49 CFR Part 1108 — Arbitration of Certain Disputes Subject to the Statutory Jurisdiction of the Surface Transportation Board

PART 1108—ARBITRATION OF CERTAIN DISPUTES SUBJECT TO THE STATUTORY JURISDICTION OF THE SURFACE TRANSPORTATION BOARD Authority: 49 U.S.C. 11708, 49 U.S.C. 1321(a), and 5 U.S.C. 571 et seq. Source: 78 FR 29079, May 17, 2013, unless otherwise noted. Subpart A—General Arbitration Procedures § 1108.1 Definitions. As used in this subpart: (a) Arbitrator (b) Arbitrator Panel (c) Arbitration program (d) Arbitration-program-eligible matters (e) Counterclaim (f) Final arbitration decision (g) Interstate Commerce Act (h) Lead arbitrator or single arbitrator (i) Monetary award cap (j) Practice disputes (k) Statutory jurisdiction (l) STB Board (m) Rate disputes [78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016; 88 FR 729, Jan. 4, 2023] § 1108.2 Statement of purpose, organization, and jurisdiction. (a) The Board's intent. (1) Except as discussed in paragraph (b) of this section, parties to arbitration may agree by mutual written consent to arbitrate additional matters and to a lower amount of potential liability than the monetary award cap identified in this section. (2) Nothing in these rules shall be construed in a manner to prevent parties from independently seeking or utilizing private arbitration services to resolve any disputes they may have. (b) Limitations to the Board's arbitration program. (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. [78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016] § 1108.3 Participation in the Board's arbitration program. (a) Opt-in procedures. (1) File a notice with the Board, under Docket No. EP 699, advising the Board of the party's intent to participate in the arbitration program. Such notice may be filed at any time and shall be effective upon receipt by the Board. (i) Notices filed with the Board shall state which arbitration-program-eligible issue(s) the party is willing to submit to arbitration. (ii) Notices may, at the submitting party's discretion, provide for a lower monetary award cap than the monetary award caps provided in this subpart. (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. (b) Opt-out procedures. (c) Public notice of arbitration program participation. www.stb.gov. [78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016; 83 FR 15078, Apr. 9, 2018; 88 FR 729, Jan. 4, 2023] § 1108.4 Use of arbitration. (a) Arbitration-program-eligible matters. (b) Monetary award cap. (1) The defending party's opt-in notice provides for a lower monetary cap or; (2) The parties agree to select a lower award cap that will govern their arbitration proceeding. The parties may change the award cap by incorporating an appropriate provision in their agreement to arbitrate. (3) Counterclaims will not offset against the monetary award cap of the initiating claim. A counterclaim is an independent claim and is subject to a monetary award cap of $25,000,000, including any rate prescription, per rate dispute and $2,000,000 per practice dispute, separate from the initiating claim, or to a lower cap agreed upon by the parties in accordance with § 1108.4(b)(2). (c) Assignment of arbitration-program-eligible matters. (d) Matters partially arbitration-program-eligible. (e) Other matters. (f) Arbitration clauses. (g) Rate disputes. [78 FR 29079, May 17, 2013, as amended at 81 FR 69414, Oct. 6, 2016] § 1108.5 Arbitration commencement procedures. (a) Complaint. (1) If the complainant desires arbitration with a single arbitrator instead of a three-member arbitration panel, the complaint must make such a request in its complaint. (2) If the complainant is not a participant in the arbitration program, the complaint may specify the issues that the complainant is willing to arbitrate. (3) If the complainant desires to set a lower amount of potential liability than the monetary award cap that would otherwise apply, the complaint should specify what amount of potential liability the complainant is willing to incur. (b) Answer to the complaint. (1) If the complaint requests arbitration by a single arbitrator instead of by an arbitration panel, the answer must contain a statement consenting to arbitration by a single arbitrator or an express rejection of that request. (i) The respondent may also initiate a request to use a single arbitrator instead of an arbitration panel. (ii) Absent the parties agreeing to arbitration through a single arbitrator, the Board will assign the case