Simplified Standards for Rail Rate Cases, 51375-51377 [E7-17689]
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Federal Register / Vol. 72, No. 173 / Friday, September 7, 2007 / Rules and Regulations
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002, 1111, 1114, and
1115
[STB Ex Parte No. 646 (Sub–No. 1)]
Simplified Standards for Rail Rate
Cases
AGENCY:
Surface Transportation Board,
DOT.
rwilkins on PROD1PC63 with RULES
ACTION:
Final rulemaking.
SUMMARY: On September 5, 2007, the
Board served a decision that modifies its
simplified rail rate guidelines, creating
a simplified stand-alone cost approach
for medium-size rail rate disputes and
revising its three-benchmark approach
for smaller rail rate disputes. The Board
also places limits on the total relief
available over a 5-year period under
these two simplified approaches.
Several rules in the Code of Federal
Regulations (CFR) have been updated to
reflect the changes in the simplified rail
rate dispute approaches.
DATES: This action is effective October
7, 2007.
FOR FURTHER INFORMATION CONTACT:
Timothy J. Strafford, (202) 245–0356.
[Assistance for the hearing impaired is
available through the Federal
Information Relay Service (FIRS) at
1–800–877–8339.]
SUPPLEMENTARY INFORMATION: On
September 5, 2007, the Board served a
decision that modifies its simplified rail
rate guidelines, creating a simplified
stand-alone approach for medium-size
rail rate disputes and revising its threebenchmark approach for smaller rail
rate disputes. The Board also places
limits on the total relief available over
a 5-year period under these two
simplified approaches. Under the new
rail rate guidelines, rather than the
Board declaring eligibility thresholds,
the shipper will be required to
determine which rate relief method will
be applied to its case, with the
understanding that there will be limits
on the amount of relief available over a
5-year period based on the approach
selected. The following limits will
apply: Three-benchmark, $1 million
over 5 years; and Simplified stand-alone
cost, $5 million over 5 years. To reflect
the changes in this decision, the
following sections of the CFR have been
amended: 1111.1, 1111.2, 1111.4,
1111.9, 1111.10, 1114.21, 1114.22,
1114.26, 1114.30, 1114.31, and 1115.9.
The Board’s full decision is posted on
the Board’s Web site, http://
www.stb.dot.gov. To purchase a copy of
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the full decision, write to, e-mail, or
call: ASAP Document Solutions, 9332
Annapolis Rd., Suite 103, Lanham, MD
20706; e-mail: asapdc@verizon.net;
telephone: (202) 306–4004. [Assistance
for the hearing impaired is available
through FIRS at 1–800–877–8339.]
Pursuant to 5 U.S.C. 605(b), we
conclude that our action in this
proceeding will not have a significant
economic impact on a substantial
number of small entities.
This action will not significantly
affect either the quality of the human
environment or the conservation of
energy resources.
Authority: 49 U.S.C. 721, 49 U.S.C.
10701(d)(1) and (3).
Decided: September 4, 2007.
By the Board, Chairman Nottingham, ViceChairman Buttrey, and Commissioner
Mulvey.
Vernon A. Williams,
Secretary.
List of Subjects
49 CFR Part 1002
Administrative practice and
procedure, Common carriers, Freedom
of Information.
49 CFR Part 1111
Administrative practice and
procedure, Investigations,
49 CFR Parts 1114 and 1115
Administrative practice and
procedure.
For the reasons set forth in the
preamble, the Surface Transportation
Board amends parts 1002, 1111, 1114,
and 1115 of title 49, chapter X of the
Code of Federal Regulations as follows:
I
PART 1002—FEES
1. The authority citation for part 1002
continues to read as follows:
I
Authority: 5 U.S.C. 552(a)(4)(A) and 553;
31 U.S.C. 9701; and 49 U.S.C. 721. Section
1002.1(g)(11) also issued under 5 U.S.C. 5514
and 31 U.S.C. 3717.
