[Federal Register Volume 61, Number 145 (Friday, July 26, 1996)]
[Proposed Rules]
[Pages 39110-39115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18849]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1011, 1104, 1111, 1112, 1113, 1114, 1115 and 1121
[STB Ex Parte No. 527]
Expedited Procedures For Processing Rail Rate Reasonableness,
Exemption And Revocation Proceedings
AGENCY: Surface Transportation Board.
ACTION: Notice Of Proposed Rulemaking.
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SUMMARY: Under new 49 U.S.C. 10704(d), enacted as part of section
102(a) of the ICC Termination Act of 1995 (ICCTA), the Surface
Transportation Board (Board) is required to establish procedures to
expedite the handling of challenges to the reasonableness of railroad
rates and of railroad exemption and revocation proceedings. This
publication contains our proposed regulations.
DATES: Comments are due on August 21, 1996.
ADDRESSES: Send comments (an original and 10 copies) referring to STB
Ex Parte No. 527 to: Surface Transportation Board, Office of the
Secretary, Case Control Branch, 1201 Constitution Ave., NW.,
Washington, DC 20423. Parties are encouraged to submit all pleadings
and attachments on a 3.5-inch diskette in WordPerfect 5.1 format.
FOR FURTHER INFORMATION CONTACT: Thomas J. Stilling, (202) 927-7312.
[TDD for the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: The Board's decision discussing this
proposal is available to all persons for a charge by calling DC NEWS &
DATA INC. at (202) 289-4357. The Board certifies that the rules
proposed, if adopted, would not have a significant economic effect on a
substantial number of small entities. The proposed rules should result
in easier and quicker discovery and record-building. The Board,
however, seeks comments on whether there would be effects on small
entities that should be considered. If comments provide information
that there would be a significant effect on small entities, the Board
will prepare a regulatory flexibility analysis at the final rule stage.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
List of Subjects
49 CFR Part 1011
Administrative practice and procedure, Authority delegations
(Government agencies), Organization and functions (Government
agencies).
49 CFR Parts 1104, 1112, 1113, 1114, and 1115
Administrative practice and procedure.
49 CFR Part 1111
Administrative practice and procedure, Investigations.
49 CFR Part 1121
Administrative practice and procedure, Rail exemption procedures,
Railroads.
Decided: July 18, 1996.
[[Page 39111]]
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, title 49, chapter X,
parts 1011, 1104, 1111, 1112, 1113, 1114, 1115 and 1121 of the Code of
Federal Regulations are proposed to be amended as follows:
PART 1011--COMMISSION ORGANIZATION; DELEGATIONS OF AUTHORITY
1. The authority citation for part 1011 is revised to read as
follows:
Authority: 5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721,
13702.
Sec. 1011.7 [Amended]
2. Section 1011.7 is amended as follows:
a. In paragraph (b)(1), remove the words ``The Chairman of the
Commission'' and add in their place the words ``The Commission
(Board)''.
b. Paragraph (b)(2) is removed.
PART 1104--FILING WITH THE BOARD-COPIES-VERIFICATIONS-SERVICE-
PLEADINGS, GENERALLY
3. The heading of part 1104 is revised as set forth above.
4. The authority citation for part 1104 is revised to read as
follows:
Authority: 5 U.S.C. 559; 21 U.S.C. 853a; 49 U.S.C. 721.
5. Part 1104 is amended as follows:
Secs. 1104.3--1104.8, 1104.10 and 1104.12--1104.14 [Amended]
a. Remove the word ``Commission'' and add the word ``Board'' in the
following sections: Secs. 1104.3(a), 1104.3(b), 1104.4(b), 1104.5(b),
1104.6, 1104.7(b), 1104.8, 1104.10(a), 1104.10(b), 1104.12(a),
1104.12(b), 1104.13(a) and 1104.14(b).
Sec. 1104.3, 1104.6 and 1104.11 [Amended]
b. Remove the word ``Commission's'' and add the word ``Board's'' in
the following sections: Secs. 1104.3(b), 1104.6 and 1104.11.
