Federal Register / Vol. 77, No. 63 / Monday, April 2, 2012 / Proposed Rules 19591 

be one obvious way to measure any effect 

that requiring EOBRs might have on driver 

harassment (Id. at 588–89). 

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 http:// 

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 

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 

information on how to participate via 

the Internet and the telephone access 

number will be on the FMCSA Web site 

at http://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 

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 


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1Mediation 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. 

2Assessment of Mediation and Arbitration 

Procedures, EP 699 (STB served Aug. 20, 2010). 

3Assessment of Mediation and Arbitration 

Procedures, 75 FR 52,054. 

4 Id., EP 699 (STB served Dec. 3, 2010). 

5RSTAC 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.) 

6The 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. 7The Board has authority to revise its arbitration 

rules under 49 U.S.C. 721(a). 

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 

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 

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. 


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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 § 1002.2 by revising 

paragraph (f)(87) and by removing and 

reserving paragraph (f)(88) to read as 

follows: 

§ 1002.2 Filing fees. 

* * * * * 

(f) * * * 

Type of proceeding Fee 

* * * * * 

Part VI: Informal Proceedings 

* * * * * 

(87) Basic fee for STB adjudicatory 

services not otherwise covered ...... $250 

(88) [Reserved].

Type of proceeding Fee 

* * * * * 

* * * * * 

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 § 1011.7 by adding 

paragraphs (a)(2)(xvii), (a)(2)(xviii) and 

(a)(2)(xix) 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. 

* * * * * 

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 § 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. 

(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: 

§ 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 § 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 


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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 

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 

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 


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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: 

§ 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 § 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. 

(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 


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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, 

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. 

§ 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 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-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). 

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 § 1111.10 by revising 

paragraph (b) to read as follows: 

§ 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 § 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 


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