2. Amend § 1002.2 by revising
paragraphs (f)(56)(ii) through (v) and
adding paragraph (f)(56)(vi) to read as
follows:
I
§ 1002.2
Filing fees.
*
*
*
*
*
(f) * * *
(56) * * *
(ii) A formal complaint involving rail
maximum rates filed under the
Simplified-SAC methodology—10,600.
(iii) A formal complaint involving rail
maximum rates filed under the Three
Benchmark methodology—150.
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(iv) All other formal complaints
(except competitive access
complaints)—17,600.
(v) Competitive access complaints—
150.
(vi) A request for an order compelling
a rail carrier to establish a common
carrier rate—200.
*
*
*
*
*
PART 1111—COMPLAINT AND
INVESTIGATION PROCEDURES
3. The authority citation for part 1111
continues to read as follows:
I
Authority: 49 U.S.C. 721, 10704, and
11701.
4. Amend § 1111.1 by revising
paragraphs (a)(1) through (10),
redesignate paragraphs (b) through (d)
as paragraphs (c) through (e)
respectively, and add a new paragraph
(b) to read as follows:
I
§ 1111.1
joinder.
Content of formal complaints;
(a) * * *
(1) The carrier or region identifier.
(2) The type of shipment (local,
received-terminated, etc.).
(3) The one-way distance of the
shipment.
(4) The type of car (by URCS code).
(5) The number of cars.
(6) The car ownership (private or
railroad).
(7) The commodity type (STCC code).
(8) The weight of the shipment (in
tons per car).
(9) The type of movement (individual,
multi-car, or unit train).
(10) A narrative addressing whether
there is any feasible transportation
alternative for the challenged
movements.
(b) Disclosure with simplified
standards complaint. The complainant
must provide to the defendant all
documents relied upon in formulating
its assessment of a feasible
transportation alternative and all
documents relied upon to determine the
inputs to the URCS Phase III program.
*
*
*
*
*
I 5. Revise § 1111.2 to read as follows:
§ 1111.2 Amended and supplemental
complaints.
(a) Generally. An amended or
supplemental complaint may be
tendered for filing by a complainant
against a defendant or defendants
named in the original complaint, stating
a cause of action alleged to have accrued
within the statutory period immediately
preceding the date of such tender, in
favor of complainant and against the
defendant or defendants. The time
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Federal Register / Vol. 72, No. 173 / Friday, September 7, 2007 / Rules and Regulations
limits for responding to an amended or
supplemental complaint are computed
pursuant to §§ 1111.4 and 1111.5 of this
part, as if the amended or supplemental
complaint was an original complaint.
(b) Simplified standards. A complaint
filed under the simplified standards
may be amended once before the filing
of opening evidence to opt for a
different rate reasonableness
methodology, among Three-Benchmark,
Simplified-SAC or Full-SAC. If so
amended, the procedural schedule
begins again under the new
methodology as set forth at §§ 1111.8
and 1111.9. However, only one
mediation period per complaint shall be
required.
I 6. Revise § 1111.4 to read as follows:
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§ 1111.4
Answers and cross complaints.
(a) Generally. An answer shall be filed
within the time provided in paragraph
(c) of this section. An answer should be
responsive to the complaint and should
fully advise the Board and the parties of
the nature of the defense. In answering
a complaint challenging the
reasonableness of a rail rate, the
defendant should indicate whether it
will contend that the Board is deprived
of jurisdiction to hear the complaint
because the revenue-variable cost
percentage generated by the traffic is
less than 180 percent, or the traffic is
subject to effective product or
geographic competition. In response to
a complaint filed under the simplified
standards, the answer must include the
defendant’s preliminary estimate of the
variable cost of each challenged
movement calculated using the
unadjusted figures produced by the
URCS Phase III program.
(b) Disclosure with simplified
standards answer. The defendant must
provide to the complainant all
documents that it relied upon to
determine the inputs used in the URCS
Phase III program.
(c) Time for filing; copies; service. An
answer must be filed within 20 days
after the service of the complaint or
within such additional time as the
Board may provide. The original and 10
copies of an answer must be filed with
the Board. The defendant must serve
copies of the answer upon the
complainant and any other defendants.