Sec. 1104.1 [Amended]
c. Remove the words ``Interstate Commerce Commission'' and add the
words ``Surface Transportation Board'' in Sec. 1104.1(a).
Sec. 1104.3 [Amended]
6. Section 1104.3 is amended by adding the following sentence to
the end of paragraph (a):
(a) * * * In addition to the paper copies required to be filed with
the Board, 3 copies of: (1) Textual submissions of 20 or more pages and
(2) All electronic spreadsheets should be submitted on 3.5 inch, IBM
compatible formatted diskettes or QIC-80 tapes. Textual materials must
be in WordPerfect 5.1 format, and electronic spreadsheets must be in
LOTUS 1-2-3 release 5 or earlier format.
* * * * *
7. In Sec. 1104.15, paragraph (a) is revised to read as follows:
Sec. 1104.15 Certification of eligibility for Federal benefits under
21 U.S.C. 853a.
(a) An individual who is applying in his or her name for a
certificate, license or permit to operate as a rail carrier must
complete the certification set forth in paragraph (b) of this section.
This certification is required if the transferee in a finance
proceeding under 49 U.S.C. 11323 and 11324 is an individual. The
certification also is required if an individual applies for
authorization to acquire, to construct, to extend, or to operate a rail
line.
* * * * *
8. Part 1111 is revised to read as follows:
PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES
Sec.
1111.1 Content of formal complaints; joinder.
1111.2 Amended and supplemental complaints.
1111.3 Service.
1111.4 Answers and cross complaints.
1111.5 Motions to dismiss or to make more definite.
1111.6 Satisfaction of complaint.
1111.7 Investigations on the Board's own motion.
1111.8 Meeting to discuss procedural matters.
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
Sec. 1111.1 Content of formal complaints; joinder.
(a) General. A formal complaint must contain the correct,
unabbreviated names and addresses of each complainant and defendant. It
should set forth briefly and in plain language the facts upon which it
is based. It should include specific reference to pertinent statutory
provisions and Board regulations, and should advise the Board and the
defendant fully in what respects these provisions or regulations have
been violated. The complaint should contain a detailed statement of the
relief requested. Relief in the alternative or of several different
types may be demanded, but the issues raised in the formal complaint
should not be broader than those to which complainant's evidence is to
be directed at the hearing. In a complaint challenging the
reasonableness of a rail rate, the complainant must file evidence on
the absence of effective intramodal and intermodal competition with the
complaint. The complainant also must make available to counsel for the
defendant(s) all underlying workpapers and related documents supporting
its market dominance evidence. In addition, the complainant should
indicate in the complaint whether it intends to contest the rate level
based on a constrained market pricing presentation and, if so, which of
the constraints it will contend the railroad violated, or whether it
intends to contest the rate level based on the procedures adopted
pursuant to 49 U.S.C. 10701(d)(3).
(b) Requests for oral hearing. A formal complaint may include a
request that the proceeding be handled either under the modified
procedure or at oral hearing. A request for oral hearing should detail
why oral hearing is required.
(c) Multiple causes of action. Two or more grounds of complaint
concerning the same principle, subject, or statement of facts may be
included in one complaint, but should be stated and numbered
separately.
(d) Joinder. Two or more complainants may join in one complaint
against one or more defendants if their respective causes of action
concern substantially the same alleged violations and like facts.
Sec. 1111.2 Amended and supplemental complaints.
An amended or supplemental complaint may be tendered for filing by
a complainant against a defendant or defendants named in the original
complaint, stating a cause of action alleged to have accrued within the
statutory period immediately preceding the date of such tender, in
favor of complainant and against the defendant or defendants. The time
limits for responding to an amended or supplemental complaint are
computed pursuant to Secs. 1111.4 and 1111.5 of this part, as if the
amended or supplemental complaint was an original complaint.
Sec. 1111.3 Service.
A complainant is responsible for serving formal complaints, amended
or supplemental complaints, and cross complaints on the defendant(s).
