310.111 Intervention.

310.113 Hearing and decision procedure.

AUTHORITY: Sec. 4 of the Bridge Act of 1906, as amended (33 U.S.C. 494), sec. 503 of the General Bridge Act of 1946, as amended (33 U.S.C. 526), secs. 2 and 6 of the International Bridge Act of 1972 (33 U.S.C. 535 and 535(d)), sec. 6 of the Department of Transportation Act; 80 Stat. 937 (49 U.S.C. 1655), and the delegation of authority by the Secretary of Transportation in 49 CFR 1.48, unless otherwise noted.

SOURCE: 35 FR 8659, June 4, 1970, unless otherwise noted.

§ 310.1 Scope of rules in this part.

The rules in this part govern procedure in proceedings before the Federal Highway Administrator authorized by section 4 of the Bridge Act of 1906, as amended (33 U.S.C. 494), section 503 of the General Bridge Act of 1946, as amended (33 U.S.C. 525), and sections 2 and 6 of the International Bridge Act of 1972 (33 U.S.C. 535 and 535(d)). Those statutes require that tolls charged for transit over certain bridges must be reasonable and just. They confer authority, now vested in the Federal Highway Administrator, to determine whether such tolls are reasonable and just and to prescribe the reasonable rates of toll to be charged. In the case of international bridges constructed under the International Bridge Act of 1972 which are in private ownership, that Act confers authority to determine the reasonable amortization period during which tolls may be charged. In proceedings under this part the Administrator determines (a) whether there are sufficient grounds to initiate formal adjudication concerning the reasonableness and justness of a toll schedule or amortization period; (b) whether a rate or rates of toll or amortization period are reasonable and just; and (c) the reasonable rate or rates of toll or amortization period to be prescribed in a case in which the existing rate or rates or amortization period are found to be unreasonable, unjust, or both.

[40 FR 14919, Apr. 3, 1975]

§ 310.2 Definitions.

(a) "Administrator" means the Federal Highway Administrator.

(b) “Complainant" means a person who has filed a complaint under § 310.3.

(c) "Respondent" means the person or agency, including an agency of a State or a political subdivision of a State, which has responsibility for establishing or collecting a toll, the rate

or duration of which is alleged to be unreasonable, unjust, or both.

[40 FR 14919, Apr. 3, 1975]

§ 310.3 Commencement of proceedings.

(a) Proceedings under this part are commenced by filing a written complaint with the Administrator or by the Administrator on his own initiative. Any person may file a complaint. (b) Each complaint should contain: (1) The name and address of the person filing it, and a brief statement of the nature of his interest in the reasonableness and justness of the toll schedule or duration of tolls;

(2) The name and location of the bridge;

(3) The name and address of the person or agency responsible for establishing and collecting the tolls;

(4) The rates of toll, or amortization period during which tolls may be charged, alleged to be unreasonable or unjust;

(5) The reasons the complainant believes that the rates of toll, or any portion of them, or amortization period during which tolls may be charged, are unreasonable, unjust, or both;

(6) A statement of any prior action which the complainant has taken to obtain a change in the rates of toll, or amortization period during which tolls may be charged, alleged to be unreasonable or unjust and the results of such action; and

(7) A prayer for relief, which may include the rates of toll, or amortization period during which tolls may be charged, which the complainant seeks to have prescribed for transit over the bridge.

[40 FR 14919, Apr. 3, 1975]

§ 310.4 Response to the complaint.

(a) Upon receipt of a complaint, the Administrator sends a copy of it to the respondent. The respondent must file a written response to the complaint with the Administrator within 30 days after it has received the complaint.

(b) The response to the complaint should contain:

(1) A denial, admission, or explanation of each material allegation of the complaint;

(2) The current rates of toll, or amortization period during which tolls may be charged, for transit over the bridge;

(3) A statement of any changes in the rates of toll which the respondent has instituted or proposed during the preceding 24 months and the reasons for each actual or proposed change;

(4) Reference to the provisions of Federal and State law which authorize the operation of the bridge and the imposition of tolls for transit over it;

(5) A statement showing the net amount of toll revenues from the bridge during the preceding 60 months;

(6) A statement showing the disposition of the net amount of toll revenues from the bridge during the preceding 60 months;

(7) A statement showing the anticipated future toll revenues from the bridge and the intended disposition of such revenues;

(8) The date upon which it is anticipated that the bridge will be free of tolls; and

(9) Any other matter which, in the opinion of the respondent, tends to show that the rates of toll, or amortization period during which tolls may be charged, are reasonable and just. [40 FR 14920, Apr. 3, 1975]

§ 310.4a Modification of orders setting toll rates.

