibited already by current statutes
and regulations; (2) distinct from
monitoring for legitimate business
purposes (e.g., efforts to maintain or
improve productivity); and (3)
facilitated or made possible solely by
EOBR devices and not as a result of
functions or features that motor carriers
may choose to purchase, such as fleet
VerDate Mar<15>2010
15:44 Mar 30, 2012
Jkt 226001
management system capabilities. Is this
interpretation appropriate? Should it be
broader? Or narrower?
2. Are there types of driver
harassment to which drivers are
uniquely vulnerable if they are using
EOBRs rather than paper logs? If so,
what and how would use of an EOBR
rather than a paper log make a driver
more susceptible to harassment? Are
there ways in which the use of an EOBR
rather than a paper log makes a driver
less susceptible to harassment?
3. What types of harassment are motor
carrier drivers subjected to currently,
how frequently, and to what extent does
this harassment happen? How would an
electronic device capable of
contemporaneous transmission of
information to a motor carrier guard
against (or fail to guard against) this
kind of harassment? What experience
have motor carriers and drivers had
with carriers using EOBRs as compared
to those who do not use these devices
in terms of their effect on driver
harassment or complaints of driver
harassment?
4. What measures should the Agency
consider taking to eliminate the
potential for EOBRs to be used to harass
drivers? Are there specific functions and
capabilities of EOBRs that should be
restricted to reduce the likelihood of the
devices being used to harass vehicle
operators?
5. Motor carriers are often responsible
for managing their drivers and
equipment to optimize efficiency and
productivity and to ensure
transportation services are provided in
accordance with a planned schedule.
Carriers commonly use electronic
devices, which may include but are not
limited to EOBRs, to enhance
productivity and optimize fleet
operation. Provided such devices are
not used to coerce drivers into violating
Federal safety regulations, where is the
line between legitimate productivity
measures and inappropriate oversight or
actions that may be construed as
harassment?
FMCSA also seeks concepts, ideas,
and comments from enforcement
personnel on the HOS information they
would need to see on the EOBR display
screen at the roadside to effectively
enforce the HOS rules and the type of
evidence they would need to retain in
order to support issuing drivers a
citation for HOS violations observed
during roadside inspections.
III. Alternative Media Broadcasts
During and Immediately After the
Listening Session on April 26, 2012
FMCSA will webcast the listening
session on the Internet. Specific
PO 00000
Frm 00027
Fmt 4702
Sfmt 4702
19591
information on how to participate via
the Internet and the telephone access
number will be on the FMCSA Web site
at https://www.fmcsa.dot.gov. FMCSA
will docket the transcripts of the
webcast and a separate transcription of
the listening session that will be
prepared by an official court reporter.
Issued on: March 26, 2012.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2012–7899 Filed 3–30–12; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002, 1011, 1108, 1109,
1111, and 1115
[Docket No. EP 699]
Assessment of Mediation and
Arbitration Procedures
Surface Transportation Board.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Surface Transportation
Board (Board or STB) proposes
regulations that would require parties to
participate in mediation in certain types
of cases and would modify its existing
regulations that permit parties to engage
voluntarily in mediation. The Board
also proposes an arbitration program
under which carriers and shippers
would agree voluntarily to arbitrate
certain types of disputes that come
before the Board, and proposes
modifications to clarify and simplify its
existing rules governing the use of
arbitration in other disputes. The Board
seeks comments regarding these
proposed rules.
DATES: Comments are due by May 17,
2012. Replies are due June 18, 2012.
ADDRESSES: Comments, information, or
questions regarding this proposed rule
should reference Docket No. EP 699 and
be in writing addressed to: Chief,
Section of Administration, Office of
Proceedings, Surface Transportation
Board, 395 E Street SW., Washington,
DC 20423–0001.
FOR FURTHER INFORMATION CONTACT:
Amy C. Ziehm at 202–245–0391.
[Assistance for the hearing impaired is
available through the Federal
Information Relay Service (FIRS) at 1–
800–877–8339.]
SUPPLEMENTARY INFORMATION: The Board
favors the resolution of disputes through
the use of mediation and arbitration
procedures, in lieu of formal Board
SUMMARY:
E:\FR\FM\02APP1.SGM
02APP1
19592
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules
sroberts on DSK5SPTVN1PROD with PROPOSALS
proceedings, wherever possible.1 To
that end, the Board has existing rules
that encourage parties to agree
voluntarily to mediate or arbitrate
certain matters subject to its
jurisdiction. The Board’s mediation
rules are set forth at 49 CFR 1109.1,
1109.3, 1109.4, 1111.2, 1111.9, and
1111.10. Its arbitration rules are set forth
at 49 CFR 1108, 1109.1, 1109.2, 1109.3,
and 1115.8. In a decision served on
August 20, 2010,2 and published in the
Federal Register on August 24, 2010,3
the Board sought input regarding
measures it might implement to
encourage or require greater use of
mediation, and to encourage greater
voluntary use of arbitration, including
making changes to the Board’s existing
rules and establishing new rules. The
Board also sought input regarding
possible changes to its rules to permit
the use of Board-facilitated mediation
procedures without the filing of a formal
complaint. The Board served a
subsequent notice in this matter on
December 3, 2010,4 to clarify that any
comments filed by the Railroad-Shipper
Transportation Advisory Council
(RSTAC) would be accorded the same
weight as other comments in developing
any new rules.5 The modifications to
the Board’s rules proposed in this
decision are intended to increase the
use of mediation and arbitration in lieu
of formal adjudication to resolve
disputes before the Board.
The proposed changes to the existing
mediation rules would establish
procedures under which the Board
could compel mediation in certain types
of adjudications before the Board, on a
case-specific basis, as well as to grant
mediation requests of parties to
1 Mediation is a process in which parties attempt
to negotiate an agreement that resolves some or all
of the issues in dispute, with the assistance of a
trained, neutral, third-party mediator. Arbitration,
by comparison, is an informal evidentiary process
conducted by a trained, neutral, third-party
arbitrator with expertise in the subject matter of the
dispute. By agreeing to participate in arbitration,
the parties agree to be bound (with limited appeal
rights) by the arbitral decision.
2 Assessment of Mediation and Arbitration
Procedures, EP 699 (STB served Aug. 20, 2010).
3 Assessment of Mediation and Arbitration
Procedures, 75 FR 52,054.
4 Id., EP 699 (STB served Dec. 3, 2010).
5 RSTAC is an advisory board established by
Federal law to advise the U.S. Congress, the U.S.
Department of Transportation, and the Board on
issues related to rail transportation policy, with
particular attention to issues of importance to small
shippers and small railroads. By statute, RSTAC
members are appointed by the Board’s chairman.
Representatives of large and small rail customers,
Class I railroads, and small railroads sit on RSTAC.
The Board’s members and the U.S. Secretary of
Transportation are ex officio, nonvoting RSTAC
members. (49 U.S.C. 726.)
VerDate Mar<15>2010
15:44 Mar 30, 2012
Jkt 226001
disputes.6 As is the current practice, the
Board would assign staff from its Rail
Customer and Public Assistance (RCPA)
program, who are trained mediators, to
conduct the mediation process.
Mediation periods would last up to 30
days, and could be extended upon the
mutual request of the parties. The Board
would reserve the right to stay
underlying proceedings and toll any
applicable statutory deadlines. The
Board believes that the proposed
mediation rules would be in the public
interest. If a dispute is amicably
resolved, the parties could do so at
considerably less expense and in less
time than if they used the Board’s
formal adjudicatory process, and could
better preserve their ongoing
commercial relationship.
The proposed changes to the Board’s
arbitration rules are intended to
consolidate the separate arbitration
procedures in Parts 1108 and 1109, to
encourage greater use of arbitration to
resolve disputes before the Board by
simplifying the process, and by
clarifying the types of disputes that may
be submitted for arbitration.7 Moreover,
the Board proposes establishing an
‘‘arbitration program’’ to cover a subset
of arbitrable disputes, in which rail
carriers may voluntarily participate. The
Board believes that the proposed
arbitration program would provide
value to both carriers and shippers,
because disputes can be resolved
through arbitration in a more timely and
less adversarial fashion than through the
Board’s formal adjudicatory processes,
and arbitration could help the parties to
preserve their commercial relationship.
It likewise would allow carriers more
flexibility in resolving customer-specific
disputes because resolution would be
confidential and nonprecedential,
unless the arbitrator’s decision is
appealed.