Service may be personal or by mail. Ten copies of the complaint should
be filed with the Board together with an acknowledgment of service by
the persons served or proof of service in the form of a statement of
the date and manner of service, of the names of the persons served, and
of the addresses to
[[Page 39112]]
which the papers were mailed or at which they were delivered, certified
by the person who made service. If complainant cannot serve the
complaint, an original of each complaint accompanied by a sufficient
number of copies to enable the Board to serve one upon each defendant
and to retain 10 copies in addition to the original should be filed
with the Board.
Sec. 1111.4 Answers and cross complaints.
(a) Generally. An answer shall be filed within the time provided in
paragraph (b) of this section. An answer should be responsive to the
complaint and should fully advise the Board and the parties of the
nature of the defense. In answering a complaint challenging the
reasonableness of a rail rate, the defendant should indicate whether it
will contend that the Board is deprived of jurisdiction to hear the
complaint because the revenue-variable cost percentage generated by the
traffic is less than 180 percent, or the traffic is subject to
effective product or geographic competition. Evidence supporting such a
contention is due 45 days after the complaint is served or within such
additional time as the Board may provide. In addition, if the defendant
intends to reply to a complainant's evidence on the absence of
effective intramodal or intermodal competition filed with the
complaint, such a reply is due 45 days after the complaint is served or
within such additional time as the Board may provide. The defendant
also must make available to counsel for the complainant all underlying
workpapers and related documents supporting its market dominance
evidence. The complaint may reply to the defendants' product or
geographic competition or revenue-variable cost evidence within 20 days
after such evidence is filed with the Board or within such additional
time as the Board may provide.
(b) Time for filing; copies; service. An answer must be filed
within 20 days after the service of the complaint or within such
additional time as the Board may provide. The original and 10 copies of
an answer must be filed with the Board. The defendant must serve copies
of the answer upon the complainant and any other defendants.
(c) Cross complaints. A cross complaint alleging violations by
other parties to the proceeding or seeking relief against them may be
filed with the answer. An answer to a cross complaint shall be filed
within 20 days after the service date of the cross complaint. The party
shall serve copies of an answer to a cross complaint upon the other
parties.
Sec. 1111.5 Motions to dismiss or to make more definite.
An answer to a complaint or cross complaint may be accompanied by a
motion to dismiss the complaint or cross complaint or a motion to make
the complaint or cross complaint more definite. At the time the answer
is filed, if the defendant has reason to believe that the complaint or
cross complaint should be dismissed, a motion to dismiss should be
filed with the answer. If grounds for dismissing the complaint or cross
complaint arise subsequent to the filing of the answer, a motion to
dismiss shall be filed within 20 days of when the grounds arise. A
complainant or cross complainant may, within 10 days after an answer is
filed, file a motion to make the answer more definite. Any motion to
make more definite must specify the defects in the particular pleading
and must describe fully the additional information or details thought
to be necessary.
Sec. 1111.6 Satisfaction of complaint.
If a defendant satisfies a formal complaint, either before or after
answering, a statement to that effect signed by the complainant must be
filed (original only need be filed), setting forth when and how the
complaint has been satisfied. This action should be taken as
expeditiously as possible.
Sec. 1111.7 Investigations on the Board's own motion.
(a) Service of decision. A decision instituting an investigation on
the Board's own motion will be served by the Board upon respondents.
(b) Default. If within the time period stated in the decision
instituting an investigation, a respondent fails to comply with any
requirement specified in the decision, the respondent will be deemed in
default and to have waived any further proceedings, and the
investigation may be decided forthwith.
Sec. 1111.8 Meeting to discuss procedural matters.
Within 7 days after an answer to a complaint is filed, the parties
shall meet, or discuss by telephone, discovery and procedural matters.
Within 14 days after an answer to a complaint is filed, the parties,
either jointly or separately, shall file a report with the Board
setting forth a proposed procedural schedule to govern future
activities and deadlines in the case.
PART 1112--MODIFIED PROCEDURES
9. The authority citation for part 1112 is revised to read as
follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 701.
10. Part 1112 is amended as follows:
Secs. 1112.1, 1112.4 and 1112.7 [Amended]
a. Remove the word ``Commission'' and add the word ``Board'' in the
following sections: Secs. 1112.1, 1112.4(a), introductory text, and
1112.7.
