81 FR 40250 - Expediting Rate Cases
SURFACE TRANSPORTATION BOARD Federal Register Volume 81, Issue 119 (June 21, 2016)
Federal Register Volume 81, Issue 119 (June 21, 2016)
| Page Range | 40250-40253 | |
| FR Document | 2016-14625 |
[Federal Register Volume 81, Number 119 (Tuesday, June 21, 2016)] [Proposed Rules] [Pages 40250-40253] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-14625] ======================================================================= ----------------------------------------------------------------------- SURFACE TRANSPORTATION BOARD 49 CFR Chapter X [Docket No. EP 733] Expediting Rate Cases AGENCY: Surface Transportation Board. ACTION: Advance notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: Pursuant to section 11 of the Surface Transportation Board Reauthorization Act of 2015, the Surface Transportation Board (Board or STB) is instituting a proceeding through this Advance Notice of Proposed Rulemaking (ANPR) to assess procedures that are available to parties in litigation before courts to expedite such litigation, and the potential application of any such procedures to rate cases before the Board. The Board also intends to assess additional ways to move stand-alone cost (SAC) rate cases in particular more expeditiously. DATES: Comments are due by August 1, 2016. Reply comments are due by August 29, 2016. ADDRESSES: Comments on this proposal may be submitted either via the Board's e-filing format or in the traditional paper format. Any person using e-filing should attach a document and otherwise comply with the instructions at the E-FILING link on the Board's Web site, at http://stb.dot.gov. Any person submitting a filing in the traditional paper format should send an original and 10 copies to: Surface Transportation Board, Attn: EP 733, 395 E Street SW., Washington, DC 20423-0001. Copies of written comments will be available for viewing and self- copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site. Information or questions regarding this ANPR should reference Docket No. EP 733 and be in writing addressed to: Chief, Section of Administration, Office of Proceedings, Surface Transportation Board, 395 E Street SW., Washington, DC 20423-0001. FOR FURTHER INFORMATION CONTACT: Allison Davis: (202) 245-0378. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.] SUPPLEMENTARY INFORMATION: Section 11 of the Surface Transportation Board Reauthorization Act of 2015, Public Law 114-110, 129 Stat. 2228 (2015) (STB Reauthorization Act) directs the Board, not later than 180 days after the date of the enactment of the Act, to ``initiate a proceeding to assess procedures that are available to parties in litigation before courts to expedite such litigation and the potential application of any such procedures to rate cases.'' 129 Stat. 2228. In addition, section 11 requires the Board to comply with a new timeline in SAC cases.\1\ --------------------------------------------------------------------------- \1\ The statute previously required the Board to issue a decision no later than 270 days after the close of the record, which the Board measured from the filing of closing briefs. Under the STB Reauthorization Act, the Board is now required to issue a decision no later than 180 days after the close of the record, which by statute is now defined to exclude closing briefs. See 49 U.S.C. 10704(d)(2). Thus, pursuant to the STB Reauthorization Act, the time available to the Board to issue a decision after closing briefs has been reduced from 270 days to 150 days. The Board has adopted a new timeline to comply with this provision. Revised Procedural Schedule in Stand-Alone Cost Cases, EP 732, slip op. at 2-5 & n.3 (STB served Mar. 9, 2016). --------------------------------------------------------------------------- In advance of initiating this proceeding, Board staff held informal meetings with stakeholders \2\ to explore and discuss ideas on: (1) How procedures to expedite court litigation could be applied to rate cases, and (2) additional ways to move SAC cases forward more expeditiously. --------------------------------------------------------------------------- \2\ Board staff met with individuals either associated with and/ or speaking on behalf of the following organizations: American Chemistry Council; Archer Daniels Midland Company; CSX Transportation, Inc.; Economists Incorporated; Dr. Gerald Faulhaber; FTI Consulting, Inc.; GKG Law, P.C.; Growth Energy; Highroad Consulting; L.E. Peabody; LaRoe, Winn, Moerman & Donovan; consultant Michael A. Nelson; Norfolk Southern Railway Company; Olin Corporation; POET Ethanol Products; Sidley Austin LLP; Slover & Loftus LLP; Steptoe & Johnson LLP; The Chlorine Institute; The Fertilizer Institute; The National Industrial Transportation League; and Thompson Hine LLP. We note that some participants expressed individual views, not on behalf of the organization(s) with which they are associated. --------------------------------------------------------------------------- Based on the Board's experience in processing rate cases, as well as the feedback received during the informal meetings, the Board has generated a number of ideas to expedite rate cases. We now seek formal comment on procedures used to expedite court litigation that could be applied to rate cases and the ideas listed below to expedite SAC through this ANPR.