Under the arbitration program, rail
carriers would agree, in advance, to
submit to binding arbitration certain
defined types of disputes, such as
complaints related to demurrage and
accessorial charges, or the misrouting or
mishandling of rail cars, where the
complainant seeks monetary damages
for past harm, not for injunctive or
prospective relief. The Board also
proposes to limit the relief that an
arbitrator could award to no more than
$200,000, plus interest. Commenters are
invited to suggest a different dollar cap
that they believe would better capture
6 The Board’s authority to revise its mediation
rules exists under 49 U.S.C. 721(a) and under the
Alternative Dispute Resolution Act, 5 U.S.C. 571–
584.
7 The Board has authority to revise its arbitration
rules under 49 U.S.C. 721(a).
PO 00000
Frm 00028
Fmt 4702
Sfmt 4702
the majority of such disputes that would
be best resolved through arbitration.
Arbitration under the arbitration
program would be mandatory for the
carrier either where the dispute involves
only carriers that are participants in the
Board’s arbitration program, or where
the dispute involves at least one carrierparticipant and all other parties to the
dispute consent to arbitration pursuant
to the arbitration program.
In addition, the proposed rules
provide for arbitration of most other
types of adjudicatory disputes before the
Board where all parties agree, on a caseby-case basis, to participate in binding
arbitration. In all arbitrations, the Board
would assign an arbitrator from a roster
of eligible arbitrators, or could grant a
mutual request from the parties to use
a particular arbitrator, whether listed on
the roster or not.
The proposed mediation and
arbitration rules would not be available,
however, to resolve any matter in which
the Board is statutorily required to
determine the public convenience and
necessity (PCN). Thus, these procedures
would not be available to obtain the
grant, denial, stay or revocation of any
license, authorization (e.g.,
construction, abandonment, purchase,
trackage rights, merger, pooling) or
exemption related to these matters.
Should participants in such matters,
however, reach a voluntary agreement
resolving certain issues pertaining to a
license or authorization proceeding, the
Board would give due consideration to
that resolution in weighing the PCN.
These rules would also not be available
to arbitrate a labor protection dispute,
which has its own procedures; however,
voluntary mediation of such disputes
under the proposed rules would be
available.
Additional information is contained
in the Board’s decision. The full
decision is available on the Board’s Web
site at www.stb.dot.gov.
This action will not significantly
affect either the quality of the human
environment or the conservation of
energy resources.
It is ordered:
1. The Board proposes to amend its
rules as set forth in this decision. Notice
of the proposed rules will be published
in the Federal Register.
2. Comments regarding these
proposed rules are due by May 17, 2012.
Replies are due by June 18, 2012.
3. This decision is effective on the day
of service.
E:\FR\FM\02APP1.SGM
02APP1
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules
4. Amend § 1011.7 by adding
paragraphs (a)(2)(xvii), (a)(2)(xviii) and
(a)(2)(xix) to read as follows:
(c) Arbitrator means an arbitrator
appointed pursuant to these rules.
(d) Interstate Commerce Act means
the Interstate Commerce Act as
amended by the ICC Termination Act of
1995.
(e) STB or Board means the Surface
Transportation Board.
(f) Statutory jurisdiction means the
jurisdiction conferred on the STB by the
Interstate Commerce Act, including
jurisdiction over rail transportation or
services that have been exempted from
regulation.
7. Amend § 1108.2 by revising
paragraph (b) and removing paragraph
(d) to read as follows:
§ 1011.7 Delegations of authority by the
Board to specific offices of the Board.
(a) * * *
(2) * * *
(xvii) To authorize parties to a
proceeding before the Board, upon
mutual request, to participate in
meditation with a Board-appointed
mediator, for a period of up to 30 days.
(xviii) To authorize a proceeding held
in abeyance while mediation procedures
are pursued, pursuant to a mutual
request of the parties to the matter.
(xix) To order arbitration of programeligible matters under the Board’s
regulations at 49 CFR Part 1108, or upon
the mutual request of parties to a
proceeding before the Board.
*
*
*
*
*
§ 1108.2 Statement of purpose,
organization, and jurisdiction.
*
List of Subjects
Type of proceeding
49 CFR Part 1002
Administrative practice and
procedure, Common carriers, Freedom
of information.
49 CFR Part 1011
Administrative practice and
procedure, Authority delegations
(Government agencies), Organization
and functions (Government agencies).
49 CFR Part 1111
Administrative practice and
procedure, Investigations.
49 CFR Part 1115
Administrative practice and
procedure.
Decided: March 28, 2012.
By the Board, Chairman Elliott, Vice
Chairman Mulvey, and Commissioner
Begeman.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the
preamble, the Surface Transportation
Board proposes to amend parts 1002,
1011, 1108, 1109, 1111, and 1115 of title
49, chapter X, of the Code of Federal
Regulations as follows:
1. The authority citation for part 1002
continues to read as follows:
Authority: 5 U.S.C. 552(a)(4)(A) and 553;
31 U.S.C. 9701; and 49 U.S.C. 721. Section
1002.1(g)(11) also issued under 5 U.S.C. 5514
and 31 U.S.C. 3717.
2. Amend § 1002.2 by revising
paragraph (f)(87) and by removing and
reserving paragraph (f)(88) to read as
follows:
Filing fees.
*
*
sroberts on DSK5SPTVN1PROD with PROPOSALS
Type of proceeding
*
Fee
*
*
*
Part VI: Informal Proceedings
*
*
*
*
(87) Basic fee for STB adjudicatory
services not otherwise covered ......
(88) [Reserved].
VerDate Mar<15>2010
*
*
*
*
*
*
*
PART 1011—BOARD ORGANIZATION;
DELEGATIONS OF AUTHORITY
PART 1108—ARBITRATION OF
CERTAIN DISPUTES SUBJECT TO THE
STATUTORY JURISDICTION OF THE
SURFACE TRANSPORTATION BOARD
5. The authority citation for part 1011
continues to read as follows:
PART 1002—FEES
*
*
(f) * * *
*
*
Authority: 5 U.S.C. 553; 31 U.S.C. 9701;
49 U.S.C. 701, 721, 11123, 11124, 11144,
14122, and 15722.
49 CFR Part 1109
Administrative practice and
procedure, Maritime carriers, Motor
carriers, Railroads.
*
*
Fee
3. The authority citation for part 1011
continues to read as follows:
49 CFR Part 1108
Administrative practice and
procedure, Railroads.
§ 1002.2
15:44 Mar 30, 2012
19593
Jkt 226001
*
*
$250
Authority: 49 U.S.C. 721(a).
6. Revise § 1108.1 to read as follows:
§ 1108.1
Definitions.
As used in this part:
(a) Arbitration program means a
program established by the Surface
Transportation Board under which
participating rail carriers have agreed
voluntarily in advance to resolve certain
types of disputes brought before the
Board using the Board’s arbitration
procedures.
(b) Arbitration program-eligible
matters are those disputes, or
components of disputes, that may be
resolved using the Board’s arbitration
program and include disputes involving
one or more of the following subjects:
Demurrage, accessorial charges;
misrouting or mishandling of rail cars;
disputes involving a carrier’s published
rules and practices as applied to
particular rail transportation; and other
service-related matters.
PO 00000
Frm 00029
Fmt 4702
Sfmt 4702
*
*
*
*
(b) These procedures shall be
available for use in the resolution of all
matters arbitrated before the Board,
other than matters involving labor
protective conditions, which are subject
to different rules. These procedures
shall not be available to obtain the grant,
denial, stay or revocation of any license,
authorization (e.g., construction,
abandonment, purchase, trackage rights,
merger, pooling), or exemption related
to such matters.
*
*
*
*
*
8. Revise § 1108.3 to read as follows:
§ 1108.3
Matters subject to arbitration.
(a) Use of arbitration—(1) Arbitration
program-eligible matters. The Board
shall assign to arbitration all arbitration
program-eligible matters arising in a
docketed proceeding where all parties to
the proceeding are participants in the
Board’s arbitration program, or where
one or more parties to the matter are
participants in the Board’s arbitration
program, and all other parties to the
proceeding request or consent to
arbitration.
(2) Matters partially arbitration
program-eligible. Where the issues in a
proceeding before the Board relate in
part to arbitration program-eligible
matters, only those parts of the dispute
related to arbitration program-eligible
matters may be arbitrated pursuant to
the arbitration program, unless the
parties petition the Board in accordance
with paragraph (a)(3) of this section to
include non-arbitration program-eligible
matters.
