PARTS 1100-1129-RULES OF GENERAL APPLICABILITY

PART 1100-GENERAL PROVISIONS

Sec.

1101.1 Statutory definitions.

1101.2 Definitions applicable to this sub

chapter.

1101.3 Construction.

AUTHORITY: 49 U.S.C. 10321; 5 U.S.C. 559. SOURCE: 47 FR 49548, Nov. 1, 1982, unless otherwise noted.

§ 1101.1 Statutory definitions.

The definitions contained in section 10102 of the Act (49 U.S.C. 10102) apply in this chapter.

§1101.2 Definitions applicable to this subchapter.

(a) Act or Interstate Commerce Act means subtitle IV of title 49 of the United States Code (49 U.S.C. 10101 et seq.).

(b) Commission means (1) the Interstate Commerce Commission and (2) any body or individual to which or to whom decision making authority is assigned by the Commission or the Chairman of the Commission, including a division of the Commission, the Chairman, another Commissioner, employee board, an individual employee, an administrative law judge, a joint board, or other hearing officer entitled to act in a particular proceeding. See 49 CFR part 1011, Commission Organization; Delegations of Authority.

(c) Decision means any formal, published action of the Commission, including orders and notices.

(d) Party means a complainant, defendant, applicant, respondent, protestant, intervener, or petitioner in any proceeding, or other persons permitted or directed by the Commission to participate in a proceeding. It will not include persons merely signing certificates of support or witnesses at oral hearing or in modified procedure proceedings, unless they are otherwise a party to the proceeding. Persons on the docket service list merely for the purpose of receiving copies of Commission releases are not considered parties to the proceeding.

(e) Proceeding includes:

(1) An informal complaint filed under §§ 1130.1, or 1130.3 or a formal complaint alleging violation of any provision of

the Act or of any regulation or requirement made pursuant to a power granted by such Act, including petitions on special dockets;

(2) An application for (i) the granting of any right, privilege, authority, or relief under or from any provision of the Act or of any regulation or requirement made pursuant to a power granted by such Act, or (ii) the consideration of any submission required by law to be made to the Commission;

(3) An investigation instituted by the Commission;

(4) A rulemaking proposal instituted by the Commission; or

(5) A petition for exemption filed under 49 U.S.C. 10505 requesting the Commission to exempt from application all or part of subtitle IV of title 49 of the United States Code any person, class of persons, transaction, or service related to a rail carrier.

[47 FR 49548, Nov. 1, 1982, as amended at 50 FR 30275, July 25, 1985]

§ 1101.3 Construction.

The rules of construction contained in chapter 1 of title 1 of the United States Code (1 U.S.C. 1 et seq.) apply in this chapter. Among other things, they provide that the singular includes the plural, and vice versa; that the masculine includes the feminine; that the word "person" includes corporations, associations, and the like; that "county" includes parish and similar subdivisions; and that "company" includes successors and assigns.

PART 1102-COMMUNICATIONS

AUTHORITY: 49 U.S.C. 10321; 5 U.S.C. 559.

§ 1102.1 How addressed.

All communications should be addressed to the Secretary of the Commission, Interstate Commerce Commission, Washington, DC 20423 unless otherwise specifically directed by another Commission regulation. All communications should designate the docket number and title, if any. The person communicating shall state his address, and the party he represents.

[47 FR 49548, Nov. 1, 1982]

§ 1102.2 Ex parte communications prohibited; penalties provided.

(a) Definitions. (1) “On-the-record proceeding" means any matter described in Sections 556-557 of the Administrative Procedure Act (5 U.S.C. 556–557) or any matter required by the Constitution, statute, Commission rule, or by decision in the particular case, that is decided solely on the record made in a Commission proceeding.

(2) "Person who intercedes in any proceeding" means any person, partnership, corporation, or association, private or public, outside of the Commission which is neither a party nor party's agent, that volunteers a communication that it has reason to know may advance or adversely affect the interest of a party or party's agent in any proceeding before the Commission.

