[Federal Register Volume 62, Number 169 (Tuesday, September 2, 1997)]
[Rules and Regulations]
[Pages 46217-46220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23056]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002 and 1108
[STB Ex Parte No. 560]
Arbitration of Certain Disputes Subject to the Statutory
Jurisdiction of the Surface Transportation Board
AGENCY: Surface Transportation Board.
ACTION: Final rules.
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SUMMARY: The Surface Transportation Board (Board) adopts rules
providing a means for the binding, voluntary arbitration of certain
disputes subject to the statutory jurisdiction of the Board.
EFFECTIVE DATE: October 2, 1997.
FOR FURTHER INFORMATION CONTACT: Ellen Hanson, (202) 565-1558. (TDD for
the hearing impaired: (202) 565-1695.)
SUPPLEMENTARY INFORMATION: The Railroad-Shipper Transportation Advisory
Council (RSTAC) recommended that the Board adopt rules providing for
informal dispute resolution through arbitration. In a notice of
proposed rulemaking published March 26, 1997 (62 FR 14385), we proposed
rules along the lines of those recommended by the RSTAC. We have
received comments on the proposed rules from various shipper, carrier,
and other interests, offering suggestions to enhance, modify, or
clarify the proposed rules. We have incorporated many, but not all, of
their suggestions.
This arbitration is designed for the resolution of specific
disputes between specific parties involving the payment of money or
involving rates or practices related to rail transportation or service
that is subject to the statutory jurisdiction of the Board. We believe
that this arbitration alternative will save costs and reduce litigation
burdens on parties to disputes that might otherwise have to be brought
to the Board for formal resolution. It will enable the parties to
resolve those disputes themselves informally, with only limited Board
involvement.
Additional information is contained in the Board's decision served
on September 2, 1997. To purchase a copy of the decision, write to,
call, or pick up in person from DC New & Data, Inc., Room 210, 1925 K
St. NW., Washington DC 20423, phone (202) 289-4357.
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, User fees.
49 CFR Part 1008
Administrative practice and procedure, Railroads.
Decided: August 25, 1997.
By the Board, Chairman Morgan and Vice Chairman Owen.
Vernon A. Williams,
Secretary.
For the reasons set forth in the preamble, and under the authority
of 49 U.S.C. 721(a), title 49, chapter X, of the Code of Federal
Regulations is amended 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(a).
2. Section 1002.2 is amended by adding a new paragraph (f)(87) to
read as follows:
Sec. 1002.2 Filing fees.
* * * * *
(f) * * *
(87) Arbitration of Certain Disputes Subject to the Statutory
Jurisdiction of the Surface Transportation Board under 49 CFR part
1108:
(i) Complaint.................................................. $75
(ii) Answer (per defendant), Unless Declining to Submit to Any
Arbitration................................................... $75
(iii) Third Party Complaint.................................... $75
(iv) Third Party Answer (per defendant), Unless Declining to
Submit to Any Arbitration..................................... $75
(v) Appeals of Arbitration Decisions or Petitions to Modify or
Vacate an Arbitration Award................................... $150
* * * * *
3. A new part 1108 is added to read as follows:
PART 1108--ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY
JURISDICTION OF THE SURFACE TRANSPORTATION BOARD
Sec.
1108.1 Definitions.
1108.2 Statement of purpose, organization, and jurisdiction.
1108.3 Matters subject to arbitration.
1108.4 Relief.
1108.5 Fees and costs.
1108.6 Arbitrators.
1108.7 Arbitration commencement procedures.
1108.8 Arbitration procedures.
1108.9 Decisions.
1108.10 Precedent.
1108.11 Enforcement and appeals.
1108.12 Additional matters.
Authority: 49 U.S.C. 721(a).
Sec. 1108.1 Definitions.
(a) Arbitrator means an arbitrator appointed pursuant to these
provisions.
(b) ICC means the Interstate Commerce Commission.
(c) Interstate Commerce Act means the Interstate Commerce Act as
amended from time to time, including the amendments made by the ICC
Termination Act of 1995.
(d) RSTAC means the Rail-Shipper Transportation Advisory Council
established pursuant to 49 U.S.C. 726.
(e) STB 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.
Sec. 1108.2 Statement of purpose, organization, and jurisdiction.
(a) These provisions are intended to provide a means for the
binding, voluntary arbitration of certain disputes subject to the
statutory jurisdiction of the STB, either between two or more railroads
subject to the jurisdiction of the STB or between any such railroad and
any other person.
(b) 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, or to prescribe for the future any conduct, rules, or
results of general, industry-wide applicability. Nor are they available
for arbitration that is conducted pursuant to labor protective
conditions. These procedures are intended for the resolution of
specific disputes between specific parties involving the payment of
money or involving rates or practices related to rail transportation or
service subject to the statutory jurisdiction of the STB.