(d) Cross complaints. A cross
complaint alleging violations by other
parties to the proceeding or seeking
relief against them may be filed with the
answer. An answer to a cross complaint
shall be filed within 20 days after the
service date of the cross complaint. The
party shall serve copies of an answer to
a cross complaint upon the other
parties.
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(e) Failure to answer complaint.
Averments in a complaint are admitted
when not denied in an answer to the
complaint.
I 7. Revise § 1111.9 to read as follows:
§ 1111.9 Procedural schedule in cases
using simplified standards.
(a) Procedural schedule. Absent a
specific order by the Board, the
following general procedural schedules
will apply in cases using the simplified
standards:
(1) In cases relying upon the
Simplified-SAC methodology:
Day 0—Complaint filed (including
complainant’s disclosure).
Day 10—Mediation begins.
Day 20—Defendant’s answer to
complaint (including defendant’s
initial disclosure).
Day 30—Mediation ends; discovery
begins.
Day 140—Defendant’s second
disclosure.
Day 150—Discovery closes.
Day 220—Opening evidence.
Day 280—Reply evidence.
Day 310—Rebuttal evidence
Day 320—Technical conference (market
dominance and merits).
Day 330—Final briefs.
(2) In cases relying upon the ThreeBenchmark method:
Day 0—Complaint filed (including
complainant’s disclosure).
Day 10—Mediation begins. (STB
production of unmasked Waybill
Sample.)
Day 20—Defendant’s answer to
complaint (including defendant’s
initial disclosure).
Day 30—Mediation ends; discovery
begins.
Day 60—Discovery closes.
Day 90—Complainant’s opening (initial
tender of comparison group and
opening evidence on market
dominance). Defendant’s opening
(initial tender of comparison group).
Day 95—Technical conference on
comparison group.
Day 120—Parties’ final tenders on
comparison group. Defendant’s reply
on market dominance.
Day 150—Parties’ replies to final
tenders. Complainant’s rebuttal on
market dominance.
(b) Defendant’s second disclosure. In
cases using the Simplified-SAC
methodology, the defendant must make
the following disclosures to the
complainant by Day 170 of the
procedural schedule.
(1) Identification of all traffic that
moved over the routes replicated by the
SARR in the Test Year.
(2) Information about those
movements, in electronic format,
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aggregated by origin-destination pair
and shipper, showing the origin,
destination, volume, and total revenues
from each movement.
(3) Total operating and equipment
cost calculations for each of those
movements, provided in electronic
format.
(4) Revenue allocation for the onSARR portion of each cross-over
movement in the traffic group provided
in electronic format.
(5) Total trackage rights payments
paid or received during the Test Year
associated with the route replicated by
the SARR.
(6) All workpapers and
documentation necessary to support the
calculations.
(c) Conferences with parties. The
Board may convene a conference of the
parties with Board staff to facilitate
voluntary resolution of discovery
disputes and to address technical issues
that may arise.
(d) Complaint filed with a petition to
revoke a class exemption. If a complaint
is filed simultaneously with a petition
to revoke a class exemption, the Board
will take no action on the complaint and
the procedural schedule will be held in
abeyance automatically until the
petition to revoke is adjudicated.
I 8. Revise § 1111.10 to read as follows:
§ 1111.10
matters.
Meeting to discuss procedural
(a) Generally. In all complaint
proceedings, other than those
challenging the reasonableness of a rail
rate based on stand-alone cost or the
simplified standards, the parties shall
meet, or discuss by telephone, discovery
and procedural matters within 12 days
after an answer to a complaint is filed.
Within 19 days after an answer to a
complaint is filed, the parties, either
jointly or separately, shall file a report
with the Board setting forth a proposed
procedural schedule to govern future
activities and deadlines in the case.
