        FEDERAL COMMUNICATIONS COMMISSION
        47 CFR Part 64
        [CG Docket No. 03-123; FCC 13-119]
        Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities—Waivers of iTRS Mandatory Minimum Standards

          AGENCY:
          Federal Communications Commission.

          ACTION:
          Proposed rule.

          SUMMARY:
          In this document, the Commission proposes to amend its rules setting minimum standards for telecommunications relay services (TRS) by eliminating standards for Internet-based relay services (iTRS) and public switched telephone network-based captioned telephone services (CTS) which are inapplicable to, or technologically infeasible for, these services. In the past and currently, these services had been exempted from these standards by the grant of waivers. This action is necessary to provide greater certainty for iTRS and CTS users and providers with respect to the TRS mandatory minimum standard and to obviate the need for further periodic waiver filings regarding the waived standards.

          DATES:
          Comments are due December 23, 2013 and reply comments are due January 21, 2014.

          ADDRESSES:
          You may submit comments, identified by CG Docket No. 03-123, by any of the following methods:

            Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS), through the Commission's Web site http://fjallfoss.fcc.gov/ecfs2/. Filers should follow the instructions provided on the Web site for submitting comments. For ECFS filers, in completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and CG Docket No. 03-123.
          • Paper filers: Parties who choose to file by paper must file an original and one copy of each filing. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

          • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.
          • Commercial Mail sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
          • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street SW., Washington, DC 20554.

          In addition, parties must serve one copy of each pleading with the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, or via email to fcc@bcpiweb.com. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

          FOR FURTHER INFORMATION CONTACT:

          Roger Holberg, Consumer and Governmental Affairs Bureau, Disability Rights Office, at (202) 418-2134 or email Roger.Holberg@fcc.gov.

        SUPPLEMENTARY INFORMATION:

        This is a summary of the Commission's Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Waivers of Mandatory Minimum Standards, Notice of Proposed Rulemaking (NPRM), document FCC 13-119, adopted on September 5, 2013, and released on September 6, 2013, in CG Docket No. 03-123. The full text of document FCC 13-119 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or Internet: www.bcpiweb.com. Document FCC 13-119 can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/encyclopedia/telecommunications-relay-services-trs. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY). The proceeding this NPRM initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with sec. 1.1206(b). In proceedings governed by sec. 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.
        Initial Paperwork Reduction Act of 1995 Analysis

        Document FCC 13-119 does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
        Synopsis
        1. In the last decade, iTRS and CTS providers have petitioned for and been granted waivers of various TRS mandatory minimum standards deemed inapplicable to or technologically infeasible for iTRS and CTS. Several of these waivers have been limited in duration, necessitating periodic requests for extension by the affected providers.
        2. When section 225 of the Communications Act of 1934, as amended (Act), was first enacted and implemented, there was only one type of TRS, which required the party with a speech or hearing disability to utilize a text telephone, or TTY, to transmit text over the PSTN to a communications assistant (CA). The CA then relayed the call between two parties by converting everything that the text caller typed into voice for the hearing party and typing everything that the voice user responded back to the person with a disability.
        3. With the development of new communication technologies, the Commission recognized new forms of TRS as eligible for compensation from the Interstate TRS Fund, including three forms of iTRS: Video Relay Service (VRS), Internet-Protocol (IP) Relay, and IP CTS. Today iTRS account for more than 90% of the total relay service minutes reimbursed from the Fund. For all forms of TRS, the Commission has adopted mandatory minimum standards to achieve functionally equivalent relay service.
        4. To ensure that TRS is provided in a manner that is functionally equivalent to voice telephone service, section 225 of the Act requires the Commission to prescribe functional requirements, guidelines, operations procedures, and minimum standards for these services. The Commission's mandatory minimum standards are intended to ensure that the user experience when making TRS calls is as close as possible to a voice user's experience when making conventional telephone calls. Over the years, however, the Commission has granted TRS providers waivers of certain TRS mandatory minimum standards that were deemed either technologically infeasible for or simply inapplicable to a particular form of TRS. The waivers granted for IP CTS and CTS have been issued for indefinite periods, while most waivers granted for VRS and IP Relay have been limited in duration. Generally, the limited-duration waivers have been renewed periodically—in recent years on an annual basis. The Commission has conditioned many of the waivers on the filing of annual reports in which providers are expected to detail their progress in achieving compliance with the underlying mandatory minimum standards. The reports are designed to help the Commission determine whether technological advances can enable providers to comply with the waived mandatory minimum standards.
        5. On November 19, 2009, Hamilton Relay, Inc., AT&T Inc., CSDVRS, LLC, Sorenson Communications, Inc., Sprint Nextel Corporation, and Purple Communications, Inc. (Petitioners) filed a “Request for Extension and Clarification of Various iTRS Waivers” (Hamilton Request), requesting the Commission to extend indefinitely all iTRS waivers of limited duration and to provide clarification on what Petitioners claim are discrepancies in some of the waivers. The Commission initiates this proceeding both in response to Petitioners' request and to fulfill our commitment to take a more in-depth look at the merits of making permanent or eliminating these waivers. Although the Hamilton Request did not address the waivers granted for CTS, the Commission includes those waivers as well in the scope of this overall review.
        6. In undertaking this review, the Commission notes that, historically, it has generally been reluctant to grant permanent exemptions from its mandatory minimum standards based on mere assertions of technological infeasibility. The Commission undertakes its current review of the pending waivers mindful of this Commission precedent.
        7. The iTRS waivers that the Commission addresses in this proceeding generally fall into two categories. One group consists of waivers for standards mandating that TRS include features and functions that are available with voice telephone service. In this first group, the Commission has waived the mandatory minimum standards for “types-of-calls,” equal-access, pay-per-call, three-way calling rules, and speed dialing. The second group consists of waivers for standards mandating the provision of specific communication services needed by people with speech or hearing disabilities. In this second group, the Commission has waived mandatory minimum standards for voice carry over (VCO), hearing carry over (HCO), speech-to-speech (STS), ASCII/Baudot-compatible services, Spanish-to-Spanish, and call-release. With respect to waivers that are presently limited in duration, the Commission seeks comment on whether to make the waivers permanent by amending its rules to explicitly state that the waived mandatory minimum standards are inapplicable to the specified iTRS providers. The Commission asks whether this approach will result in a clearer understanding of and better ongoing compliance with the Commission's rules. For waivers that are already of unlimited duration, the Commission seeks comment on whether amending its rules to codify these as permanent exemptions similarly would result in a clearer understanding of and better ongoing compliance with the Commission's rules.
        8. Types-of-Calls Requirement. Commission rules require TRS providers to “be capable of handling any type of call normally provided by telecommunications carriers unless the Commission determines that it is not technologically feasible to do so.” Until now, the Commission has waived the “types of calls” mandate in response to iTRS providers' showings that there is no effective per-call billing mechanism to accurately identify and bill iTRS users for long distance and operator-assisted calls, and that the costs of developing such a mechanism would be prohibitive. Many providers have maintained an inability to devise such a mechanism because they claim that they do not have a billing relationship with their users, and that to set up a billing system would not be cost effective. The Commission seeks comment on whether the justifications that have supported this waiver in the past still exist such that it should continue to extend the limited-duration waiver has been done in the recent past or whether we should codify a rule that permanently exempts iTRS providers from having to offer these billing options. Finally, even though the Commission has never waived the types-of-calls requirement for IP CTS, Hamilton seeks an exemption for all forms of iTRS. To the extent Hamilton meant to include IP CTS in its request, the Commission seeks comment on the rationale for establishing a permanent exemption under circumstances where no waiver has been granted previously.