\3\ In their comments, parties may address any relevant matters, but we specifically seek comment on the following potential changes to SAC rate cases. --------------------------------------------------------------------------- \3\ Since 2014, the Board has also undertaken a number of internal changes to process SAC cases more efficiently. Although these changes will not require any stakeholder action, the Board expects that they will lead to improvements in the way the Board manages case workflow. These changes include greater use of technical conferences with parties early in proceedings, issuance of evidentiary instructions following the technical conferences, internal management structure changes for rate cases, improving communication and coordination among Board staff, and setting additional milestone markers within our internal workflow. --------------------------------------------------------------------------- Pre-Filing Requirement In order to expedite SAC cases, several stakeholders suggested that the Board could require a complainant to file a notice before filing its complaint.\4\ This would create a ``pre-complaint'' period, during which the railroad would have time to start preparing for litigation, including gathering documents and data necessary for the discovery stage, which in turn could [[Page 40251]] benefit both parties by accelerating the discovery process. --------------------------------------------------------------------------- \4\ In the context of major and significant mergers, the Board requires a pre-filing notification. See 49 CFR 1180.4(b). --------------------------------------------------------------------------- If a pre-filing notice were adopted, the Board could also use this pre-complaint period to provide parties the opportunity to engage in early-stage mediation, and appoint a mediator upon receipt of the pre- filing notice.\5\ This would not prevent parties from engaging in mediation at any other time during the proceeding, and the Board could encourage the parties to do so. --------------------------------------------------------------------------- \5\ Currently, the Board's regulations state that, in a SAC case, a shipper must engage in mediation with the railroad upon filing a formal complaint and that a mediator will be assigned within 10 business days of the filing of the shipper's complaint. 49 CFR 1109.4(a) and (b). --------------------------------------------------------------------------- We therefore seek comment on the merits of adopting a pre-filing requirement in SAC cases, and, if a pre-filing notice were adopted, the information that should be contained in that notice and the appropriate time period for filing the notice (e.g., 30 or 60 days prior to the filing of a complaint). Parties may also comment on the idea of offering or requiring mediation during a pre-complaint period, or any other period during the rate case. Discovery: Standardized Requests and/or Disclosures In order to expedite litigation, some federal courts have focused on streamlining discovery by, among other things, requiring early disclosures. See, e.g., Fed. R. Civ. P. 26(a)(1). In the informal meetings, several stakeholders stated that standardizing discovery would help expedite rate cases and reduce the number of disputes between the parties. Several stakeholders explained that, over the years, the initial discovery requests relating to both the SAC and market dominance portions of SAC cases have become relatively consistent, and that formalizing such requests could be helpful. Accordingly, the Board could require the parties to either serve standard discovery requests or disclosures of information with the filing of their complaints and answers. For example, on the filing of the complaint, the complainant could be required to either: (a) Serve a standard set of discovery requests on the defendant railroad covering data pertinent to creation of the stand-alone railroad (SARR), or (b) serve a standard set of disclosures pertinent to market dominance. Then, on the filing of the railroad's answer, the railroad could be required to either: (a) Serve a standard set of discovery requests on the complainant pertinent to market dominance, or (b) serve a standard set of disclosures pertinent to creating the SARR. Based on the informal discussions with stakeholders, the standard initial information related to creation of the SARR might include: Waybill data; train and carload data; timetables; track charts; authorizations for expenditure; grade, curve, and profile data; Wage Forms A & B; Geographic Information System data; forecasts; and contracts. Standard information related to market dominance might include: Forecasts for issue traffic, alternative transportation options, and states in which the SARR might operate. Alternatively, rather than requiring requests or disclosures of traffic data related to the SARR, some stakeholders suggested that the Board could collect data that could be used in rate cases. The data could be made available to complainants upon the filing of a complaint and a protective order being entered. We are concerned, however, about how to standardize the data and the burdens collection of the data could impose. Another potential standardized disclosure that the Board could consider involves software that is not available to the general public. The Board could consider requiring the disclosure by each party of any such software it intends to use in its evidentiary submissions by, for example, the close of discovery. Such early disclosure may avoid disputes on appropriate software after the evidence has been presented. We therefore seek comment on the advisability of adopting standardized discovery requests and/or disclosures or a database of standardized traffic data as discussed above, as well as the appropriate content and timing of such requests and/or disclosures. Because the Board generally does not have an opportunity to review uncontested discovery requests, it would be beneficial to the Board for parties to include in their comments copies of their initial discovery requests served in recent