[Federal Register Volume 77, Number 63 (Monday, April 2, 2012)]
[Proposed Rules]
[Pages 19591-19596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7836]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Parts 1002, 1011, 1108, 1109, 1111, and 1115

[Docket No. EP 699]


Assessment of Mediation and Arbitration Procedures

AGENCY: Surface Transportation Board.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Surface Transportation Board (Board or STB) proposes 
regulations that would require parties to participate in mediation in 
certain types of cases and would modify its existing regulations that 
permit parties to engage voluntarily in mediation. The Board also 
proposes an arbitration program under which carriers and shippers would 
agree voluntarily to arbitrate certain types of disputes that come 
before the Board, and proposes modifications to clarify and simplify 
its existing rules governing the use of arbitration in other disputes. 
The Board seeks comments regarding these proposed rules.

DATES: Comments are due by May 17, 2012. Replies are due June 18, 2012.

ADDRESSES: Comments, information, or questions regarding this proposed 
rule should reference Docket No. EP 699 and be in writing addressed to: 
Chief, Section of Administration, Office of Proceedings, Surface 
Transportation Board, 395 E Street SW., Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Amy C. Ziehm at 202-245-0391. 
[Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at 1-800-877-8339.]

SUPPLEMENTARY INFORMATION: The Board favors the resolution of disputes 
through the use of mediation and arbitration procedures, in lieu of 
formal Board

[[Page 19592]]

proceedings, wherever possible.\1\ To that end, the Board has existing 
rules that encourage parties to agree voluntarily to mediate or 
arbitrate certain matters subject to its jurisdiction. The Board's 
mediation rules are set forth at 49 CFR 1109.1, 1109.3, 1109.4, 1111.2, 
1111.9, and 1111.10. Its arbitration rules are set forth at 49 CFR 
1108, 1109.1, 1109.2, 1109.3, and 1115.8. In a decision served on 
August 20, 2010,\2\ and published in the Federal Register on August 24, 
2010,\3\ the Board sought input regarding measures it might implement 
to encourage or require greater use of mediation, and to encourage 
greater voluntary use of arbitration, including making changes to the 
Board's existing rules and establishing new rules. The Board also 
sought input regarding possible changes to its rules to permit the use 
of Board-facilitated mediation procedures without the filing of a 
formal complaint. The Board served a subsequent notice in this matter 
on December 3, 2010,\4\ to clarify that any comments filed by the 
Railroad-Shipper Transportation Advisory Council (RSTAC) would be 
accorded the same weight as other comments in developing any new 
rules.\5\ The modifications to the Board's rules proposed in this 
decision are intended to increase the use of mediation and arbitration 
in lieu of formal adjudication to resolve disputes before the Board.
---------------------------------------------------------------------------

    \1\ Mediation is a process in which parties attempt to negotiate 
an agreement that resolves some or all of the issues in dispute, 
with the assistance of a trained, neutral, third-party mediator. 
Arbitration, by comparison, is an informal evidentiary process 
conducted by a trained, neutral, third-party arbitrator with 
expertise in the subject matter of the dispute. By agreeing to 
participate in arbitration, the parties agree to be bound (with 
limited appeal rights) by the arbitral decision.
    \2\ Assessment of Mediation and Arbitration Procedures, EP 699 
(STB served Aug. 20, 2010).
    \3\ Assessment of Mediation and Arbitration Procedures, 75 FR 
52,054.
    \4\ Id., EP 699 (STB served Dec. 3, 2010).
    \5\ RSTAC is an advisory board established by Federal law to 
advise the U.S. Congress, the U.S. Department of Transportation, and 
the Board on issues related to rail transportation policy, with 
particular attention to issues of importance to small shippers and 
small railroads. By statute, RSTAC members are appointed by the 
Board's chairman. Representatives of large and small rail customers, 
Class I railroads, and small railroads sit on RSTAC. The Board's 
members and the U.S. Secretary of Transportation are ex officio, 
nonvoting RSTAC members. (49 U.S.C. 726.)
---------------------------------------------------------------------------