        9. The Commission seeks comment on the continued need to require the provision of operator-assisted billing (i.e., collect, calling card, and third party billing) and sent-paid billing for long distance calls handled by iTRS providers, in light of the significant changes that have taken place in communication technologies—including the steep decline in traditional relay usage since the initial adoption of the “types of calls” requirement more than 20 years ago.
        10. Given these technological changes, including the greater reliance that relay users have on iTRS, consumers may no longer need or necessarily want the same billing options that were appropriate when relay services were primarily accessed via the PSTN. The Commission seeks feedback on this assumption, and whether amending its rules to eliminate the requirement for iTRS providers to offer billing arrangements for “operator-assisted” billing and sent-paid billing for long distance calls, provided that iTRS providers do not charge for such calls, is appropriate and consistent with the Act's intent to achieve functional equivalency. In this regard, the Commission asks commenters to address all three forms of iTRS-VRS, IP Relay and IP CTS—and to specifically address the rationale for eliminating the requirement for IP CTS under circumstances where no waiver has been granted previously.
        11. Equal Access to Interexchange Carriers. The Commission's rules require TRS providers to offer consumers access to their interexchange carrier of choice to the same extent that such access is provided to voice users. The Commission has waived this requirement indefinitely for IP Relay and IP CTS providers and on a limited-duration basis for VRS providers. The waivers are contingent on iTRS providers providing long distance service without charge. Should the Commission amend its rules to exempt iTRS providers permanently from the “equal access to interexchange carriers” requirement (based on its technical infeasibility and inapplicability to an iTRS environment), provided that iTRS providers do not charge for long distance service? The Commission seeks comment on the value to consumers of providing equal access to long distance carriers in an IP-based environment. Is there any reason to require iTRS providers to allow for equal access to interexchange carriers in order to satisfy the functional equivalency requirements of section 225(a)(3) of the Act?
        12. To the extent that commenters believe that this requirement remains applicable and necessary to an iTRS environment, the Commission asks (1) whether it is feasible for iTRS providers to implement networking and routing solutions to allow iTRS users to choose their carriers and (2) whether reliable mechanisms exist to allow carriers to distinguish between local and long distance calls for this purpose. Finally, the Commission invites comment on the costs of implementing solutions to fulfill this standard and on the appropriate interval for revisiting the technological feasibility issues in the future.
        13. Pay-per-Call (900) calls. The Commission's rules require TRS providers to be capable of handling pay-per-call (i.e., 900-number) calls. The Commission has waived this requirement—indefinitely for IP CTS providers, but on a limited-duration basis for IP Relay and VRS providers—because no billing mechanism has been available to handle the charges associated with pay-per-call calls. The pay-per-call standard presupposes a billing relationship that does not presently exist between iTRS providers and users. The Commission seeks comment on the technical feasibility of and benefits to requiring that such a relationship be established for the purpose of the pay-per-call requirement. In addition, the Commission seeks comment and information on whether the implementation of ten-digit numbering and registered location requirements has increased the feasibility of providing and verifying ANI for pay-per-call billing purposes. To the extent that parties maintain that this feature is not feasible now, but may be in the future, the Commission also seeks comment on the appropriate interval for revisiting the technological feasibility issue. In addition, the Commission seeks comment on whether to adopt a rule codifying a permanent exemption or to eliminate the indefinite waiver for IP CTS providers. Finally, the Commission invites comment on whether the value of pay-per-call services to iTRS consumers and possible CA exposure to abusive and/or obscene video images should affect our determination regarding a permanent exemption from the pay-per-call requirement.
        14. Three-way calling. Three-way calling, also required by the Commission's rules, allows more than two parties to be on the telephone line at the same time with the CA. Waivers of the requirement for VRS and IP Relay providers were previously allowed to expire. The Commission proposes to terminate the three-way calling waiver for IP CTS providers and seeks comment on this proposal. The Commission asks commenters that disagree with this proposal to justify the need for a continued waiver. If the Commission were to eliminate the waiver of the three-way calling requirement for IP CTS, the Commission further seeks comment on an appropriate termination date.
        15. Speed dialing. Speed dialing allows a TRS user to give the CA a “short-hand” name or number (e.g., “call Mom”) for the user's most frequently called telephone numbers. This feature permits a person making a TRS call through a CA to place the call without having to remember or locate the number he or she desires to call. The Commission waived this requirement for VRS and IP Relay until January 1, 2008. The Commission subsequently found that all VRS providers—but not all IP Relay providers—were offering a speed dialing feature. As a result, the speed dialing waiver was allowed to expire for VRS but generally was extended for IP Relay for one year to allow the remaining IP Relay providers sufficient time to offer speed dialing.
        16. With regard to IP CTS, the Commission, in 2007, indefinitely waived speed dialing for IP CTS providers, contingent on such providers filing annual reports addressing the waiver. The Commission asks for comment on whether it would be in the public interest for the Commission to terminate the waiver for speed dialing for IP CTS providers. In particular, the Commission seeks comment on whether other IP CTS providers are currently offering speed dialing capability, and if not, whether there are any technical barriers preventing IP CTS providers from offering speed dialing. If the Commission was to terminate the speed dialing waiver for IP CTS, it seeks comment on when such termination should take effect. To the extent commenters argue for continued waiver, the Commission seeks comment on when it should revisit the need for this waiver.
        17. The second group of waived mandatory minimum standards relates to specific forms of TRS needed by people with disabilities, including voice carry over (VCO), hearing carry over (HCO), speech-to-speech, ASCII/Baudot-compatible services, Spanish-to-Spanish, and call release.
        18. VCO and HCO. The Commission's rules require TRS providers to offer VCO and HCO. With VCO, a person who has a hearing disability, but who is able to speak, communicates by voice directly to the other party to the call without intervention by the CA, and the other party's voice response is relayed by the CA as text. With HCO, a person who has a speech disability, but who is able to hear, listens directly to the other party's voice without intervention by the CA, and in reply has the CA convert his or her typed responses into voice. There are multiple forms of VCO and HCO. The Commission has granted fixed-duration waivers for VRS and IP Relay of all the VCO and HCO mandatory minimum standards except two-line VCO and HCO, based on providers' representations that Internet connections are unable to deliver voice and data over a single line with the necessary quality. The Commission also has granted these waivers for IP CTS indefinitely, as well as granting an indefinite waiver of HCO for CTS. All such waivers have been conditioned on the filing of annual reports regarding the technological feasibility of compliance.
        19. The Commission seeks comment on whether, given advances in Internet technologies and the availability of one-line VCO, one-line HCO, VCO-to-VCO, HCO-to-HCO, VCO-to-TTY, and HCO-to-TTY by some providers for some IP-based relay services, waivers for these features continue to be necessary. Specifically, the Commission seeks feedback on the extent to which these services are technically feasible over a broadband connection and on whether any distinction should be drawn for service in low bandwidth environments. The Commission also seeks comment on the quality and convenience of the two-line VCO and HCO services that are currently available from iTRS providers. Are such services generally available and affordable, and are these adequate substitutes for one-line VCO and HCO? To the extent that we permit two-line VCO and HCO as “work-arounds” to single-line VCO and HCO, the Commission seeks feedback on whether it should condition such waivers on providers' absorbing the additional cost of subscriptions for any additional telephone lines needed for the voice leg of the service. The Commission asks commenters to weigh the benefits of one-line VCO, one-line HCO, VCO-to-VCO, HCO-to-HCO, VCO-to-TTY, and HCO-to-TTY against the cost of providing these services. If the Commission were to eliminate the waivers for one-line VCO, one-line HCO, VCO-to-VCO, HCO-to-HCO, VCO-to-TTY, and HCO-to-TTY for VRS and IP Relay, it seeks comment on an appropriate termination date.
        20. The Commission seeks comment on amending our rules to permanently exempt CTS and IP CTS providers from providing any form of HCO. The Commission has previously determined that HCO involves “particular functionalities that do not apply to captioned telephone calls.” Specifically, as the Commission explained, when using CTS, “a person with some residual hearing can speak to the other party and in return both listen to what the other party is saying and read text of what that party is saying . . . [, t]his service . . . is simply not able to handle . . . HCO relay calls.” The Commission has similarly exempted IP CTS providers.