(c) The alternative means of dispute resolution provided for herein
are established pursuant to the authority of the STB to take such
actions as are necessary and appropriate to fulfill its jurisdictional
mandate and not pursuant to the Administrative Dispute Resolution Act,
5 U.S.C. 571, et seq.
(d) On January 1, 1996, the STB replaced the ICC. For purposes of
these procedures, it is immaterial whether an exemption from regulation
was granted by the ICC or the STB.
[[Page 46218]]
Sec. 1108.3 Matters subject to arbitration.
(a) Any controversy between two or more parties, subject to
resolution by the STB, and subject to the limitations in Sec. 1108.2
hereof, may be processed pursuant to the provisions of this Part 1108,
if all necessary parties voluntarily subject themselves to arbitration
under these provisions after notice as provided herein.
(b) Arbitration under these provisions is limited to matters over
which the STB has statutory jurisdiction and may include disputes
arising in connection with jurisdictional transportation, including
service being conducted pursuant to an exemption. An Arbitrator should
decline to accept, or to render a decision regarding, any dispute that
exceeds the STB's statutory jurisdiction. Such Arbitrator may resolve
any dispute properly before him/her in the manner and to the extent
provided herein, but only to the extent of and within the limits of the
STB's statutory jurisdiction. In so resolving any such dispute, the
Arbitrator will not be bound by any procedural rules or regulations
adopted by the STB for the resolution of similar disputes, except as
specifically provided in this part 1108; provided, however, that the
Arbitrator will be guided by the Interstate Commerce Act and by STB and
ICC precedent.
Sec. 1108.4. Relief.
(a) Subject to specification in the complaint, as provided in
Sec. 1108.7 herein, an Arbitrator may grant the following types of
relief:
(1) Monetary damages, to the extent available under the Interstate
Commerce Act, with interest at a reasonable rate to be specified by the
Arbitrator.
(2) Specific performance of statutory obligations (including the
prescription of reasonable rates), but for a period not to exceed 3
years from the effective date of the Arbitrator's award.
(b) A party may petition an Arbitrator to modify or vacate an
arbitral award in effect that directs future specific performance,
based on materially changed circumstances or the criteria for vacation
of an award contained in 9 U.S.C. 10.
(1) A petition to modify or vacate an award in effect should be
filed with the STB. The petition will be assigned to the Arbitrator
that rendered the award unless that Arbitrator is unavailable, in which
event the matter will be assigned to another Arbitrator.
(2) Any such award shall continue in effect pending disposition of
the request to modify or vacate. Any such request shall be handled as
expeditiously as practicable with due regard to providing an
opportunity for the presentation of the parties' views.
Sec. 1108.5 Fees and costs.
(a) Fees will be utilized to defray the costs of the STB in
administering this alternate dispute resolution program in accordance
with 31 U.S.C. 9701. The fees for filing a complaint, answer, third
party complaint, third party answer, appeals of arbitration decisions,
and petitions to modify or vacate an arbitration award will be as set
forth in 49 CFR 1002.2(f)(87). All fees are non-refundable except as
specifically provided and are due with the paying party's first filing
in any proceeding.
(b) The parties may agree among themselves who will bear the
expenses of arbitration, including compensation of the arbitrator.
Absent an agreement, each party will bear its own expenses, including,
without limitation, fees of experts or counsel. Absent an agreement,
the fees of the Arbitrator will be paid by the party or parties losing
an arbitration entirely. If no party loses an arbitration entirely (as
determined by the Arbitrator), the parties shall share equally (or pro
rata if more than two parties) the fees and expenses, if any, of the
Arbitrator, absent an agreement otherwise.
Sec. 1108.6 Arbitrators.
(a) Arbitration shall be conducted by an arbitrator (or panel of
arbitrators) 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 initial roster of arbitrators shall be established
by the RSTAC in consultation with the Chairman of the STB, and shall
contain not fewer than 21 names. The roster shall thereafter be
maintained by the Chairman of the STB, who may augment the roster at
any time to include other eligible arbitrators and may remove from the
roster any arbitrators who are no longer available. The initial roster
shall be published; thereafter the roster shall be available to the
public, upon request, at all times. For each arbitrator on the roster,
the roster shall disclose the level of the fee (or fee range) charged
by that arbitrator.
(b) The parties to a dispute may select an arbitrator (or panel of
arbitrators) and submit the name(s) (and, if not already on the roster
of arbitrators, the qualifications) of the agreed-upon person(s) in
writing to the Chairman of the STB. Any person(s) so designated who is
not already on the roster, if found to be qualified, will be added to
the roster and may be used as the arbitrator(s) for that dispute.