SAC cases, where applicable, to provide guidance on common discovery topics. Discovery: Other Ideas Some federal courts have also streamlined discovery in other ways, such as by adopting limits on discovery. If the Board requires mandatory initial discovery requests or disclosures, such that the core information necessary for a SAC case is accounted for, the Board could then limit the number of additional discovery requests allowed by each party. The Board could allow a party to obtain discovery beyond the set limit only upon a showing of good cause, for example. We seek comment on the merits of limiting discovery requests in conjunction with adopting standardized initial requests/disclosures, and what, if any, those limits should be. Stakeholders also indicated that the Board could either encourage or require more requests for admissions (particularly with respect to the issue of market dominance) to narrow the scope of contested issues and to avoid the unnecessary presentation of evidence. To encourage thorough and honest consideration of the requests, if a party denies a request for admission with no basis for doing so, that party would pay for the litigation of the issue. See 49 CFR 1114.27 (providing for requests for admission); 49 CFR 1114.31(c) (providing for ``the reasonable expenses incurred in making that proof''). We seek comment on whether the use of requests for admissions might assist parties and expedite SAC cases. In the informal meetings, stakeholders also indicated that some discovery disputes over scope and terminology occur with regularity, and that the Board could obviate those disputes through standardization. For example, when an interrogatory or request for production asks for information from a date certain ``to the present,'' the Board could define that term by rule to avoid continued disputes from case to case. We therefore seek comment on how the Board might appropriately define ``to the present,'' as well as comment on any other term or scope issue that could be standardized to avoid unnecessary discovery disputes. Finally, to encourage parties to resolve discovery disputes among themselves, the Board could consider a rule similar to one used by federal courts requiring parties filing motions to compel to certify that they have attempted to confer with the opposing party. See Fed. R. Civ. P. 37(a)(1) (``The motion [to compel disclosure or discovery] must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.''). The Board could also consider whether such a requirement should be used for other types of motions, such as modifications to the procedural schedule. See, e.g., 49 CFR 1111.10(a) (requiring parties in complaint proceedings to ``meet, or discuss by telephone, discovery and procedural matters within 12 days after an answer to a complaint is filed.''). We seek comment on the merits of such a requirement. [[Page 40252]] Evidentiary Submissions: Standardization In the informal meetings, stakeholders indicated that standardization of certain evidence could not only reduce the number of litigated issues, thereby expediting the case, but would also allow parties before a rate case has even started to more accurately assess their respective positions and the potential outcome of the case. Stakeholders cautioned, however, that standardization has the potential to favor one side or the other; thus the Board should be cognizant of those implications when selecting methods of standardization. Standardization could be done in a number of ways. For example, the Board could standardize unit costs based on actual railroad data or prior rate cases; standardize sources of data that parties can rely on; or standardize a methodology to be used for particular items. There are various areas in a SAC case that may be well-suited to some form of standardization or simplification. For example, rather than deciding each individual element within the general and administrative (G&A) section, the Board could estimate G&A as a percentage of the SARR's total revenue or based on the SARR's traffic levels, or the Board could adopt one party's entire G&A evidence over the other. For maintenance of way (MOW), the parties could develop MOW expenses by developing a general unit cost by dividing MOW operating costs by the Trailing Gross Ton Miles found in the R-1 multiplied by the General Overhead ratio found in the Board's Uniform Rail Costing System. Construction costs might be standardized by using R-1 data or the carriers' depreciation studies to develop the cost per track mile. Similarly, the Board could develop standardized locomotive acquisition costs using data from the R-1 reports (Schedule 710S) and the carriers' periodic depreciation studies. Finally, the Board could use Wage Forms A&B to standardize wages/salaries. Although we invite comment on any item that commenters believe should be standardized, we seek comment on the specific areas listed above. Evidentiary Submissions: Other Ideas Stakeholders also discussed ways to address the exceedingly large number of contested issues in each case, and how that affects the presentation of evidence. The Board could consider early resolution of certain issues through interim rulings to narrow the scope of the case or to avoid the evidentiary misalignment that occurs when parties build their cases on top of fundamental disagreements, as well as encouraging motions practice as a means of managing the scope and timing of cases. For example, if the railroad believes a complainant's operating plan cannot be corrected, the Board could require the railroad to file a motion to dismiss rather than submitting a reply based on a different operating plan in order to avoid the problem of misaligned evidentiary submissions. In