49 U.S.C. § 11708 — Voluntary arbitration of certain rail

Page 460 TITLE 49—TRANSPORTATION § 11708 (3) A rail carrier to whom property is trans- ported is not liable under this subsection if it shows that it had no notice of the routing in- structions before transporting the property. The burden of proving lack of notice is on that rail carrier. (b) The court shall award a reasonable attor- ney’s fee to the plaintiff in a judgment against the defendant rail carrier under subsection (a) of this section. The court shall tax and collect that fee as a part of the costs of the action. (Added Pub. L. 104–88, title I, § 102(a), Dec. 29, 1995, 109 Stat. 849.) Editorial Notes PRIOR PROVISIONS Provisions similar to those in this section were con- tained in section 11710 of this title prior to the general amendment of this subtitle by Pub. L. 104–88, § 102(a). Prior sections 11707 to 11712 were omitted in the gen- eral amendment of this subtitle by Pub. L. 104–88, § 102(a). Section 11707, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1453; Pub. L. 96–258, § 1(14), June 3, 1980, 94 Stat. 427; Pub. L. 96–296, § 26(b), July 1, 1980, 94 Stat. 818; Pub. L. 96–448, title II, § 211(c), Oct. 14, 1980, 94 Stat. 1911; Pub. L. 99–521, § 12(d), Oct. 22, 1986, 100 Stat. 2998; Pub. L. 100–690, title IX, § 9114, Nov. 18, 1988, 102 Stat. 4535, re- lated to liability of common carriers under receipts and bills of lading. See sections 11706, 14706, and 15906 of this title. Section 11708, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1454; Pub. L. 99–521, § 12(e)(1), (2), Oct. 22, 1986, 100 Stat. 2998, related to private enforcement of motor carrier and household goods freight forwarder licensing re- quirements. See section 14707 of this title. Section 11709, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1454, related to liability for issuance of securities by certain carriers. Section 11710, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1455, related to liability when property is delivered in violation of routing instructions. See section 11707 of this title. Section 11711, added Pub. L. 96–454, § 7(a)(1), Oct. 15, 1980, 94 Stat. 2016; amended Pub. L. 97–261, § 6(d)(2), Sept. 20, 1982, 96 Stat. 1107, related to dispute settle- ment program for household goods carriers. See section 14708 of this title. Section 11712, added Pub. L. 103–180, § 4(a), Dec. 3, 1993, 107 Stat. 2049, related to tariff reconciliation rules for motor common carriers of property. See section 14709 of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1996, except as otherwise pro- vided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title. § 11708. Voluntary arbitration of certain rail rates and practices disputes (a) IN GENERAL.—Not later than 1 year after the date of the enactment of the Surface Trans- portation Board Reauthorization Act of 2015, the Board shall promulgate regulations to establish a voluntary and binding arbitration process to resolve rail rate and practice complaints subject to the jurisdiction of the Board. (b) COVERED DISPUTES.—The voluntary and binding arbitration process established pursuant to subsection (a)— (1) shall apply to disputes involving— (A) rates, demurrage, accessorial charges, misrouting, or mishandling of rail cars; or (B) a carrier’s published rules and prac- tices as applied to particular rail transpor- tation; (2) shall not apply to disputes— (A) to obtain the grant, denial, stay, or revocation of any license, authorization, or exemption; (B) to prescribe for the future any conduct, rules, or results of general, industry-wide ap- plicability; (C) to enforce a labor protective condition; or (D) that are solely between 2 or more rail carriers; and (3) shall not prevent parties from independ- ently seeking or utilizing private arbitration services to resolve any disputes the parties may have. (c) ARBITRATION PROCEDURES.— (1) IN GENERAL.—The Board— (A) may make the voluntary and binding arbitration process established pursuant to subsection (a) available only to the relevant parties; (B) may make the voluntary and binding arbitration process available only— (i) after receiving the written consent to arbitrate from all relevant parties; and (ii)(I) after the filing of a written com- plaint; or (II) through other procedures adopted by the Board in a rulemaking proceeding; (C) with respect to rate disputes, may make the voluntary and binding arbitration process available only to the relevant par- ties if the rail carrier has market dominance (as determined under section 10707); and (D) may initiate the voluntary and binding arbitration process 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. (2) LIMITATION.—Initiation of the voluntary and binding arbitration process shall preclude the Board from separately reviewing a com- plaint or dispute related to the same rail rate or practice in a covered dispute involving the same parties. (3) RATES.—In resolving a covered dispute in- volving the reasonableness of a rail carrier’s rates, the arbitrator or panel of arbitrators, as applicable, shall consider the Board’s meth- odologies for setting maximum lawful rates, giving due consideration to the need for dif- ferential pricing to permit a rail carrier to collect adequate revenues (as determined under section 10704(a)(2)). (d) ARBITRATION DECISIONS.