    The proposed changes to the existing mediation rules would 
establish procedures under which the Board could compel mediation in 
certain types of adjudications before the Board, on a case-specific 
basis, as well as to grant mediation requests of parties to 
disputes.\6\ As is the current practice, the Board would assign staff 
from its Rail Customer and Public Assistance (RCPA) program, who are 
trained mediators, to conduct the mediation process. Mediation periods 
would last up to 30 days, and could be extended upon the mutual request 
of the parties. The Board would reserve the right to stay underlying 
proceedings and toll any applicable statutory deadlines. The Board 
believes that the proposed mediation rules would be in the public 
interest. If a dispute is amicably resolved, the parties could do so at 
considerably less expense and in less time than if they used the 
Board's formal adjudicatory process, and could better preserve their 
ongoing commercial relationship.
---------------------------------------------------------------------------

    \6\ The Board's authority to revise its mediation rules exists 
under 49 U.S.C. 721(a) and under the Alternative Dispute Resolution 
Act, 5 U.S.C. 571-584.
---------------------------------------------------------------------------

    The proposed changes to the Board's arbitration rules are intended 
to consolidate the separate arbitration procedures in Parts 1108 and 
1109, to encourage greater use of arbitration to resolve disputes 
before the Board by simplifying the process, and by clarifying the 
types of disputes that may be submitted for arbitration.\7\ Moreover, 
the Board proposes establishing an ``arbitration program'' to cover a 
subset of arbitrable disputes, in which rail carriers may voluntarily 
participate. The Board believes that the proposed arbitration program 
would provide value to both carriers and shippers, because disputes can 
be resolved through arbitration in a more timely and less adversarial 
fashion than through the Board's formal adjudicatory processes, and 
arbitration could help the parties to preserve their commercial 
relationship. It likewise would allow carriers more flexibility in 
resolving customer-specific disputes because resolution would be 
confidential and nonprecedential, unless the arbitrator's decision is 
appealed.
---------------------------------------------------------------------------

    \7\ The Board has authority to revise its arbitration rules 
under 49 U.S.C. 721(a).
---------------------------------------------------------------------------

    Under the arbitration program, rail carriers would agree, in 
advance, to submit to binding arbitration certain defined types of 
disputes, such as complaints related to demurrage and accessorial 
charges, or the misrouting or mishandling of rail cars, where the 
complainant seeks monetary damages for past harm, not for injunctive or 
prospective relief. The Board also proposes to limit the relief that an 
arbitrator could award to no more than $200,000, plus interest. 
Commenters are invited to suggest a different dollar cap that they 
believe would better capture the majority of such disputes that would 
be best resolved through arbitration. Arbitration under the arbitration 
program would be mandatory for the carrier either where the dispute 
involves only carriers that are participants in the Board's arbitration 
program, or where the dispute involves at least one carrier-participant 
and all other parties to the dispute consent to arbitration pursuant to 
the arbitration program.
    In addition, the proposed rules provide for arbitration of most 
other types of adjudicatory disputes before the Board where all parties 
agree, on a case-by-case basis, to participate in binding arbitration. 
In all arbitrations, the Board would assign an arbitrator from a roster 
of eligible arbitrators, or could grant a mutual request from the 
parties to use a particular arbitrator, whether listed on the roster or 
not.
    The proposed mediation and arbitration rules would not be 
available, however, to resolve any matter in which the Board is 
statutorily required to determine the public convenience and necessity 
(PCN). Thus, these procedures would not be available to obtain the 
grant, denial, stay or revocation of any license, authorization (e.g., 
construction, abandonment, purchase, trackage rights, merger, pooling) 
or exemption related to these matters. Should participants in such 
matters, however, reach a voluntary agreement resolving certain issues 
pertaining to a license or authorization proceeding, the Board would 
give due consideration to that resolution in weighing the PCN. These 
rules would also not be available to arbitrate a labor protection 
dispute, which has its own procedures; however, voluntary mediation of 
such disputes under the proposed rules would be available.
    Additional information is contained in the Board's decision. The 
full decision is available on the Board's Web site at www.stb.dot.gov.
    This action will not significantly affect either the quality of the 
human environment or the conservation of energy resources.
    It is ordered:
    1. The Board proposes to amend its rules as set forth in this 
decision. Notice of the proposed rules will be published in the Federal 
Register.
    2. Comments regarding these proposed rules are due by May 17, 2012. 
Replies are due by June 18, 2012.
    3. This decision is effective on the day of service.