(3) Other matters. Parties may petition
the Board, on a case-by-case basis, to
assign to arbitration disputes, or
portions of disputes, that do not relate
to arbitration program-eligible matters,
other than matters in which the Board
is statutorily required to determine the
public convenience and necessity and
E:\FR\FM\02APP1.SGM
02APP1
sroberts on DSK5SPTVN1PROD with PROPOSALS
19594
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules
those involving labor protective
conditions.
(4) Mutual agreement required. The
Board will not assign to arbitration any
dispute in which one or more parties is
not a participant in the Board’s
arbitration program and does not
otherwise consent to arbitration.
(b) Participation in the Board’s
arbitration program—(1) Class I and
Class II rail carriers. Class I and Class
II rail carriers are deemed to have agreed
in advance to participate in the Board’s
arbitration program, unless they have
opted out of the program. To opt out, a
Class I or Class II carrier shall do either
of the following:
(i) File a notice, under docket number
EP 699, informing the Board of its optout decision no later than 20 days
following the effective date of these
rules, and subsequently, no later than
January 10 (or the immediately
following business day) of each calendar
year. Such notice shall take effect
immediately.
(ii) File a notice with the Board, under
docket number EP 699, at any time.
Such notice shall take effect 90 days
after filing and shall not excuse the
filing carrier from arbitration
proceedings that are ongoing, or permit
it to withdraw its consent to participate
in any arbitration program-eligible
dispute associated with any matter
pending before the Board at any time
within the 90-day period before the optout notice takes effect. Class I and Class
II rail carriers that opt out of the
arbitration program will be deemed to
be participants in the program in
subsequent years if they do not file a
new notice with the Board each year. A
carrier that has opted out of the
arbitration program may opt into the
arbitration program at any time by
notifying the Board. Opt-in notices shall
take effect immediately.
(2) Class III rail carriers. A Class III
rail carrier may participate in the
Board’s arbitration program by filing a
written notice with the Board under
docket number EP 699, advising the
Board of its intent to participate in the
program. Such notice may be filed at
any time and shall take effect
immediately. A participating Class III
carrier shall remain a participant in the
Board’s arbitration program thereafter,
unless it files a notice with the Board
under docket number EP 699, advising
the Board of its intent to cease
participation in the arbitration program.
Such notice shall take effect 90 days
after filing and shall not excuse the
filing carrier from arbitration
proceedings that are ongoing, or permit
it to withdraw its consent to participate
in any arbitration program-eligible
VerDate Mar<15>2010
15:44 Mar 30, 2012
Jkt 226001
dispute associated with any matter
pending before the Board at any time
within the 90-day period before the optout notice takes effect.
(3) Shippers and other parties.
Shippers and other parties may
participate in arbitration-program
eligible arbitrations on a case-by-case
basis by filing notice with the Board.
Such notice shall be filed under the
docket number assigned to the
proceeding, indicating agreement to
participate in arbitration.
(c) Arbitrator’s authority. In resolving
any dispute subject to the Board’s
arbitration procedures, the arbitrator
shall not be bound by any procedural
rules or regulations adopted by the STB
for the formal resolution of similar
disputes, except as specifically provided
in this Part 1108. The arbitrator,
however, shall be guided by the
Interstate Commerce Act and by STB
and ICC precedent.
(d) Arbitration clauses. Nothing in the
Board’s regulations shall preempt the
applicability of, or otherwise supersede,
any new or existing arbitration clauses
contained in agreements between
shippers and carriers.
9. Amend § 1108.4 by revising
paragraphs (a)(1) and (a)(2) and
removing paragraph (b) to read as
follows:
§ 1108.4
Relief.
(a) * * *
(1) Monetary damages, to the extent
available under the Interstate Commerce
Act, shall be available through the
arbitration. In disputes arbitrated
pursuant to the Board’s arbitration
program, damages shall not exceed
$200,000, exclusive of interest at a
reasonable rate to be specified by the
arbitrator. Participants in the Board’s
arbitration program shall not be
obligated to arbitrate any dispute in
which the alleged damages exceed
$200,000.
(2) No prospective or injunctive relief
shall be available through the Board’s
arbitration program, or through any
other arbitration before the Board.
*
*
*
*
*
10. Revise § 1108.5 to read as follows:
§ 1108.5
Fees and costs.
When parties use the Board’s
arbitration procedures to resolve a
dispute, the party filing the complaint
shall pay the applicable filing fee
pursuant to 49 CFR Part 1002. The
Board shall pay any fees and/or costs
charged by the arbitrator, except where
parties agree to use an arbitrator not
included on the roster of arbitrators
maintained by the Board, as described
in § 1108.6(a), in which case the parties
PO 00000
Frm 00030
Fmt 4702
Sfmt 4702
shall share the fees and/or costs of the
arbitrator.
11. Revise § 1108.6 to read as follows:
§ 1108.6
Arbitrators.
(a) Arbitration shall be conducted by
a single arbitrator selected, as provided
herein, from a roster of persons (other
than active government officials)
experienced in rail transportation or
economic issues similar to those capable
of arising before the STB. The roster of
arbitrators shall be established by the
Chairman of the STB with input from
interested parties who may nominate
individuals for inclusion on the list. The
roster shall thereafter be maintained and
updated by the Chairman of the STB on
an every other year basis. The roster
may also be augmented or revised at any
time, and interested parties are
encouraged to nominate qualified
individuals for addition to the list. The
roster shall be available to the public,
upon request, and shall be posted on the
Board’s Web site at www.stb.dot.gov.
(b) Matters arbitrated under these
rules shall be resolved by a single
neutral arbitrator, selected by the Board,
from the roster of qualified arbitrators.
If the parties to an arbitration
proceeding mutually agree upon an
arbitrator (whether listed on the roster
or not) to resolve their dispute, they
may petition the Board to appoint that
arbitrator to the arbitration proceeding.
(c) If, at any time during the
arbitration process, a selected arbitrator
becomes incapacitated, unwilling, or
unable to fulfill his/her duties, or if all
parties agree that the arbitrator should
be replaced, a replacement arbitrator
will be selected promptly under the
process set forth in paragraphs (a) and
(b) of this section.
12. Revise § 1108.7 to read as follows:
§ 1108.7 Arbitration commencement
procedures.
(a) Each arbitration under these rules
shall commence with a written
complaint, which shall be filed and
served in accordance with Board rules
contained at Part 1104. Each complaint
must contain a statement that the
complainant is a participant in the
Board’s arbitration program pursuant to
§ 1108.3(b), or that the complainant is
willing to arbitrate voluntarily all or
part of the dispute pursuant to the
Board’s arbitration procedures.
Following the filing of a complaint
whose subject matter is arbitration
program-eligible, the Board shall issue a
notice advising other parties of whether
any carrier-parties to the matter are
participants in the arbitration program.
(b) Any respondent must, within 20
days of the date of the filing of a
E:\FR\FM\02APP1.SGM
02APP1
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules
complaint, answer the complaint. The
answer must state whether the
respondent is a participant in the
Board’s arbitration program, or whether
the respondent is willing to arbitrate on
a voluntary basis. Where the respondent
agrees to arbitrate voluntarily, the
answer must identify those issues
contained in the complaint that the
respondent is willing to resolve through
arbitration. The answer must also
identify any issues contained in the
complaint that the respondent is not
willing to resolve through arbitration. If
the answer contains an agreement to
arbitrate some but not all of the
arbitration issues in the complaint, the
complainant will have 10 days from the
date of the answer to advise the
respondent and the Board in writing
whether the complainant is willing to
arbitrate on that basis. Where the
respondent is a participant in the
Board’s arbitration program, the answer
should further state that the respondent
has thereby agreed to use arbitration to
resolve all of the arbitration programeligible issues in the complaint. The
Board will then set the matter for
arbitration, if appropriate, and assign an
arbitrator.
13. Revise § 1108.8 to read as follows:
§ 1108.8
Arbitration procedures.
The arbitrator shall establish all rules
for each arbitration proceeding,
including with regard to discovery, the
submission of evidence and the
treatment of confidential information,
subject to the requirements that the
evidentiary process shall be completed
within 90 days from the start date
established by the arbitrator, and that
the arbitrator’s decision will be issued
within 30 days following completion of
the evidentiary phase.