to arbitration by a panel of three arbitrators as provided by § 1108.6(a) through (d). The party requesting the single arbitrator shall at that time provide written notice to the Board and the other parties if it continues to object to a three-member arbitration panel. Upon timely receipt of the notice, the Board shall the set the case for formal adjudication by the Board. (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. (3) When the complaint proposes a lower amount of potential liability, the answer must state whether the respondent agrees to that amount in lieu of the otherwise applicable monetary award cap. (c) Counterclaims. (d) Affirmative defenses. (e) Jointly-filed notice. (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. (g) Arbitration agreement. (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. [78 FR 29079, May 17, 2013, as amended at 81 FR 69415, Oct. 6, 2016] § 1108.6 Arbitrators. (a) Panel of arbitrators. (b) Roster. (c) Selecting the lead arbitrator. (1) The parties are responsible for conducting their own due diligence in striking names from the arbitrator list. The final selection of a lead arbitrator is not challengeable before the Board. (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. (e) Use of a single arbitrator. (f) Arbitrator incapacitation. (1) If the incapacitated arbitrator was appointed directly by a party to the arbitration, the appointing party shall, without delay, appoint a replacement arbitrator pursuant to the procedures set forth in § 1108.6(d). (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. [78 FR 29079, May 17, 2013, as amended at 81 FR 69415, Oct. 6, 2016] § 1108.7 Arbitration procedures. (a) Initiation. (b) Arbitration evidentiary phase timetable. (c) Written decision timetable. (d) Extensions to the arbitration timetable. (e) Protective orders. [81 FR 69416, Oct. 6, 2016, as amended at 88 FR 729, Jan. 4, 2023] § 1108.8 Relief. (a) Relief available. (b) Relief not available. [78 FR 29079, May 17, 2013, as amended at 81 FR 69416, Oct. 6, 2016; 88 FR 729, Jan. 4, 2023] § 1108.9 Decisions. (a) Decision requirements. (b) Redacting arbitration decision. (c) Party input. (d) Lead or single arbitrator authority. (e) Service of arbitration decision. (f) Service in the case of an appeal. (g) Publication of decision. (h) Arbitration decisions are binding. [78 FR 29079, May 17, 2013, as amended at 81 FR 69416, Oct. 6, 2016] § 1108.10 Precedent. Decisions rendered by arbitrators pursuant to these rules may be guided by, but need not be bound by, agency precedent. Arbitration decisions shall have no precedential value and may not be relied upon in any manner during subsequent arbitration proceedings conducted under the rules in this part. § 1108.11 Enforcement and appeals. (a) Petitions to modify or vacate. (b) Board's standard of review. (1) Board decisions vacating or modifying arbitration decisions under the Board's standard of review are reviewable under the Hobbs Act, 28 U.S.C. 2321 and 2342. (2) Nothing in these rules shall prevent parties to arbitration from seeking judicial review of arbitration awards in a court of appropriate jurisdiction pursuant to the Federal Arbitration Act, 9 U.S.C. 9-13, in lieu of seeking Board review. (c) Staying arbitration decision. (d) Enforcement. [78 FR 29079, May 17, 2013, as amended at 81 FR 69416, Oct. 6, 2016] § 1108.12 Fees and costs. (a) Filing fees. (b) Costs. [78 FR 29079, May 17, 2013, as amended at 81 FR 69417, Oct. 6, 2016] § 1108.13 Additional parties per side. Where an arbitration complaint is filed by more than one complainant in a particular arbitration proceeding against, or is answered or counterclaimed by, more than one respondent, these arbitration rules will apply to the complainants as a group and the respondents as a group in the same manner as they will apply to individual opposing parties. Subpart B—Voluntary Program for Arbitration of Small Freight Rail Rate Disputes Source: 88 FR 729, Jan. 4, 2023, unless otherwise noted. § 1108.21 Definitions. As used in this subpart: (a) Arbitrator (b) Arbitration panel (c) Arbitration decision (d) Complainant (e) Final offer rate review (f) Lead arbitrator (g) Limit price test M&G Polymers USA, LLC CSX Transp., Inc., (h) Participating railroad participating carrier (i) Party-appointed arbitrator (j) Rate disputes (k) Small Rate Case Arbitration Program (l) STB Board (m) STB-maintained roster (n) Streamlined market dominance test § 1108.22 Statement of purpose, organization, and