§ 1108.4 Use of arbitration. ( a ) *Arbitration-program-eligible matters.* Matters eligible for arbitration under the Board's program are: rates; Demurrage; accessorial charges; misrouting or mishandling of rail cars; and disputes involving a carrier's published rules and practices as applied to particular rail transportation. Parties may agree in writing to arbitrate additional matters on a case-by-case basis as provided in paragraph (e) of this section.
( b ) *Monetary award cap.* Arbitration claims will be subject to the arbitration program award cap of $25,000,000, including any rate prescription, per rate dispute and $2,000,000 per practice dispute unless: ( 1 ) The defending party's opt-in notice provides for a lower monetary cap or;
( 2 ) The parties agree to select a lower award cap that will govern their arbitration proceeding. The parties may change the award cap by incorporating an appropriate provision in their agreement to arbitrate.
( 3 ) Counterclaims will not offset against the monetary award cap of the initiating claim. A counterclaim is an independent claim and is subject to a monetary award cap of $25,000,000, including any rate prescription, per rate dispute and $2,000,000 per practice dispute, separate from the initiating claim, or to a lower cap agreed upon by the parties in accordance with § 1108.4(b)(2).
( c ) *Assignment of arbitration-program-eligible matters.* The Board shall assign to arbitration all arbitration-program-eligible disputes 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 for a particular dispute.
( d ) *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 (e) of this section to include additional disputes.
( e ) *Other matters.* Parties may petition the Board, on a case-by-case basis, to assign to arbitration disputes, or portions of disputes, not listed as arbitration-program-eligible matters. This may include counterclaims and affirmative defenses. Such disputes are subject to a monetary award cap of $2,000,000 or to a lower cap agreed upon by the parties in accordance with paragraph (b)(2) of this section. The Board will not consider for arbitration types of disputes that are expressly prohibited in § 1108.2(b).
( f ) *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.
( g ) *Rate disputes.* Arbitration of rate disputes will only be available to parties if the rail carrier has market dominance as determined by the Board under 49 U.S.C. 10707. In rate disputes, the arbitrator or panel of arbitrators, as applicable, shall consider the Board's methodologies for setting maximum lawful rates, giving due consideration to the need for differential pricing to permit a rail carrier to collect adequate revenues (as determined under 49 U.S.C. 10704(a)(2)).
[78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016]