(b) Stand-alone cost or simplified
standards complaints. In complaints
challenging the reasonableness of a rail
rate based on stand-alone cost or the
simplified standards, the parties shall
meet, or discuss by telephone, discovery
and procedural matters within 7 days
after the mediation period ends. The
parties should inform the Board as soon
as possible thereafter whether there are
unresolved disputes that require Board
intervention and, if so, the nature of
such disputes.
PART 1114—EVIDENCE; DISCOVERY
9. The authority citation for part 1114
continues to read as follows:
I
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Authority: 5 U.S.C. 559; 49 U.S.C. 721.
10. Amend § 1114.21 by adding
paragraph (a)(3) to read as follows:
I
§ 1114.21 Applicability; general
provisions.
(a) * * *
(3) In cases using the simplified
standards Three-Benchmark method,
the number of discovery requests that
either party can submit is limited as set
forth in §§ 1114.22, 1114.26, and
1114.30, absent advance authorization
from the Board.
*
*
*
*
*
I 11. Amend § 1114.22 by adding
paragraph (c) to read as follows:
§ 1114.22
Deposition.
*
*
*
*
*
(c) Limitation under simplified
standards. In a case using the ThreeBenchmark methodology, each party is
limited to one deposition absent
advance authorization from the Board.
*
*
*
*
*
I 12. Amend § 1114.26 by adding
paragraph (d) to read as follows:
§ 1114.26
parties.
Written interrogatories to
*
*
*
*
*
(d) Limitation under simplified
standards. In a case using the ThreeBenchmark methodology, each party is
limited to ten interrogatories (including
subparts) absent advance authorization
from the Board.
I 13. Amend § 1114.30 by adding
paragraph (c) to read as follows:
§ 1114.30 Production of documents and
records and entry upon land for inspection
and other purposes.
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*
*
*
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*
*
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(c) Limitation under simplified
standards. In a case using the ThreeBenchmark methodology, each party is
limited to ten document requests
(including subparts) absent advance
authorization from the Board.
I 14. Amend § 1114.31 by revising
paragraphs (a)(1), (a)(2), (a)(3), and (a)(4)
to read as follows:
§ 1114.31
Failure to respond to discovery.
(a) * * *
(1) Reply to motion to compel
generally. Except in rate cases to be
considered under the stand-alone cost
methodology or simplified standards,
the time for filing a reply to a motion
to compel is governed by 49 CFR
1104.13.
(2) Reply to motion to compel in
stand-alone cost and simplified
standards rate cases. A reply to a
motion to compel must be filed with the
Board within 10 days thereafter in a rate
case to be considered under the standalone cost methodology or under the
simplified standards.
(3) Conference with parties on motion
to compel. Within 5 business days after
the filing of a reply to a motion to
compel in a rate case to be considered
under the stand-alone cost methodology
or under the simplified standards, Board
staff may convene a conference with the
parties to discuss the dispute, attempt to
narrow the issues, and gather any
further information needed to render a
ruling.
(4) Ruling on motion to compel in
stand-alone cost and simplified
standards rate cases. Within 5 business
days after a conference with the parties
convened pursuant to paragraph (a)(3)
of this section, the Secretary will issue
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51377
a summary ruling on the motion to
compel discovery. If no conference is
convened, the Secretary will issue this
summary ruling within 10 days after the
filing of the reply to the motion to
compel. Appeals of a Secretary’s ruling
will proceed under 49 CFR 1115.9, and
the Board will attempt to rule on such
appeals within 20 days after the filing
of the reply to the appeal.
*
*
*
*
*
PART 1115—APPELLATE
PROCEDURES
15. The authority citation for part
1115 continues to read as follows:
I
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
16. Amend § 1115.9 by revising
paragraph (b) to read as follows:
I
§ 1115.9
Interlocutory appeals.
*
*
*
*
*
(b) In stand-alone cost complaints or
in cases filed under the simplified
standards, any interlocutory appeal of a
ruling shall be filed with the Board
within three (3) business days of the
ruling. Replies to any interlocutory
appeal shall be filed with the Board
within three (3) business days after the
filing of any such appeal. In all other
cases, interlocutory appeals shall be
filed with the Board within seven (7)
calendar days of the ruling and replies
to interlocutory appeals shall be filed
with Board within seven (7) calendar
days after the filing of any such appeal
as computed under 49 CFR 1104.7.