(c) If the parties cannot agree upon an arbitrator (or panel of
arbitrators), then each party shall, using the roster of arbitrators,
strike through the names of any arbitrators to whom they object, number
the remaining arbitrators on the list in order of preference, and
submit its marked roster to the Chairman of the STB. The Chairman will
then designate the arbitrator (or panel of arbitrators, if mutually
preferred by the parties) in order of the highest combined ranking of
all of the parties to the arbitration.
(d) The process of selecting an Arbitrator pursuant to this section
shall be conducted confidentially following the completion of the
Arbitration Commencement Procedures set forth in Sec. 1108.7 hereof.
(e) If, at any time during the arbitration process, a selected
Arbitrator becomes incapacitated, unwilling or unable to fulfill his/
her duties, or if both parties agree that the arbitrator should be
replaced, a replacement Arbitrator will be promptly selected under the
process set forth in paragraphs (b) and (c) of this section.
Sec. 1108.7 Arbitration commencement procedures.
(a) Each demand for arbitration shall be commenced with a written
complaint. Because arbitration under these procedures is both voluntary
and binding, the complaint must set forth in detail: the nature of the
dispute; the statutory basis of STB jurisdiction; a clear, separate
statement of each issue as to which arbitration is sought; and the
specific relief sought. Each complaint shall contain a sworn, notarized
verification, by a responsible official of the complaining party, that
the factual allegations contained in the complaint are true and
accurate. Each complaint must contain a statement that the complainant
is willing to arbitrate pursuant to these arbitration rules and be
bound by the result thereof in accordance with those rules, and must
contain a demand that the defendants likewise agree to arbitrate and be
so bound.
(b) The complaining party shall serve, by overnight mail or hand
delivery, a signed and dated original of the complaint on each
defendant (on a responsible official at his or her usual place of
business), and an original and two copies on the STB, accompanied by
the filing fee prescribed under Sec. 1108.5(a) and set forth in 49 CFR
1002.2(f)(87). Each complaint served on a defendant shall be
accompanied by a copy of this part 1108.
(c) Any defendant willing to enter into arbitration under these
rules must, within 30 days of the date of a
[[Page 46219]]
complaint, answer the complaint in writing. The answer must contain a
statement that the defendant is willing to arbitrate each arbitration
issue set forth in the complaint or specify which such issues the
defendant is willing to arbitrate. 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 defendant and the STB in writing whether the
complainant is willing to arbitrate on that basis. Upon the agreement
of the parties to arbitrate, these rules will be deemed incorporated by
reference into the arbitration agreement.
(d) The answer of a party willing to arbitrate shall also contain
that party's specific admissions or denials of each factual allegation
contained in the complaint, affirmative defenses, and any counterclaims
or set-offs which the defendant wishes to assert against the
complainant. The right of a defendant to advance any counterclaims or
set-offs, and the capacity of an Arbitrator to entertain and render an
award with respect thereto, is subject to the same jurisdictional
limits as govern the complaint.
(e) A defendant's answer must be served on the complainant, other
parties, and the STB in the same manner as the complaint.
(f) A defendant willing to enter into arbitration under these
procedures only if it is able to obtain cross-relief against another
defendant or a non-party may serve an answer containing an agreement to
arbitrate that is conditioned upon the willingness of any such third
party to enter into arbitration as a third party defendant.
Simultaneously with the service of any such conditional answer, the
defendant making such answer shall serve a complaint and demand for
arbitration on the party whose presence that defendant deems to be
essential, such complaint and demand to be drawn and served in the same
manner as provided in paragraphs (a) and (b) of this section. A
defendant receiving such a complaint and demand for arbitration and
that is willing to so arbitrate shall respond in the same manner as
provided in paragraphs (c), (d), and (e) of this section.
(g) Upon receipt of a complaint and demand for arbitration served
by a complainant on a defendant, or by a defendant on a third-party
defendant, the STB promptly will notify the parties serving and
receiving such documents of any patent deficiencies, jurisdictional or
otherwise, which the STB deems fatal to the processing of the
complaint, and will suspend the timetable for processing the
arbitration until further notice. If the complainant is unwilling or
unable to remedy such deficiencies to the satisfaction of the STB
within such time as the STB may specify, the complaint shall be deemed
to be withdrawn without prejudice. Upon satisfaction that two or more
parties have unconditionally agreed to arbitrate under these
procedures, the STB will so notify the parties and commence procedures
for the selection of an Arbitrator.
(h) An agreement to arbitrate pursuant to these rules will be
deemed a contract to arbitrate, subject to limited review by the STB
pursuant to Sec. 1108.11(c), for the purpose of subjecting the
arbitration award to the provisions of 9 U.S.C. 9 (court enforcement of
an arbitration award), and 9 U.S.C. 10 (vacation of an arbitration
award by a court on certain limited grounds).