        21. Speech-to-Speech. Speech-to-Speech (STS) service allows a person with a speech disability to communicate with voice telephone users through the use of CAs who are trained to understand the speech patterns of persons with disabilities and can repeat the words spoken by that person. The Commission has recognized STS as a form of TRS and required that it be offered as a mandatory service. In 2002, the Commission waived this requirement for IP Relay providers for a limited period of time. The Commission subsequently has extended this waiver on multiple occasions. The Commission also waived the STS requirement indefinitely for CTS, IP CTS, and VRS, finding this mandatory minimum standard to be inapplicable to these relay services. Specifically, STS is purely speech-based, while CTS and IP CTS require the CA to provide communication in text and, under our current rules, VRS requires the CA to provide communication in American Sign Language (ASL). Petitioners request that the Commission waive the STS requirement indefinitely for IP Relay “because, as with VRS and IP CTS calls, one leg of an Internet Relay call is entirely text-based without any speech capabilities, thus rendering the service incapable of providing STS. The Commission seeks comment on amending our rules to exempt CTS, IP CTS and VRS providers from the STS requirement. The Commission also invites comment on whether to permanently exempt IP Relay providers from offering STS.
        22. ASCII/Baudot Communications. The Commission's rules contain technical mandatory minimum standards that are specific to the traditional TTY-based form of TRS. One of these rules requires TRS providers to be capable of handling communications using the ASCII and Baudot formats, at any speed generally in use. The Commission has granted CTS and IP CTS providers indefinite waivers of these mandatory minimum standards but has not addressed their applicability to VRS or IP Relay providers. The Commission proposes to amend its rules to explicitly exempt all forms of iTRS from the ASCII/Baudot call handling requirement. The Commission invites comment on this proposal, and on whether to codify as permanent exemptions the existing waivers for CTS and IP CTS.
        23. Spanish Language Service over CTS, IP CTS, and IP Relay. Section 64.603 of the Commission's rules requires the provision of interstate PSTN-based relay services in Spanish. The Commission has ruled that although VRS providers may offer and be compensated for Spanish language services, they are not required to do so. The Commission has not made any ruling regarding the applicability of the Spanish language requirement to CTS, IP CTS and IP Relay. Given that IP Relay, CTS and IP CTS are not mandatory, the Commission proposes to conclude that Spanish language versions of these services are non-mandatory services. In this regard, the Commission seeks feedback on the extent to which Spanish-language IP Relay, CTS and IP CTS are currently available to and utilized by consumers, on the value of such services to Spanish-speaking consumers, and on whether mandating Spanish language IP Relay, CTS and IP CTS is necessary to ensure the availability of these forms of TRS for the Spanish-speaking population. Commenters are also asked to weigh the benefits of mandating Spanish language IP Relay, CTS and IP CTS against the burdens for providers to offer these services. The Commission also seeks comment on whether to amend its part 64 rules to codify its ruling that VRS providers are not required to offer Spanish language VRS.
        24. Call Release. The Commission's rules require TRS providers to offer “call release,” a feature that allows the CA to drop out—or be “released” from the relay call after setting up a direct TTY-to-TTY connection between the caller and the called party. The Commission has waived this requirement indefinitely for CTS and IP CTS providers, but on a limited-duration basis for VRS and IP Relay providers. The Commission invites comment on the inapplicability and/or technical infeasibility of the call release feature in the IP environment and consequently whether we should amend our rules to permanently exempt all iTRS providers as well as CTS providers from compliance with this standard. If parties still consider this standard relevant to IP-based services, the Commission further invites comment and information on whether solutions to the present technological barriers to this feature are available, and if so, the costs and benefits of implementing such solutions. To the extent that parties maintain that this feature is not feasible now, but may be in the future, the Commission also seeks comment on the appropriate interval for revisiting the technological feasibility issue.
        25. Annual Reports. For those mandatory minimum standards for which the Commission decides to adopt permanent exemptions in place of existing waivers, it further proposes elimination of the requirement to file annual reports. The Commission asks commenters for their input on this proposal.
        Initial Regulatory Flexibility Certification
        26. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
        27. In document FCC 13-119, the Commission seeks comment on its proposal to permanently waive in some instances and to terminate the waivers in other instances of certain operational, technical, and functional mandatory minimum standards applicable to the provision of TRS for providers using the Internet to provide services such as VRS, IP Relay, and IP CTS as well as for providers offering traditional CTS. To be eligible for compensation from the interstate TRS Fund, a TRS provider must offer service in compliance with all applicable mandatory minimum standards, unless they are waived. The Commission has waived several of these mandatory minimum standards for VRS, IP Relay, and IP CTS either because, as Internet-based services, it is not technologically feasible for them to meet the requirement or, in the case of VRS, because VRS is a video-based service and the communication is via sign language and not text. The Commission has waived other mandatory minimum standards that are inapplicable to the particular form of TRS, including VRS, IP Relay, IP CTS and CTS. Some of these waivers have been for finite periods, usually one year, and require new waivers at the end of the period while other waivers have been for indefinite periods. Document FCC 13-119 proposes to incorporate these waivers into the Commission's rules to obviate the need for annual waivers to be applied for and granted and to harmonize the treatment of all TRS providers to which these mandatory minimum standards do not apply given the technology through which the service is provided.
        28. Document FCC 13-119 seeks comment on whether to incorporate these waivers into the rules. It further seeks comment on a Petitioner's request that the Commission clarify whether the Spanish-to-Spanish requirement should be a non-mandatory service for IP Relay and IP CTS providers as it is for VRS providers.
        29. Where a mandatory minimum standard is inapplicable, the Commission proposes to convert existing waivers of the mandatory minimum standards to permanent exemptions, thereby eliminating unnecessary administrative burdens on providers and the Commission. Specifically, IP CTS providers have received waivers for the following features: (1) Gender preference; (2) handling calls in ASCII and Baudot formats; (3) call release; (4) Speech-to-Speech; (5) Hearing Carry Over (HCO) and VCO services; (6) outbound 711 calling; (7) emergency call handling; (8) equal access to interexchange carriers; (9) pay-per-call (900) service; (10) three-way calling; (11) speed dialing; and (12) certain rules applying to CAs.
        30. With regard to the criterion of the economic impact of document FCC 13-119, with respect to those waivers that are proposed to be made permanent or otherwise codified, the Commission notes that all providers potentially affected by the proposed rules, including those deemed to be small entities under the SBA's standard, would benefit by being relieved from the necessity to periodically file for new waivers of the TRS mandatory minimum standards and from incurring unnecessary expenses in research and development of features or services that are inapplicable to certain types of TRS services. Therefore, the Commission concludes that with respect to those waivers, document FCC 13-119, if adopted, will not have a significant economic impact on any entities.
        31. With respect to those waivers that are being terminated, the record shows that the providers are generally providing the features that had been the subject of such waivers. For example, the record shows that providers are now able to offer three-way calling and speed dialing. With respect to one-line VCO, one-line HCO, VCO-to-VCO, HCO-to-HCO, VCO-to-TTY, and HCO-to-TTY, the Commission is seeking comment to better determine which features should be waived and which features no longer require a waiver for the providers of VRS, IP Relay, IP CTS and CTS. The Commission believes that the entities that may be affected by the termination of such waivers are only those TRS providers that offer VRS, IP Relay, IP CTS and CTS. Should the TRS providers, including the small entities, become affected by the termination of such waivers, the costs of compliance of the requirements to offer three-way calling and speed dialing are minimal. Neither the Commission nor the SBA has developed a definition of “small entity” specifically directed toward TRS providers. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers, for which the small business size standard is all such firms having 1,500 or fewer employees. Collectively, there are fewer than ten TRS providers that are authorized by the Commission or, in the case of CTS, by any state Commission, to offer these services. No more than four of these entities may be small businesses under the SBA size standard. Therefore, document FCC 13-119, if adopted would not have a significant economic impact on a substantial number of small entities.
        32. The Commission therefore certifies, pursuant to the RFA, that the proposals in document FCC 13-119, if adopted, will not have a significant economic impact on a substantial number of small entities. If commenters believe that the proposals discussed in document FCC 13-119 require additional RFA analysis, they should include a discussion of these issues in their comments and additionally label them as RFA comments. The Commission will send a copy of document FCC 13-119, including a copy of the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the SBA.
        Ordering Clauses