14. Revise § 1108.9 to read as follows:
sroberts on DSK5SPTVN1PROD with PROPOSALS
§ 1108.9
Decisions.
(a) Decisions of the arbitrator shall be
in writing and shall contain findings of
fact and conclusions.
(b) The arbitrator simultaneously shall
serve a copy of the decision on the
parties and upon the Board. The
arbitrator may serve the decision via any
service method permitted by the Board’s
regulations that is consistent with
protecting the confidentiality of the
decision, if so requested by the parties.
(c) By arbitrating pursuant to these
procedures, each party agrees that the
decision and award of the arbitrator
shall be binding and judicially
enforceable in law and equity in any
court of appropriate jurisdiction, subject
to a limited right of appeal to the STB,
as provided below.
VerDate Mar<15>2010
15:44 Mar 30, 2012
Jkt 226001
15. Revise § 1108.11 to read as
follows:
§ 1108.11
Enforcement and appeals.
(a) A party may petition the Board to
modify or vacate an arbitral award. The
appeal must be filed within 20 days of
service of a final arbitration decision,
and is subject to the page limitations of
§ 1115.2(d) of this chapter. Copies of the
appeal shall be served upon all parties
in accordance with the Board’s rules at
Part 1104. The appealing party shall
also serve a copy of its appeal upon the
arbitrator. Replies to such appeals shall
be filed within 20 days of the filing of
the appeal with the Board, and shall be
subject to the page limitations of
§ 1115.2(d) of this chapter.
(b) The timely filing of a petition will
not automatically stay the effect of the
arbitration decision. A stay may be
requested under § 1115.3(f) of this
chapter.
(c) The STB will review, and may
modify or vacate, an arbitration award,
in whole or in part, only on grounds
that such award reflects a clear abuse of
arbitral authority or discretion.
16. Revise Part 1109 to read as
follows:
PART 1109—USE OF MEDIATION IN
BOARD PROCEEDINGS
Sec.
1109.1 Mediation.
1109.2 Commencement of mediation.
1109.3 Mediation procedures.
1109.4 Mandatory mediation in rate cases
to be considered under the stand-alone
cost methodology.
Authority: 5 U.S.C. 571 et seq.
§ 1109.1
Mediation.
Parties may seek to resolve a dispute
brought before the Board using the
Board’s mediation procedures. These
procedures shall not be available to
obtain the grant, denial, stay or
revocation of any license, authorization
(e.g., construction, abandonment,
purchase, trackage rights, merger,
pooling), or exemption related to such
matters. The Board may, by its own
order, direct the parties to participate in
mediation using the Board’s mediation
procedures.
§ 1109.2
Commencement of mediation.
(a) Availability of mediation.
Mediation may be commenced in a
dispute before the Board:
(1) Pursuant to a Board order issued
in response to a written request of one
or more parties to a matter;
(2) Where the Board orders mediation
by its own order; or
(3) In connection with a rate
complaint, as provided by § 1109.4 and
Part 1111 of this chapter.
PO 00000
Frm 00031
Fmt 4702
Sfmt 4702
19595
(b) Requests for mediation. Parties
wishing to pursue mediation may file a
request for mediation with the Board at
any time following the filing of a
complaint. Parties that use Board
mediation procedures shall not be
required to pay any fees other than the
appropriate filing fee associated with
the underlying dispute, as provided at
49 CFR 1002.2. The Board shall grant
any mediation request submitted by all
parties to a matter, but may deny
mediation where a mediation request is
not submitted by all parties to a matter.
§ 1109.3
Mediation procedures.
(a) The Board will appoint a Board
employee, who is a qualified mediator,
to facilitate any dispute assigned for
mediation. Alternatively, the parties to
a matter may agree to use a non-Board
mediator if they so inform the Board
within 10 days of an order assigning the
dispute to mediation. If a non-Board
mediator is used, the parties shall share
the fees and/or costs of the mediator.
The following restrictions apply to any
mediator selected by the Board or the
parties:
(1) No person may serve as a mediator
who has previously served as an
advocate or representative, in any
matter, for any party to the mediation;
(2) No person serving as a mediator
may thereafter serve as an advocate for
a party in any other proceeding arising
from or related to the mediated dispute,
including, without limitation,
representation of a party to the
mediation before any other federal court
or agency; and
(3) If the mediation does not fully
resolve all issues before the Board, the
person serving as a mediator may not
thereafter advise the Board regarding the
future disposition of the dispute.
(b) Parties shall have 30 days from the
date of the first mediation session to
reach a settlement agreement, or to
narrow the issues in dispute, or to agree
to stipulations that may be incorporated
into any adjudication before the Board
if mediation does not fully resolve the
dispute. The mediator may assist the
parties in preparing a settlement
agreement. The mediator shall notify the
Board whether the parties have reached
any agreement by the end of the 30-day
period.
(c) Any settlement agreement reached
during or as a result of mediation must
be in writing, and signed by all parties
to the mediation. The parties need not
provide a copy of the settlement
agreement to the Board, or otherwise
make the terms of the agreement public,
provided that the parties, or the
mediator, notify the Board that the
parties have reached a mutually
E:\FR\FM\02APP1.SGM
02APP1
sroberts on DSK5SPTVN1PROD with PROPOSALS
19596
Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules
agreeable resolution, and request that
the Board terminate the underlying
Board proceeding. Parties to the
settlement agreement shall waive all
appeal rights as to the issues resolved by
the settlement agreement.
(d) If the parties reach only a partial
resolution of their dispute, they or the
mediator shall so inform the Board, and
the parties shall file any stipulations
they have mutually reached, and ask the
Board to reactivate the procedural
schedule in the underlying proceeding
to decide the remaining issues.
(e) The Board may extend mediation
for additional periods of time not to
exceed 30 days per period, pursuant to
mutual written requests of all parties to
the proceeding. The Board will not
extend mediation for additional periods
of time where one or more parties to a
matter do not agree to an extension. The
Board will not order mediation more
than once in any particular proceeding,
but may permit it if all parties to a
matter mutually request another round
of mediation.
(f) Mediation is a confidential process
except for those limited exceptions
permitted by the Administrative Dispute
Resolution Act at 5 U.S.C. 574.
(1) All notes taken by participants
(including but not limited to the
mediator, parties, and their
representatives) during the mediation
must be destroyed following the
conclusion of the matter subject to
mediation. As a condition of
participation, the parties and any
interested parties joining the mediation
must agree to the confidentiality of the
mediation process. The parties to
mediation, including the mediator, shall
not testify in administrative or judicial
proceedings concerning the issues
discussed in mediation, nor submit any
report or record of the mediation
discussions, other than the settlement
agreement with the consent of all
parties, except as required by law.
(2) Evidence of conduct or statements
made during mediation are not
admissible in any Board proceeding.
However, if mediation fails to result in
a full resolution of the dispute, evidence
that is otherwise discoverable may not
be excluded from introduction into the
record of the underlying proceeding
merely because it was presented during
mediation. Such materials may be used
if they are disclosed through formal
discovery procedures established by the
Board or other adjudicatory body.
(g) Except as otherwise provided for
in 49 CFR 1109.4(f) and Part 1111, the
mutual request of all parties that a
proceeding be held in abeyance while
mediation procedures are pursued
should be submitted to the Chief,
VerDate Mar<15>2010
15:44 Mar 30, 2012
Jkt 226001
Section of Administration, Office of
Proceedings. The Board shall promptly
issue an order in response to such
requests. Except as otherwise provided
for in 49 CFR 1109.4(f) and Part 1111,
the Board may also direct that a
proceeding be held in abeyance pending
the conclusion of mediation. The period
while any proceeding is held in
abeyance to facilitate mediation shall
not be counted toward any applicable
statutory deadlines.
Authority: 49 U.S.C. 721, 10704, and
11701.
§ 1109.4 Mandatory mediation in rate
cases to be considered under the standalone cost methodology.
*
(a) A shipper seeking rate relief from
a railroad or railroads in a case
involving the stand-alone cost
methodology must engage in nonbinding mediation of its dispute with
the railroad upon filing a formal
complaint under 49 CFR Part 1111.
(b) Within 10 business days after the
shipper files its formal complaint, the
Board will assign a mediator to the case.
Within 5 business days of the
assignment to mediate, the mediator
shall contact the parties to discuss
ground rules and the time and location
of any meeting. At least one principal of
each party, who has the authority to
bind that party, shall participate in the
mediation and be present at any session
at which the mediator requests that the
principal be present.