[[Page 19593]]

List of Subjects

49 CFR Part 1002

    Administrative practice and procedure, Common carriers, Freedom of 
information.

49 CFR Part 1011

    Administrative practice and procedure, Authority delegations 
(Government agencies), Organization and functions (Government 
agencies).

49 CFR Part 1108

    Administrative practice and procedure, Railroads.

49 CFR Part 1109

    Administrative practice and procedure, Maritime carriers, Motor 
carriers, Railroads.

49 CFR Part 1111

    Administrative practice and procedure, Investigations.

49 CFR Part 1115

    Administrative practice and procedure.

    Decided: March 28, 2012.

    By the Board, Chairman Elliott, Vice Chairman Mulvey, and 
Commissioner Begeman.
Jeffrey Herzig,
Clearance Clerk.

    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend parts 1002, 1011, 1108, 1109, 
1111, and 1115 of title 49, chapter X, of the Code of Federal 
Regulations as follows:

PART 1002--FEES

    1. The authority citation for part 1002 continues to read as 
follows:

    Authority:  5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and 
49 U.S.C. 721. Section 1002.1(g)(11) also issued under 5 U.S.C. 5514 
and 31 U.S.C. 3717.

    2. Amend Sec.  1002.2 by revising paragraph (f)(87) and by removing 
and reserving paragraph (f)(88) to read as follows:


Sec.  1002.2  Filing fees.

* * * * *
    (f) * * *

------------------------------------------------------------------------
                       Type of proceeding                           Fee
------------------------------------------------------------------------
 
                                * * * * *
                      Part VI: Informal Proceedings
 
                                * * * * *
(87) Basic fee for STB adjudicatory services not otherwise          $250
 covered........................................................
(88) [Reserved].................................................
 
                                * * * * *
------------------------------------------------------------------------

* * * * *

PART 1011--BOARD ORGANIZATION; DELEGATIONS OF AUTHORITY

    3. The authority citation for part 1011 continues to read as 
follows:

    Authority:  5 U.S.C. 553; 31 U.S.C. 9701; 49 U.S.C. 701, 721, 
11123, 11124, 11144, 14122, and 15722.

    4. Amend Sec.  1011.7 by adding paragraphs (a)(2)(xvii), 
(a)(2)(xviii) and (a)(2)(xix) to read as follows:


Sec.  1011.7  Delegations of authority by the Board to specific offices 
of the Board.

    (a) * * *
    (2) * * *
    (xvii) To authorize parties to a proceeding before the Board, upon 
mutual request, to participate in meditation with a Board-appointed 
mediator, for a period of up to 30 days.
    (xviii) To authorize a proceeding held in abeyance while mediation 
procedures are pursued, pursuant to a mutual request of the parties to 
the matter.
    (xix) To order arbitration of program-eligible matters under the 
Board's regulations at 49 CFR Part 1108, or upon the mutual request of 
parties to a proceeding before the Board.
* * * * *

PART 1108--ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY 
JURISDICTION OF THE SURFACE TRANSPORTATION BOARD

    5. The authority citation for part 1011 continues to read as 
follows:

    Authority:  49 U.S.C. 721(a).

    6. Revise Sec.  1108.1 to read as follows:


Sec.  1108.1  Definitions.

    As used in this part:
    (a) Arbitration program means a program established by the Surface 
Transportation Board under which participating rail carriers have 
agreed voluntarily in advance to resolve certain types of disputes 
brought before the Board using the Board's arbitration procedures.
    (b) Arbitration program-eligible matters are those disputes, or 
components of disputes, that may be resolved using the Board's 
arbitration program and include disputes involving one or more of the 
following subjects: Demurrage, accessorial charges; misrouting or 
mishandling of rail cars; disputes involving a carrier's published 
rules and practices as applied to particular rail transportation; and 
other service-related matters.
    (c) Arbitrator means an arbitrator appointed pursuant to these 
rules.
    (d) Interstate Commerce Act means the Interstate Commerce Act as 
amended by the ICC Termination Act of 1995.
    (e) STB or Board means the Surface Transportation Board.
    (f) Statutory jurisdiction means the jurisdiction conferred on the 
STB by the Interstate Commerce Act, including jurisdiction over rail 
transportation or services that have been exempted from regulation.
    7. Amend Sec.  1108.2 by revising paragraph (b) and removing 
paragraph (d) to read as follows:


Sec.  1108.2  Statement of purpose, organization, and jurisdiction.