jurisdiction. (a) The Board's intent. (1) The Small Rate Case Arbitration Program serves as an alternative to, and is separate and distinct from, the broader arbitration program set forth in subpart A of this part. (2) By participating in the Small Rate Case Arbitration Program, parties consent to arbitrate rail rate disputes subject to the limits on potential liability set forth in § 1108.28. (3) The Small Rate Case Arbitration Program will become operative only if all Class I carriers initially commit to participate in the program. Class I carriers that participate in the program agree to arbitrate rate disputes that meet the requirements of this subpart for a term of five years from the date the program becomes effective. (4) In the event the Small Rate Case Arbitration program becomes operative, Class I carriers that participate will be exempt from having their rates challenged under Final Offer Rate Review, pursuant to § 1108.33, as long as they remain in the program. (b) Establishment and term of the Small Rate Case Arbitration Program Federal Register (2) The Board will promptly issue the notice commencing the arbitration program upon receipt of the required opt-in notices specified in § 1108.23(a) from all existing Class I carriers. If the Board does not receive opt-in notices from all existing Class I carriers, the notice will not be issued and the regulations in this subpart will not become operable, including any exemption from FORR. The notice will establish an initial five-year term for the program, beginning from the date the notice is issued. (3) Class I carriers must indicate whether they choose to voluntarily participate in the Small Rate Case Arbitration Program by February 23, 2023, by filing the notice specified in § 1108.23(a) with the Board. (c) Renewal of the Small Rate Case Arbitration Program. Federal Register, (2) The Small Rate Case Arbitration Program will become operative for an additional 5-year period only if all Class I carriers again commit to participate in the program. This requirement will apply even if one or more of the Class I carriers has previously withdrawn from the program pursuant to § 1108.23(c). (3) The Board will promptly issue a notice in the Federal Register (4) The Board will repeat this process to renew the arbitration program every five years for as long as the program remains in effect. (5) At the end of any five-year period, if the arbitration program is not renewed, any pending arbitrations will continue until they are completed. (d) Limitations to the use of the Small Rate Case Arbitration Program. (e) No limitation on other avenues of arbitration. § 1108.23 Participation in the Small Rate Case Arbitration Program. (a) Carrier opt-in procedures Opt-in notice. (i) A statement that the carrier agrees to an extension of the timelines set forth in 49 U.S.C. 11708(e) for any arbitrations initiated under this subpart; and (ii) A statement that the carrier agrees to the appointment of arbitrators that may not be on the STB-maintained roster of arbitrator established under § 1108.6(b). (2) Participation for a specified term. (3) Public notice of carrier participants. www.stb.gov. (4) Class II and Class III carrier participation. (b) Complainant participation. (c) Withdrawal for change in law Basis for withdrawal. (2) Procedures for withdrawal for change in law. (i) The notice of withdrawal for change in law shall state the basis or bases under paragraph (c)(1) of this section for the party's withdrawal of its consent to arbitrate under this part. A copy of the notice must be served on any parties with which the carrier is currently engaged in arbitration. A copy of the notice will also be posted on the Board's website. (ii) Any party may challenge the withdrawing party's withdrawal for change in law on the ground that the change is not material by filing a petition with the Board within 10 days of the filing of the notice of withdrawal being challenged. The withdrawing party may file a reply to the petition within 5 days from the filing of the petition. The petition shall be resolved by the Board within 14 days from the filing deadline for the withdrawing party's reply. (iii) Subject to the stay provision of paragraph (c)(3)(ii) of this section, the notice of withdrawal for change in law shall be effective on the day of its filing. (3) Effect of withdrawal for change in law The Small Rate Case Arbitration Program. (ii) Arbitrations with decision. (iii) Arbitrations without