(3) Ex Parte communication concerning the merits means an oral or written communication by or on the behalf of a party which is made without the knowledge or consent of any other party that could or is intended to influence anyone who participates or could reasonably be expected to participate in the decision.

(b) Communications that are not prohibited. (1) Any communication to which all the parties to the proceeding agree, or on which the Commission formally rules, may be made on an ex parte basis;

(2) Any communication of facts or contention which has general significance for a regulated industry if the communicator cannot reasonably be expected to have known that the facts or contentions are material to a substantive issue in a pending on-therecord proceeding in which it is interested;

(3) Any communication by means of the news media that in the ordinary course of business of the publisher is intended to inform the general public, members of the organization involved, or subscribers to such publication with respect to pending on-the-record proceedings.

(c) Prohibitions. (1) No party, counsel, agent of a party, or person who intercedes in any on-the-record proceeding shall engage in any ex parte communication concerning the merits of the proceeding with any Commissioner,

hearing officer, joint board member, employee board member or employee of the Commission who participates, or who may reasonably be expected to participate, in the decision in the proceeding.

(2) No Commissioner, hearing officer, joint board member, employee board member or employee of the Commission who participates, or is reasonably expected to participate, in the decision in an on-the-record proceeding shall invite or knowingly entertain any ex parte communication concerning the merits of a proceeding or engage in any such communication to any party, counsel, agent of a party, or person reasonably expected to transmit the communication to a party or party's

agent.

(d) When prohibitions take effect. The prohibitions against ex parte communications concerning the merits of a proceeding apply from the date on which a proceeding is noticed for oral hearing or for the taking of evidence by modified procedure, or when the person responsible for the communication has knowledge that the proceeding will be so noticed, or at any time the Commission, by rule or decision, speci

fies.

(e) Procedure required of Commission members and employees upon receipt of ex parte communications concerning the merits of a proceeding. Any person who receives an ex parte communication concerning the merits of a proceeding must promptly transmit either the written communication, or a written summary of the oral communication with an outline of the surrounding circumstances to the Secretary of the Commission. The Secretary shall place all of the material in the correspondence section of the public docket of the proceeding. A recipient of such ex parte communication, who has doubt as to the nature of the communication, may request a ruling on the question from the Commission's Designated Agency Ethics Official. The Designated Agency Ethics Official shall promptly reply to such requests. The Secretary shall promptly notify the Chairman of the Commission of such ex parte communications sent to the Secretary. The Designated Agency Ethics Official shall promptly notify the Chairman of

all requests for rulings sent to the Designated Agency Ethics Official. The Chairman may require that any communication be placed in the correspondence section of the docket when fairness requires that it be made public, even if it is not a prohibited communication. The Chairman may direct the taking of such other action as may be appropriate under the cir

cumstances.

(f) Sanctions. (1) The Commission may censure, suspend, or revoke the privilege of practicing before the agency of any person who knowingly and willfully engages in or solicits prohibited ex parte communication concerning the merits of a proceeding.

(2) The relief or benefit sought by a party to a proceeding may be denied if the party, or his agent knowingly and willfully violates the foregoing rules.

(3) The Commission may censure, suspend, dismiss, or institute proceedings to suspend or dismiss any Commission employee who knowingly and willfully violates the foregoing rules. [47 FR 49548, Nov. 1, 1982, as amended at 58 FR 42027, Aug. 6, 1993]

§ 1103.2 Attorneys-at-law-qualifications and requirements to practice before the Commission.

Any person who is a member in good standing of the bar of the highest court of any State, Commonwealth, possession, territory, or the District of Columbia may represent persons before the Commission.

§ 1103.3 Persons not attorneys-at-law— qualifications and requirements for practice before the Commission.

(a) In general. Any citizen or resident of the United States, not an attorneyat-law, who files an application for admission to practice, accompanied by the payment of the fee prescribed by rule or order of the Commission, and who successfully completes the practitioners' examination, and shows that applicant possesses the necessary legal and technical qualifications to enable applicant to render valuable service before the Commission and that applicant is competent to advise and assist in the presentation of matters before the Commission, may be permitted to practice before the Commission.