Sec. 1112.1 [Amended]
b. Remove the word ``Commission's'' and add the word ``Board's'' in
Sec. 1112.1.
Sec. 1112.4 [Amended]
c. Section 1112.4 is amended by removing paragraph (c).
d. Section 1112.10 is revised to read as follows:
Sec. 1112.10 Requests for oral hearings and cross examination.
(a) Requests. Requests for oral hearings in matters originally
assigned for handling under modified procedure must include the reasons
why the matter cannot be properly resolved under modified procedure.
Requests for cross examination of witnesses must include the name of
the witness and the subject matter of the desired cross examination.
(b) Disposition. Unless material facts are in dispute, oral
hearings will not be held. If held, oral hearings will normally be
confined to material issues upon which the parties disagree. The
decision setting a matter for oral hearing will define the scope of the
hearing.
PART 1113--ORAL HEARING
11. The authority citation for part 1113 is revised to read as
follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
12. Part 1113 is amended as follows:
Secs. 1113.1, 1113.2, 1113.4--1113.8, 1113.10, 1113.12, 1113.13,
1113.16--1113.11 [Amended]
a. Remove the word ``Commission'' and add the word ``Board'' in the
following sections: Secs. 1113.1(a), 1113.2(a), 1113.2(b)(1),
1113.2(d), 1113.4(a), introductory text, 1113.4(b), 1113.5, 1113.6(b),
1113.7(e), 1113.8, 1113.10, 1113.12(a), 1113.12(b), 1113.13, 1113.16,
1113.17(b) and 1113.18(c).
Sec. 1113.1 [Amended]
b. In Sec. 1113.1, paragraph (c)(3) is removed.
Sec. 1113.3 [Amended]
c. In Sec. 1113.3, paragraph (b)(2), add a period after the word
``complaint'' and remove the remainder of the paragraph.
Sec. 1113.11 [Amended]
d. In Sec. 1113.11, first sentence, remove the words ``and in
evidence'' and add the words ``in evidence and''.
[[Page 39113]]
Sec. 1113.31 [Removed]
e. Section 1113.31 is removed.
PART 1114--EVIDENCE; DISCOVERY
13. The authority citation for part 1114 is revised to read as
follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
14. Subpart A is revised to read as follows:
Subpart A--General Rules of Evidence
Sec.
1114.1 Generally.
1114.2 Suspension of rules.
Subpart A--General Rules of Evidence
Sec. 1114.1 Generally.
Unless a different requirement is imposed by these rules, the Board
will follow the Federal Rules of Evidence and the Federal Rules of
Civil Procedure used in United States district courts.
Sec. 1114.2 Suspension of rules.
In the interest of expediting a decision, or for other good cause
shown, the Board may suspend the requirements or provisions of any of
these rules in a particular case on application of a party or in its
own motion and may order proceedings in accordance with its direction.
15. Subpart B is amended as follows:
Secs. 1114.21, 1114.23, 1114.24, 1114.26, 1114.27, and
1114.31 [Amended]
a. Remove the word ``Commission'' and add the word ``Board'' in the
following sections: Secs. 1114.21(c)(3), 1114.21(c)(9) and the
concluding text, 1114.21(d), 1114.21(e), introductory text, 1114.23(b),
1114.23(c), 1114.23(d)(1), 1114.23(d)(2), 1114.24(b)(2), 1114.24(b)(3),
1114.24(d), 1114.24(h), 1114.26(a), 1114.27(b), 1114.31(a),
1114.31(b)(1), 1114.31(b)(2), 1114.31(c) and 1114.31(d).
Sec. 1114.31 [Amended]
b. Remove the word ``Commission's'' and add the word ``Board's'' in
Sec. 1114.31(b), introductory text.
Sec. 1114.21 [Amended]
c. In Sec. 1114.21, paragraph (a)(1), remove the words ``(except
the review boards)''.
Sec. 1114.26 [Amended]
d. In Sec. 1114.26, paragraph (a), remove the second sentence.