other words, the Board could determine that a railroad may not submit an entirely new operating plan in its reply. Assignment of attorneys' fees or extension of rate prescriptions could be used to discourage frivolous motions to dismiss. Depending on the technical challenge presented by a case, the Board could dismiss a case without prejudice. Another concern that impacts the Board's ability to process cases efficiently and the parties' ability to respond to each other's evidence relates to the scope of the pleadings. Many stakeholders expressed concern that the scope of rebuttal filings is often disproportionate to that of opening filings and that final briefs are often more akin to surrebuttal than a summary of key issues. To address these concerns, the Board could more strictly enforce the evidentiary standard set forth in Duke Energy Corp. v. Norfolk Southern Railway, 7 S.T.B. 89, 100 (2003), which requires that the complainant ``must present its full case-in-chief in its opening evidence,'' in conjunction with consideration of motions to strike inappropriate rebuttal evidence. Additionally, the Board could consider putting a page limit on rebuttal evidence (e.g., cannot be longer than opening, or must be no more than half the length of opening). The Board could also limit final briefs to certain subjects on which the Board would like further argument rather than allowing generalized argument. Next, to address concerns about parties' rate case presentations relying on software that is not available to the general public, some stakeholders suggested that the Board should restrict a party's ability to use such software in its rate presentation unless it provides a temporary license to the opposing party. If the Board required parties to provide temporary licenses to use non-publicly availably software, whenever parties used such software in their rate case presentations, such provision could be made along with a disclosure of the software being used, as discussed earlier. Finally, to give parties more time to ensure that public versions of filings are appropriately redacted without delaying the case, the Board could consider staggering the filing of public and highly confidential versions of the parties' pleadings. For example, parties could file their highly confidential pleadings and workpapers according to the procedural schedule, but have an additional period of days to file their public versions. We seek comment on these ideas, and others, relating to whether interim rulings, narrowing the scope of pleadings, software requirements, and staggering public and confidential versions would assist parties, minimize disputes, and expedite SAC cases. Interaction With Board Staff During the informal meetings, numerous stakeholders expressed that increased interaction with Board staff during all stages of a SAC case would be beneficial. To that end, during and/or after the submission of evidence, the Board could make more aggressive use of written questions from staff and/or technical conferences with the parties to clarify the record. If technical conferences are used, the Board could provide advance notice of the topics to be discussed to promote an efficient and productive conference. An early technical conference could be useful to establish ground rules and issue-specific Board expectations. The Board could also consider assigning a staff member as a liaison to the parties to facilitate greater interaction. This could allow the Board to be more available to the parties, particularly toward the beginning of a case, to answer questions about the process and to intervene informally (e.g., hold status conferences) if it would help discovery or other matters move more smoothly. Both technical conferences and additional interaction with Board staff would be encouraged at any time during the proceeding. Regulatory Flexibility Act Because this ANPR does not impose or propose any requirements, and instead seeks comments and suggestions for the Board to consider in possibly developing a subsequent proposed rule, the requirements of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612 (RFA) do not apply to this action. Nevertheless, as part of any comments submitted in response to this ANPR, parties may include comments or information that could help the Board assess the potential impact of a subsequent regulatory action on small entities pursuant to the RFA. It is ordered: [[Page 40253]] 1. Initial comments are due by August 1, 2016. 2. Replies are due by August 29, 2016. 3. This decision is effective on its date of service. Decided: June 14, 2016. By the Board, Chairman Elliott, Vice Chairman Miller, and Commissioner Begeman. Raina S. Contee, Clearance Clerk. [FR Doc. 2016-14625 Filed 6-20-16; 8:45 am] BILLING CODE 4915-01-P
![40250 Federal Register / Vol. 81, No. 119 / Tuesday, June 21, 2016 / Proposed Rules
115. It is further ordered that, Reauthorization Act of 2015, the Surface In advance of initiating this
pursuant to the authority contained in Transportation Board (Board or STB) is proceeding, Board staff held informal
sections 1, 2, 4(i), 5, 10, 201–206, 214, instituting a proceeding through this meetings with stakeholders 2 to explore
218–220, 251, 252, 254, 256, 303(r), 332, Advance Notice of Proposed and discuss ideas on: (1) How
403, and 405 of the Communications Rulemaking (ANPR) to assess procedures to expedite court litigation
Act of 1934, as amended, and section procedures that are available to parties could be applied to rate cases, and (2)
706 of the Telecommunications Act of in litigation before courts to expedite additional ways to move SAC cases
1996, 47 U.S.C. 151, 152, 154(i), 155, such litigation, and the potential forward more expeditiously.