(c) The mediator will work with the
parties to try to reach a settlement of all
or some of their dispute or to narrow the
issues in dispute, and reach stipulations
that may be incorporated into any
adjudication before the Board if
mediation does not fully resolve the
dispute. If the parties reach a settlement,
the mediator may assist in preparing a
settlement agreement.
(d) The entire mediation process shall
be private and confidential. No party
may use any concessions made or
information disclosed to either the
mediator or the opposing party before
the Board or in any other forum without
the consent of the other party.
(e) The mediation shall be completed
within 60 days of the appointment of
the mediator. The mediation may be
terminated prior to the end of the 60day period only with the certification of
the mediator to the Board. Requests to
extend mediation, or to re-engage it
later, will be entertained on a case-bycase basis, but only if filed by all
interested parties.
(f) Absent a specific order from the
Board, the onset of mediation will not
affect the procedural schedule in stand
alone cost rate cases, set forth at 49 CFR
1111.8(a).
PO 00000
Frm 00032
Fmt 4702
Sfmt 9990
PART 1111—COMPLAINT AND
INVESTIGATION PROCEDURES
17. The authority citation for part
1111 continues to read as follows:
18. Amend § 1111.10 by revising
paragraph (b) to read as follows:
§ 1111.10
matters.
Meeting to discuss procedural
*
*
*
*
(b) Simplified standards complaints.
In complaints challenging the
reasonableness of a rail rate based on
the simplified standards, the parties
shall meet, or discuss by telephone or
through email, discovery and
procedural matters within 7 days after
the mediation period ends. The parties
should inform the Board as soon as
possible thereafter whether there are
unresolved disputes that require Board
intervention and, if so, the nature of
such disputes.
PART 1115—APPELLATE
PROCEDURES
19. The authority citation for part
1115 continues to read as follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
20. Revise § 1115.8 to read as follows:
§ 1115.8 Petitions to review arbitration
decisions.
An appeal of right is permitted. The
appeal must be filed within 20 days of
a final arbitration decision, unless a
later date is authorized by the Board,
and is subject to the page limitations of
§ 1115.2(d). The standard of review will
be whether there is a showing of a clear
abuse of arbitral authority or discretion.
The timely filing of a petition will not
automatically stay the effect of the
arbitration decision. A stay may be
requested under § 1115.3(f).
[FR Doc. 2012–7836 Filed 3–30–12; 8:45 am]
BILLING CODE 4915–01–P
E:\FR\FM\02APP1.SGM
02APP1
]]>Agencies
[Federal Register Volume 77, Number 63 (Monday, April 2, 2012)]
[Proposed Rules]
[Pages 19591-19596]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7836]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002, 1011, 1108, 1109, 1111, and 1115
[Docket No. EP 699]
Assessment of Mediation and Arbitration Procedures
AGENCY: Surface Transportation Board.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Surface Transportation Board (Board or STB) proposes
regulations that would require parties to participate in mediation in
certain types of cases and would modify its existing regulations that
permit parties to engage voluntarily in mediation. The Board also
proposes an arbitration program under which carriers and shippers would
agree voluntarily to arbitrate certain types of disputes that come
before the Board, and proposes modifications to clarify and simplify
its existing rules governing the use of arbitration in other disputes.
The Board seeks comments regarding these proposed rules.
DATES: Comments are due by May 17, 2012. Replies are due June 18, 2012.
ADDRESSES: Comments, information, or questions regarding this proposed
rule should reference Docket No. EP 699 and be in writing addressed to:
Chief, Section of Administration, Office of Proceedings, Surface
Transportation Board, 395 E Street SW., Washington, DC 20423-0001.
FOR FURTHER INFORMATION CONTACT: Amy C. Ziehm at 202-245-0391.
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.]
SUPPLEMENTARY INFORMATION: The Board favors the resolution of disputes
through the use of mediation and arbitration procedures, in lieu of
formal Board
[[Page 19592]]
proceedings, wherever possible.\1\ To that end, the Board has existing
rules that encourage parties to agree voluntarily to mediate or
arbitrate certain matters subject to its jurisdiction. The Board's
mediation rules are set forth at 49 CFR 1109.1, 1109.3, 1109.4, 1111.2,
1111.9, and 1111.10. Its arbitration rules are set forth at 49 CFR
1108, 1109.1, 1109.2, 1109.3, and 1115.8. In a decision served on
August 20, 2010,\2\ and published in the Federal Register on August 24,
2010,\3\ the Board sought input regarding measures it might implement
to encourage or require greater use of mediation, and to encourage
greater voluntary use of arbitration, including making changes to the
Board's existing rules and establishing new rules. The Board also
sought input regarding possible changes to its rules to permit the use
of Board-facilitated mediation procedures without the filing of a
formal complaint. The Board served a subsequent notice in this matter
on December 3, 2010,\4\ to clarify that any comments filed by the
Railroad-Shipper Transportation Advisory Council (RSTAC) would be
accorded the same weight as other comments in developing any new
rules.\5\ The modifications to the Board's rules proposed in this
decision are intended to increase the use of mediation and arbitration
in lieu of formal adjudication to resolve disputes before the Board.
---------------------------------------------------------------------------
\1\ Mediation is a process in which parties attempt to negotiate
an agreement that resolves some or all of the issues in dispute,
with the assistance of a trained, neutral, third-party mediator.
Arbitration, by comparison, is an informal evidentiary process
conducted by a trained, neutral, third-party arbitrator with
expertise in the subject matter of the dispute. By agreeing to
participate in arbitration, the parties agree to be bound (with
limited appeal rights) by the arbitral decision.
\2\ Assessment of Mediation and Arbitration Procedures, EP 699
(STB served Aug. 20, 2010).
\3\ Assessment of Mediation and Arbitration Procedures, 75 FR
52,054.
\4\ Id., EP 699 (STB served Dec. 3, 2010).
\5\ RSTAC is an advisory board established by Federal law to
advise the U.S. Congress, the U.S. Department of Transportation, and
the Board on issues related to rail transportation policy, with
particular attention to issues of importance to small shippers and
small railroads. By statute, RSTAC members are appointed by the
Board's chairman. Representatives of large and small rail customers,
Class I railroads, and small railroads sit on RSTAC. The Board's
members and the U.S. Secretary of Transportation are ex officio,
nonvoting RSTAC members. (49 U.S.C. 726.)
---------------------------------------------------------------------------
The proposed changes to the existing mediation rules would
establish procedures under which the Board could compel mediation in
certain types of adjudications before the Board, on a case-specific
basis, as well as to grant mediation requests of parties to
disputes.\6\ As is the current practice, the Board would assign staff
from its Rail Customer and Public Assistance (RCPA) program, who are
trained mediators, to conduct the mediation process. Mediation periods
would last up to 30 days, and could be extended upon the mutual request
of the parties. The Board would reserve the right to stay underlying
proceedings and toll any applicable statutory deadlines. The Board
believes that the proposed mediation rules would be in the public
interest. If a dispute is amicably resolved, the parties could do so at
considerably less expense and in less time than if they used the
Board's formal adjudicatory process, and could better preserve their
ongoing commercial relationship.
---------------------------------------------------------------------------
\6\ The Board's authority to revise its mediation rules exists
under 49 U.S.C. 721(a) and under the Alternative Dispute Resolution
Act, 5 U.S.C. 571-584.
---------------------------------------------------------------------------
The proposed changes to the Board's arbitration rules are intended
to consolidate the separate arbitration procedures in Parts 1108 and
1109, to encourage greater use of arbitration to resolve disputes
before the Board by simplifying the process, and by clarifying the
types of disputes that may be submitted for arbitration.\7\ Moreover,
the Board proposes establishing an ``arbitration program'' to cover a
subset of arbitrable disputes, in which rail carriers may voluntarily
participate. The Board believes that the proposed arbitration program
would provide value to both carriers and shippers, because disputes can
be resolved through arbitration in a more timely and less adversarial
fashion than through the Board's formal adjudicatory processes, and
arbitration could help the parties to preserve their commercial
relationship. It likewise would allow carriers more flexibility in
resolving customer-specific disputes because resolution would be
confidential and nonprecedential, unless the arbitrator's decision is
appealed.
---------------------------------------------------------------------------
\7\ The Board has authority to revise its arbitration rules
under 49 U.S.C. 721(a).