        33. Pursuant to the authority contained in sections 1, 4(i), 4(j), and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 225, that document FCC 13-119 is adopted.

        34. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 13-119, including the Initial Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

          List of Subjects in 47 CFR Part 64
          Individuals with disabilities, Telecommunications.

        Proposed Rule Changes
        For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 64 as follows:

          PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS

        1. The authority citation for part 64 continues to read as follows:

          Authority:
           47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, and 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless otherwise noted.

        2. Amend § 64.603 by adding paragraph (c) to read as follows:

          § 64.603
          Provision of services.

          (c) Providers of captioned telephone relay service, Internet-based captioned telephone relay service, VRS and IP Relay are not required to offer speech-to-speech relay service and interstate Spanish language relay service.

        3. Amend § 64.604 by revising paragraphs (a)(3)(ii), (iv), (v), and (vi) and (b)(1) and (3) to read as follows:

          § 64.604
          Mandatory minimum standards.

          (a) * * *
          (3) * * *

          (ii) Relay services shall be capable of handling any type of call normally provided by telecommunications carriers unless the Commission determines that it is not technologically feasible to do so. Relay service providers have the burden of proving the infeasibility of handling any type of call. Providers of Internet-based TRS need not provide the same billing options (e.g., sent-paid long distance, operator-assisted, calling card, collect, and third party billing) traditionally offered for wireline and wireless voice services.

          (iv) Relay services other than Internet-based TRS shall be capable of handling pay-per-call calls.
          (v) TRS providers are required to provide the following types of TRS calls: Text-to-voice and voice-to-text; VCO, two line VCO, VCO-to-TTY, and VCO-to-VCO; HCO, two-line HCO, HCO-to-TTY, HCO-to-HCO. VRS providers are not required to provide text-to-voice and voice-to-text functionality. IP Relay providers and VRS providers are not required to provide VCO-to-TTY and HCO-to-TTY. Captioned telephone service providers and Internet-based captioned telephone service providers are not required to provide text-to-voice; VCO-to-TTY; HCO, two-line HCO, HCO-to-TTY, HCO-to-HCO.
          (vi) TRS providers are required to provide the following features: call release functionality (only with respect to the provision of TTY-based TRS); speed dialing functionality; and three-way calling functionality.

          (b) Technical standards—(1) ASCII and Baudot. TTY service shall be capable of communicating with ASCII and Baudot format, at any speed generally in use. Other forms of TRS are not subject to this requirement.

          (3) Equal access to interexchange carriers. TRS users shall have access to their chosen interexchange carrier through the TRS, and to all other operator services to the same extent that such access is provided to voice users. This requirement is inapplicable to providers of Internet-based TRS if they do not assess specific charges for long distance calling.

          Federal Communications Commission.
          Marlene H. Dortch,
          Secretary, Office of the Secretary, Office of Managing Director.

      [FR Doc. 2013-24262 Filed 10-22-13; 8:45 am]
      BILLING CODE 6712-01-P


        DEPARTMENT OF TRANSPORATION
        Surface Transportation Board
        49 CFR Parts 1108 and 1115
        [Docket No. EP 730]
        Revisions to Arbitration Procedures

          AGENCY:
          Surface Transportation Board.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:

          The Surface Transportation Board (Board or STB) is proposing to amend its arbitration procedures to conform to the requirements of the Surface Transportation Board Reauthorization Act of 2015.

          DATES:
           Comments are due by June 13, 2016. Replies are due by July 1, 2016.

          ADDRESSES:

          Comments on this proposal may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at
            http://www.stb.dot.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: Docket No. EP 730, 395 E Street SW., Washington, DC 20423-0001. Copies of written comments will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site. Information or questions regarding this proposed rule should reference Docket No. EP 730 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 1800-877-8339.]

        SUPPLEMENTARY INFORMATION:
        Under Section 13 of the STB Reauthorization Act (codified at 49 U.S.C. 11708), the Board must “promulgate regulations to establish a voluntary and binding arbitration process to resolve rail rate and practice complaints” that are subject to the Board's jurisdiction. Section 11708 sets forth specific requirements and procedures for the Board's arbitration process. While the Board's existing arbitration regulations are for the most part consistent with the new statutory provisions, certain changes are needed so that the Board's regulations conform to the requirements under § 11708.1
           Accordingly, the Board is proposing to modify its existing arbitration regulations, set forth at 49 CFR 1108 and 1115.8, to conform to the provisions set forth by the statute and to make other minor clarifying changes. The most significant changes in these proposed rules are discussed below.

            1 In Assessment of Mediation & Arbitration Procedures, EP 699 (STB served May 13, 2013), the Board adopted new rules governing the use of mediation and arbitration to resolve matters before the Board. The rules established a new arbitration program under which shippers and carriers may voluntarily agree in advance to arbitrate certain disputes with clearly defined limits of liability.

          Eligible Matters. Under section 11708(b), rate disputes (i.e., disputes involving the reasonableness of a rail carrier's rates) are eligible for arbitration. Accordingly, rate disputes would now be added to the list of matters that are eligible for arbitration under the arbitration program, which currently includes disputes relating to 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. The rules would continue to allow parties to agree to arbitrate most other matters on a case-by-case basis, subject to some exceptions. See 49 CFR 1108.4(e). Specifically, the current rules expressly prohibit use of the Board's arbitration process to enforce labor protective conditions; 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; and to arbitrate matters outside the statutory jurisdiction of the Board. 49 CFR 1108.2(b). In accordance with section 11708(b)(2), two additional matters would be added to the list of matters not eligible for arbitration: Disputes to prescribe for the future any conduct, rules, or results of general, industry-wide applicability; and disputes that are solely between two or more rail carriers.

          Rate Disputes. For rate disputes, arbitration is available to the relevant parties only if the rail carrier has market dominance (as determined under 49 U.S.C. 10707). Section 11708(c)(1)(C).2
           Section 10707 states that “the Board shall determine whether the rail carrier proposing the rate has market dominance over the transportation to which the rate applies,” and it defines market dominance as “an absence of effective competition from other rail carriers or modes of transportation for the transportation to which a rate applies.” Section 10707(a), (b). For this reason, as discussed below, the Board proposes a separate timetable for initiating arbitration in rate cases. Nevertheless, the Board recognizes that making arbitration available only after it determines that a rail carrier has market dominance—as required by the statute—may significantly delay the arbitration process. Given that the arbitration process is voluntarily entered into by parties, the Board seeks comment on whether parties should be given the option to concede market dominance when agreeing to arbitrate a rate dispute (thereby forgoing the need for a determination from the Board) or, alternatively, whether the Board should limit the availability of the arbitration process in rate disputes to cases where market dominance is conceded. In addition, the Board seeks comments on other possible approaches that would help facilitate the commencement of arbitrating a rate dispute, given the need to make a market dominance determination under section 10707.

            2 Additionally, section 11708(c)(3) requires arbitrator(s) handling rate disputes to “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 § 10704(a)(2)).”

          Arbitration Commencement Procedures. The Board's current regulations are consistent with section 11708(c), which makes the arbitration process available only after the Board receives written consent to arbitrate from all relevant parties and after the filing of a written complaint.3
           Under the statute, in lieu of a written complaint, the arbitration process also may be made available “through other procedures adopted by the Board in a rulemaking proceeding.” Section 11708(c)(1)(B)(ii)(II). To encourage greater use of arbitration to resolve disputes, the Board proposes here that, as an alternative to filing a written complaint, parties may submit a joint notice to the Board, indicating the consent of both parties to submit an issue in dispute to the Board's arbitration program.4
           The joint notice would allow parties to utilize the arbitration process, even if the dispute is not pending before the Board (assuming that the other criteria for arbitration are met). In the joint notice, parties would state the issue(s) that they are willing to submit to arbitration. The notice would contain a statement that would indicate that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or, if they are not participants, that they are nonetheless willing to voluntarily arbitrate a matter pursuant to the Board's arbitration procedures. The notice would indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator (discussed in more detail below). The notice would also indicate the relief requested and whether the parties have mutually agreed to a lower amount of potential liability in lieu of the monetary award cap that would otherwise be applicable.