201–206, 214, 218–220, 251, 252, 254, application of any such procedures to Based on the Board’s experience in
256, 303(r), 332, 403, 405, 1302, and rate cases before the Board. The Board processing rate cases, as well as the
sections 1.1, 1.421, 1.427, and 1.429 of also intends to assess additional ways to feedback received during the informal
the Commission’s rules, 47 CFR 1.1, move stand-alone cost (SAC) rate cases meetings, the Board has generated a
1.421, 1.427, and 1.429, notice is hereby in particular more expeditiously. number of ideas to expedite rate cases.
given of the proposals and tentative DATES: Comments are due by August 1, We now seek formal comment on
conclusions described in this Further 2016. Reply comments are due by procedures used to expedite court
Notice of Proposed Rulemaking. August 29, 2016. litigation that could be applied to rate
116. It is further ordered that Part 54 ADDRESSES: Comments on this proposal cases and the ideas listed below to
of the Commission’s rules, 47 CFR part may be submitted either via the Board’s expedite SAC through this ANPR.3 In
54, is amended as set forth in Appendix e-filing format or in the traditional their comments, parties may address
A, and such rule amendments shall be paper format. Any person using e-filing any relevant matters, but we specifically
effective thirty (30) days after should attach a document and otherwise seek comment on the following
publication of the rules amendments in comply with the instructions at the E– potential changes to SAC rate cases.
the Federal Register, except to the FILING link on the Board’s Web site, at Pre-Filing Requirement
extent they contain information http://stb.dot.gov. Any person
collections subject to PRA review. The submitting a filing in the traditional In order to expedite SAC cases,
rules that contain information paper format should send an original several stakeholders suggested that the
collections subject to PRA review shall and 10 copies to: Surface Transportation Board could require a complainant to
become effective immediately upon Board, Attn: EP 733, 395 E Street SW., file a notice before filing its complaint.4
announcement in the Federal Register Washington, DC 20423–0001. Copies of This would create a ‘‘pre-complaint’’
of OMB approval and an effective date. written comments will be available for period, during which the railroad would
117. It is further ordered that the viewing and self-copying at the Board’s have time to start preparing for
Commission SHALL SEND a copy of the Public Docket Room, Room 131, and litigation, including gathering
concurrently adopted Report and Order will be posted to the Board’s Web site. documents and data necessary for the
and Further Notice of Proposed Information or questions regarding this discovery stage, which in turn could
Rulemaking to Congress and the ANPR should reference Docket No. EP
Government Accountability Office 733 and be in writing addressed to: to exclude closing briefs. See 49 U.S.C. 10704(d)(2).
pursuant to the Congressional Review Thus, pursuant to the STB Reauthorization Act, the
Chief, Section of Administration, Office time available to the Board to issue a decision after
Act, see 5 U.S.C. 801(a)(1)(A). of Proceedings, Surface Transportation closing briefs has been reduced from 270 days to
118. It is further ordered, that the Board, 395 E Street SW., Washington, 150 days. The Board has adopted a new timeline
Commission’s Consumer and DC 20423–0001. to comply with this provision. Revised Procedural
Governmental Affairs Bureau, Reference Schedule in Stand-Alone Cost Cases, EP 732, slip
FOR FURTHER INFORMATION CONTACT: op. at 2–5 & n.3 (STB served Mar. 9, 2016).
Information Center, SHALL SEND a
Allison Davis: (202) 245–0378. 2 Board staff met with individuals either
copy of the concurrently adopted Report associated with and/or speaking on behalf of the
[Assistance for the hearing impaired is
and Order and Further Notice of following organizations: American Chemistry
available through the Federal
Proposed Rulemaking, including the Council; Archer Daniels Midland Company; CSX
Information Relay Service (FIRS) at 1– Transportation, Inc.; Economists Incorporated; Dr.
Final Regulatory Flexibility Analysis, to
800–877–8339.] Gerald Faulhaber; FTI Consulting, Inc.; GKG Law,
the Chief Counsel for Advocacy of the P.C.; Growth Energy; Highroad Consulting; L.E.
SUPPLEMENTARY INFORMATION: Section 11
Small Business Administration. Peabody; LaRoe, Winn, Moerman & Donovan;
of the Surface Transportation Board consultant Michael A. Nelson; Norfolk Southern
Federal Communications Commission. Reauthorization Act of 2015, Public Law Railway Company; Olin Corporation; POET Ethanol
Marlene H. Dortch, 114–110, 129 Stat. 2228 (2015) (STB Products; Sidley Austin LLP; Slover & Loftus LLP;
Secretary. Reauthorization Act) directs the Board, Steptoe & Johnson LLP; The Chlorine Institute; The
Fertilizer Institute; The National Industrial
[FR Doc. 2016–14507 Filed 6–20–16; 8:45 am] not later than 180 days after the date of Transportation League; and Thompson Hine LLP.
