[Code of Federal Regulations]
[Title 49, Volume 7]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 49CFR1039.22]

[Page 88-89]
 
                        TITLE 49--TRANSPORTATION
 
  CHAPTER X--SURFACE TRANSPORTATION BOARD, DEPARTMENT OF TRANSPORTATION
 
PART 1039_EXEMPTIONS--Table of Contents
 
Sec. 1039.22  Exemption of certain payments, services, and commitments 
from the Elkins Act and related provisions.

    (a) Whenever a rail carrier:
    (1) Provides payments or services for industrial development 
activities; or,
    (2) Makes commitments regarding future transportation;

and reasonably determines that such payments, services or commitments 
would not be eligible for inclusion in rail contracts under 49 U.S.C. 
10713, such transaction(s) shall be exempt from 49 U.S.C. 10761(a), 
10762(a)(1), 11902, 11903, and 11904(a), subject to the conditions set 
forth in paragraphs (b) through (e) of this section.
    (b) If any interested person(s) believes a transaction is eligible 
for inclusion in one or more contracts under 49 U.S.C. 10713, that 
person's exclusive remedy shall be to request the Board to so determine, 
and if the Board does so, the transaction shall no longer be exempted by 
this section commencing 60 days after the date of the Board's 
determination.
    (c) Transactions that are exempt under paragraph (a) of this section 
shall be subject to all other applicable provisions of Title 49 U.S.C. 
Subtitle IV and to the antitrust laws to the extent that the activity 
does not fall within the Board's exclusive jurisdiction.
    (d) For any actual movement of traffic, a carrier must file any 
required tariff or section 10713 contract, and conform to all other 
applicable provisions of the Interstate Commerce Act, but this paragraph 
shall not be interpreted to limit, revoke, or remove the effect of the 
exemption granted under

[[Page 89]]

paragraph (a) of this section with respect to any payments, services, or 
commitments made prior to the filing of the rate or contract.
    (e) When any person files with the Board a petition to revoke the 
exemption granted by this section as to any specific transaction, the 
rail carrier shall have the burden of showing that, with respect to such 
transaction, all requirements of paragraph (a) of this section were met, 
and the carrier reasonably expected, before undertaking such payments, 
services or commitments, that such payments, services or commitments 
would result, within a reasonable time, in a contribution to the 
carrier's going concern value.
    (f) This exemption shall remain in effect unless modified or revoked 
by a subsequent order of this Board.

[57 FR 11913, Apr. 8, 1992]

                       PARTS 1070-1079 [RESERVED]