            3 Under 49 CFR 1108.5, arbitration commences with a written complaint that contains a statement that the relevant parties are participants in the Board's arbitration program, or that the complainant is willing to arbitrate the dispute pursuant to the Board's arbitration procedures. The respondent's answer to the written complaint must then indicate the respondent's participation in the Board's arbitration program or its willingness to arbitrate the dispute at hand pursuant to the Board's arbitration procedures.

            4 These proposed rules seek to expand, not replace, the current rules set forth at 49 CFR 1180.3 that govern the Board's arbitration program, under which shippers and carriers may voluntarily agree in advance to arbitrate certain disputes.

          Monetary Relief Available. In accordance with section 11708(g), the maximum amount of relief that could be awarded under the arbitration program, which is currently capped at $200,000, would be raised to $25,000,000 in rate disputes and $2,000,000 in practice disputes (i.e., disputes involving 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). The $2,000,000 monetary award cap would also apply to other disputes that parties seek to arbitrate under § 1180.4(e) that are not specifically listed as arbitration-eligible matters (yet also not expressly prohibited). The proposed rules would allow parties to mutually agree to a lower monetary award cap.

          Arbitrator Roster. Section 11708(f) provides that, unless parties otherwise agree, an arbitrator or panel of arbitrators shall be selected from a roster maintained by the Board. Therefore, we propose rules to establish a process for creating and maintaining a roster of arbitrators and selecting arbitrators from the roster in accordance with the statutory requirements.5

            5 Under our current rules, parties select arbitrators from a list of five neutral arbitrators compiled by the Board for a particular arbitration proceeding. These proposed rules replace the selection process with the process set forth at section 11708(f).

          Creating and Maintaining the Roster. The Board proposes that an initial roster be compiled by the Chairman, who would seek notice from all interested, qualified persons, as described below, who wish to be placed on the Board's arbitration roster. Under the proposed rules, the Chairman could augment the roster at any time to include other eligible arbitrators and remove from the roster any arbitrators who are no longer available or eligible. The roster would be made available on the Board's Web site. To ensure that the roster remains current, the Chairman would update it every year, seeking public comment on any modifications that should be made to the roster, including updates from arbitrators appearing on the roster to confirm that the biographical information on the file with the Board (as discussed below) remains accurate. Arbitrators who wish to remain on the roster would be required to notify the Board of their continued availability.

          Arbitrator Qualifications. Under section 11708(f)(1), arbitrators on the roster must be “persons with rail transportation, economic regulation, professional or business experience, including agriculture, in the private sector.” Additionally, under the proposed rules, persons seeking to be included on the roster would be required to have training in dispute resolution and/or experience in arbitration or other forms of dispute resolution. The Chairman shall have discretion as to whether an individual meets the qualifications to be added to the roster. The Board's roster would provide a brief biographical sketch of each arbitrator, including information such as background, experience, and geographical location, as well as general contact information, based on the information supplied by the arbitrator.

          The Parties' Selection of Arbitrators. In accordance with section 11708(f)(3)(A), we are proposing revisions to our arbitrator selection process so that, if parties cannot mutually agree on a single arbitrator or lead arbitrator of a panel of arbitrators, the parties would select the single or lead arbitrator from the roster maintained by the Board by alternately striking names from the roster until only one name remains.6

            6 Under the Board's current regulations, a panel of three arbitrators resolves all matters unless parties mutually agree to use a single arbitrator. 49 CFR 1108.6(a).

        To make the strike process more practicable and efficient, we propose that the Board, through the Director of the Office of Proceedings, would provide parties a list of arbitrators culled from the Board's roster. This culled list would include not more than 15 arbitrators to limit the number of strikes each party would have to make. In culling the list, the Board would consider a variety of factors, including relevant background and experience, acceptability, geographical location, and any expressed preferences of the parties. The culled list would have an odd number of arbitrators to ensure that parties have the same number of strikes.

        To select the other members for a panel of arbitrators, these rules propose that each party to the dispute would select one additional arbitrator from the roster, regardless of whether the selected arbitrator was included in the culled list or struck from the culled list by another party. See section 11708(f)(3)(B).
        These proposed rules also provide that parties share the costs incurred by the Board and arbitrators equally, with each party responsible for paying its own legal and other associated arbitration costs, in accordance with section 11708(f)(4).7

            7 This rule would replace the current method of cost allotment under 49 CFR 1108.6 and 1108.12.

          Arbitration Decisions. These rules propose to modify our current regulations regarding arbitration decisions. In accordance with section 11708(d), an arbitration decision would: (1) Be consistent with sound principles of rail regulation economics; (2) be in writing; (3) contain findings of facts and conclusions; (4) be binding upon the parties; and (5) not have any precedential effect in any other or subsequent arbitration disputes.
        In accordance with section 11708(h), if a party appeals an arbitral decision, the Board would review the decision to determine if: (1) The decision is consistent with sound principles of rail regulation economics; (2) a clear abuse of arbitral authority or discretion occurred; (3) the decision directly contravenes statutory authority; or (4) the award limitation was violated.8

            8 As discussed below, in Assessment of Mediation & Arbitration Procedures, the Board amended the standard of review for arbitration decisions set forth at 49 CFR 1115.8 and inadvertently omitted the standard of review for labor arbitration cases. This decision addresses that omission.

          Initiation of the Arbitration Process and Timelines. Under section 11708(e), deadlines for the selection of arbitrators, the close of the evidentiary process, and the arbitration decision are calculated from the date the Board “initiate[s] . . . the arbitration process,” which would occur “not later than 40 days after the date on which a written complaint is filed or through other procedures adopted by the Board in a rulemaking proceeding.” Section 11708(c)(1)(D). Specifically, arbitrators must be selected not later than 14 days after the Board decides to initiate the arbitration process. The evidentiary process must be completed not later than 90 days after the date on which the arbitration process is initiated. An arbitration decision must be issued not later than 30 days after the date on which the evidentiary period is closed.
        Accordingly, with the exception of rate dispute proceedings, these proposed rules provide that the Board would issue a decision to initiate the arbitration process within 40 days after submission of a written complaint, or the joint notice described above. In rate dispute proceedings, the Board must determine if the rail carrier has market dominance before making the arbitration process available. 49 U.S.C 11708(c)(1)(C). Such a determination would likely require substantial additional time in cases where market dominance is contested. Accordingly, these rules propose that, unless the comments offer persuasive reasons to exclude from the arbitration program rate cases where market dominance is contested, the Board would initiate the arbitration process within 10 days after the Board issues a decision determining that the rail carrier in a rate dispute has market dominance.

        After the Board initiates the arbitration process, if parties cannot mutually agree on an arbitrator or lead arbitrator of a panel of arbitrators, the Board would then provide parties with a list of arbitrators within seven days of initiating the arbitration process. Parties would then have seven days to select an arbitrator or panel of arbitrators. Section 11708(e)(1). In accordance with section 11708(e)(2), parties would have 90 days from the initiation date to conclude the evidentiary process, unless a party requests an extension, and the arbitrator or panel of arbitrators, as applicable, grants the extension request. The lead or single arbitrator would then have 30 days from the close of the evidentiary process to issue the decision. Section 11708(e)(3).
        In accordance with section 11708(e)(4), these proposed rules provide that the Board may extend any portion of the timetable upon agreement of all parties in the dispute, thus providing more flexibility than our rules currently allow.9

            9 This replaces the current regulation at 49 CFR 1108.7(c), which provides that petitions to extend the timetable will only be considered in cases of arbitrator incapacitation.

