1146.1 Prescription of alternative rail service.§ 1146.1 Prescription of alternative rail service.
(a) General. Alternative rail service will be prescribed under 49 U.S.C. 11123(a) if the Board determines that, over an identified period of time, there has been a substantial, measurable deterioration or other demonstrated inadequacy in rail service provided by the incumbent carrier.
(b)(1) Petition for Relief. Affected shippers or railroads may seek the relief described in paragraph (a) of this section by filing an appropriate petition containing:
(i) A full explanation, together with all supporting evidence, to demonstrate that the standard for relief contained in paragraph (a) of this section is met;
(ii) A summary of the petitioner's discussions with the incumbent carrier of the service problems and the reasons why the incumbent carrier is unlikely to restore adequate rail service consistent with current transportation needs within a reasonable period of time;
(iii) A commitment from another available railroad to provide alternative service that would meet current transportation needs (or, if the petitioner is a railroad and does not have an agreement from the alternative carrier, an explanation as to why it does not), and an explanation of how the alternative service would be provided safely without degrading service to the existing customers of the alternative carrier and without unreasonably interfering with the incumbent's overall ability to provide service; and
(iv) A certification of service of the petition, by hand or by overnight delivery, on the incumbent carrier, the proposed alternative carrier, and the Federal Railroad Administration.
(2) Reply. The incumbent carrier must file a reply to a petition under this paragraph within five (5) business days.
(3) Rebuttal. The party requesting relief may file rebuttal no more than three (3) business days later.
(c) Presumption of continuing need. Unless otherwise indicated in the Board's order, a Board order issued under paragraph (a) of this section shall establish a rebuttable presumption that the transportation emergency will continue for more than 30 days from the date of that order.
(d)(1) Petition to terminate relief. Should the Board prescribe alternative rail service under paragraph (a), of this section the incumbent carrier may subsequently file a petition to terminate that relief. Such a petition shall contain a full explanation, together with all supporting evidence, to demonstrate that the carrier is providing, or is prepared to provide, adequate service. Carriers are admonished not to file such a petition prematurely.
(2) Reply. Parties must file replies to petitions to terminate filed under this subsection within five (5) business days.
(3) Rebuttal. The incumbent carrier may file any rebuttal no more than three (3) business days later.
(e) Service. All pleadings under this part shall be served by hand or overnight delivery on the Board, the other parties, and the Federal Railroad Administration.[63 FR 71401, Dec. 28, 1998, as amended at 81 FR 8855, Feb. 23, 2016]