BILLING CODE 6712–01–P the enactment of the Act, to ‘‘initiate a We note that some participants expressed
proceeding to assess procedures that are individual views, not on behalf of the
available to parties in litigation before organization(s) with which they are associated.
3 Since 2014, the Board has also undertaken a
SURFACE TRANSPORTATION BOARD courts to expedite such litigation and number of internal changes to process SAC cases
the potential application of any such more efficiently. Although these changes will not
49 CFR Chapter X procedures to rate cases.’’ 129 Stat. require any stakeholder action, the Board expects
2228. In addition, section 11 requires that they will lead to improvements in the way the
[Docket No. EP 733] Board manages case workflow. These changes
the Board to comply with a new
rmajette on DSK2TPTVN1PROD with PROPOSALS
include greater use of technical conferences with
Expediting Rate Cases timeline in SAC cases.1 parties early in proceedings, issuance of evidentiary
instructions following the technical conferences,
AGENCY: Surface Transportation Board. 1 The statute previously required the Board to internal management structure changes for rate
issue a decision no later than 270 days after the cases, improving communication and coordination
ACTION:Advance notice of proposed among Board staff, and setting additional milestone
close of the record, which the Board measured from
rulemaking. the filing of closing briefs. Under the STB markers within our internal workflow.
Reauthorization Act, the Board is now required to 4 In the context of major and significant mergers,
SUMMARY: Pursuant to section 11 of the issue a decision no later than 180 days after the the Board requires a pre-filing notification. See 49
Surface Transportation Board close of the record, which by statute is now defined CFR 1180.4(b).
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![Federal Register / Vol. 81, No. 119 / Tuesday, June 21, 2016 / Proposed Rules 40251
benefit both parties by accelerating the of disclosures pertinent to creating the cause, for example. We seek comment
discovery process. SARR. on the merits of limiting discovery
If a pre-filing notice were adopted, the Based on the informal discussions requests in conjunction with adopting
Board could also use this pre-complaint with stakeholders, the standard initial standardized initial requests/
period to provide parties the information related to creation of the disclosures, and what, if any, those
opportunity to engage in early-stage SARR might include: Waybill data; train limits should be.
mediation, and appoint a mediator upon and carload data; timetables; track Stakeholders also indicated that the
receipt of the pre-filing notice.5 This charts; authorizations for expenditure; Board could either encourage or require
would not prevent parties from engaging grade, curve, and profile data; Wage more requests for admissions
in mediation at any other time during Forms A & B; Geographic Information (particularly with respect to the issue of
the proceeding, and the Board could System data; forecasts; and contracts. market dominance) to narrow the scope
encourage the parties to do so. Standard information related to market of contested issues and to avoid the
We therefore seek comment on the dominance might include: Forecasts for unnecessary presentation of evidence.
merits of adopting a pre-filing issue traffic, alternative transportation To encourage thorough and honest
requirement in SAC cases, and, if a pre- options, and states in which the SARR consideration of the requests, if a party
filing notice were adopted, the might operate. denies a request for admission with no
information that should be contained in Alternatively, rather than requiring basis for doing so, that party would pay
that notice and the appropriate time requests or disclosures of traffic data for the litigation of the issue. See 49
period for filing the notice (e.g., 30 or related to the SARR, some stakeholders CFR 1114.27 (providing for requests for
60 days prior to the filing of a suggested that the Board could collect admission); 49 CFR 1114.31(c)
complaint). Parties may also comment data that could be used in rate cases. (providing for ‘‘the reasonable expenses
The data could be made available to incurred in making that proof’’). We
on the idea of offering or requiring
complainants upon the filing of a seek comment on whether the use of
mediation during a pre-complaint
complaint and a protective order being requests for admissions might assist
period, or any other period during the
entered. We are concerned, however, parties and expedite SAC cases.
rate case.
about how to standardize the data and
In the informal meetings, stakeholders
Discovery: Standardized Requests and/ the burdens collection of the data could
also indicated that some discovery
or Disclosures impose.
Another potential standardized disputes over scope and terminology
In order to expedite litigation, some disclosure that the Board could consider occur with regularity, and that the
federal courts have focused on involves software that is not available to Board could obviate those disputes
streamlining discovery by, among other the general public. The Board could through standardization. For example,
things, requiring early disclosures. See, consider requiring the disclosure by when an interrogatory or request for
e.g., Fed. R. Civ. P. 26(a)(1). In the each party of any such software it production asks for information from a
informal meetings, several stakeholders intends to use in its evidentiary date certain ‘‘to the present,’’ the Board
stated that standardizing discovery submissions by, for example, the close could define that term by rule to avoid
would help expedite rate cases and of discovery. Such early disclosure may continued disputes from case to case.