          Other Matters. In adopting final rules in Assessment of Mediation & Arbitration Procedures, the Board inadvertently omitted the standard of review for labor arbitration cases in 49 CFR 1115.8. It was not the intention of the Board to alter the standard of review for labor arbitration cases. The narrow standard articulated in the final rules, and codified at 49 CFR 1108.11(b), was intended to apply solely to reviews of arbitral decisions brought under 49 CFR pt. 1108.10
           The standard of review articulated in the final rules was not intended to replace the Board's standard of review in labor arbitration cases, which was previously codified at 49 CFR 1115.8. In adopting the new arbitration program, § 1115.8 should have reflected both the standard of review for arbitrations conducted pursuant to 49 CFR pt. 1108 and the standard of review for labor arbitration cases. This decision corrects that omission.

            10 In the final rules, the Board adopted a standard of review of arbitral decisions made under 49 CFR pt. 1108. The Board stated that, upon petition by one or more parties to the arbitration, the Board reserves the right to review, modify, or vacate any arbitration award. The final rules clarify that the Board will apply a narrow standard of review, but which is somewhat broader than originally proposed, and will grant relief only on grounds that the award reflects a clear abuse of arbitral authority or discretion, or directly contravenes statutory authority.

            Assessment of Mediation & Arbitration Procedures, EP 699, slip op. at 17 (STB served May. 13, 2013); see 49 CFR 1108.11(b).

        The proposed rules, which would govern arbitration in Board proceedings, are set forth below.
        Conclusion

          Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, generally requires a description and analysis of rules that would have significant economic impact on a substantial number of small entities. In drafting rules an agency is required to: (1) Assess the effect that its regulation would have on small entities; (2) analyze effective alternatives that might minimize a regulation's impact; and (3) make the analysis available for public comment. 5 U.S.C. 601-604. In its notice of proposed rulemaking, the agency must either include an initial regulatory flexibility analysis, 5 U.S.C. 603(a), or certify that the proposed rules will not have a “significant impact on a substantial number of small entities,” 5 U.S.C. 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rules. White Eagle Coop. Ass'n v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).
        The Board certifies under 5 U.S.C. 605(b) that these proposed rules, if promulgated, will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act. The proposed rules, if promulgated, would amend the existing procedures for arbitrating disputes before the Board so that the Board's regulations conform to the statutory requirements under 49 U.S.C. 11708.
        Although some carriers and shippers impacted by the proposed rules may qualify as a “small business” within the meaning of 5 U.S.C. 601(3), we do not anticipate that our revised arbitration procedures would have a significant economic impact on a large number of small entities. To the extent that the rules have any impact, it would be to provide faster resolution of a controversy at a lower cost. The relief that could be accorded by an arbitrator would presumably be similar to the relief shippers could obtain through use of the Board's existing formal adjudicatory procedures, and at a greater net value considering that the arbitration process is designed to consume less time and likely will be less costly. Therefore, we do not believe that a substantial number of small entities would be significantly impacted.

          Paperwork Reduction Act. Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3), the Board seeks comments about each of the proposed collections regarding: (1) Whether the collection of information, as modified in the proposed rule and further described below, is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology, when appropriate. Information pertinent to these issues is included in the Appendix. This proposed rule will be submitted to OMB for review as required under 44 U.S.C. 3507(d) and 5 CFR 1320.11. Comments received by the Board regarding the information collection will also be forwarded to OMB for its review when the final rule is published.

          List of Subjects
          49 CFR Part 1108
          Administrative practice and procedure, Railroads.
          49 CFR Part 1115
          Administrative practice and procedure.

          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 the proposed rules are due by June 13, 2016. Replies are due by July 1, 2016.
        3. This decision is effective on the day of service.

          By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman.

          Decided: May 6, 2016.
          Jeffrey Herzig,
          Clearance Clerk.

        For the reasons set forth in the preamble, under the authority of 49 U.S.C. 1321, title 49, chapter X, parts 1108 and 1115 of the Code of Federal Regulations are proposed to be amended as follows:

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

        1. Revise the authority citation for part 1108 to read as follows:

          Authority:
          49 U.S.C. 11708, 49 U.S.C. 1321(a) and 5 U.S.C. 571 et seq.

        2. Amend § 1108.1, as follows:

        a. In paragraph (b) add the words “from the roster” after the word “selected” and remove the word “neutral” and add in its place “lead”.
        b. In paragraph (d) add the word “rates,” after “subjects:”.
        c. In paragraph (g) add the words “and the Surface Transportation Board Reauthorization Act of 2015,” after “1995”.
        d. Revise paragraphs (h) and (i).
        e. Redesignate paragraphs (j) and (k) as paragraphs (k) and (l).
        f. Revise newly redesignated paragraph (k).
        g. Add paragraph (m).
        The revisions and addition read as follows:

          § 1108.1
          Definitions.

          (h) Lead arbitrator or single arbitrator means the arbitrator selected by the strike methodology outlined in § 1108.6(c).
          (i) Monetary award cap means a limit on awardable damages of $25,000,000 in rate disputes, including any rate prescription, and $2,000,000 in practice disputes, unless the parties mutually agree to a lower award cap. If parties bring one or more counterclaims, such counterclaims will be subject to a separate monetary award cap.

          (k) Practice disputes are disputes involving 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.

          (m) Rate disputes are disputes involving the reasonableness of a rail carrier's rates.

        3. Amend § 1108.2, as follows:
        a. In paragraph (a) introductory text remove “$200,000” and add in its place “$25,000,000 in rate disputes, including any rate prescription, and $2,000,000 in other disputes” and remove the word “different” and add in its place “lower”.
        b. In paragraph (a)(1) remove the word “different” and add in its place “lower”.
        c. Revise paragraph (b) to read as follows:

          § 1108.2
          Statement of purpose, organization, and jurisdiction.

          (b) Limitations to the Board's Arbitration Program. These procedures shall not be available:
          (1) To resolve disputes involving labor protective conditions;

          (2) 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;
          (3) To prescribe for the future any conduct, rules, or results of general, industry-wide applicability;
          (4) To resolve disputes that are solely between two or more rail carriers.
          Parties may only use these arbitration procedures to arbitrate matters within the statutory jurisdiction of the Board.

        4. Amend § 1108.3 as follows:
        a. In paragraph (a) introductory text remove the word “either”.
        b. In paragraph (a)(1)(ii) remove the words “different monetary award cap” and add in their place “lower monetary award cap than the monetary award caps provided in this part.”
        c. Revise paragraph (a)(2).
        d. Remove paragraph (a)(2)(i).
        e. Add paragraph (a)(3).
        f. In paragraph (b), add “itself” after “not” and remove “within that” and add in its place “prior to the end of the”.
        g. In paragraph (c), remove “on a case-by-case basis” and add in its place “only for a particular dispute”.
        The revision and addition read as follows:

          § 1108.3
          Participation in the Board's arbitration program.

          (a)  * * *
          (2) Participants to a proceeding, where one or both parties have not opted into the arbitration program, may by joint notice agree to submit an issue in dispute to the Board's arbitration program. The joint notice must clearly state the issue(s) which the parties are willing to submit to arbitration and the corresponding maximum monetary award cap if the parties desire to arbitrate for a lower amount than the monetary award cap that would otherwise be applicable.
          (3) Parties to a dispute may jointly notify the Board that they agree to submit an eligible matter in dispute to the Board's arbitration program, where no formal proceeding has begun before the Board. The joint notice must clearly state the issue(s) which the parties are willing to submit to arbitration and the corresponding maximum monetary award cap if the parties desire to arbitrate for a lower amount than the applicable monetary award cap.