—Any decision reached in an arbitration process under this sec- tion— (1) shall be consistent with sound principles of rail regulation economics; (2) shall be in writing; (3) shall contain findings of fact and conclu- sions; (4) shall be binding upon the parties; and (5) shall not have any precedential effect in any other or subsequent arbitration dispute. Page 461 TITLE 49—TRANSPORTATION § 11901 (e) TIMELINES.— (1) SELECTION.—An arbitrator or panel of ar- bitrators shall be selected not later than 14 days after the date of the Board’s decision to initiate arbitration. (2) EVIDENTIARY PROCESS.—The evidentiary process of the voluntary and binding arbitra- tion process shall be completed not later than 90 days after the date on which the arbitration process is initiated unless— (A) a party requests an extension; and (B) the arbitrator or panel of arbitrators, as applicable, grants such extension request. (3) DECISION.—The arbitrator or panel of ar- bitrators, as applicable, shall issue a decision not later than 30 days after the date on which the evidentiary record is closed. (4) EXTENSIONS.—The Board may extend any of the timelines under this subsection upon the agreement of all parties in the dispute. (f) ARBITRATORS.— (1) IN GENERAL.—Unless otherwise agreed by all of the parties, an arbitration under this section shall be conducted by an arbitrator or panel of arbitrators, which shall be selected from a roster, maintained by the Board, of persons with rail transportation, economic regulation, professional or business experi- ence, including agriculture, in the private sec- tor. (2) INDEPENDENCE.—In an arbitration under this section, the arbitrators shall perform their duties with diligence, good faith, and in a manner consistent with the requirements of impartiality and independence. (3) SELECTION.— (A) IN GENERAL.—If the parties cannot mu- tually agree on an arbitrator, or the lead ar- bitrator of a panel of arbitrators, the parties shall select the arbitrator or lead arbitrator from the roster by alternately striking names from the roster until only 1 name re- mains meeting the criteria set forth in para- graph (1). (B) PANEL OF ARBITRATORS.—If the parties agree to select a panel of arbitrators, in- stead of a single arbitrator, the panel shall be selected under this subsection as follows: (i) The parties to a dispute may mutu- ally select 1 arbitrator from the roster to serve as the lead arbitrator of the panel of arbitrators. (ii) If the parties cannot mutually agree on a lead arbitrator, the parties shall se- lect a lead arbitrator using the process de- scribed in subparagraph (A). (iii) In addition to the lead arbitrator se- lected under this subparagraph, each party to a dispute shall select 1 additional arbi- trator from the roster, regardless of whether the other party struck out the ar- bitrator’s name under subparagraph (A). (4) COST.—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. (g) RELIEF.— (1) IN GENERAL.—Subject to the limitations set forth in paragraphs (2) and (3), an arbitral decision under this section may award the payment of damages or rate prescriptive re- lief. (2) PRACTICE DISPUTES.—The damage award for practice disputes may not exceed $2,000,000. (3) RATE DISPUTES.— (A) MONETARY LIMIT.—The damage award for rate disputes, including any rate pre- scription, may not exceed $25,000,000. (B) TIME LIMIT.—Any rate prescription shall be limited to not longer than 5 years from the date of the arbitral decision. (h) BOARD REVIEW.—If a party appeals a deci- sion under this section to the Board, the Board may review the decision under this section to determine if— (1) the decision is consistent with sound principles of rail regulation economics; (2) a clear abuse of arbitral authority or dis- cretion occurred; (3) the decision directly contravenes statu- tory authority; or (4) the award limitation under subsection (g) was violated. (Added Pub. L. 114–110, § 13(a), Dec. 18, 2015, 129 Stat. 2235.) Editorial Notes REFERENCES IN TEXT The date of the enactment of the Surface Transpor- tation Board Reauthorization Act of 2015, referred to in subsec. (a), is the date of enactment of Pub. L. 114–110, which was approved Dec. 18, 2015. CHAPTER 119—CIVIL AND CRIMINAL PENALTIES Sec. 11901. General civil penalties. 11902. Interference with railroad car supply. 11903. Record keeping and reporting violations. 11904. Unlawful disclosure of information. 11905. Disobedience to subpoenas. 11906. General criminal penalty when specific pen- alty not provided. 11907. Punishment of corporation for violations committed by certain individuals. 11908. Relation to other Federal criminal penalties. § 11901. General civil penalties (a) Except as otherwise provided in this sec- tion, a rail carrier providing transportation sub- ject to the jurisdiction of the Board under this part, an officer or agent of that rail carrier, or a receiver, trustee, lessee, or agent of one of them, knowingly violating this part or an order of the Board under this part is liable to the United States Government for a civil penalty of not more than $5,000 for each violation. Liabil- ity under this subsection is incurred for each distinct violation. A separate violation occurs for each day the violation continues. (b) A rail carrier providing transportation sub- ject to the jurisdiction of the Board under this part, or a receiver or trustee of that rail carrier, violating a regulation or order of the Board under section 11124(a)(2) or (b) of this title is lia- ble to the United States Government for a civil penalty of $500 for each violation and for $25 for each day the violation continues. (c) A person knowingly authorizing, con- senting to, or permitting a violation of sections