decision. (d) Limit on the number of arbitrations. (1) A carrier that has reached the limit shall notify the Board's Office of Public Assistance, Governmental Affairs, and Compliance by email (to rcpa@stb.gov (2) For purposes of this paragraph (d), an arbitration will count toward the 25-arbitration limit only upon commencement of the first mediation session or, where one or both parties elect to forgo mediation, submission of the joint notice of intent to arbitrate to the Board under § 1108.25(c). For purposes of this paragraph (d), an arbitration under this subpart is final when the arbitration panel issues its arbitration decision, or if an arbitration is dismissed or withdrawn, including due to settlement. § 1108.24 Use of the Small Rate Case Arbitration Program. (a) Eligible matters. (1) Rate disputes involving shipments of regulated commodities not subject to a rail transportation contract are eligible to be arbitrated under this subpart. If the parties dispute whether a challenged rate was established pursuant to 49 U.S.C. 10709, the parties must petition the Board to resolve that dispute, which must be resolved before the parties initiate the arbitration process under this part. (2) A complainant may challenge rates for multiple traffic lanes within a single arbitration under this part, subject to the relief cap in § 1108.28 for all lanes. (3) For movements in which more than one carrier participates, arbitration under this subpart may be used only if all carriers agree to participate (pursuant to § 1108.23(a)(1) or (4)). (b) Eligible parties. (c) Use limits. (d) Arbitration clauses. § 1108.25 Arbitration initiation procedures. (a) Notice of complainant intent to arbitrate dispute. rcpa@stb.gov. (b) Pre-arbitration mediation. (2) Such mediation will not be conducted by the STB. The parties to the dispute must jointly designate a mediator and schedule the mediation session(s). (3) If the parties mutually agree to mediate, the parties must schedule mediation promptly and in good faith. The mediation period shall end 30 days after the date of the first mediation session, unless both parties agree to a different period. (c) Joint Notice of Intent to Arbitrate. rcpa@stb.gov. (2) The joint notice shall set forth the following information: (i) The basis for the Board's jurisdiction; and (ii) The basis for the parties' eligibility to use the Small Rate Case Arbitration Program, including: that the dispute being arbitrated is solely a rate dispute involving shipments of regulated commodities not subject to a rail transportation contract; that the carrier has opted into the Small Rate Case Arbitration Program; that the complainant has elected to use the Small Rate Case Arbitration Program for this particular rate dispute; and that the complainant does not have any other pending arbitrations at that time against the defendant carrier. (3) The joint notice shall be confidential and will not be published on the Board's website and specific information regarding pending arbitrations, including the identity of the parties, will not be disseminated within the Board beyond the alternative dispute resolution functions within the Office of Public Assistance, Governmental Affairs, and Compliance. (4) Unless the parties have agreed not to request the Waybill Sample data pursuant allowed under § 1108.27(g), the parties must also submit a copy of the Joint Notice of Intent to Arbitrate to the Director of the Board's Office of Economics. Parties may submit the letter and copy of the joint notice by email to Economic.Data@stb.gov. § 1108.26 Arbitrators. (a) Decision by arbitration panel. (b) Party-appointed arbitrators. (1) For-cause objection to party-appointed arbitrator. (i) The parties must confer over the objection within two business days. (ii) If the objection remains unresolved after the parties confer, the objecting party shall immediately file an Objection to Party-Appointed Arbitrator with the Office of Public Assistance, Governmental Affairs, and Compliance. The Office of Public Assistance, Governmental Affairs, and Compliance shall arrange for a telephonic or virtual conference to be held before an Administrative Law Judge within two business days, or as soon as is practicable, to hear arguments regarding the objection(s). The Administrative Law Judge will provide its ruling in an order to all parties by the next business day after the telephonic or virtual conference. (iii) The Objection to Party-Appointed Arbitrator filed with Office of Public