* * * * *
    (b) These procedures shall be available for use in the resolution 
of all matters arbitrated before the Board, other than matters 
involving labor protective conditions, which are subject to different 
rules. These procedures shall not be available to obtain the grant, 
denial, stay or revocation of any license, authorization (e.g., 
construction, abandonment, purchase, trackage rights, merger, pooling), 
or exemption related to such matters.
* * * * *
    8. Revise Sec.  1108.3 to read as follows:


Sec.  1108.3  Matters subject to arbitration.

    (a) Use of arbitration--(1) Arbitration program-eligible matters. 
The Board shall assign to arbitration all arbitration program-eligible 
matters arising in a docketed proceeding where all parties to the 
proceeding are participants in the Board's arbitration program, or 
where one or more parties to the matter are participants in the Board's 
arbitration program, and all other parties to the proceeding request or 
consent to arbitration.
    (2) Matters partially arbitration program-eligible. Where the 
issues in a proceeding before the Board relate in part to arbitration 
program-eligible matters, only those parts of the dispute related to 
arbitration program-eligible matters may be arbitrated pursuant to the 
arbitration program, unless the parties petition the Board in 
accordance with paragraph (a)(3) of this section to include non-
arbitration program-eligible matters.
    (3) Other matters. Parties may petition the Board, on a case-by-
case basis, to assign to arbitration disputes, or portions of disputes, 
that do not relate to arbitration program-eligible matters, other than 
matters in which the Board is statutorily required to determine the 
public convenience and necessity and

[[Page 19594]]

those involving labor protective conditions.
    (4) Mutual agreement required. The Board will not assign to 
arbitration any dispute in which one or more parties is not a 
participant in the Board's arbitration program and does not otherwise 
consent to arbitration.
    (b) Participation in the Board's arbitration program--(1) Class I 
and Class II rail carriers. Class I and Class II rail carriers are 
deemed to have agreed in advance to participate in the Board's 
arbitration program, unless they have opted out of the program. To opt 
out, a Class I or Class II carrier shall do either of the following:
    (i) File a notice, under docket number EP 699, informing the Board 
of its opt-out decision no later than 20 days following the effective 
date of these rules, and subsequently, no later than January 10 (or the 
immediately following business day) of each calendar year. Such notice 
shall take effect immediately.
    (ii) File a notice with the Board, under docket number EP 699, at 
any time. Such notice shall take effect 90 days after filing and shall 
not excuse the filing carrier from arbitration proceedings that are 
ongoing, or permit it to withdraw its consent to participate in any 
arbitration program-eligible dispute associated with any matter pending 
before the Board at any time within the 90-day period before the opt-
out notice takes effect. Class I and Class II rail carriers that opt 
out of the arbitration program will be deemed to be participants in the 
program in subsequent years if they do not file a new notice with the 
Board each year. A carrier that has opted out of the arbitration 
program may opt into the arbitration program at any time by notifying 
the Board. Opt-in notices shall take effect immediately.
    (2) Class III rail carriers. A Class III rail carrier may 
participate in the Board's arbitration program by filing a written 
notice with the Board under docket number EP 699, advising the Board of 
its intent to participate in the program. Such notice may be filed at 
any time and shall take effect immediately. A participating Class III 
carrier shall remain a participant in the Board's arbitration program 
thereafter, unless it files a notice with the Board under docket number 
EP 699, advising the Board of its intent to cease participation in the 
arbitration program. Such notice shall take effect 90 days after filing 
and shall not excuse the filing carrier from arbitration proceedings 
that are ongoing, or permit it to withdraw its consent to participate 
in any arbitration program-eligible dispute associated with any matter 
pending before the Board at any time within the 90-day period before 
the opt-out notice takes effect.
    (3) Shippers and other parties. Shippers and other parties may 
participate in arbitration-program eligible arbitrations on a case-by-
case basis by filing notice with the Board. Such notice shall be filed 
under the docket number assigned to the proceeding, indicating 
agreement to participate in arbitration.
    (c) Arbitrator's authority. In resolving any dispute subject to the 
Board's arbitration procedures, the arbitrator shall not be bound by 
any procedural rules or regulations adopted by the STB for the formal 
resolution of similar disputes, except as specifically provided in this 
Part 1108. The arbitrator, however, shall be guided by the Interstate 
Commerce Act and by STB and ICC precedent.
    (d) Arbitration clauses. Nothing in the Board's regulations shall 
preempt the applicability of, or otherwise supersede, any new or 
existing arbitration clauses contained in agreements between shippers 
and carriers.
    9. Amend Sec.  1108.4 by revising paragraphs (a)(1) and (a)(2) and 
removing paragraph (b) to read as follows:


Sec.  1108.4  Relief.

    (a) * * *
    (1) Monetary damages, to the extent available under the Interstate 
Commerce Act, shall be available through the arbitration. In disputes 
arbitrated pursuant to the Board's arbitration program, damages shall 
not exceed $200,000, exclusive of interest at a reasonable rate to be 
specified by the arbitrator. Participants in the Board's arbitration 
program shall not be obligated to arbitrate any dispute in which the 
alleged damages exceed $200,000.
    (2) No prospective or injunctive relief shall be available through 
the Board's arbitration program, or through any other arbitration 
before the Board.
* * * * *
    10. Revise Sec.  1108.5 to read as follows:


Sec.  1108.5  Fees and costs.

    When parties use the Board's arbitration procedures to resolve a 
dispute, the party filing the complaint shall pay the applicable filing 
fee pursuant to 49 CFR Part 1002. The Board shall pay any fees and/or 
costs charged by the arbitrator, except where parties agree to use an 
arbitrator not included on the roster of arbitrators maintained by the 
Board, as described in Sec.  1108.6(a), in which case the parties shall 
share the fees and/or costs of the arbitrator.
    11. Revise Sec.  1108.6 to read as follows:


Sec.  1108.6  Arbitrators.

    (a) Arbitration shall be conducted by a single arbitrator selected, 
as provided herein, from a roster of persons (other than active 
government officials) experienced in rail transportation or economic 
issues similar to those capable of arising before the STB. The roster 
of arbitrators shall be established by the Chairman of the STB with 
input from interested parties who may nominate individuals for 
inclusion on the list. The roster shall thereafter be maintained and 
updated by the Chairman of the STB on an every other year basis. The 
roster may also be augmented or revised at any time, and interested 
parties are encouraged to nominate qualified individuals for addition 
to the list. The roster shall be available to the public, upon request, 
and shall be posted on the Board's Web site at www.stb.dot.gov.
    (b) Matters arbitrated under these rules shall be resolved by a 
single neutral arbitrator, selected by the Board, from the roster of 
qualified arbitrators. If the parties to an arbitration proceeding 
mutually agree upon an arbitrator (whether listed on the roster or not) 
to resolve their dispute, they may petition the Board to appoint that 
arbitrator to the arbitration proceeding.
    (c) If, at any time during the arbitration process, a selected 
arbitrator becomes incapacitated, unwilling, or unable to fulfill his/
her duties, or if all parties agree that the arbitrator should be 
replaced, a replacement arbitrator will be selected promptly under the 
process set forth in paragraphs (a) and (b) of this section.
    12. Revise Sec.  1108.7 to read as follows:


Sec.  1108.7  Arbitration commencement procedures.

