Regulations -- Dispute Resolution

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ELECTRONIC CODE OF FEDERAL REGULATIONS
e-CFR data is current as of March 28, 2017
Title 49 → Subtitle B → Chapter X → Subchapter B → Part 1109
Title 49: Transportation
PART 1109—USE OF MEDIATION IN BOARD PROCEEDINGS
Contents
§1109.1 Mediation statement of purpose, organization, and jurisdiction.
§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.
§1109.5 Resolution of certain disputes involving the State Sponsored Route Committee and the Northeast Corridor
Commission.
AUTHORITY: 5 U.S.C. 571 et seq. and 49 U.S.C. 1321(a), 24712(c), and 24905(c).
SOURCE: 78 FR 29083, May 17, 2013, unless otherwise noted.

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§1109.1 Mediation statement of purpose, organization, and jurisdiction.
The Board favors the resolution of disputes through the use of mediation and arbitration procedures, in lieu of formal
Board proceedings, whenever possible. Parties may seek to resolve a dispute brought before the Board using the Board's
mediation procedures. These procedures shall not be available in a regulatory proceeding to obtain the grant, denial, stay
or revocation of a request for construction, abandonment, purchase, trackage rights, merger, pooling authority 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. The Board's mediation program is open to all parties eligible to bring or defend matters
before the Board.
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§1109.2 Commencement of mediation.
(a) Availability of mediation. Mediation may be commenced in a dispute before the Board:
(1) Pursuant to a Board order issued in response to a written request of one or more parties to a matter;
(2) Where the Board orders mediation by its own order; or
(3) In connection with a rate complaint, as provided by §1109.4 and part 1111 of this chapter.
(b) Requests for mediation. Parties wishing to pursue mediation may file a request for mediation with the Board at any
time following the filing of a complaint. Parties that use the Board's 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 one or more parties
to the underlying dispute do not consent to mediation, or where the parties seek to mediate disputes not eligible for Boardsponsored mediation, as listed in §1109.1.
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§1109.3 Mediation procedures.
(a) Mediation model. The Chairman will appoint one or more Board employees trained in mediation to mediate 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 equally the fees and/or costs of the mediator. The following restrictions apply to any mediator selected
by the Board or the parties:

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(1) 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
(2) If the mediation does not fully resolve all issues in the docket before the Board, the Board employees serving as
mediators may not thereafter advise the Board regarding the future disposition of the remaining issues in the docket.
(b) Mediation period. The mediation period shall be 30 days, beginning on the date of the first mediation session. 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 mediation proceeding. The Board will not extend mediation for additional periods of time
where one or more parties to mediation 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. The
mediator(s) shall notify the Board whether the parties have reached any agreement by the end of the 30-day period.
(c) Party representatives. 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(s) request that principal to be present.
(d) Confidentiality. Mediation is a confidential process, governed by the confidentiality rules of the Administrative
Dispute Resolution Act of 1996 (ADRA) (5 U.S.C. 574). In addition to the confidentiality rules set forth in the ADRA, the
Board requires the following additional confidentiality protections:
(1) All parties to Board sponsored mediation will sign an Agreement to Mediate. The Agreement to Mediate shall
incorporate these rules by reference.
(2) As a condition of participation, the parties and any interested parties joining the mediation must agree to the
confidentiality of the mediation process as provided in this section and further detailed in an agreement to mediate. The
parties to mediation, including the mediator(s), 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.
(3) Evidence of conduct or statements made during mediation is not admissible in any Board proceeding. 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 bodies.
(e) Abeyance. Except as otherwise provided for in §1109.4(f) and part 1111 of this chapter, any party may request
that a proceeding be held in abeyance while mediation procedures are pursued. Any such request 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 §1109.4(g) and part 1111 of this chapter, the Board may also direct that a
proceeding be held in abeyance pending the conclusion of mediation. Where both parties to mediation voluntarily consent
to mediation, the period during which any proceeding is held in abeyance shall toll applicable statutory deadlines. Where
one or both parties to mediation do not voluntarily consent to mediation, the Board will not hold the underlying proceeding
in abeyance and statutory deadlines will not be tolled.
(f) Mediated settlements. 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, but the parties, or the mediator(s), shall notify the Board that the
parties have reached a mutually agreeable resolution and request that the Board terminate the underlying Board
proceeding. Parties to the settlement agreement shall waive all rights of administrative appeal to the issues resolved by
the settlement agreement.
(g) Partial resolution of mediated issues. If the parties reach only a partial resolution of their dispute, they or the
mediator(s) 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.
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§1109.4 Mandatory mediation in rate cases to be considered under the stand-alone cost methodology.
(a) Mandatory use of mediation. A shipper seeking rate relief from a railroad or railroads in a case involving the standalone 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) Assignment of mediators. Within 10 business days after the shipper files its formal complaint, the Board will assign
one or more mediators to the case. Within 5 business days of the assignment to mediate, the mediator(s) shall contact the
parties to discuss ground rules and the time and location of any meeting.
(c) Party representatives. 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(s) requests that the principal be present.