(a) This section establishes procedures by which respondents whose toll rates were set by the Administrator may petition for modification of the order setting the rates.

(b) Proceedings under this section are commenced by the respondent filing with the Administrator a petition for modification of an order, but no petition for modification of an order will be considered within the period of 6 months after the order setting the rates goes into effect, unless that order provides otherwise.

(c) The respondent shall give notice of the filing of a petition by publishing in newspapers of general circulation in the areas served by bridge or bridges in question a notice setting forth the rate proposed to be imposed if the order is modified.

(d) The petition for modification shall contain the following:

(1) The toll rate proposed to be charged if the order is modified, the basis of the proposed rate, an explanatin of how the rate was derived, and an explanation of how it is just and reasonable, including a statement of the changed circumstances that justify the modification.

(2) The toll bridge revenue and use of such revenue, for the period since the imposition of the order, and the projected future toll revenues from the existing rate, for a 5-year period subsequent to the date the petition is filed.

(3) The projected toll bridge revenue and use of such revenue from the proposed rate for the 5-year period subsequent to the date the petition is filed.

(4) The capital investment and debt structure of the bridge, including amortization schedules.

(5) The revenue, expenses, capital investment, and debt structure, including amortization schedules of all facilities and programs owned or operated by the respondent.

(6) A summary of all the evidence upon which the petitioner will rely in support of the petition for modification.

(7) Proof of publication of the Notice required by paragraph (c) of this section.

(e) The respondent petitioning for the modification of an order shall have the burden of proof as the proponent of an order under the Administrative Procedure Act, 5 U.S.C. 556(d). (f) Upon receiving a petition for modification, the Administrator shall publish a notice containing the petition in the FEDERAL REGISTER.

(g) The proposed toll rate shall become effective 60 days after the publication of the FEDERAL REGISTER notice unless the Administrator orders otherwise. In considering whether to allow the rates to go into effect under this section, the Administrator shall consider any complaints submitted under § 310.3.

(h) In the event the Administrator stays the proposed toll rate, or complaints are received pursuant to $310.3, the Administrator shall proceed to investigate and decide the peti

tion in accordance with procedures set out in this part.

[41 FR 23957, June 14, 1976, as amended at 42 FR 2964, Jan. 14, 1977]

§ 310.5 Bridge toll investigation.

After he receives a complaint and a response, or upon his own initiative, the Administrator may conduct a bridge toll investigation. The investigation is conducted by representatives of such staff offices of the Administration as the Administrator deems appropriate. The representatives investigate the issues raised by the complaint and the response. In performing such an investigation, the representatives may seek and obtain information in the files of the Administration, other Federal agencies, or any agency of a State. They may also seek and obtain information from the complainant, the respondent, or any other interested person. At the conclusion of their investigation, the representatives

make a report to the Administrator, which includes their recommendations for further action by him. A copy of the report is furnished to the respondent and any complainant. The report becomes a part of the record in the proceedings. If the Administrator directs that formal adjudicatory proceedings be held, the representatives may participate in such proceedings as a party representing the public interest. The investigation shall be concluded within 90 days after receipt of the response to the complaints. This time period shall be extended to 45 days after the receipt of additional information requested from the bridge owner under this section when such request has been made during the first 60 days following receipt of the response to the complaint. All requests for information issued by the investigation staff shall be answered within 45 days.

[35 FR 8659, June 4, 1970, as amended at 42 FR 2964, Jan. 14, 1977]

§ 310.6 Informal conferences.

After such investigation as he deems appropriate is completed, the Administrator or his delegate may hold informal conferences with the complainant, the respondent, or both, for the pur

pose of simplifying the issues or resolving the issues without the necessity of further proceedings. If the discussions result in an agreement for terminating the proceedings, the Administrator may require that the agreement be embodied in a consent order containing such terms as he deems appropriate. Informal conferences are transcribed, and the transcript becomes a part of the record in the proceedings. Such informal conferences shall, if needed, be convened within 60 days after the conclusion of the investigation.

[35 FR 8659, June 4, 1970, as amended at 42 FR 2964, Jan. 14, 1977]

§ 310.7 Initial determination.

Within 30 days after the conclusion of the investigation, or within 30 days after the receipt of the transcript of the last informal conference, if any such conferences are held, the Administrator determines whether there are sufficient grounds for adjudication. If he determines that no such grounds exist, he then dismisses the proceeding. If he determines that grounds for formal adjudication exist, he then, as soon as possible, issues an order appointing as administrative law judge, or reserving the hearing to himself, and directing that either a public hearing under this subpart or a hearing by affidavit under Subpart B be held. An appropriate order is then served on the parties. All subsequent regulations that refer to the "administrative law judge" shall also mean the Administrator.