    (a) Each arbitration under these rules shall commence with a 
written complaint, which shall be filed and served in accordance with 
Board rules contained at Part 1104. Each complaint must contain a 
statement that the complainant is a participant in the Board's 
arbitration program pursuant to Sec.  1108.3(b), or that the 
complainant is willing to arbitrate voluntarily all or part of the 
dispute pursuant to the Board's arbitration procedures. Following the 
filing of a complaint whose subject matter is arbitration program-
eligible, the Board shall issue a notice advising other parties of 
whether any carrier-parties to the matter are participants in the 
arbitration program.
    (b) Any respondent must, within 20 days of the date of the filing 
of a

[[Page 19595]]

complaint, answer the complaint. The answer must state whether the 
respondent is a participant in the Board's arbitration program, or 
whether the respondent is willing to arbitrate on a voluntary basis. 
Where the respondent agrees to arbitrate voluntarily, the answer must 
identify those issues contained in the complaint that the respondent is 
willing to resolve through arbitration. The answer must also identify 
any issues contained in the complaint that the respondent is not 
willing to resolve through arbitration. If the answer contains an 
agreement to arbitrate some but not all of the arbitration issues in 
the complaint, the complainant will have 10 days from the date of the 
answer to advise the respondent and the Board in writing whether the 
complainant is willing to arbitrate on that basis. Where the respondent 
is a participant in the Board's arbitration program, the answer should 
further state that the respondent has thereby agreed to use arbitration 
to resolve all of the arbitration program-eligible issues in the 
complaint. The Board will then set the matter for arbitration, if 
appropriate, and assign an arbitrator.
    13. Revise Sec.  1108.8 to read as follows:


Sec.  1108.8  Arbitration procedures.

    The arbitrator shall establish all rules for each arbitration 
proceeding, including with regard to discovery, the submission of 
evidence and the treatment of confidential information, subject to the 
requirements that the evidentiary process shall be completed within 90 
days from the start date established by the arbitrator, and that the 
arbitrator's decision will be issued within 30 days following 
completion of the evidentiary phase.
    14. Revise Sec.  1108.9 to read as follows:


Sec.  1108.9  Decisions.

    (a) Decisions of the arbitrator shall be in writing and shall 
contain findings of fact and conclusions.
    (b) The arbitrator simultaneously shall serve a copy of the 
decision on the parties and upon the Board. The arbitrator may serve 
the decision via any service method permitted by the Board's 
regulations that is consistent with protecting the confidentiality of 
the decision, if so requested by the parties.
    (c) By arbitrating pursuant to these procedures, each party agrees 
that the decision and award of the arbitrator shall be binding and 
judicially enforceable in law and equity in any court of appropriate 
jurisdiction, subject to a limited right of appeal to the STB, as 
provided below.
    15. Revise Sec.  1108.11 to read as follows:


Sec.  1108.11  Enforcement and appeals.

    (a) A party may petition the Board to modify or vacate an arbitral 
award. The appeal must be filed within 20 days of service of a final 
arbitration decision, and is subject to the page limitations of Sec.  
1115.2(d) of this chapter. Copies of the appeal shall be served upon 
all parties in accordance with the Board's rules at Part 1104. The 
appealing party shall also serve a copy of its appeal upon the 
arbitrator. Replies to such appeals shall be filed within 20 days of 
the filing of the appeal with the Board, and shall be subject to the 
page limitations of Sec.  1115.2(d) of this chapter.
    (b) The timely filing of a petition will not automatically stay the 
effect of the arbitration decision. A stay may be requested under Sec.  
1115.3(f) of this chapter.
    (c) The STB will review, and may modify or vacate, an arbitration 
award, in whole or in part, only on grounds that such award reflects a 
clear abuse of arbitral authority or discretion.
    16. Revise Part 1109 to read as follows:

PART 1109--USE OF MEDIATION IN BOARD PROCEEDINGS

Sec.
1109.1 Mediation.
1109.2 Commencement of mediation.
1109.3 Mediation procedures.
1109.4 Mandatory mediation in rate cases to be considered under the 
stand-alone cost methodology.

    Authority:  5 U.S.C. 571 et seq.


Sec.  1109.1  Mediation.

    Parties may seek to resolve a dispute brought before the Board 
using the Board's mediation procedures. These procedures shall not be 
available to obtain the grant, denial, stay or revocation of any 
license, authorization (e.g., construction, abandonment, purchase, 
trackage rights, merger, pooling), or exemption related to such 
matters. The Board may, by its own order, direct the parties to 
participate in mediation using the Board's mediation procedures.