        5. Amend § 1108.4 as follows:
        a. In paragraph (a) add “rates,” before the word “demurrage”.
        b. In paragraph (b) introductory text remove “may not exceed” and add in its place “will be subject to” and remove “$200,000” and add in its place “$25,000,000, including any rate prescription,” and remove “arbitral proceeding” and add in its place “rate dispute and $2,000,000 per practice dispute”.
        c. In paragraph (b)(1) remove the word “different” and add in its place “lower”.
        d. In paragraph (b)(2) remove the word “different” and add in its place “lower”.
        e. In paragraph (b)(3) remove “$200,000” and add in its place “$25,000,000, including any rate prescription,”; remove “case” and add in its place “rate dispute and $2,000,000 per practice dispute”; and remove “different” and add in its place “lower”.
        f. In paragraph (c) remove the words “arising in a docketed proceeding” and add “for a particular dispute” after “consent to arbitration”.
        g. Amend paragraph (e) by adding a new sentence after the second sentence and remove “which” and add in its place “that”.
        h. Add paragraph (g).
        The revision and addition read as follows:

          § 1108.4
          Use of arbitration.

          (e)  * * *  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.
          (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. 11704(a)(2)).

        6. Amend § 1108.5 as follows:
        a. In paragraph (a) introductory text, add “Except as provided in paragraph (e) of this section,” to the beginning of the first sentence, and remove “Arbitration” and add in its place “arbitration”.
        b. In paragraph (a)(1) remove the word “single-neutral” and add in its place “single”.
        c. In paragraph (a)(3) remove the word “different” and add in its place “lower” and remove “$200,000” and add “that would otherwise apply” after “cap”.
        d. In paragraph (b)(1) remove the word “single-neutral” and add in its place “single” wherever it appears.

        e. In paragraph (b)(1) introductory text, remove the words “the request” and add in their place “that request”.

        f. In paragraph (b)(1)(i) remove the word “single-neutral” and add in its place “single”.
        g. In paragraph (b)(1)(ii) remove the word “single-neutral” and add in its place “single” wherever it appears and remove “§ 1108.6(a)-(c)” and add in its place “§ 1108.6(a)-(d)” and remove the word “matter” and add in its place “case” and add “by the Board” after “adjudication”.
        h. Revise paragraph (b)(2).
        i. In paragraph (b)(3) remove the word “different” and add in its place “lower” and remove “$200,000” and add in its place “ otherwise applicable”.
        j. Revise paragraph (e).
        j. Add paragraphs (f) and (g).
        The revisions and additions are as follows:

          § 1108.5
          Arbitration commencement procedures.

          (b) * * *
          (2) When the complaint limits the arbitrable issues, the answer must state whether the respondent agrees to those limitations or, if the respondent is already a participant in the Board's arbitration program, whether those limitations are consistent with the respondent's opt-in notice filed with the Board pursuant to § 1108.3(a)(1)(i). If the answer contains an agreement to arbitrate some but not all of the arbitration-program-eligible 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.

          (e) Jointly-filed notice. In lieu of a formal complaint proceeding, arbitration under these rules may commence with a jointly-filed notice by parties agreeing to submit an eligible matter in dispute to the Board's arbitration program under § 1108.3(a)(3). The notice must:
          (1) Contain a statement that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or that the relevant parties are willing to arbitrate voluntarily a matter pursuant to the Board's arbitration procedures, and the relief requested;
          (2) Indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator;
          (3) Indicate if the parties have agreed to a lower amount of potential liability in lieu of the otherwise applicable monetary award cap.
          (f) Arbitration initiation. When the parties have agreed upon whether to use a single arbitrator or a panel of arbitrators, the issues(s) to be arbitrated, and the monetary limit to any arbitral decision, the Board shall initiate the arbitration under § 1108.7(a) and provide a list of arbitrators as described in § 1108.6.
          (g) Arbitration agreement. Shortly after the panel of arbitrators or arbitrator is selected, the parties to arbitration together with the lead or single arbitrator, as applicable, shall create a written arbitration agreement, which at a minimum will state with specificity the issues to be arbitrated and the corresponding monetary award cap to which the parties have agreed. The agreement may also contain other mutually agreed upon provisions.
          (1) Any additional issues selected for arbitration by the parties, that are not outside the scope of these arbitration rules as explained in § 1108.2(b), must be subject to the Board's statutory authority.
          (2) These rules shall be incorporated by reference into any arbitration agreement conducted pursuant to an arbitration complaint filed with the Board.

        7. Amend § 1108.6 as follows:
        a. In paragraph (a), remove “§ 1108.5(a)(1)” and add in its place “§ 1108.5(a)(1) and agreed to by all parties to the arbitration”.
        b. Revise paragraph (b).
        c. Revise paragraph (c) introductory text.
        d. In paragraph (c)(1) remove the word “neutral” wherever it appears and in the second sentence add “lead” in its place.
        e. Revise paragraph (c)(2).
        f. Remove paragraph (c)(3).
        g. Revise paragraph (d).
        h. Redesignate paragraph (e) as paragraph (f).
        i. Add a new paragraph (e).
        j. In newly redesignated paragraph (f)(1) remove “§ 1108.6(b)” and add in its place “§ 1108.6(d)”.
        k. Revise newly redesignated paragraph (f)(2).
        The revisions read as follows:

          § 1108.6
          Arbitrators.

          (b) Roster. Arbitration shall be conducted by an arbitrator (or panel of arbitrators) selected, as provided herein, from a roster of persons with rail transportation, economic regulation, professional or business experience, including agriculture, in the private sector. Persons seeking to be included on the roster must have training in dispute resolution and/or experience in arbitration or other forms of dispute resolution. The initial roster of arbitrators shall be established and 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 Board's roster will provide a brief biographical sketch of each arbitrator, including information such as background, experience, and geographical location, as well as general contact information, based on the information supplied by the arbitrator. The roster shall be published on the Board's Web site. The Chairman will update the roster every year. The Chairman will seek public comment on any modifications that should be made to the roster, including requesting the names and qualifications of new arbitrators who wish to be placed on the roster, and updates from arbitrators appearing on the roster to confirm that the biographical information on file with the Board remains accurate. Arbitrators who wish to remain on the roster must notify the Board of their continued availability.
          (c) Selecting the lead arbitrator. If the parties cannot mutually agree on a lead arbitrator for a panel of arbitrators, the Board, through the Director of the Office of Proceedings, shall provide the parties with a list of not more than 15 arbitrators selected from the Board's roster within seven days of the Board initiating the arbitration process. When compiling a list of arbitrators for a particular arbitration proceeding, the Board will consider a variety of factors, including relevant background and experience, likely acceptability, geographical location, and any expressed preferences of the parties. The parties will have seven days from the date the Board provides them with this list to select a lead arbitrator using a single strike methodology. The list will have an odd number of arbitrators to ensure that parties have the same number of strikes. The complainant will strike one name from the list first. The respondent will then have the opportunity to strike one name from the list. The process will then repeat until one individual on the list remains, who shall be the lead arbitrator.
          (c) * * *
          (2) The lead arbitrator appointed through the strike methodology shall serve as the head of the arbitration panel and will be responsible for ensuring that the tasks detailed in §§ 1108.7 and 1108.9 are accomplished.
          (d) Party-appointed arbitrators. The party or parties on each side of an arbitration dispute shall select one arbitrator from the roster, regardless of whether the arbitrator's name appears on the list of 15 potential lead arbitrators and regardless of whether the other party struck the arbitrator's name in selecting a lead arbitrator. The party or parties on each side will have seven days from the date the Board provides them with the list described in paragraph (c) of this section to appoint that side's own arbitrator. Parties on one side of an arbitration proceeding may not challenge the arbitrator selected by the opposing side.
          (e) Use of a single arbitrator. Parties to arbitration may request the use of a single arbitrator. Requests for use of a single arbitrator must be included in a complaint or an answer as required in § 1108.5(a)(1), or in the joint notice filed under § 1108.5(e). Parties to both sides of an arbitration dispute must agree to the use of a single arbitrator in writing. If the single-arbitrator option is selected, and if parties cannot mutually agree on a single arbitrator, the arbitrator selection procedures outlined in paragraph (c) of this section shall apply.