---------------------------------------------------------------------------
Under the arbitration program, rail carriers would agree, in
advance, to submit to binding arbitration certain defined types of
disputes, such as complaints related to demurrage and accessorial
charges, or the misrouting or mishandling of rail cars, where the
complainant seeks monetary damages for past harm, not for injunctive or
prospective relief. The Board also proposes to limit the relief that an
arbitrator could award to no more than $200,000, plus interest.
Commenters are invited to suggest a different dollar cap that they
believe would better capture the majority of such disputes that would
be best resolved through arbitration. Arbitration under the arbitration
program would be mandatory for the carrier either where the dispute
involves only carriers that are participants in the Board's arbitration
program, or where the dispute involves at least one carrier-participant
and all other parties to the dispute consent to arbitration pursuant to
the arbitration program.
In addition, the proposed rules provide for arbitration of most
other types of adjudicatory disputes before the Board where all parties
agree, on a case-by-case basis, to participate in binding arbitration.
In all arbitrations, the Board would assign an arbitrator from a roster
of eligible arbitrators, or could grant a mutual request from the
parties to use a particular arbitrator, whether listed on the roster or
not.
The proposed mediation and arbitration rules would not be
available, however, to resolve any matter in which the Board is
statutorily required to determine the public convenience and necessity
(PCN). Thus, these procedures would not be available to obtain the
grant, denial, stay or revocation of any license, authorization (e.g.,
construction, abandonment, purchase, trackage rights, merger, pooling)
or exemption related to these matters. Should participants in such
matters, however, reach a voluntary agreement resolving certain issues
pertaining to a license or authorization proceeding, the Board would
give due consideration to that resolution in weighing the PCN. These
rules would also not be available to arbitrate a labor protection
dispute, which has its own procedures; however, voluntary mediation of
such disputes under the proposed rules would be available.
Additional information is contained in the Board's decision. The
full decision is available on the Board's Web site at www.stb.dot.gov.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. The Board proposes to amend its rules as set forth in this
decision. Notice of the proposed rules will be published in the Federal
Register.
2. Comments regarding these proposed rules are due by May 17, 2012.
Replies are due by June 18, 2012.
3. This decision is effective on the day of service.
[[Page 19593]]
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, Common carriers, Freedom of
information.
49 CFR Part 1011
Administrative practice and procedure, Authority delegations
(Government agencies), Organization and functions (Government
agencies).
49 CFR Part 1108
Administrative practice and procedure, Railroads.
49 CFR Part 1109
Administrative practice and procedure, Maritime carriers, Motor
carriers, Railroads.
49 CFR Part 1111
Administrative practice and procedure, Investigations.
49 CFR Part 1115
Administrative practice and procedure.
Decided: March 28, 2012.
By the Board, Chairman Elliott, Vice Chairman Mulvey, and
Commissioner Begeman.
Jeffrey Herzig,
Clearance Clerk.
For the reasons set forth in the preamble, the Surface
Transportation Board proposes to amend parts 1002, 1011, 1108, 1109,
1111, and 1115 of title 49, chapter X, of the Code of Federal
Regulations as follows:
PART 1002--FEES
1. The authority citation for part 1002 continues to read as
follows:
Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and
49 U.S.C. 721. Section 1002.1(g)(11) also issued under 5 U.S.C. 5514
and 31 U.S.C. 3717.
2. Amend Sec. 1002.2 by revising paragraph (f)(87) and by removing
and reserving paragraph (f)(88) to read as follows:
Sec. 1002.2 Filing fees.
* * * * *
(f) * * *
------------------------------------------------------------------------
Type of proceeding Fee
------------------------------------------------------------------------
* * * * *
Part VI: Informal Proceedings
* * * * *
(87) Basic fee for STB adjudicatory services not otherwise $250
covered........................................................
(88) [Reserved].................................................
* * * * *
------------------------------------------------------------------------
* * * * *
PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY
3. The authority citation for part 1011 continues to read as
follows:
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721,
11123, 11124, 11144, 14122, and 15722.
4. Amend Sec. 1011.7 by adding paragraphs (a)(2)(xvii),
(a)(2)(xviii) and (a)(2)(xix) to read as follows:
Sec. 1011.7 Delegations of authority by the Board to specific offices
of the Board.
(a) * * *
(2) * * *
(xvii) To authorize parties to a proceeding before the Board, upon
mutual request, to participate in meditation with a Board-appointed
mediator, for a period of up to 30 days.
(xviii) To authorize a proceeding held in abeyance while mediation
procedures are pursued, pursuant to a mutual request of the parties to
the matter.
(xix) To order arbitration of program-eligible matters under the
Board's regulations at 49 CFR Part 1108, or upon the mutual request of
parties to a proceeding before the Board.
* * * * *
PART 1108--ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY
JURISDICTION OF THE SURFACE TRANSPORTATION BOARD
5. The authority citation for part 1011 continues to read as
follows:
Authority: 49 U.S.C. 721(a).
6. Revise Sec. 1108.1 to read as follows:
Sec. 1108.1 Definitions.
As used in this part:
(a) Arbitration program means a program established by the Surface
Transportation Board under which participating rail carriers have
agreed voluntarily in advance to resolve certain types of disputes
brought before the Board using the Board's arbitration procedures.
(b) Arbitration program-eligible matters are those disputes, or
components of disputes, that may be resolved using the Board's
arbitration program and include disputes involving one or more of the
following subjects: Demurrage, accessorial charges; misrouting or
mishandling of rail cars; disputes involving a carrier's published
rules and practices as applied to particular rail transportation; and
other service-related matters.
(c) Arbitrator means an arbitrator appointed pursuant to these
rules.
(d) Interstate Commerce Act means the Interstate Commerce Act as
amended by the ICC Termination Act of 1995.
(e) STB or Board means the Surface Transportation Board.
(f) Statutory jurisdiction means the jurisdiction conferred on the
STB by the Interstate Commerce Act, including jurisdiction over rail
transportation or services that have been exempted from regulation.
7. Amend Sec. 1108.2 by revising paragraph (b) and removing
paragraph (d) to read as follows:
Sec. 1108.2 Statement of purpose, organization, and jurisdiction.
* * * * *
(b) These procedures shall be available for use in the resolution
of all matters arbitrated before the Board, other than matters
involving labor protective conditions, which are subject to different
rules. These procedures shall not be available to obtain the grant,
denial, stay or revocation of any license, authorization (e.g.,
construction, abandonment, purchase, trackage rights, merger, pooling),
or exemption related to such matters.
* * * * *
8. Revise Sec. 1108.3 to read as follows:
Sec. 1108.3 Matters subject to arbitration.
(a) Use of arbitration--(1) Arbitration program-eligible matters.
The Board shall assign to arbitration all arbitration program-eligible
matters arising in a docketed proceeding where all parties to the
proceeding are participants in the Board's arbitration program, or
where one or more parties to the matter are participants in the Board's
arbitration program, and all other parties to the proceeding request or
consent to arbitration.
(2) Matters partially arbitration program-eligible. Where the
issues in a proceeding before the Board relate in part to arbitration
program-eligible matters, only those parts of the dispute related to
arbitration program-eligible matters may be arbitrated pursuant to the
arbitration program, unless the parties petition the Board in
accordance with paragraph (a)(3) of this section to include non-
arbitration program-eligible matters.
(3) Other matters. Parties may petition the Board, on a case-by-
case basis, to assign to arbitration disputes, or portions of disputes,
that do not relate to arbitration program-eligible matters, other than
matters in which the Board is statutorily required to determine the
public convenience and necessity and
[[Page 19594]]
those involving labor protective conditions.
(4) Mutual agreement required. The Board will not assign to
arbitration any dispute in which one or more parties is not a
participant in the Board's arbitration program and does not otherwise
consent to arbitration.
(b) Participation in the Board's arbitration program--(1) Class I
and Class II rail carriers. Class I and Class II rail carriers are
deemed to have agreed in advance to participate in the Board's
arbitration program, unless they have opted out of the program. To opt
out, a Class I or Class II carrier shall do either of the following:
(i) File a notice, under docket number EP 699, informing the Board
of its opt-out decision no later than 20 days following the effective
date of these rules, and subsequently, no later than January 10 (or the
immediately following business day) of each calendar year. Such notice
shall take effect immediately.