Sec.  1109.2  Commencement of mediation.

    (a) Availability of mediation. Mediation may be commenced in a 
dispute before the Board:
    (1) Pursuant to a Board order issued in response to a written 
request of one or more parties to a matter;
    (2) Where the Board orders mediation by its own order; or
    (3) In connection with a rate complaint, as provided by Sec.  
1109.4 and Part 1111 of this chapter.
    (b) Requests for mediation. Parties wishing to pursue mediation may 
file a request for mediation with the Board at any time following the 
filing of a complaint. Parties that use Board mediation procedures 
shall not be required to pay any fees other than the appropriate filing 
fee associated with the underlying dispute, as provided at 49 CFR 
1002.2. The Board shall grant any mediation request submitted by all 
parties to a matter, but may deny mediation where a mediation request 
is not submitted by all parties to a matter.


Sec.  1109.3  Mediation procedures.

    (a) The Board will appoint a Board employee, who is a qualified 
mediator, to facilitate any dispute assigned for mediation. 
Alternatively, the parties to a matter may agree to use a non-Board 
mediator if they so inform the Board within 10 days of an order 
assigning the dispute to mediation. If a non-Board mediator is used, 
the parties shall share the fees and/or costs of the mediator. The 
following restrictions apply to any mediator selected by the Board or 
the parties:
    (1) No person may serve as a mediator who has previously served as 
an advocate or representative, in any matter, for any party to the 
mediation;
    (2) No person serving as a mediator may thereafter serve as an 
advocate for a party in any other proceeding arising from or related to 
the mediated dispute, including, without limitation, representation of 
a party to the mediation before any other federal court or agency; and
    (3) If the mediation does not fully resolve all issues before the 
Board, the person serving as a mediator may not thereafter advise the 
Board regarding the future disposition of the dispute.
    (b) Parties shall have 30 days from the date of the first mediation 
session to reach a settlement agreement, or to narrow the issues in 
dispute, or to agree to stipulations that may be incorporated into any 
adjudication before the Board if mediation does not fully resolve the 
dispute. The mediator may assist the parties in preparing a settlement 
agreement. The mediator shall notify the Board whether the parties have 
reached any agreement by the end of the 30-day period.
    (c) Any settlement agreement reached during or as a result of 
mediation must be in writing, and signed by all parties to the 
mediation. The parties need not provide a copy of the settlement 
agreement to the Board, or otherwise make the terms of the agreement 
public, provided that the parties, or the mediator, notify the Board 
that the parties have reached a mutually

[[Page 19596]]

agreeable resolution, and request that the Board terminate the 
underlying Board proceeding. Parties to the settlement agreement shall 
waive all appeal rights as to the issues resolved by the settlement 
agreement.
    (d) If the parties reach only a partial resolution of their 
dispute, they or the mediator shall so inform the Board, and the 
parties shall file any stipulations they have mutually reached, and ask 
the Board to reactivate the procedural schedule in the underlying 
proceeding to decide the remaining issues.
    (e) The Board may extend mediation for additional periods of time 
not to exceed 30 days per period, pursuant to mutual written requests 
of all parties to the proceeding. The Board will not extend mediation 
for additional periods of time where one or more parties to a matter do 
not agree to an extension. The Board will not order mediation more than 
once in any particular proceeding, but may permit it if all parties to 
a matter mutually request another round of mediation.
    (f) Mediation is a confidential process except for those limited 
exceptions permitted by the Administrative Dispute Resolution Act at 5 
U.S.C. 574.
    (1) All notes taken by participants (including but not limited to 
the mediator, parties, and their representatives) during the mediation 
must be destroyed following the conclusion of the matter subject to 
mediation. As a condition of participation, the parties and any 
interested parties joining the mediation must agree to the 
confidentiality of the mediation process. The parties to mediation, 
including the mediator, shall not testify in administrative or judicial 
proceedings concerning the issues discussed in mediation, nor submit 
any report or record of the mediation discussions, other than the 
settlement agreement with the consent of all parties, except as 
required by law.
    (2) Evidence of conduct or statements made during mediation are not 
admissible in any Board proceeding. However, if mediation fails to 
result in a full resolution of the dispute, evidence that is otherwise 
discoverable may not be excluded from introduction into the record of 
the underlying proceeding merely because it was presented during 
mediation. Such materials may be used if they are disclosed through 
formal discovery procedures established by the Board or other 
adjudicatory body.
    (g) Except as otherwise provided for in 49 CFR 1109.4(f) and Part 
1111, the mutual request of all parties that a proceeding be held in 
abeyance while mediation procedures are pursued should be submitted to 
the Chief, Section of Administration, Office of Proceedings. The Board 
shall promptly issue an order in response to such requests. Except as 
otherwise provided for in 49 CFR 1109.4(f) and Part 1111, the Board may 
also direct that a proceeding be held in abeyance pending the 
conclusion of mediation. The period while any proceeding is held in 
abeyance to facilitate mediation shall not be counted toward any 
applicable statutory deadlines.