[FR Doc. E7–17689 Filed 9–6–07; 8:45 am]
BILLING CODE 4915–01–P
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Agencies
[Federal Register Volume 72, Number 173 (Friday, September 7, 2007)]
[Rules and Regulations]
[Pages 51375-51377]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-17689]
[[Page 51375]]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Parts 1002, 1111, 1114, and 1115
[STB Ex Parte No. 646 (Sub-No. 1)]
Simplified Standards for Rail Rate Cases
AGENCY: Surface Transportation Board, DOT.
ACTION: Final rulemaking.
-----------------------------------------------------------------------
SUMMARY: On September 5, 2007, the Board served a decision that
modifies its simplified rail rate guidelines, creating a simplified
stand-alone cost approach for medium-size rail rate disputes and
revising its three-benchmark approach for smaller rail rate disputes.
The Board also places limits on the total relief available over a 5-
year period under these two simplified approaches. Several rules in the
Code of Federal Regulations (CFR) have been updated to reflect the
changes in the simplified rail rate dispute approaches.
DATES: This action is effective October 7, 2007.
FOR FURTHER INFORMATION CONTACT: Timothy J. Strafford, (202) 245-0356.
[Assistance for the hearing impaired is available through the Federal
Information Relay Service (FIRS) at 1-800-877-8339.]
SUPPLEMENTARY INFORMATION: On September 5, 2007, the Board served a
decision that modifies its simplified rail rate guidelines, creating a
simplified stand-alone approach for medium-size rail rate disputes and
revising its three-benchmark approach for smaller rail rate disputes.
The Board also places limits on the total relief available over a 5-
year period under these two simplified approaches. Under the new rail
rate guidelines, rather than the Board declaring eligibility
thresholds, the shipper will be required to determine which rate relief
method will be applied to its case, with the understanding that there
will be limits on the amount of relief available over a 5-year period
based on the approach selected. The following limits will apply: Three-
benchmark, $1 million over 5 years; and Simplified stand-alone cost, $5
million over 5 years. To reflect the changes in this decision, the
following sections of the CFR have been amended: 1111.1, 1111.2,
1111.4, 1111.9, 1111.10, 1114.21, 1114.22, 1114.26, 1114.30, 1114.31,
and 1115.9.
The Board's full decision is posted on the Board's Web site, http:/
/www.stb.dot.gov. To purchase a copy of the full decision, write to, e-
mail, or call: ASAP Document Solutions, 9332 Annapolis Rd., Suite 103,
Lanham, MD 20706; e-mail: asapdc@verizon.net; telephone: (202) 306-
4004. [Assistance for the hearing impaired is available through FIRS at
1-800-877-8339.]
Pursuant to 5 U.S.C. 605(b), we conclude that our action in this
proceeding will not have a significant economic impact on a substantial
number of small entities.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
Authority: 49 U.S.C. 721, 49 U.S.C. 10701(d)(1) and (3).
Decided: September 4, 2007.
By the Board, Chairman Nottingham, Vice-Chairman Buttrey, and
Commissioner Mulvey.
Vernon A. Williams,
Secretary.
List of Subjects
49 CFR Part 1002
Administrative practice and procedure, Common carriers, Freedom of
Information.
49 CFR Part 1111
Administrative practice and procedure, Investigations,
49 CFR Parts 1114 and 1115
Administrative practice and procedure.
0
For the reasons set forth in the preamble, the Surface Transportation
Board amends parts 1002, 1111, 1114, and 1115 of title 49, chapter X of
the Code of Federal Regulations as follows:
PART 1002--FEES
0
1. The authority citation for part 1002 continues to read as follows:
Authority: 5 U.S.C. 552(a)(4)(A) and 553; 31 U.S.C. 9701; and 49
U.S.C. 721. Section 1002.1(g)(11) also issued under 5 U.S.C. 5514
and 31 U.S.C. 3717.