(ii) File a notice with the Board, under docket number EP 699, at
any time. Such notice shall take effect 90 days after filing and shall
not excuse the filing carrier from arbitration proceedings that are
ongoing, or permit it to withdraw its consent to participate in any
arbitration program-eligible dispute associated with any matter pending
before the Board at any time within the 90-day period before the opt-
out notice takes effect. Class I and Class II rail carriers that opt
out of the arbitration program will be deemed to be participants in the
program in subsequent years if they do not file a new notice with the
Board each year. A carrier that has opted out of the arbitration
program may opt into the arbitration program at any time by notifying
the Board. Opt-in notices shall take effect immediately.
(2) Class III rail carriers. A Class III rail carrier may
participate in the Board's arbitration program by filing a written
notice with the Board under docket number EP 699, advising the Board of
its intent to participate in the program. Such notice may be filed at
any time and shall take effect immediately. A participating Class III
carrier shall remain a participant in the Board's arbitration program
thereafter, unless it files a notice with the Board under docket number
EP 699, advising the Board of its intent to cease participation in the
arbitration program. Such notice shall take effect 90 days after filing
and shall not excuse the filing carrier from arbitration proceedings
that are ongoing, or permit it to withdraw its consent to participate
in any arbitration program-eligible dispute associated with any matter
pending before the Board at any time within the 90-day period before
the opt-out notice takes effect.
(3) Shippers and other parties. Shippers and other parties may
participate in arbitration-program eligible arbitrations on a case-by-
case basis by filing notice with the Board. Such notice shall be filed
under the docket number assigned to the proceeding, indicating
agreement to participate in arbitration.
(c) Arbitrator's authority. In resolving any dispute subject to the
Board's arbitration procedures, the arbitrator shall not be bound by
any procedural rules or regulations adopted by the STB for the formal
resolution of similar disputes, except as specifically provided in this
Part 1108. The arbitrator, however, shall be guided by the Interstate
Commerce Act and by STB and ICC precedent.
(d) Arbitration clauses. Nothing in the Board's regulations shall
preempt the applicability of, or otherwise supersede, any new or
existing arbitration clauses contained in agreements between shippers
and carriers.
9. Amend Sec. 1108.4 by revising paragraphs (a)(1) and (a)(2) and
removing paragraph (b) to read as follows:
Sec. 1108.4 Relief.
(a) * * *
(1) Monetary damages, to the extent available under the Interstate
Commerce Act, shall be available through the arbitration. In disputes
arbitrated pursuant to the Board's arbitration program, damages shall
not exceed $200,000, exclusive of interest at a reasonable rate to be
specified by the arbitrator. Participants in the Board's arbitration
program shall not be obligated to arbitrate any dispute in which the
alleged damages exceed $200,000.
(2) No prospective or injunctive relief shall be available through
the Board's arbitration program, or through any other arbitration
before the Board.
* * * * *
10. Revise Sec. 1108.5 to read as follows:
Sec. 1108.5 Fees and costs.
When parties use the Board's arbitration procedures to resolve a
dispute, the party filing the complaint shall pay the applicable filing
fee pursuant to 49 CFR Part 1002. The Board shall pay any fees and/or
costs charged by the arbitrator, except where parties agree to use an
arbitrator not included on the roster of arbitrators maintained by the
Board, as described in Sec. 1108.6(a), in which case the parties shall
share the fees and/or costs of the arbitrator.
11. Revise Sec. 1108.6 to read as follows:
Sec. 1108.6 Arbitrators.
(a) Arbitration shall be conducted by a single arbitrator selected,
as provided herein, from a roster of persons (other than active
government officials) experienced in rail transportation or economic
issues similar to those capable of arising before the STB. The roster
of arbitrators shall be established by the Chairman of the STB with
input from interested parties who may nominate individuals for
inclusion on the list. The roster shall thereafter be maintained and
updated by the Chairman of the STB on an every other year basis. The
roster may also be augmented or revised at any time, and interested
parties are encouraged to nominate qualified individuals for addition
to the list. The roster shall be available to the public, upon request,
and shall be posted on the Board's Web site at www.stb.dot.gov.
(b) Matters arbitrated under these rules shall be resolved by a
single neutral arbitrator, selected by the Board, from the roster of
qualified arbitrators. If the parties to an arbitration proceeding
mutually agree upon an arbitrator (whether listed on the roster or not)
to resolve their dispute, they may petition the Board to appoint that
arbitrator to the arbitration proceeding.
(c) If, at any time during the arbitration process, a selected
arbitrator becomes incapacitated, unwilling, or unable to fulfill his/
her duties, or if all parties agree that the arbitrator should be
replaced, a replacement arbitrator will be selected promptly under the
process set forth in paragraphs (a) and (b) of this section.
12. Revise Sec. 1108.7 to read as follows:
Sec. 1108.7 Arbitration commencement procedures.
(a) Each arbitration under these rules shall commence with a
written complaint, which shall be filed and served in accordance with
Board rules contained at Part 1104. Each complaint must contain a
statement that the complainant is a participant in the Board's
arbitration program pursuant to Sec. 1108.3(b), or that the
complainant is willing to arbitrate voluntarily all or part of the
dispute pursuant to the Board's arbitration procedures. Following the
filing of a complaint whose subject matter is arbitration program-
eligible, the Board shall issue a notice advising other parties of
whether any carrier-parties to the matter are participants in the
arbitration program.
(b) Any respondent must, within 20 days of the date of the filing
of a
[[Page 19595]]
complaint, answer the complaint. The answer must state whether the
respondent is a participant in the Board's arbitration program, or
whether the respondent is willing to arbitrate on a voluntary basis.
Where the respondent agrees to arbitrate voluntarily, the answer must
identify those issues contained in the complaint that the respondent is
willing to resolve through arbitration. The answer must also identify
any issues contained in the complaint that the respondent is not
willing to resolve through arbitration. If the answer contains an
agreement to arbitrate some but not all of the arbitration issues in
the complaint, the complainant will have 10 days from the date of the
answer to advise the respondent and the Board in writing whether the
complainant is willing to arbitrate on that basis. Where the respondent
is a participant in the Board's arbitration program, the answer should
further state that the respondent has thereby agreed to use arbitration
to resolve all of the arbitration program-eligible issues in the
complaint. The Board will then set the matter for arbitration, if
appropriate, and assign an arbitrator.
13. Revise Sec. 1108.8 to read as follows:
Sec. 1108.8 Arbitration procedures.
The arbitrator shall establish all rules for each arbitration
proceeding, including with regard to discovery, the submission of
evidence and the treatment of confidential information, subject to the
requirements that the evidentiary process shall be completed within 90
days from the start date established by the arbitrator, and that the
arbitrator's decision will be issued within 30 days following
completion of the evidentiary phase.
14. Revise Sec. 1108.9 to read as follows:
Sec. 1108.9 Decisions.
(a) Decisions of the arbitrator shall be in writing and shall
contain findings of fact and conclusions.
(b) The arbitrator simultaneously shall serve a copy of the
decision on the parties and upon the Board. The arbitrator may serve
the decision via any service method permitted by the Board's
regulations that is consistent with protecting the confidentiality of
the decision, if so requested by the parties.
(c) By arbitrating pursuant to these procedures, each party agrees
that the decision and award of the arbitrator shall be binding and
judicially enforceable in law and equity in any court of appropriate
jurisdiction, subject to a limited right of appeal to the STB, as
provided below.
15. Revise Sec. 1108.11 to read as follows:
Sec. 1108.11 Enforcement and appeals.
(a) A party may petition the Board to modify or vacate an arbitral
award. The appeal must be filed within 20 days of service of a final
arbitration decision, and is subject to the page limitations of Sec.
1115.2(d) of this chapter. Copies of the appeal shall be served upon
all parties in accordance with the Board's rules at Part 1104. The
appealing party shall also serve a copy of its appeal upon the
arbitrator. Replies to such appeals shall be filed within 20 days of
the filing of the appeal with the Board, and shall be subject to the
page limitations of Sec. 1115.2(d) of this chapter.
(b) The timely filing of a petition will not automatically stay the
effect of the arbitration decision. A stay may be requested under Sec.
1115.3(f) of this chapter.
(c) The STB will review, and may modify or vacate, an arbitration
award, in whole or in part, only on grounds that such award reflects a
clear abuse of arbitral authority or discretion.
16. Revise Part 1109 to read as follows:
PART 1109--USE OF MEDIATION IN BOARD PROCEEDINGS
Sec.