Sec.  1109.4  Mandatory mediation in rate cases to be considered under 
the stand-alone cost methodology.

    (a) A shipper seeking rate relief from a railroad or railroads in a 
case involving the stand-alone cost methodology must engage in non-
binding mediation of its dispute with the railroad upon filing a formal 
complaint under 49 CFR Part 1111.
    (b) Within 10 business days after the shipper files its formal 
complaint, the Board will assign a mediator to the case. Within 5 
business days of the assignment to mediate, the mediator shall contact 
the parties to discuss ground rules and the time and location of any 
meeting. At least one principal of each party, who has the authority to 
bind that party, shall participate in the mediation and be present at 
any session at which the mediator requests that the principal be 
present.
    (c) The mediator will work with the parties to try to reach a 
settlement of all or some of their dispute or to narrow the issues in 
dispute, and reach stipulations that may be incorporated into any 
adjudication before the Board if mediation does not fully resolve the 
dispute. If the parties reach a settlement, the mediator may assist in 
preparing a settlement agreement.
    (d) The entire mediation process shall be private and confidential. 
No party may use any concessions made or information disclosed to 
either the mediator or the opposing party before the Board or in any 
other forum without the consent of the other party.
    (e) The mediation shall be completed within 60 days of the 
appointment of the mediator. The mediation may be terminated prior to 
the end of the 60-day period only with the certification of the 
mediator to the Board. Requests to extend mediation, or to re-engage it 
later, will be entertained on a case-by-case basis, but only if filed 
by all interested parties.
    (f) Absent a specific order from the Board, the onset of mediation 
will not affect the procedural schedule in stand alone cost rate cases, 
set forth at 49 CFR 1111.8(a).

PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES

    17. The authority citation for part 1111 continues to read as 
follows:

    Authority:  49 U.S.C. 721, 10704, and 11701.

    18. Amend Sec.  1111.10 by revising paragraph (b) to read as 
follows:


Sec.  1111.10  Meeting to discuss procedural matters.

* * * * *
    (b) Simplified standards complaints. In complaints challenging the 
reasonableness of a rail rate based on the simplified standards, the 
parties shall meet, or discuss by telephone or through email, discovery 
and procedural matters within 7 days after the mediation period ends. 
The parties should inform the Board as soon as possible thereafter 
whether there are unresolved disputes that require Board intervention 
and, if so, the nature of such disputes.

PART 1115--APPELLATE PROCEDURES

    19. The authority citation for part 1115 continues to read as 
follows:

    Authority:  5 U.S.C. 559; 49 U.S.C. 721.

    20. Revise Sec.  1115.8 to read as follows:


Sec.  1115.8  Petitions to review arbitration decisions.

    An appeal of right is permitted. The appeal must be filed within 20 
days of a final arbitration decision, unless a later date is authorized 
by the Board, and is subject to the page limitations of Sec.  
1115.2(d). The standard of review will be whether there is a showing of 
a clear abuse of arbitral authority or discretion. The timely filing of 
a petition will not automatically stay the effect of the arbitration 
decision. A stay may be requested under Sec.  1115.3(f).

[FR Doc. 2012-7836 Filed 3-30-12; 8:45 am]
BILLING CODE 4915-01-P