Assistance, Governmental Affairs, and Compliance and the telephonic or virtual conference, including any ruling on the objection, shall be confidential. (2) Costs for party-appointed arbitrators. (c) Lead arbitrator Appointment. (2) Qualifications. (3) Disagreement selecting the lead arbitrator. (4) Lead arbitrator role. (5) Costs. (d) Arbitrator choice. (e) Arbitrator incapacitation. (1) If the incapacitated arbitrator was a party-appointed arbitrator, the appointing party shall, without delay, appoint a replacement arbitrator pursuant to the procedures set forth in paragraph (b) of this section. (2) If the incapacitated arbitrator was the lead arbitrator, a replacement lead arbitrator shall be appointed pursuant to the procedures set forth in paragraph (c) of this section. (f) Arbitrator duties. § 1108.27 Arbitration procedures. (a) Appointment of arbitration panel. (b) Commencement of arbitration process; arbitration agreement. (c) Expedited timetables Discovery phase. (2) Evidentiary phase. (3) Decision. (d) Limited discovery. (2) Each party is permitted an additional 3 written document request and 3 interrogatories if the defendant carrier(s) does not concede market dominance and the complainant elects to use a non-streamlined market dominance analysis. (3) Parties may request permission from the arbitration panel to seek additional written document requests and interrogatories. The arbitration panel may grant such requests for exceptional circumstances. (e) Evidentiary guidelines Principles of due process. (2) Inadmissible evidence. (i) On the issue of market dominance, any evidence that would be inadmissible before the Board; and (ii) Any non-precedential decisions, including prior decisions issued by an arbitration panel. (f) Confidentiality agreement. (g) Waybill Sample. (2) Parties may request additional Waybill Sample data from the Director of the Office of Economics pursuant to § 1244.9(b)(4) of this chapter. Parties must make such requests by submitting a formal filing (with a “WB” docket prefix). The decision of the Director may be appealed to the Board pursuant to § 1115.1. In the event of an appeal, the party filing the appeal shall immediately inform the other parties to the arbitration and the arbitration panel. The arbitration panel shall immediately stay the arbitration proceeding. After the Board issues a decision ruling on the appeal of the Director's decision, the arbitration panel shall lift the stay, the arbitration shall continue, and all procedural time limits will be tolled. The Director's decision (and, if necessary, the Board's decision ruling on appeal of the Director's decision) will be published as part of the separate Waybill docket, but the decision(s) will not be published until the Board receives the confidential summary the parties are required to file pursuant to § 1108.29(e). § 1108.28 Relief. (a) Relief available. (b) Relief limits. (c) Agreement to a different relief cap. (d) Relief not available. § 1108.29 Decisions. (a) Technical requirements Findings of fact and conclusions of law. (2) Compliance with confidentiality agreement. (b) Substantive requirements. (1) Market dominance. (ii) Subject to § 1108.27(e)(2), in determining the issue of market dominance, the arbitration panel under this subpart shall follow, at the complainant's discretion, either the streamlined market dominance test or the non-streamlined market dominance test. (iii) The arbitration panel shall issue its decision on market dominance as part of its final arbitration decision. (iv) The arbitration panel shall not consider evidence of product and geographic competition when deciding market dominance. (v) The arbitration panel shall not consider evidence on the Limit Price Test when deciding market dominance. (vi) If a carrier concedes that it possesses market dominance, the arbitration panel need not make a determination on market dominance and need only address the maximum lawful rate in the arbitration decision. Additionally, the parties may jointly request that the Board determine market dominance prior to initiating arbitration under this part. (2) Maximum lawful rate. (3) Agency precedent. (c) Confidentiality of arbitration decision. (1) No copy of the arbitration decision shall be served on the Board except as is required under § 1108.31(a)(1). (2) The arbitrators and parties shall have a duty to maintain the confidentiality of the arbitration decision, whether redacted or unredacted, and shall not disclose any