0
2. Amend Sec. 1002.2 by revising paragraphs (f)(56)(ii) through (v)
and adding paragraph (f)(56)(vi) to read as follows:
Sec. 1002.2 Filing fees.
* * * * *
(f) * * *
(56) * * *
(ii) A formal complaint involving rail maximum rates filed under
the Simplified-SAC methodology--10,600.
(iii) A formal complaint involving rail maximum rates filed under
the Three Benchmark methodology--150.
(iv) All other formal complaints (except competitive access
complaints)--17,600.
(v) Competitive access complaints--150.
(vi) A request for an order compelling a rail carrier to establish
a common carrier rate--200.
* * * * *
PART 1111--COMPLAINT AND INVESTIGATION PROCEDURES
0
3. The authority citation for part 1111 continues to read as follows:
Authority: 49 U.S.C. 721, 10704, and 11701.
0
4. Amend Sec. 1111.1 by revising paragraphs (a)(1) through (10),
redesignate paragraphs (b) through (d) as paragraphs (c) through (e)
respectively, and add a new paragraph (b) to read as follows:
Sec. 1111.1 Content of formal complaints; joinder.
(a) * * *
(1) The carrier or region identifier.
(2) The type of shipment (local, received-terminated, etc.).
(3) The one-way distance of the shipment.
(4) The type of car (by URCS code).
(5) The number of cars.
(6) The car ownership (private or railroad).
(7) The commodity type (STCC code).
(8) The weight of the shipment (in tons per car).
(9) The type of movement (individual, multi-car, or unit train).
(10) A narrative addressing whether there is any feasible
transportation alternative for the challenged movements.
(b) Disclosure with simplified standards complaint. The complainant
must provide to the defendant all documents relied upon in formulating
its assessment of a feasible transportation alternative and all
documents relied upon to determine the inputs to the URCS Phase III
program.
* * * * *
0
5. Revise Sec. 1111.2 to read as follows:
Sec. 1111.2 Amended and supplemental complaints.
(a) Generally. An amended or supplemental complaint may be tendered
for filing by a complainant against a defendant or defendants named in
the original complaint, stating a cause of action alleged to have
accrued within the statutory period immediately preceding the date of
such tender, in favor of complainant and against the defendant or
defendants. The time
[[Page 51376]]
limits for responding to an amended or supplemental complaint are
computed pursuant to Sec. Sec. 1111.4 and 1111.5 of this part, as if
the amended or supplemental complaint was an original complaint.
(b) Simplified standards. A complaint filed under the simplified
standards may be amended once before the filing of opening evidence to
opt for a different rate reasonableness methodology, among Three-
Benchmark, Simplified-SAC or Full-SAC. If so amended, the procedural
schedule begins again under the new methodology as set forth at
Sec. Sec. 1111.8 and 1111.9. However, only one mediation period per
complaint shall be required.
0
6. Revise Sec. 1111.4 to read as follows:
Sec. 1111.4 Answers and cross complaints.
(a) Generally. An answer shall be filed within the time provided in
paragraph (c) of this section. An answer should be responsive to the
complaint and should fully advise the Board and the parties of the
nature of the defense. In answering a complaint challenging the
reasonableness of a rail rate, the defendant should indicate whether it
will contend that the Board is deprived of jurisdiction to hear the
complaint because the revenue-variable cost percentage generated by the
traffic is less than 180 percent, or the traffic is subject to
effective product or geographic competition. In response to a complaint
filed under the simplified standards, the answer must include the
defendant's preliminary estimate of the variable cost of each
challenged movement calculated using the unadjusted figures produced by
the URCS Phase III program.
(b) Disclosure with simplified standards answer. The defendant must
provide to the complainant all documents that it relied upon to
determine the inputs used in the URCS Phase III program.
(c) Time for filing; copies; service. An answer must be filed
within 20 days after the service of the complaint or within such
additional time as the Board may provide. The original and 10 copies of
an answer must be filed with the Board. The defendant must serve copies
of the answer upon the complainant and any other defendants.