reduce the number of disputes between avoid disputes on appropriate software We therefore seek comment on how the
the parties. Several stakeholders after the evidence has been presented. Board might appropriately define ‘‘to
explained that, over the years, the initial We therefore seek comment on the the present,’’ as well as comment on any
discovery requests relating to both the advisability of adopting standardized other term or scope issue that could be
SAC and market dominance portions of discovery requests and/or disclosures or standardized to avoid unnecessary
SAC cases have become relatively a database of standardized traffic data as discovery disputes.
consistent, and that formalizing such discussed above, as well as the Finally, to encourage parties to
requests could be helpful. Accordingly, appropriate content and timing of such resolve discovery disputes among
the Board could require the parties to requests and/or disclosures. Because the themselves, the Board could consider a
either serve standard discovery requests Board generally does not have an rule similar to one used by federal
or disclosures of information with the opportunity to review uncontested courts requiring parties filing motions to
filing of their complaints and answers. discovery requests, it would be compel to certify that they have
For example, on the filing of the beneficial to the Board for parties to attempted to confer with the opposing
complaint, the complainant could be include in their comments copies of party. See Fed. R. Civ. P. 37(a)(1) (‘‘The
required to either: (a) Serve a standard their initial discovery requests served in motion [to compel disclosure or
set of discovery requests on the recent SAC cases, where applicable, to discovery] must include a certification
defendant railroad covering data provide guidance on common discovery that the movant has in good faith
pertinent to creation of the stand-alone topics. conferred or attempted to confer with
railroad (SARR), or (b) serve a standard the person or party failing to make
set of disclosures pertinent to market Discovery: Other Ideas disclosure or discovery in an effort to
dominance. Then, on the filing of the Some federal courts have also obtain it without court action.’’). The
railroad’s answer, the railroad could be streamlined discovery in other ways, Board could also consider whether such
required to either: (a) Serve a standard such as by adopting limits on discovery. a requirement should be used for other
set of discovery requests on the If the Board requires mandatory initial types of motions, such as modifications
rmajette on DSK2TPTVN1PROD with PROPOSALS
complainant pertinent to market discovery requests or disclosures, such to the procedural schedule. See, e.g., 49
dominance, or (b) serve a standard set that the core information necessary for CFR 1111.10(a) (requiring parties in
a SAC case is accounted for, the Board complaint proceedings to ‘‘meet, or
5 Currently, the Board’s regulations state that, in could then limit the number of discuss by telephone, discovery and
a SAC case, a shipper must engage in mediation additional discovery requests allowed procedural matters within 12 days after
with the railroad upon filing a formal complaint
and that a mediator will be assigned within 10
by each party. The Board could allow a an answer to a complaint is filed.’’). We
business days of the filing of the shipper’s party to obtain discovery beyond the set seek comment on the merits of such a
complaint. 49 CFR 1109.4(a) and (b). limit only upon a showing of good requirement.
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![Federal Register / Vol. 81, No. 119 / Tuesday, June 21, 2016 / Proposed Rules 40253
1. Initial comments are due by August Flexibility Analysis (IRFA), are at-sea processing (USAP); border
1, 2016. available from: Thomas A. Nies, transfer (BT); the sub-ACL for each
2. Replies are due by August 29, 2016. Executive Director, New England management area, including seasonal
3. This decision is effective on its date Fishery Management Council, 50 Water periods as allowed by § 648.201(d) and
of service. Street, Mill 2, Newburyport, MA 01950, modifications to sub-ACLs as allowed
Decided: June 14, 2016. telephone (978) 465–0492. The EA/RIR/ by § 648.201(f); and the amount to be set
By the Board, Chairman Elliott, Vice IRFA is also accessible via the Internet aside for the research set aside (RSA) (3
Chairman Miller, and Commissioner at http:// percent of the sub-ACL from any
Begeman. www.greateratlantic.fisheries.noaa.gov/. management area) for up to 3 years.
Raina S. Contee,
You may submit comments, identified These regulations also provide the
by NOAA–NMFS–2016–0050, by any Council with the discretion to
Clearance Clerk.
one of the following methods: recommend river herring and shad catch
[FR Doc. 2016–14625 Filed 6–20–16; 8:45 am]
• Electronic Submission: Submit all caps as part of the specifications.