(b) Qualifications standards. A non-attorney applicant for admission to practice must meet one of the following requirements:

(1) An applicant must have completed 2 years (60 semester hours or 90 quarter hours) of post secondary education and must possess technical knowledge, training or experience in the field of transportation which is regarded by the Commission as the equivalent of 2 additional years of college education;

(2) An applicant must have worked in the field of transportation for at least 10 years;

(3) An applicant must have received a bachelor's degree with at least 12 semester hours or 18 quarter hours in transportation or business; or

(4) An applicant must have received a bachelor's degree and worked in the field of transportation for at least one year. An applicant's statement of college education must be supported by a transcript of records attached to the original application. Transcripts from any college accredited by the U.S. Department of Education will be accepted without question. With all other institutions, the burden of proof is on the

applicant to establish that the formal education satisfies the standards set forth above. The qualifications standards are intended as general guidelines. Individual situations that vary from the standards will continue to be evaluated on their own merits.

(c)(1) Application for admission. An application filed pursuant to this rule under oath for admission to practice shall be submitted between January and May 1 of the year in which the examination is to be taken. The application is to be completed in full on the form provided by the Commission, and shall be addressed to the Secretary, Interstate Commerce Commission, Washington, DC 20423, to the attention of the room number indicated on the form.

(2) Certification: All applicants must complete the following certification:

(Name)

certify

I, under penalty of perjury under the laws of the United States, that I have not been convicted, after September 1, 1989, of any Federal or State offense involving the distribution or possession of a controlled substance, or that if I have been so convicted, I am not ineligible to receive Federal Benefits, either by court order or operation of law, pursuant to 21 U.S.C. 853a.

(d) Application fee. Each application filed pursuant to this rule must be accompanied by the non-refundable fee in the amount set forth in 49 CFR 1002.2(f)(100). Payment must be made either by check or money order payable to the Interstate Commerce Commission. Cash payment will not be accepted.

(e) Additional certification. (1) When an application meets the required standards, a copy will be referred to the Association of Interstate Commerce Commission Practitioners for a report to the Commission as to the reputation and character of the applicant. Inquiry also will be made by the Commission of the sponsors as to their knowledge of the applicant's legal and technical qualifications as

con

templated by the Commission's Rules of Practice. If the Commission is satisfied as to the applicant's qualifications, reputation and character, then applicant will be considered eligible to take the examination.

(2) The Commission may require an applicant's sponsors to provide a detailed statement of the nature and extent of their knowledge of applicant's qualifications. Upon consideration of this material, if the Commission is not satisfied as to the adequacy of applicant's qualifications, the applicant will be notified by registered mail. Applicant may then request a hearing to prove his qualifications. If applicant makes such a request, the Commission will allow a hearing. In the absence of a request for a hearing within 20 days after receipt of the notice, the application will be considered withdrawn.

(f) Scope of examination. If applicant meets the educational and experience standards, and is found to be of good character, the applicant will be permitted to take the examination. The examination tests the applicant's experience and knowledge of the principal regulations, laws, and economic principles in the field of transportation as well as knowledge of the Commission's Rules of Practice and Canons of Ethics.

(g) Time and place of examination. The examination will be conducted once a year on the second Tuesday in July. Notice of the time and place to appear for the examination will be mailed to qualifying applicants approximately 30 days prior to the date of the examination.

(h) Location of examination. Examinations will ordinarily be conducted in selected cities where Commission offices are located. A listing of the available sites will be attached to the application form. Applicants may select their preferred examination site. If a group of prospective applicants (three applicants or more) wishes to take the examination at a location not listed, a letter stating the preferred test site should be included with the application. The Commission will make every effort to administer the test at the requested location.

(i) Cancellation of examination. If the Commission determines that there is an insufficient number of applicants to warrant conducting the examination, the Commission will cancel the examination for that year. Notice of the cancellation will be mailed to applicants on or before June 15 and the application fee will be refunded. The