(d) Cross complaints. A cross complaint alleging violations by
other parties to the proceeding or seeking relief against them may be
filed with the answer. An answer to a cross complaint shall be filed
within 20 days after the service date of the cross complaint. The party
shall serve copies of an answer to a cross complaint upon the other
parties.
(e) Failure to answer complaint. Averments in a complaint are
admitted when not denied in an answer to the complaint.
0
7. Revise Sec. 1111.9 to read as follows:
Sec. 1111.9 Procedural schedule in cases using simplified standards.
(a) Procedural schedule. Absent a specific order by the Board, the
following general procedural schedules will apply in cases using the
simplified standards:
(1) In cases relying upon the Simplified-SAC methodology:
Day 0--Complaint filed (including complainant's disclosure).
Day 10--Mediation begins.
Day 20--Defendant's answer to complaint (including defendant's initial
disclosure).
Day 30--Mediation ends; discovery begins.
Day 140--Defendant's second disclosure.
Day 150--Discovery closes.
Day 220--Opening evidence.
Day 280--Reply evidence.
Day 310--Rebuttal evidence
Day 320--Technical conference (market dominance and merits).
Day 330--Final briefs.
(2) In cases relying upon the Three-Benchmark method:
Day 0--Complaint filed (including complainant's disclosure).
Day 10--Mediation begins. (STB production of unmasked Waybill Sample.)
Day 20--Defendant's answer to complaint (including defendant's initial
disclosure).
Day 30--Mediation ends; discovery begins.
Day 60--Discovery closes.
Day 90--Complainant's opening (initial tender of comparison group and
opening evidence on market dominance). Defendant's opening (initial
tender of comparison group).
Day 95--Technical conference on comparison group.
Day 120--Parties' final tenders on comparison group. Defendant's reply
on market dominance.
Day 150--Parties' replies to final tenders. Complainant's rebuttal on
market dominance.
(b) Defendant's second disclosure. In cases using the Simplified-
SAC methodology, the defendant must make the following disclosures to
the complainant by Day 170 of the procedural schedule.
(1) Identification of all traffic that moved over the routes
replicated by the SARR in the Test Year.
(2) Information about those movements, in electronic format,
aggregated by origin-destination pair and shipper, showing the origin,
destination, volume, and total revenues from each movement.
(3) Total operating and equipment cost calculations for each of
those movements, provided in electronic format.
(4) Revenue allocation for the on-SARR portion of each cross-over
movement in the traffic group provided in electronic format.
(5) Total trackage rights payments paid or received during the Test
Year associated with the route replicated by the SARR.
(6) All workpapers and documentation necessary to support the
calculations.
(c) Conferences with parties. The Board may convene a conference of
the parties with Board staff to facilitate voluntary resolution of
discovery disputes and to address technical issues that may arise.
(d) Complaint filed with a petition to revoke a class exemption. If
a complaint is filed simultaneously with a petition to revoke a class
exemption, the Board will take no action on the complaint and the
procedural schedule will be held in abeyance automatically until the
petition to revoke is adjudicated.
0
8. Revise Sec. 1111.10 to read as follows:
Sec. 1111.10 Meeting to discuss procedural matters.
(a) Generally. In all complaint proceedings, other than those
challenging the reasonableness of a rail rate based on stand-alone cost
or the simplified standards, the parties shall meet, or discuss by
telephone, discovery and procedural matters within 12 days after an
answer to a complaint is filed. Within 19 days after an answer to a
complaint is filed, the parties, either jointly or separately, shall
file a report with the Board setting forth a proposed procedural
schedule to govern future activities and deadlines in the case.
(b) Stand-alone cost or simplified standards complaints. In
complaints challenging the reasonableness of a rail rate based on
stand-alone cost or the simplified standards, the parties shall meet,
or discuss by telephone, discovery and procedural matters within 7 days
after the mediation period ends. The parties should inform the Board as
soon as possible thereafter whether there are unresolved disputes that
require Board intervention and, if so, the nature of such disputes.