Sec. 1114.26 [Amended]
e. In Sec. 1114.26, paragraph (c), remove the words ``In those
proceedings not requiring a petition for interrogatories, and unless
under special circumstances and for good cause,'' and capitalize the
word ``no''.
Sec. 1114.27 [Amended]
f. In Sec. 1114.27, paragraph (a), remove the third and last
sentences.
Sec. 1114.27 [Amended]
g. In Sec. 1114.27, paragraph (c), remove the words ``In those
proceedings not requiring a petition for requests for admission, and
unless under special circumstances and for good cause shown,'' and
capitalize the word ``no''.
Sec. 1114.31 [Amended]
h. In Sec. 1114.31, paragraph (a), remove the last two sentences.
Sec. 1114.31 [Amended]
i. In Sec. 1114.31, paragraph (b)(1), remove the words ``49 U.S.C.
10321 (c)(3) and (d)(4)'' and add in their place the words ``49 U.S.C.
721 (c) and (d)''.
16. The additions and revisions to subpart B are as follows:
a. Section 1114.21 is amended by revising paragraph (b) and adding
a new paragraph (f) as follows:
Sec. 1114.21 Applicability; general provisions.
* * * * *
(b) How discovery is obtained. All discovery procedures may be used
by parties without filing a petition and obtaining prior Board
approval.
* * * * *
(f) Service of discovery materials. Unless otherwise ordered by the
Board, depositions, interrogatories, requests for documents, requests
for admissions, and answers and responses thereto, shall be served on
other counsel and parties, but shall not be filed with the Board. Any
such materials, or portions thereof, should be appended to the
appropriate pleading when used to support or to reply to a motion, or
when used as an evidentiary submission.
b. Section 1114.22 is revised to read as follows:
Sec. 1114.22 Deposition.
(a) Purpose. The testimony of any person, including a party, may be
taken by deposition upon oral examination.
(b) Request. A party requesting to take a deposition and perpetuate
testimony:
(1) Should notify all parties to the proceeding and the person
sought to be deposed; and
(2) Should set forth the name and address of the witness, the place
where, the time when, the name and office of the officer before whom,
and the cause or reason why such deposition will be taken.
c. Section 1114.30 is revised to read as follows:
Sec. 1114.30 Production of documents and records and entry upon land
for inspection and other purposes.
(a) Scope. Any party may serve on any other party a request:
(1) To produce and permit the party making the request to inspect
any designated documents (including writings, drawings, graphs, charts,
photographs, phonograph records, tapes, and other data compilations
from which information can be obtained, translated, if necessary, with
or without the use of detection devices into reasonably usable form),
or to inspect and copy, test, or sample any tangible things which are
in the possession, custody, or control of the party upon whom the
request is served, but if the writings or data compilations include
privileged or proprietary information or information the disclosure of
which is proscribed by the Act, such writings or data compilations need
not be produced under this rule but may be provided pursuant to
Sec. 1114.26(b) of this part; or
(2) To permit, subject to appropriate liability releases and safety
and operating considerations, entry upon designated land or other
property in the possession or control of the party upon whom the
request is served for the purpose of inspecting and measuring,
surveying, photographing, testing, or sampling the property or any
designated object or operation thereon.
(b) Procedure. Any request filed pursuant to this rule should set
forth the items to be inspected either by individual item or by
category and describe each item and category with reasonable
particularity. The request should specify a reasonable time, place, and
manner of making the inspection and performing the related acts.
d. Section 1114.31 is amended by adding a new paragraph (b)(2)(iv)
and adding concluding text to paragraph (d) as follows:
Sec. 1114.31 Failure to respond to discovery.
* * * * *
(b) * * *
(2) * * *
(iv) In lieu of any of the foregoing orders, or in addition
thereto, the Board shall require the party failing to obey the order or
the attorney advising that party, or both, to pay the reasonable
expenses, including attorney's fees, caused by the failure, unless the
Board finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust.