Sec. 1108.8 Arbitration procedures.
(a) The Arbitrator will establish rules, including timetables, for
each arbitration proceeding.
(1) The evidentiary process will be completed within 90 days from
the start date established by the arbitrator, and the arbitrator's
decision will be issued within 30 days from the close of the record.
The parties may agree to vary these timetables, however, subject to the
approval of the arbitrator. Matters handled through arbitration under
these rules are exempted from any applicable statutory time limits,
pursuant to 49 U.S.C. 10502.
(2) Discovery will be available only upon the agreement of the
parties.
(b) Evidence will be submitted under oath. Evidence may be
submitted in writing or orally, at the direction of the Arbitrator.
Hearings for the purpose of cross-examining witnesses will be permitted
at the sound discretion of the Arbitrator. The Arbitrator, at his/her
discretion, may require additional evidence.
(c) Subject to alteration by the Arbitrator or by agreement of the
parties in individual proceedings, as a general rule, where evidence is
submitted in written form, the complaining party will proceed first,
and the defendant will proceed next. The complainant will then be given
an opportunity to submit a reply. At the discretion of the Arbitrator,
argument may be submitted with each evidentiary filing or in the form
of a brief after the submission of all evidence. Page limits will be
set by each Arbitrator for all written submissions of other than an
evidentiary nature.
(d) Any written document, such as a common carrier rate schedule,
upon which a party relies should be submitted as part of that party's
proof, in whole or in relevant part. The Arbitrator will not be bound
by formal rules of evidence, but will avoid basing a decision entirely
or largely on unreliable proof.
(e) Where proof submitted to an Arbitrator addresses railroad
costs, such proof should be prepared in accordance with the standards
employed by the STB in ascertaining the costs at issue. Discovery
should be sufficient to enable parties to meet these standards.
(f) Where the Arbitrator is advised that any party to an
arbitration proceeding wishes to keep matters relating to the
arbitration confidential, the Arbitrator shall take such measures as
are reasonably necessary to ensure that such matters are treated
confidentially by the parties or their representatives and are not
disclosed by the Arbitrator to non-authorized persons. If the
Arbitrator regards any confidential submission as being essential to
his/her written decision, such information may be considered in the
decision, but the Arbitrator will make every effort to omit
confidential information from his/her written decision.
Sec. 1108.9 Decisions.
(a) Decisions of the Arbitrator shall be in writing and shall
contain findings of fact and conclusions. All such decisions shall be
served by the Arbitrator by hand delivery or overnight mail on the
parties. At the same time, the arbitrator shall notify the STB, in
writing, that a decision has been rendered.
(b) By agreeing to arbitrate 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.
Sec. 1108.10 Precedent.
Decisions rendered by arbitrators pursuant to these procedures
shall have no precedential value.
Sec. 1108.11 Enforcement and appeals.
(a) An arbitration decision rendered pursuant to these procedures
may be appealed to the STB within 20 days of service of such decision.
Any such appeal shall be served by hand delivery or overnight mail on
the parties and on the STB, together with a copy of the arbitration
decision. Replies to such appeals may be filed within 20 days of the
filing of the appeal with the Board.
[[Page 46220]]
An appeal or a reply under this paragraph shall not exceed 20 pages in
length. The parties shall furnish to the STB an original and 10 copies
of appeals and replies filed pursuant to this section. The filing fee
for an appeal will be as set forth in 49 CFR 1002.2(f)(87).
(b) The filing of an appeal, as allowed in paragraph (a) of this
Sec. 1108.11, automatically will stay an arbitration decision pending
disposition of the appeal. The STB will decide any such appeal within
50 days after the appeal is filed. Such decision by the STB shall be
served in accordance with normal STB service procedures.
(c) The STB will review, and may vacate or amend, an arbitration
award, in whole or in part, only on the grounds that such award
(1) exceeds the STB's statutory jurisdiction; or
(2) does not take its essence from the Interstate Commerce Act.
(d) Effective arbitration decisions rendered pursuant to these
procedures, whether or not appealed to the STB, may only be enforced in
accordance with 9 U.S.C. 9 and vacated by a court in accordance with 9
U.S.C. 10, except that an STB decision vacating an arbitration award is
reviewable under the Hobbs Act, 28 U.S.C. 2321, 2342.
Sec. 1108.12 Additional matters.
Where an arbitration demand is filed by one or more complainants
against one or more defendants, the complainants as a group and the
defendants as a group shall be entitled to exercise those rights, with
respect to the selection of arbitrators, as are conferred on individual
arbitration parties.
[FR Doc. 97-23056 Filed 8-29-97; 8:45 am]
BILLING CODE 4915-00-P