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(d) Settlement. The mediator(s) 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(s) may assist in preparing a
written settlement agreement.
(e) Confidentiality. The entire mediation process shall be private and confidential. No party may use any concessions
made or information disclosed to either the mediator(s) or the opposing party before the Board or in any other forum
without the consent of the other party. The confidentiality provision of §1109.3(d) and the mediation agreement shall apply
to all mediations conducted under this section.
(f) Mediation period. The mediation shall be completed within 60 days of the appointment of the mediator(s). The
mediation may be terminated prior to the end of the 60-day period only with the certification of the mediator(s) 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.
(g) Procedural schedule. 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).
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§1109.5 Resolution of certain disputes involving the State Sponsored Route Committee and the Northeast
Corridor Commission.
(a) In addition to the mediation procedures under this part that are available following the filing of a complaint in a
proceeding before the Board, Amtrak or a State member of the State Supported Route Committee established under 49
U.S.C. 24712 may request that the Board informally assist in securing outside professional mediation services in order to
resolve disputes arising from: Implementation of, or compliance with, the cost allocation methodology for State-Supported
Routes developed under section 209 of the Passenger Rail Investment and Improvement Act of 2008 or amended under
49 U.S.C. 24712(a)(6); invoices or reports provided under 49 U.S.C. 24712(b); or rules and procedures implemented by
the State Supported Route Committee under 49 U.S.C. 24712(a)(4). With respect to a particular dispute, such a request
for informal assistance in securing outside professional mediation services may be submitted to the Board:
(1) In the absence of a complaint proceeding before the Board; or
(2) If, while a formal complaint is pending before the Board, a motion is filed in that formal proceeding requesting that
it be held in abeyance in light of the request for informal assistance.
(b) In addition to the mediation procedures under this part that are available following the filing of a complaint in a
proceeding before the Board, the Northeast Corridor Commission established under 49 U.S.C. 24905, Amtrak, or public
authorities providing commuter rail passenger transportation on the Northeast Corridor may request that the Board
informally assist in securing outside professional mediation services in order to resolve disputes involving implementation
of, or compliance with, the policy developed under 49 U.S.C. 24905(c)(1). With respect to a particular dispute, such a
request for informal assistance in securing outside professional mediation services may be submitted to the Board:
(1) In the absence of a complaint proceeding before the Board; or
(2) If, while a formal complaint is pending before the Board, a motion is filed in that formal proceeding requesting that
it be held in abeyance in light of the request for informal assistance.
(c) A request for informal Board assistance in securing outside professional mediation services under paragraph (a) or
(b) of this section shall be submitted by letter duly authorized to be submitted to the Board by the requesting party. The
request letter shall be addressed to the Director of the Board's Office of Public Assistance, Governmental Affairs, and
Compliance, and shall include a concise description of the issues for which outside professional mediation services are
sought. The Office of Public Assistance, Governmental Affairs, and Compliance shall contact the requesting party in
response to such request within 14 days of receipt of the request.
[81 FR 85904, Nov. 29, 2016]

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