          (f) * * *
          (2) If the incapacitated arbitrator was the lead or single arbitrator, the parties shall promptly inform the Board of the arbitrator's incapacitation and the selection procedures set forth in paragraph (c) of this section shall apply.

        8. Revise § 1108.7 to read as follows:

          § 1108.7
          Arbitration procedures.
          (a) Initiation. With the exception of rate dispute arbitration proceedings, the Board shall initiate the arbitration process within 40 days after submission of a written complaint or joint notice filed under § 1108.5(e). In arbitrations involving rate disputes, the Board shall initiate the arbitration process within 10 days after the Board issues a decision determining that the rail carrier has market dominance.
          (b) Arbitration evidentiary phase timetable. Whether the parties select a single arbitrator or a panel of three arbitrators, the lead or single arbitrator shall establish all rules deemed necessary for each arbitration proceeding, including with regard to discovery, the submission of evidence, and the treatment of confidential information, subject to the requirement that this evidentiary phase shall be completed within 90 days from the date on which the arbitration process is initiated, unless a party requests an extension, and the arbitrator or panel of arbitrators, as applicable, grants such extension request.
          (c) Written decision timetable. The lead or single arbitrator will be responsible for writing the arbitration decision. The unredacted arbitration decision must be served on the parties within 30 days of completion of the evidentiary phase. A redacted copy of the arbitration decision must be served upon the Board within 60 days of the close of the evidentiary phase for publication on the Board's Web site.
          (d) Extensions to the arbitration timetable. The Board may extend any deadlines in the arbitration timetable provided in this part upon agreement of all parties to the dispute.
          (e) Protective orders. Any party, on either side of an arbitration proceeding, may request that discovery and the submission of evidence be conducted pursuant to a standard protective order agreement.

          § 1108.9
          Decisions.

        9. Amend § 1108.9 as follows:
        a. Revise paragraph (a).
        b. In paragraph (b) remove the word “neutral” and add in its place “lead or single”.
        c. In paragraph (d) remove the heading “Neutral arbitrator authority” and add in its place “Lead or single arbitrator authority” and remove the word “neutral” from the first sentence and add in its place “lead or single” and add “, if any,” after “what”.
        d. In paragraph (e) remove the word “neutral” wherever it appears and add in its places “lead or single” and remove “§ 1108.7(b)” and add in its place “§ 1108.7(c)”.
        e. In paragraph (f) remove the word “neutral” and add in its place “lead or single”.
        The revision reads as follows:

          § 1108.9
          Decisions.
          (a) Decision requirements. Whether by a panel of arbitrators or a single arbitrator, all arbitration decisions shall be in writing and shall contain findings of fact and conclusions of law. All arbitration decisions must be consistent with sound principles of rail regulation economics. The arbitrator shall provide an unredacted draft of the arbitration decision to the parties to the dispute, in accordance with § 1108.7.

        10. Amend § 1108.11 by revising paragraph (b) introductory text to read as follows.

          § 1108.11
          Enforcement and appeals.

          (b) Board's standard of review. On appeal, the Board's standard of review of arbitration decisions will be narrow. The Board will review a decision to determine if the decision is consistent with sound principles of rail regulation economics, a clear abuse of arbitral authority or discretion occurred; the decision directly contravenes statutory authority; or the award limitation was violated. Using this standard, the Board may modify or vacate an arbitration award in whole or in part.

        11. Amend § 1108.12 as follows:
        a. Revise paragraph (b).
        b. Remove paragraphs (c) and (d).

          § 1108.12
          Fees and costs.

          (b) Costs. The parties shall share the costs incurred by the Board and arbitrators equally, with each party responsible for paying its own legal and other associated arbitration costs.

          PART 1115—APPELLATE PROCEDURES

        12. The authority citation for Part 1115 is revised to read as follows:

          Authority:
           5 U.S.C. 559; 49 U.S.C. 1321, 49 U.S.C. 11708.

        13. Revise § 1115.8 to read as follows:

          § 1115.8
          Petitions to review arbitration decisions.

          An appeal of right to the Board 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). For arbitrations authorized under part 1108 of this chapter, the Board's standard of review of arbitration decisions will be narrow, and relief will only be granted on grounds that the decision is inconsistent with sound principles of rail regulation economics, a clear abuse of arbitral authority or discretion occurred, the decision directly contravenes statutory authority, or the award limitation was violated. For labor arbitration decisions, the Board's standard of review is set forth in Chicago and North Western Transportation Company—Abandonment—near Dubuque & Oelwein, Iowa, 3 I.C.C.2d 729 (1987), aff'd sub nom. International Brotherhood of Electrical Workers v. Interstate Commerce Commission, 862 F.2d 330 (D.C. Cir. 1988). 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).

            Note:
             The following appendix will not appear in the Code of Federal Regulations.

            Appendix
            Information Collection 1

              Title: Joint Notice for Request of Arbitration.

              OMB Control Number: 2140-XXXX.

              Form Number: None.

              Type of Review: New collection.

              Respondents: Parties seeking to submit to arbitration certain matters before the Board.

              Number of Respondents: 5.

              Estimated Time per Response: No more than 1 hour.

              Frequency of Response: On occasion.

              Total Annual Hour Burden: 5 hours.

              Total Annual “Non-Hour Burden” Cost: No “non-cost” burdens associated with this collection have been identified.

              Needs and Uses: Under 49 CFR 1108.5, arbitration commences with a written complaint that contains a statement that the relevant parties are participants in the Board's arbitration program, or that the complainant is willing to arbitrate the dispute pursuant to the Board's arbitration procedures. The respondent's answer to the written complaint must then indicate the respondent's participation in the Board's arbitration program or its willingness to arbitrate the dispute at hand pursuant to the Board's arbitration procedures.
            The Board proposes here, as an alternative to filing a written complaint, that parties may submit a joint notice to the Board, indicating the consent of both parties to submit an issue in dispute to the Board's arbitration program. In the joint notice, parties would state the issue(s) that the parties are willing to submit to arbitration. The notice would also contain a statement that would indicate that all relevant parties are participants in the Board's arbitration program pursuant to § 1108.3(a), or that the relevant parties are willing to arbitrate voluntarily a matter pursuant to the Board's arbitration procedures, and the relief requested. The notice would indicate whether parties have agreed to a three-member arbitration panel or a single arbitrator. And, the notice would indicate whether the parties have mutually agreed to a lower amount of potential liability in lieu of the monetary award cap that would otherwise be applicable. This alternative filing method would encourage greater use of arbitration to resolve disputes at the Board.

            Information Collection 2

              Title: Arbitrator Roster.

              OMB Control Number: 2140-XXXX.

              Form Number: None.

              Type of Review: New collection.

              Respondents: Potential arbitrators.

              Number of Respondents: 40.

              Estimated Time per Response: No more than 1 hour.

              Frequency of Response: Annually.

              Total Annual Hour Burden: 40 hours.

              Total Annual “Non-Hour Burden” Cost: No “non-cost” burdens associated with this collection have been identified.

              Needs and Uses: Under section 11708, the Board must “promulgate regulations to establish a voluntary and binding arbitration process to resolve rail rate and practice complaints” that are subject to the Board's jurisdiction. To facilitate this process, the Board's proposed rules would establish a process for creating and maintaining a roster of arbitrators and selecting arbitrators from the roster in accordance with the statutory requirements.
            Pursuant to section 11708(f), unless parties otherwise agree, an arbitrator or panel of arbitrators would be selected from a roster maintained by the Board. The Board's roster would provide a brief biographical sketch of each arbitrator, including information such as background, experience, and geographical location, as well as general contact information, based on the information supplied by the arbitrator. Under the proposed rules, an initial roster would be compiled by the Chairman, who would seek notice from all interested, qualified persons who wish to be placed on the Board's arbitration roster. The Chairman could augment the roster at any time to include other eligible arbitrators and remove from the roster any arbitrators who are no longer available or eligible. The roster would be made available to the public on the Board's Web site.

      [FR Doc. 2016-11238 Filed 5-13-16; 8:45 am]
       BILLING CODE 4915-01-P