* * * * *
(d) * * *. In lieu of any such order or in addition thereto, the
Board shall require the party failing to act or the attorney advising
that party or both to
[[Page 39114]]
pay the reasonable expenses, including attorney's fees, caused by the
failure, unless the Board finds that the failure was substantially
justified or that other circumstances make an award of expenses unjust.
* * * * *
PART 1115--APPELLATE PROCEDURES
17. The authority citation for part 1115 is revised to read as
follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
18. Part 1115 is amended as follows:
Secs. 1115.1, 1115.2 and 1115.5-1115.8 [Amended]
a. Remove the word ``Commission'' and add the word ``Board'' in the
following sections: Secs. 1115.1(b), 1115.1(c), 1115.2(b)(2),
1115.2(g), 1115.5(a), 1115.5(b), 1115.6, 1115.7 and 1115.8.
Sec. 1115.1 [Amended]
b. In Sec. 1115.1, paragraph (c), remove the words ``Chairman of
the Commission.'' at the end of the first sentence and add in their
place the words ``entire Board.''.
Sec. 1115.7 [Amended]
c. In Sec. 1115.7, remove the words ``Interstate Commerce
Commission'' and add in their place the words ``Surface Transportation
Board''.
19. The additions and revisions to part 1115 are as follows:
a. Section 1115.1, paragraph (a), is revised to read as follows:
Sec. 1115.1 Scope of rule.
(a) These appellate procedures apply in cases where a hearing is
required by law or Board action. They do not apply to informal matters
such as car service, temporary authority, suspension, special
permission actions, or to other matters of an interlocutory nature.
Abandonments and discontinuance proceedings instituted under 49 U.S.C.
10903 are governed by separate appellate procedures exclusive to those
proceedings. (See 49 CFR part 1152)
* * * * *
b. In Sec. 1115.2, the introductory text and paragraph (e) are
revised to read as follows:
Sec. 1115.2 Initial decisions.
This category includes the initial decision of an administrative
law judge, individual Commissioner or employee board.
* * * * *
(e) Appeals must be filed within 20 days after the service date of
the decision or within any further period (not to exceed 20 days) the
Board may authorize. Replies must be filed within 20 days of the date
the appeal is filed.
* * * * *
c. Section 1115.3 is revised to read as follows:
Sec. 1115.3 Board actions other than initial decisions.
(a) A discretionary appeal of an entire Board action is permitted.
(b) The petition will be granted only upon a showing of one or more
of the following points:
(1) The prior action will be affected materially because of new
evidence or changed circumstances.
(2) The prior action involves material error.
(c) The petition must state in detail the nature of and reasons for
the relief requested. When, in a petition filed under this section, a
party seeks an opportunity to introduce evidence, the evidence must be
stated briefly and must not appear to be cumulative, and an explanation
must be given why it was not previously adduced.
(d) The petition and any reply must not exceed 20 pages in length.
A separate preface and summary of argument, not exceeding 3 pages, may
accompany petitions and replies and must accompany those that exceed 10
pages in length.
(e) Petitions must be filed within 20 days after the service of the
action or within any further period (not to exceed 20 days) as the
Board may authorize.
(f) The filing of a petition will not automatically stay the effect
of a prior action, but the Board may stay the effect of the action on
its own motion or on petition. A petition to stay may be filed in
advance of the petition for reconsideration and shall be filed within
10 days of service of the action. No reply need be filed. However, if a
party elects to file a reply, it must reach the Board no later than 16
days after service of the action. In all proceedings, the action, if
not stayed, will become effective 30 days after it is served, unless
the Board provides for the action to become effective at a different
date. On the day the action is served parties may initiate judicial
review.
d. Section 1115.4 is revised to read as follows:
Sec. 1115.4 Petitions to reopen administratively final actions.
A person at any time may file a petition to reopen any
administratively final action of the Board pursuant to the requirements
of Sec. 1115.3 (c) and (d) of this part. A petition to reopen must
state in detail the respects in which the proceeding involves material
error, new evidence, or substantially changed circumstances and must
include a request that the Board make such a determination.
e. A new Sec. 1115.9 is added to read as follows:
Sec. 1115.9 Interlocutory Appeals.