[42 FR 2964, Jan 14, 1977]

§ 310.8 Prehearing procedure.

(a) As soon as practicable after his appointment, the administrative law judge issues an order setting the date, time, and place for the hearing. The order is served on the parties and becomes a part of the record of the proceedings.

(b) At any time before the hearing begins, the administrative law judge, on his own motion or on motion by a party, may direct the parties or their counsel to participate with him in a prehearing conference to consider the following:

(1) Simplification and clarification of the issues;

(2)

Necessity or desirability of amending pleadings;

(3) Stipulations as to the facts and the contents and authenticity of documents;

(4) Disclosure of the names and addresses of witnesses and the exchange of documents intended to be offered in evidence; and

(5) Any other matter that will tend to simplify the issues or expedite the proceedings.

Unless the prehearing conference is stenographically reported, the administrative law judge issues an order which recites the matters discussed, the agreements reached, and the rulings made at the prehearing conference. The order is served on the parties and is a part of the record of the proceedings.

§ 310.9 Intervention.

At any time before the date set for the hearing to begin, or within such time as the administrative law judge may prescribe in his initial order under § 310.8, whichever first occurs, any person may petition the administrative law judge for leave to intervene. The petition must be in writing, must set forth the reasons the petitioner alleges he is entitled to intervene, and must specify the nature of and the approximate amount of time requested for making the petitioner's presentation. The administrative law judge may deny the petition or may permit intervention to such extent and upon such terms as he deems just. Unless the administrative law judge orders otherwise, a person who has been granted leave to intervene is a party for the purpose of all subsequent proceedings.

8310.10 Hearings; powers of hearing examiner.

(a) The administrative law judge presides over the hearing. The administrative law judge has power to make all needful rules and regulations to govern the conduct of the proceedings, to insure a fair and impartial hearing, and to avoid delay in the disposition of

the proceedings. His powers include the following:

(1) To administer oaths and affirmations;

(2) To rule on offers of proof and receive evidence;

(3) To regulate the course of the hearing and the conduct of participants in it;

(4) To consider and rule on all procedural motions;

(5) To hold conferences for settlement, simplification of issues, or any other proper purpose;

(6) To make and file recommended decisions; and

(7) To take any other action authorized by these rules and permitted by law.

(b) Hearings are open to the public unless the administrative law judge, for good cause, orders otherwise. Any party may be represented by an attorney at law.

(c) The hearing is stenographically transcribed and reported. The transcript, exhibits, and other documents filed in the proceedings constitute the official record of the proceedings. The record is in the custody of the administrative law judge until he certifies it to the Administrator. A copy of the transcript and exhibits are available to any party upon payment of prescribed costs.

8310.11 Proposed findings of fact, conclusions of law, and briefs.

(a) Within 30 days after the administrative law judge notifies the parties that he has received the transcript, or within such longer time as the administrative law judge may prescribe, each party may file with the administrative law judge proposded findings of fact, conclusions of law, and a supporting brief stating the reasons for each proposal. Each proposed finding of fact must include a citation to the specific portion of the record relied upon to support it.

(b) A party that does not timely file proposed findings of fact, conclusions of law, or a brief may not file exceptions to the administrative law judge's recommended decision or a petition for reconsideration of the Administrator's decision.

(a) As soon as practicable after he receives the transcript and the time allowed for filing proposed findings of fact, conclusions of law, and briefs has expired, the administrative law judge issues a recommended decision and certifies the record in the proceedings to the Administrator. The recommended decision contains the administrative law judge's findings of fact, his conclusions of law (and the reasons or bases therefor), and a recommended order disposing of the proceedings. The recommended decision is served on the parties by certified or registered mail. The date of service, which is not earlier than the date the recommended decision is issued, is specified on the face of the decision.

(b) Within 30 days after the date of service specified in a recommended decision, any party may file with the Administrator exceptions to the administrative law judge's findings of fact, conclusions of law, or recommended order, together with a supporting brief.

[36 FR 12166, June 26, 1971]

§ 310.13 Administrator's decision.

(a) Within 90 days of the receipt of the administrative law judge's recommended decision, the Administrator may adopt or reject the administrative law judge's recommended findings of fact, conclusions of law, and order in whole or in part. He may also remand proceedings to the administrative law judge with instructions for further proceedings as he deems appropriate. If he rejects the recommended decision and no further hearings are ordered, he then issues a final order disposing of the proceeding and serves it on the parties.

(b) If the Administrator has presided over the hearing, he shall within 150 days after receipt of briefs issue a final order disposing of the matter. The order shall be served on all parties.

[42 FR 2964, Jan. 14, 1977]

8310.14 Reconsideration.

Within 20 days after the date of service specified in a final order, any