details of the arbitration decision unless, and only to the extent, required by law. (d) Arbitration decisions are binding. (2) An arbitration decision under this subpart shall preclude the complainant(s) from filing any rate complaint for the movements at issue in the arbitration or instituting any other proceeding regarding the rates for the movements at issue in the arbitration, with the exception of appeals under § 1108.31. This preclusion shall last until the later of: (i) Two years after the Joint Notice of Intent to Arbitrate; or (ii) The expiration of the term of any prescription imposed by the arbitration decision. (3) The preclusion will cease if the carrier increases the rate either: after a complainant is unsuccessful in arbitration or after a complainant has been awarded a prescription and the prescription has expired. (e) Confidential summaries of arbitrations; quarterly reports. (1) Contents of confidential summary. (i) Geographic region of the movement(s) at issue; (ii) Commodities shipped; (iii) Number of calendar days from the commencement of the arbitration proceeding to the conclusion of the arbitration; (iv) Resolution of the arbitration, limited to the following descriptions: settled, withdrawn, dismissed on market dominance, challenged rate(s) found unreasonable/reasonable; and (v) Any agreement to a different relief cap or period than set forth in § 1108.28(b). (2) STB quarterly reports on Small Rate Case Arbitration Program. (i) If issued, the Board's quarterly reports on the Small Rate Case Arbitration Program shall disclose only the five categories of information listed in paragraph (e)(1) of this section. The parties to the arbitration who filed the confidential summary shall not be disclosed. (ii) If issued, the Board's quarterly reports on the Small Rate Case Arbitration Program shall be posted on the Board's website. § 1108.30 No precedent. Arbitration decisions under this subpart shall have no precedential value, and their outcomes and reasoning may not be submitted into evidence or argued in subsequent arbitration proceedings conducted under this subpart or in any Board proceeding, except an appeal of the arbitration decision under § 1108.31. § 1108.31 Enforcement and appeals. (a) Appeal to the Board Petition to vacate or modify arbitration decision. (2) Replies. (3) Content and confidentiality of filings; public docket. (4) Service. (b) Board's standard of review. (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. (c) Relief available on appeal to the Board. (d) Confidentiality of Board's decision on appeal Scope of confidentiality. (2) Opportunity to propose redactions to the Board decision. (i) A request for redaction may be filed under seal within 5 days after the date on which the Board serves the parties with the confidential version of its decision. (ii) The Board will publish its decision(s) on any requests for redaction in a way that maintains the confidentiality of any information the Board determines should be redacted. (e) Reviewability of Board decision. (f) Appeals subject to the Federal Arbitration Act. (g) Staying arbitration decision. (h) Enforcement. § 1108.32 Assessment of the Small Rate Case Arbitration Program. The Board will conduct an assessment of the Small Rate Case Arbitration Program to determine if the program is providing an effective means of resolving rate disputes for small cases. The Board's assessment will occur upon the completion of a reasonable number of arbitration proceedings such that the Board can conduct a comprehensive assessment, though not later than three years after start of the program. In conducting this assessment, the Board will obtain feedback from relevant parties. As part of the Board's assessment, it will study the cost to arbitrate a rate dispute as compared to the cost of adjudicating a formal rate case. Depending on the outcome of such review, the Board may determine that the arbitration program will be terminated, modified, and/or extended beyond the initial 5-year period. § 1108.33 Exemption from Final Offer Rate Review. Carriers that opt into the arbitration program under § 1108.23(a) will be exempt from having their rates challenged under Final Offer Rate Review if the program becomes operative. The exemption from Final Offer Rate Review will become operative upon publication of the Board's notice commencing the arbitration program required under § 1108.22(b) in the Federal Register.

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