BILLING CODE 4915–01–P electronic public comments via the
Under the Magnuson-Stevens Fishery
Federal e-Rulemaking Portal. Go to
Conservation and Management Act
www.regulations.gov/
DEPARTMENT OF COMMERCE (Magnuson-Stevens Act), NMFS is
#!docketDetail;D=NOAA-NMFS-2016-
required to publish proposed rules for
0050, click the ‘‘Comment Now!’’ icon,
National Oceanic and Atmospheric comment after preliminarily
complete the required fields, and enter
Administration determining whether they are consistent
or attach your comments;
• Mail: Submit written comments to with applicable law. The Magnuson-
50 CFR Part 648 NMFS, Greater Atlantic Regional Office, Stevens Act permits NMFS to approve,
55 Great Republic Drive, Gloucester, partially approve, or disapprove
[Docket No.: 151215999–6488–01]
MA 01930. Mark the outside of the measures proposed by the Council
RIN 0648–BF64
envelope ‘‘Comments on 2016–2018 based only on whether the measures are
Herring Specifications;’’ consistent with the fishery management
Fisheries of the Northeastern United plan, plan amendment, the Magnuson-
States; Atlantic Herring Fishery; • Fax: (978) 281–9135, Attn: Shannah
Jaburek. Stevens Act and its National Standards,
Specification of Management and other applicable law. Otherwise,
Measures for Atlantic Herring for the Instructions: Comments sent by any
other method, to any other address or NMFS must defer to the Council’s
2016–2018 Fishing Years policy choices. Under the Atlantic
individual, or received after the end of
AGENCY: National Marine Fisheries the comment period, may not be herring regulations guiding the
Service (NMFS), National Oceanic and considered by NMFS. All comments specifications process, NMFS must
Atmospheric Administration (NOAA), received are a part of the public record review the Council’s recommended
Commerce. and will generally be posted for public specifications and publish notice of the
ACTION: Proposed rule, request for viewing on www.regulations.gov proposed specifications, clearly noting
comments. without change. All personal identifying any differences from the Council’s
information (e.g., name, address, etc.), recommendations. NMFS is proposing
SUMMARY: NMFS proposes regulations to confidential business information, or and seeking comment on the Council’s
implement the 2016–2018 fishery otherwise sensitive information recommended herring specifications
specifications and management submitted voluntarily by the sender will and river herring and shad catch caps
measures for the Atlantic herring be publicly accessible. NMFS will and whether they are consistent with
fishery. The specifications would set accept anonymous comments (enter ‘‘N/ the Herring FMP, the Magnuson-Stevens
harvest specifications and river herring/ A’’ in the required fields if you wish to Act and its National Standards, and
shad catch caps for the herring fishery remain anonymous). other applicable law.
for the 2016–2018 fishing years as FOR FURTHER INFORMATION CONTACT: The proposed 2016–2018 herring
recommended to NMFS by the New Shannah Jaburek, Fishery Management specifications are based on the
England Fishery Management Council. Specialist, (978) 282–8456, fax (978) provisions currently in the Herring
The river herring/shad catch caps are 281–9135. FMP, and provide the necessary
area and gear-specific catch caps for
SUPPLEMENTARY INFORMATION: elements to comply with the ACL and
river herring and shad for trips landing
accountability measure (AM)
more than 6,600 lb (3 mt) of herring. Background requirements of the Magnuson-Stevens
The specifications and management
Regulations implementing the Fishery Conservation and Management
measures are set in order to meet
Atlantic Herring Fishery Management Act (MSA). At its September 29, 2015,
conservation objectives while providing
Plan (FMP) for herring appear at 50 CFR meeting, the Council recommended the
sustainable levels of access to the
part 648, subpart K. The regulations at 2016–2018 specifications for the herring
fishery.
§ 648.200 require the Council to fishery, including river herring/shad
DATES: Public comments must be recommend herring specifications for catch caps. NMFS proposes to
received by July 21, 2016. NMFS’ review and proposal in the implement the herring specifications as
ADDRESSES: Copies of supporting Federal Register, including: The recommended by the Council and
rmajette on DSK2TPTVN1PROD with PROPOSALS
documents used by the New England overfishing limit (OFL); acceptable detailed in Table 1 below. For 2016–
Fishery Management Council (Council), biological catch (ABC); annual catch 2018 fishing years, the Council may
including the Environmental limit (ACL); optimum yield (OY); annually review these specifications
Assessment (EA) and Regulatory Impact domestic annual harvest (DAH); and recommend adjustments if
Review (RIR)/Initial Regulatory domestic annual processing (DAP); U.S. necessary.
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Document Created: 2016-06-21 01:30:13
Document Modified: 2016-06-21 01:30:13
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Advance notice of proposed rulemaking. | |
| Dates | Comments are due by August 1, 2016. Reply comments are due by August 29, 2016. | |
| Contact | Allison Davis: (202) 245-0378. [Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1-800-877-8339.] | |
| FR Citation | 81 FR 40250 |
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