Section 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. 10709 , such transaction(s) shall be exempt from 49 U.S.C. 13702(a) , 13702(b)-(d) , 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 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, as amended at 81 FR 8852 , Feb. 23, 2016 As amended at 81 FR 8852, 2/23/2016