DOT 49 CFR PART 1115-2010 APPELLATE PROCEDURES.pdf

1、146 49 CFR Ch. X (10110 Edition) Pt. 1115 imposed upon the United States under this rule. 47 FR 49562, Nov. 1, 1982, as amended at 61 FR 52713, Oct. 8, 1996; 68 FR 17313, Apr. 9, 2003; 69 FR 58366, Sept. 30, 2004; 72 FR 51377, Sept. 7, 2007; 74 FR 52908, Oct. 15, 2009 PART 1115APPELLATE PROCEDURES S

2、ec. 1115.1 Scope of rule. 1115.2 Initial decisions. 1115.3 Board actions other than initial deci-sions. 1115.4 Petitions to reopen administratively final actions. 1115.5 Petitions for other relief. 1115.6 Exhaustion of remedies and judicial review. 1115.7 Petitions for judicial review; mailing addre

3、ss. 1115.8 Petitions to review arbitration deci-sions. 1115.9 Interlocutory appeals. AUTHORITY: 5 U.S.C. 559; 49 U.S.C. 721. SOURCE: 47 FR 49568, Nov. 1, 1982, unless otherwise noted. 1115.1 Scope of rule. (a) These appellate procedures apply in cases where a hearing is required by law or Board acti

4、on. They do not apply to informal matters such as car serv-ice, temporary authority, suspension, special permission actions, or to other matters of an interlocutory nature. Abandonments and discontinuance pro-ceedings instituted under 49 U.S.C. 10903 are governed by separate appel-late procedures ex

5、clusive to those pro-ceedings. (See 49 CFR part 1152) (b) Requests for appellate relief may relate either to initial decisions or to Board actions other than initial deci-sions. For each category, this rule de-scribes the types of appeal permitted, the requirements to be observed in fil-ing an appea

6、l, provisions for stay of the action, and the status of the action in the absence of a stay. (c) Appeals from the decisions of em-ployees acting under authority dele-gated to them by the Chairman of the Board pursuant to 1011.6 will be acted upon by the entire Board. Appeals must be filed within 10

7、days of the date of the action taken by the employee, and responses to appeals must be filed within 10 days thereafter. Such appeals are not favored; they will be granted only in exceptional circumstances to correct a clear error of judgment or to prevent manifest injustice. 47 FR 49568, Nov. 1, 198

8、2, as amended at 61 FR 52714, Oct. 8, 1996; 69 FR 12806, Mar. 18, 2004 1115.2 Initial decisions. This category includes the initial de-cision of an administrative law judge, individual Board Member, or employee board. (a) An appeal of right is permitted. (b) Appeals must be based on one or more of t

9、he following grounds: (1) That a necessary finding of fact is omitted, erroneous, or unsupported by substantial evidence of record; (2) That a necessary legal conclusion, or finding is contrary to law, Board precedent, or policy; (3) That an important question of law, policy, or discretion is involv

10、ed which is without governing precedent; (4) That prejudicial procedural error has occurred. (c) Appeals must detail the assailed findings with supporting citations to the record and authorities. (d) Appeals and replies shall not ex-ceed 30 pages in length, including argu-ment, and appendices or oth

11、er attach-ments, but excluding a table of cases and an index of subject matter. (e) Appeals must be filed within 20 days after the service date of the deci-sion or within any further period (not to exceed 20 days) the Board may au-thorize. Replies must be filed within 20 days of the date the appeal

12、is filed. (f) The timely filing of an appeal to an initial decision will stay the effect of the action pending determination of the appeal. (g) If an appeal of an initial decision is not timely filed or the Board does not stay the effectiveness on its own motion, the order set forth in the ini-tial

13、decision shall become the action of the Board and be effective at the expi-ration of the time for filing, unless oth-erwise provided. 47 FR 49568, Nov. 1, 1982, as amended at 54 FR 19894, May 9, 1989; 61 FR 52714, Oct. 8, 1996 VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00156 Fmt 8010

14、 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-147 Surface Transportation Board, DOT 1115.6 1115.3 Board actions other than ini-tial decisions. (a) A discretionary appeal of an en-t

15、ire Board action is permitted. Such an appeal should be designated a petition for reconsideration. (b) The petition will be granted only upon a showing of one or more of the following points: (1) The prior action will be affected materially because of new evidence or changed circumstances. (2) The p

16、rior action involves material error. (c) The petition must state in detail the nature of and reasons for the relief requested. When, in a petition filed under this section, a party seeks an op-portunity to introduce evidence, the evidence must be stated briefly and must not appear to be cumulative,

17、and an explanation must be given why it was not previously adduced. (d) The petition and any reply must not exceed 20 pages in length. A sepa-rate preface and summary of argument, not exceeding 3 pages, may accompany petitions and replies and must accom-pany those that exceed 10 pages in length. (e)

18、 Petitions must be filed within 20 days after the service of the action or within any further period (not to ex-ceed 20 days) as the Board may author-ize. (f) The filing of a petition will not automatically stay the effect of a prior action, but the Board may stay the ef-fect of the action on its ow

19、n motion or on petition. A petition to stay may be filed in advance of the petition for re-consideration and shall be filed within 10 days of service of the action. No reply need be filed. However, if a party elects to file a reply, it must reach the Board no later than 16 days after serv-ice of the

20、 action. In all proceedings, the action, if not stayed, will become effective 30 days after it is served, un-less the Board provides for the action to become effective at a different date. On the day the action is served parties may initiate judicial review. 61 FR 52714, Oct. 8, 1996, as amended at