PART 1114--EVIDENCE; DISCOVERY
0
9. The authority citation for part 1114 continues to read as follows:
[[Page 51377]]
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
0
10. Amend Sec. 1114.21 by adding paragraph (a)(3) to read as follows:
Sec. 1114.21 Applicability; general provisions.
(a) * * *
(3) In cases using the simplified standards Three-Benchmark method,
the number of discovery requests that either party can submit is
limited as set forth in Sec. Sec. 1114.22, 1114.26, and 1114.30,
absent advance authorization from the Board.
* * * * *
0
11. Amend Sec. 1114.22 by adding paragraph (c) to read as follows:
Sec. 1114.22 Deposition.
* * * * *
(c) Limitation under simplified standards. In a case using the
Three-Benchmark methodology, each party is limited to one deposition
absent advance authorization from the Board.
* * * * *
0
12. Amend Sec. 1114.26 by adding paragraph (d) to read as follows:
Sec. 1114.26 Written interrogatories to parties.
* * * * *
(d) Limitation under simplified standards. In a case using the
Three-Benchmark methodology, each party is limited to ten
interrogatories (including subparts) absent advance authorization from
the Board.
0
13. Amend Sec. 1114.30 by adding paragraph (c) to read as follows:
Sec. 1114.30 Production of documents and records and entry upon land
for inspection and other purposes.
* * * * *
(c) Limitation under simplified standards. In a case using the
Three-Benchmark methodology, each party is limited to ten document
requests (including subparts) absent advance authorization from the
Board.
0
14. Amend Sec. 1114.31 by revising paragraphs (a)(1), (a)(2), (a)(3),
and (a)(4) to read as follows:
Sec. 1114.31 Failure to respond to discovery.
(a) * * *
(1) Reply to motion to compel generally. Except in rate cases to be
considered under the stand-alone cost methodology or simplified
standards, the time for filing a reply to a motion to compel is
governed by 49 CFR 1104.13.
(2) Reply to motion to compel in stand-alone cost and simplified
standards rate cases. A reply to a motion to compel must be filed with
the Board within 10 days thereafter in a rate case to be considered
under the stand-alone cost methodology or under the simplified
standards.
(3) Conference with parties on motion to compel. Within 5 business
days after the filing of a reply to a motion to compel in a rate case
to be considered under the stand-alone cost methodology or under the
simplified standards, Board staff may convene a conference with the
parties to discuss the dispute, attempt to narrow the issues, and
gather any further information needed to render a ruling.
(4) Ruling on motion to compel in stand-alone cost and simplified
standards rate cases. Within 5 business days after a conference with
the parties convened pursuant to paragraph (a)(3) of this section, the
Secretary will issue a summary ruling on the motion to compel
discovery. If no conference is convened, the Secretary will issue this
summary ruling within 10 days after the filing of the reply to the
motion to compel. Appeals of a Secretary's ruling will proceed under 49
CFR 1115.9, and the Board will attempt to rule on such appeals within
20 days after the filing of the reply to the appeal.
* * * * *
PART 1115--APPELLATE PROCEDURES
0
15. The authority citation for part 1115 continues to read as follows:
Authority: 5 U.S.C. 559; 49 U.S.C. 721.
0
16. Amend Sec. 1115.9 by revising paragraph (b) to read as follows:
Sec. 1115.9 Interlocutory appeals.
* * * * *
(b) In stand-alone cost complaints or in cases filed under the
simplified standards, any interlocutory appeal of a ruling shall be
filed with the Board within three (3) business days of the ruling.
Replies to any interlocutory appeal shall be filed with the Board
within three (3) business days after the filing of any such appeal. In
all other cases, interlocutory appeals shall be filed with the Board
within seven (7) calendar days of the ruling and replies to
interlocutory appeals shall be filed with Board within seven (7)
calendar days after the filing of any such appeal as computed under 49
CFR 1104.7.
[FR Doc. E7-17689 Filed 9-6-07; 8:45 am]
BILLING CODE 4915-01-P