1109.1 Mediation.
1109.2 Commencement of mediation.
1109.3 Mediation procedures.
1109.4 Mandatory mediation in rate cases to be considered under the
stand-alone cost methodology.
Authority: 5 U.S.C. 571 et seq.
Sec. 1109.1 Mediation.
Parties may seek to resolve a dispute brought before the Board
using the Board's mediation procedures. These procedures shall not be
available to obtain the grant, denial, stay or revocation of any
license, authorization (e.g., construction, abandonment, purchase,
trackage rights, merger, pooling), or exemption related to such
matters. The Board may, by its own order, direct the parties to
participate in mediation using the Board's mediation procedures.
Sec. 1109.2 Commencement of mediation.
(a) Availability of mediation. Mediation may be commenced in a
dispute before the Board:
(1) Pursuant to a Board order issued in response to a written
request of one or more parties to a matter;
(2) Where the Board orders mediation by its own order; or
(3) In connection with a rate complaint, as provided by Sec.
1109.4 and Part 1111 of this chapter.
(b) Requests for mediation. Parties wishing to pursue mediation may
file a request for mediation with the Board at any time following the
filing of a complaint. Parties that use Board mediation procedures
shall not be required to pay any fees other than the appropriate filing
fee associated with the underlying dispute, as provided at 49 CFR
1002.2. The Board shall grant any mediation request submitted by all
parties to a matter, but may deny mediation where a mediation request
is not submitted by all parties to a matter.
Sec. 1109.3 Mediation procedures.
(a) The Board will appoint a Board employee, who is a qualified
mediator, to facilitate any dispute assigned for mediation.
Alternatively, the parties to a matter may agree to use a non-Board
mediator if they so inform the Board within 10 days of an order
assigning the dispute to mediation. If a non-Board mediator is used,
the parties shall share the fees and/or costs of the mediator. The
following restrictions apply to any mediator selected by the Board or
the parties:
(1) No person may serve as a mediator who has previously served as
an advocate or representative, in any matter, for any party to the
mediation;
(2) No person serving as a mediator may thereafter serve as an
advocate for a party in any other proceeding arising from or related to
the mediated dispute, including, without limitation, representation of
a party to the mediation before any other federal court or agency; and
(3) If the mediation does not fully resolve all issues before the
Board, the person serving as a mediator may not thereafter advise the
Board regarding the future disposition of the dispute.
(b) Parties shall have 30 days from the date of the first mediation
session to reach a settlement agreement, or to narrow the issues in
dispute, or to agree to stipulations that may be incorporated into any
adjudication before the Board if mediation does not fully resolve the
dispute. The mediator may assist the parties in preparing a settlement
agreement. The mediator shall notify the Board whether the parties have
reached any agreement by the end of the 30-day period.
(c) Any settlement agreement reached during or as a result of
mediation must be in writing, and signed by all parties to the
mediation. The parties need not provide a copy of the settlement
agreement to the Board, or otherwise make the terms of the agreement
public, provided that the parties, or the mediator, notify the Board
that the parties have reached a mutually
[[Page 19596]]
agreeable resolution, and request that the Board terminate the
underlying Board proceeding. Parties to the settlement agreement shall
waive all appeal rights as to the issues resolved by the settlement
agreement.
(d) If the parties reach only a partial resolution of their
dispute, they or the mediator shall so inform the Board, and the
parties shall file any stipulations they have mutually reached, and ask
the Board to reactivate the procedural schedule in the underlying
proceeding to decide the remaining issues.
(e) The Board may extend mediation for additional periods of time
not to exceed 30 days per period, pursuant to mutual written requests
of all parties to the proceeding. The Board will not extend mediation
for additional periods of time where one or more parties to a matter do
not agree to an extension. The Board will not order mediation more than
once in any particular proceeding, but may permit it if all parties to
a matter mutually request another round of mediation.
(f) Mediation is a confidential process except for those limited
exceptions permitted by the Administrative Dispute Resolution Act at 5
U.S.C. 574.
(1) All notes taken by participants (including but not limited to
the mediator, parties, and their representatives) during the mediation
must be destroyed following the conclusion of the matter subject to
mediation. As a condition of participation, the parties and any
interested parties joining the mediation must agree to the
confidentiality of the mediation process. The parties to mediation,
including the mediator, shall not testify in administrative or judicial
proceedings concerning the issues discussed in mediation, nor submit
any report or record of the mediation discussions, other than the
settlement agreement with the consent of all parties, except as
required by law.
(2) Evidence of conduct or statements made during mediation are not
admissible in any Board proceeding. However, if mediation fails to
result in a full resolution of the dispute, evidence that is otherwise
discoverable may not be excluded from introduction into the record of
the underlying proceeding merely because it was presented during
mediation. Such materials may be used if they are disclosed through
formal discovery procedures established by the Board or other
adjudicatory body.
(g) Except as otherwise provided for in 49 CFR 1109.4(f) and Part
1111, the mutual request of all parties that a proceeding be held in
abeyance while mediation procedures are pursued should be submitted to
the Chief, Section of Administration, Office of Proceedings. The Board
shall promptly issue an order in response to such requests. Except as
otherwise provided for in 49 CFR 1109.4(f) and Part 1111, the Board may
also direct that a proceeding be held in abeyance pending the
conclusion of mediation. The period while any proceeding is held in
abeyance to facilitate mediation shall not be counted toward any
applicable statutory deadlines.
Sec. 1109.4 Mandatory mediation in rate cases to be considered under
the stand-alone cost methodology.
(a) A shipper seeking rate relief from a railroad or railroads in a
case involving the stand-alone cost methodology must engage in non-
binding mediation of its dispute with the railroad upon filing a formal
complaint under 49 CFR Part 1111.
(b) Within 10 business days after the shipper files its formal
complaint, the Board will assign a mediator to the case. Within 5
business days of the assignment to mediate, the mediator shall contact
the parties to discuss ground rules and the time and location of any
meeting. At least one principal of each party, who has the authority to
bind that party, shall participate in the mediation and be present at
any session at which the mediator requests that the principal be
present.
(c) The mediator will work with the parties to try to reach a
settlement of all or some of their dispute or to narrow the issues in
dispute, and reach stipulations that may be incorporated into any
adjudication before the Board if mediation does not fully resolve the
dispute. If the parties reach a settlement, the mediator may assist in
preparing a settlement agreement.
(d) The entire mediation process shall be private and confidential.
No party may use any concessions made or information disclosed to
either the mediator or the opposing party before the Board or in any
other forum without the consent of the other party.
(e) The mediation shall be completed within 60 days of the
appointment of the mediator. The mediation may be terminated prior to
the end of the 60-day period only with the certification of the
mediator to the Board. Requests to extend mediation, or to re-engage it
later, will be entertained on a case-by-case basis, but only if filed
by all interested parties.
(f) Absent a specific order from the Board, the onset of mediation
will not affect the procedural schedule in stand alone cost rate cases,
set forth at 49 CFR 1111.8(a).
PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES
17. The authority citation for part 1111 continues to read as
follows:
Authority: 49 U.S.C. 721, 10704, and 11701.
18. Amend Sec. 1111.10 by revising paragraph (b) to read as
follows:
Sec. 1111.10 Meeting to discuss procedural matters.
* * * * *
(b) Simplified standards complaints. In complaints challenging the
reasonableness of a rail rate based on the simplified standards, the
parties shall meet, or discuss by telephone or through email, discovery
and procedural matters within 7 days after the mediation period ends.
The parties should inform the Board as soon as possible thereafter
whether there are unresolved disputes that require Board intervention
and, if so, the nature of such disputes.
PART 1115--APPELLATE PROCEDURES
19. The authority citation for part 1115 continues to read as
follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
20. Revise Sec. 1115.8 to read as follows:
Sec. 1115.8 Petitions to review arbitration decisions.
An appeal of right is permitted. The appeal must be filed within 20
days of a final arbitration decision, unless a later date is authorized
by the Board, and is subject to the page limitations of Sec.
1115.2(d). The standard of review will be whether there is a showing of
a clear abuse of arbitral authority or discretion. The timely filing of
a petition will not automatically stay the effect of the arbitration
decision. A stay may be requested under Sec. 1115.3(f).
[FR Doc. 2012-7836 Filed 3-30-12; 8:45 am]
BILLING CODE 4915-01-P