21、61 FR 58491, Nov. 15, 1996 1115.4 Petitions to reopen adminis-tratively final actions. A person at any time may file a peti-tion to reopen any administratively final action of the Board pursuant to the requirements of 1115.3 (c) and (d) of this part. A petition to reopen must state in detail the res

22、pects in which the proceeding involves material error, new evidence, or substantially changed circumstances and must include a re-quest that the Board make such a de-termination. 61 FR 52714, Oct. 8, 1996 1115.5 Petitions for other relief. (a) A party may petition for a stay of an action pending a r

23、equest for judicial review, for extension of the compliance date, or for modification of the date the terms of the decision take effect. The reasons for the desired relief must be stated in the petition, and the peti-tion must be filed not less than 10 days prior to the date the terms of the ac-tion

24、 take effect. No reply need be filed. If a party elects to file a reply, the reply must reach the Board no later than 5 days after the petition is filed. (b) When the terms of a Board action take effect on less than 15 days notice, a petition for stay pending a request for judicial review must be fi

25、led prior to the institution of court action and as close to the service date as prac-ticable. No reply need be filed. Where time permits, a party may elect to file a reply. (c) A petition or reply must not ex-ceed 10 pages in length. 47 FR 49568, Nov. 1, 1982, as amended at 61 FR 52714, Oct. 8, 199

26、6 1115.6 Exhaustion of remedies and judicial review. These rules do not relieve the re-quirement that a party exhaust its ad-ministrative remedies before going to court. Any action appealable as of right must be timely appealed. If an appeal, discretionary appeal, or peti-tion seeking reopening is f

27、iled under 1115.2 or 1115.3 of this part, before or after a petition seeking judicial review is filed with the courts, the Board will act upon the appeal or petition after VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00157 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1

28、PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-148 49 CFR Ch. X (10110 Edition) 1115.7 advising the court of its pendency un-less action might interfere with the courts jurisdiction. 47 FR 49568, Nov. 1, 1982, as amended at 61 FR 52714,

29、 Oct. 8, 1996 1115.7 Petitions for judicial review; mailing address. Petitions for judicial review of final agency orders may be served on the Board pursuant to 28 U.S.C. 2112(a) and be addressed to General Counsel, Of-fice of the General Counsel, Surface Transportation Board, Washington, DC 20423.

30、53 FR 20854, June 7, 1988, as amended at 61 FR 52714, Oct. 8, 1996 1115.8 Petitions to review arbitration decisions. An appeal of right is permitted. The appeal must be filed within 20 days of a final arbitration decision, unless a later date is authorized by the Board, and is subject to the page li

31、mitations of 1115.2(d). Standards for Board re-view of arbitration decisions are set forth in Chicago and North Western Transp. Co.Abandonment, 3 I.C.C.2d 729 (1987), affd sub nom. International Brotherhood of Electrical Workers v. STB, No. 871629 (D.C. Cir. November 25, 1988). The timely filing of

32、a petition will not automatically stay the effect of the arbitration decision. A stay may be requested under 1115.5. 54 FR 19894, May 9, 1989, as amended at 61 FR 52714, Oct. 8, 1996 1115.9 Interlocutory appeals. (a) Rulings of Board employees, in-cluding administrative law judges, may be appealed p

33、rior to service of the ini-tial decision only if: (1) The ruling denies or terminates any persons participation; (2) The ruling grants a request for the inspection of documents not ordi-narily available for public inspection; (3) The ruling overrules an objection based on privilege, the result of wh

34、ich ruling is to require the presentation of testimony or documents; or (4) The ruling may result in substan-tial irreparable harm, substantial det-riment to the public interest, or undue prejudice to a party. (b) In stand-alone cost complaints or in cases filed under the simplified standards, any i

35、nterlocutory appeal of a ruling shall be filed with the Board within three (3) business days of the ruling. Replies to any interlocutory ap-peal shall be filed with the Board with-in three (3) business days after the fil-ing of any such appeal. In all other cases, interlocutory appeals shall be file

36、d with the Board within seven (7) calendar days of the ruling and replies to interlocutory appeals shall be filed with Board within seven (7) calendar days after the filing of any such appeal as computed under 49 CFR 1104.7. 61 FR 52714, Oct. 8, 1996, as amended at 61 FR 58491, Nov. 15, 1996; 72 FR

37、51377, Sept. 7, 2007 PART 1116ORAL ARGUMENT BEFORE THE BOARD Sec. 1116.1 Requests. 1116.2 Manner of presentation. AUTHORITY: 49 U.S.C. 721. SOURCE: 47 FR 49569, Nov. 1, 1982, unless otherwise noted. 1116.1 Requests. (a) Addressee. Requests for oral argu-ment should be addressed to the Chief, Section

38、 of Administration, Office of Proceedings, Surface Transportation Board, Washington, DC 204230001. (b) Who may request? Any party may submit a written request for oral argu-ment and state the reasons for the re-quest. No replies from other parties to the request shall be made. (c) When to file a req

39、uest. Requests for oral argument should be filed within 20 days after the date of service of the de-cision, order, or requirement being ap-pealed, unless the Board by order pre-scribes a different time period. (d) Granting of request. The Board will rule upon requests by decision, and the granting o

40、f requests is entirely at the discretion of the Board. 47 FR 49569, Nov. 1, 1982, as amended at 74 FR 52908, Oct. 15, 2009 1116.2 Manner of presentation. Proponents of a rule or order will be heard first, and opponents will be heard second. One counsel only will usually VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00158 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-