(a) Rulings of Board employees, including administrative law
judges, may be appealed prior to service of the initial decision only
if:
(1) The ruling denies or terminates any person's participation;
(2) The ruling grants a request for the inspection of documents not
ordinarily available for public inspection and the requested documents
are not otherwise subject to a protective order entered by the Board
pursuant to 49 CFR 1114.21(c);
(3) The ruling overrules an objection based on privilege, the
result of which ruling is to require the presentation of testimony or
documents; or
(4) The ruling may result in substantial irreparable harm,
substantial detriment to the public interest, or undue prejudice to a
party.
(b) Any interlocutory appeal of a ruling shall be filed with the
Board within three (3) business days of the ruling. Replies to any
interlocutory appeal shall be filed with the Board within three (3)
business days after the filing of any such appeal.
20. Part 1121 is revised to read as follows:
PART 1121--RAIL EXEMPTION PROCEDURES
Sec.
1121.1 Scope.
1121.2 Discovery.
1121.3 Content.
1121.4 Procedures.
Authority: 5 U.S.C. 553; 49 U.S.C. 10502 and 10704.
Sec. 1121.1 Scope.
These procedures generally govern petitions filed under 49 U.S.C.
10502 to exempt a transaction or service from 49 U.S.C. subtitle IV, or
any provision of 49 U.S.C. subtitle IV, or to revoke an exemption
previously granted. These procedures also apply to notices of
exemption.
Sec. 1121.2 Discovery.
Discovery may begin upon the filing of the petition for exemption
or petition for revocation of an exemption. A party may begin discovery
prior to filing a petition to revoke an exemption or a notice of
exemption by filing a notice of intent to file a petition for
revocation. Discovery shall follow the procedures set forth at 49 CFR
part 1114, subpart B.
[[Page 39115]]
Sec. 1121.3 Content.
(a) A party filing a petition for exemption shall provide its case-
in-chief, along with its supporting evidence, workpapers, and related
documents at the time it files its petition.
(b) A petition must comply with environmental or historic reporting
and notice requirements of 49 CFR part 1105, if applicable.
Sec. 1121.4 Procedures.
(a) Exemption proceedings are informal, and public comments are
generally not sought during consideration of exemption petition
proposals, except as provided in paragraph (d) of this section.
However, the Board may consider during its deliberation any public
comments filed in response to a petition for exemption.
(b) If the Board determines that the criteria in 49 U.S.C. 10502
are met for the proposed exemption, it will issue the exemption and
publish a notice of exemption in the Federal Register.
(c) If the impact of the proposed exemption cannot be ascertained
from the information contained in the petition or accompanying
submissions or if significant adverse impacts might occur if the
proposed exemption were granted, the Board, in its discretion, may:
(1) Direct that additional information be filed; or
(2) Publish a notice in the Federal Register requesting public
comments.
(d) Exemption petitions containing proposals that are directly
related to and concurrently filed with a primary application will be
considered along with that primary application.
(e) Unless otherwise specified in the decision, an exemption
generally will be effective 30 days from the service date of the
decision granting the exemption. Unless otherwise provided in the
decision, petitions to stay must be filed within 10 days of the service
date, and petitions to reopen under 49 CFR part 1115 or 49 CFR
1152.25(e) must be filed within 20 days of the service date.
(f) Petitions to revoke an exemption or the notice of exemption may
be filed at any time. The person seeking revocation has the burden of
showing that the revocation criteria of section 10502(d) have been met.
A party seeking revocation of an exemption or a notice of exemption
shall provide all of its supporting information at the time it files
its petition.
(g) In abandonment exemptions, petitions to revoke in part to
impose public use conditions under 49 CFR 1152.28, or to invoke the
Trails Act, 16 U.S.C. 1247(d), may be filed at any time prior to the
consummation of the abandonment, except that public use conditions may
not prohibit disposal of the properties for any more than the statutory
limit of 180 days after the effective date of the decision granting the
exemption.
[FR Doc. 96-18849 Filed 7-25-96; 8:45 am]
BILLING CODE 4915-00-P
